Category: Employment

J and J Stern v Simpson: 1983

Unambiguous words of an employee resigning should be accepted as such.

Citations:

[1983] IRLR 52

Cited by:

Cited – Kwik-Fit (GB) Ltd v Lineham EAT 5-Feb-1992
The applicant claimed unfair dismissal. The employer replied that the employee had resigned.
Held: The employer’s appeal was dismissed. The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.251738

Patchett v Stirling Engineering Co Ltd: 1955

The court considered the position at common law of an employee claiming to patent his invention: ‘It is elementary that, where the employee in the course of his employment (ie in his employer’s time and with his materials) makes an invention which falls within his duty to make (as was the case here) he holds his interest in the invention, and in any resulting patent, as trustee for the employer unless he can show that he has a beneficial interest which the law recognises.’ The source of an employee’s duty is primarily contractual, though some of the terms are implied by law.

Judges:

Viscount Simonds

Citations:

(1955) 72 RPC 50

Cited by:

Cited – Liffe Administration and Management v Pinkava and Another CA 15-Mar-2007
The employee had patented in the US a trading system he invented whilst employed by the defendant, who now sought ownership. He appealed a finding that the inventions had been made during the normal course of his employment. The employment contract . .
Lists of cited by and citing cases may be incomplete.

Employment, Intellectual Property

Updated: 10 May 2022; Ref: scu.250558

XXX v YYY: CA 2004

Buxton LJ: ‘The first and most important rule of the law of evidence, though one that is not always perceived or observed, is that evidence is only admissible if it indeed is relevant to an issue between the parties.’

Judges:

Buxton LJ

Citations:

[2004] IRLR 471, [2004] EWCA Civ 231

Jurisdiction:

England and Wales

Cited by:

Cited – Amwell View School v Dogherty EAT 15-Sep-2006
amwell_dogherty
The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Employment

Updated: 10 May 2022; Ref: scu.245187

O’Kelly v Trust House Forte: 1984

Remission of a case to the industrial tribunal would be inappropriate only if it was clear what the result would be on such remission.

Citations:

[1984] QB 90

Cited by:

Cited – Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others CA 25-May-2006
The employer appealed a finding that he had been unreasonable in seeking to vary the employment contracts of his staff by adding post employment restrictive covenants, and that the consequent dismissals were unfair. Copies of the new contracts had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.242254

Veness v Dyson Bell and Co: 25 May 1965

The claimant sought damages against her employer saying they had failed to meet their duty of care to prevent bullying.
Held: The court refused to strike out the claim that ‘[the plaintiff] was so bullied and belittled by her colleagues that she came to the verge of a nervous breakdown and had to resign’.

Judges:

Widgery J

Citations:

Times 25-May-1965

Cited by:

Cited – Waters v Commissioner of Police for the Metropolis HL 27-Jul-2000
A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
Held: . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.241285

Austin Knight (UK) Ltd v Hinds: 1994

A post employment restrictive covenant prevented the employee dealing with any of the employer’s clients whether or not he had himself dealt with them. The defendant would be known to only one third of the customers.
Held: The covenant was not reasonable and was ineffective.

Citations:

[1994] FSR 52

Cited by:

Cited – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.240037

Department of the Environment v Fox: 1980

A rent officer, although holding a statutory office and not in employment, came within section 85(2)(b) because she performed services on behalf of the Crown for the purposes of a statutory body, namely a rent assessment committee.

Judges:

Slynn J

Citations:

[1980] 1 All ER 58

Statutes:

Sex Discrimination Act 1975 85(2)(b)

Cited by:

Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 May 2022; Ref: scu.236512

Faramus v Film Artistes’ Association: HL 1964

Parties to a contract may be bound to act in it according to the rules of natural justice.

Judges:

Lord Pearce

Citations:

[1964] AC 925, [1964] 1 All ER 25

Jurisdiction:

England and Wales

Citing:

Approved – Lee v Showmens Guild of Great Britain CA 1952
Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.

Cited by:

Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA 12-Jul-2005
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Employment

Updated: 09 May 2022; Ref: scu.228475

Regina, (Ultraframe (UK) Ltd) v Central Arbitration Committee: CA 22 Apr 2005

Two trade unions had sought recognition. Ballots had been held which almost secured recognition but fell a handful of votes short. The Unions criticised the way the ballots had been conducted, saying that a number of employees had not received voting papers, and had asked the Central Arbitration Committee (CAC) to order a re-run. The CAC now sought clarification of its jurisdiction to make such an order, the parties having agreed that the order in fact made was irrational.
Held: Despite the concession, in view of the significance of the question raised, the court had jurisdiction to determine the appeal. The CAC had power to order a ballot to be re-run. It was the overall function and structure of the CAC to take part in such decisions, and there was nothing in the schedule to gainsay that jurisdiction.

Judges:

Buxton, Maurice Kay, LJJ, Sir Martin Nourse

Citations:

Times 11-May-2005

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 sch 1 para 29

Jurisdiction:

England and Wales

Citing:

Appeal from – Ultraframe (UK) Ltd, Regina (on the Application of) v GMB and others Admn 4-Feb-2005
The unions sought recognition in representing the employees, and a ballot was undertaken. Though a majority of the workers voting opted for representation, their numbers voting fell four below the minimum required. The unions said that not all . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 May 2022; Ref: scu.224823

Preston and others v Wolverhampton Healthcare NHS Trust and Others (No 3): CA 7 Oct 2004

The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time.
Held: The effect of the Regulations was to transfer all employment rights unchanged save only the pension obligations. The pension rights were left were excepted by Reg 7 from the statutory fiction that the new employer had always been the employer. From the date of the transfer no new rights could be acquired as against the former employer, but any possible cause of action in respect of the untransferred pension rights remained. Accordingly the time for the running of any claim was from the date of the transfer. The action had not been begun within six months of that date and was out of time.

Judges:

Pill LJ, Jonathan Parker LJ and Laddie J

Citations:

Times 27-Oct-2004

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

Appeal from – Preston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
See Also – Fletcher and others and Preston and others v Midland Bank Plc and Wolverhampton Healthcare NHS Trust Secretary of State for Health and others EAT 24-Jun-1996
EAT Equal Pay Act – Addendum to principal judgment. Part timers’ claims for membership of pension schemes only made out of time.
EAT Equal Pay Act – (no sub-topic). . .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
See Also – Preston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .
See Also – Preston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .

Cited by:

Appeal from – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Lists of cited by and citing cases may be incomplete.

Employment, Limitation

Updated: 09 May 2022; Ref: scu.219088

Pillinger v Manchester Area Health Authority: 1979

The claimanat said his dismissal had not been a redundancy, since the person who replaced him did the same work.
Held: The dismissal must have been for some other reason. It was not a redundancy. The court discussed the meaning of the phrase ‘work of a particular kind’ in redundancies. Qualifications are not relevant the relevance except in so far as they imply special skills, attributes or knowledge.

Citations:

[1979] IRLR 430

Cited by:

Cited – British Broadcasting Corporation v Farnworth EAT 13-Jul-1998
The claimant employee said that the non-renewal of her fixed term contract was not a redundancy as alleged.
Held: It could still be a redundancy situation when an employee is dismissed because the organisation requires an employee with more . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 May 2022; Ref: scu.214632

Smith v Macarthys Ltd: EAT 14 Dec 1977

Mrs Smith was employed by the respondents, wholesale dealers in pharmaceutical products, as a warehouse manageress at a weekly salary of andpound;50. She complained of discrimination in pay because her male predecessor whose post she took up after an interval of four months, received a salary of andpound;60 per week. She brought proceedings before the industrial tribunal on the basis of the 1970 Act. The tribunal held that the applicant was employed on like work with her predecessor and ordered Macarthys to pay the applicant a salary equal to his salary.
Held: The employer’s appeal was dismissed.

Citations:

Unreported, 14 December 1977

Statutes:

Equal Pay Act 1970, Council Directive 75/117/EEC

Citing:

Applied – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .

Cited by:

Appeal from – Macarthys Ltd v Smith CA 1980
The employee had taken on a job substantially similar to that of a previous male employee, but had been paid less. She succeeded in a claim under the 1971 Act before the industrial tribunal and Employment Appeal Tribunal. The employer appealed . .
At EAT – Macarthys Ltd v Smith ECJ 27-Mar-1980
The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be . .
At EAT – Macarthys Ltd v Smith (No.2) CA 17-Apr-1980
The parties had disputed a difference in payment between the woman applicant and men doing similar work. After a lengthy dispute the parties now disputed the costs.
Held: The company had correctly been ordered to pay the costs. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 May 2022; Ref: scu.200627

Ministry of Defence v Jeremiah: CA 1980

The court considered the meaning of ‘detriment’ in discrimination law. Brightman LJ said: ‘I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment.’
Lord Justice Brandon said: ‘I do not regard the expression ‘subjecting . . to any other detriment’ as meaning anything more than ‘putting under a disadvantage’.’

Judges:

Brightman LJ, Brandon LJ, Denning LJ MR

Citations:

[1980] QB 87, [1980] ICR 13

Statutes:

Sex Discrimination Act 1975 4(2)(c)

Jurisdiction:

England and Wales

Cited by:

Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – St Helens Borough Council v Derbyshire and others HL 25-Apr-2007
The claimants were pursuing an action for equal pay. Several others settled their own actions, and the respondents then wrote direct to the claimants expressing their concern that the action ws being continued and its possible effects. The claimants . .
Applied – Kirby v Manpower Services Commission EAT 1980
The applicant, an employee at a job centre was demoted because he had disclosed confidential information about possible contraventions of the race relations legislation. He complained of race discrimination, saying his disclosure was a protected . .
Cited – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
Cited – HM Land Registry v Grant EAT 15-Apr-2010
hmlr_grantEAT10
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction /Reasons /Burns-Barke
An Employment Tribunal accepted that 6 out of 12 . .
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Cited – Bayliss v London Borough of Hounslow CA 21-Mar-2002
. .
Cited – Turner v Scope (A Registered Charity) EAT 18-Dec-2002
Appeal from rejection of claim for constructive unfair dismissal and of discrimination. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 May 2022; Ref: scu.207077

Allen and Son v Coventry: EAT 1980

Judges:

Lord McDonald

Citations:

[1980] ICR 9

Citing:

Not followed – Harold Fielding Ltd v Mansi NIRC 1974
An employee had been employed by two partners and later by one of them.
Held: Mr Mansi could not bring himself within the provision because: ‘Where one of two partners leaves the partnership, there are no partners, but only a sole proprietor, . .

Cited by:

Applied – Jeetle v Elster EAT 1985
The EAT considered the decision in Mansi: ‘Looked at as a whole, paragraph 17(5) [that is the paragraph then in force] is quite clearly intended to be a comprehensive provision to cover changes in the composition of those who comprise an ’employer’ . .
Cited – Bower v Stevens and Another CA 6-Apr-2004
The claimant had been employed by the respondents, partners in a former firm of solicitors. On the retirement of one partner, the practice was continued by the sole remaining partner, who claimed that the dissolution broke the continuity of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 May 2022; Ref: scu.197758

Robert Court and Son Ltd v Charman: EAT 1981

The EAT considered the effect of the statutory period of notice: ‘As a result, in our view Mr Charman has no right to complain to the Industrial Tribunal of unfair dismissal. Even if, as one must, one treats the effective date of termination as being 3 October (the combined effect of s 49 and s 55 [of the Employment Protection (Consolidation) Act 1978] requiring one to add the seven days after 26th September) he had not the necessary 52 weeks’ employment. However, he may have another remedy. The dismissal without notice seems to us to be a clear breach of contract. The measure for such breach may not be limited to one month’s loss of wages but may also include the loss of the right to compensation for unfair dismissal which he would have had if the correct notice had been given. Mr Charman therefore may not be left without remedy by our decision.’

Judges:

Browne-Wilkinson

Citations:

[1981] IRLR 437

Cited by:

Cited – Stapp v The Shaftesbury Society CA 1982
The employer had told the claimant: ‘I must ask you to relinquish your duties with effect from today 7 February 1981’ and thereby summarily dismissed him.
Held: The employer was clearly summarily dismissing with immediate effect in a wholly . .
Cited – Sally Harper v Virgin Net Limited CA 10-Mar-2004
The employee had been dismissed. Her contractual notice period was longer than the statutory period.
Held: The statutory notice period prevailed in calculating the date of dismissal. The contractual period could not be used to extend the total . .
Cited – Raspin v United Shops Ltd EAT 24-Mar-1999
A breach of contract by an employer failing to follow disciplinary procedure which leaves an employee unable to pursue claim for unfair dismissal, was remediable as a breach of contract by wrongful dismissal and damages accordingly. What must be . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages

Updated: 09 May 2022; Ref: scu.194625

Ishola v Transport for London (Disability Discrimination): EAT 16 Nov 2018

Disability related discrimination
DISABILITY DISCRIMINATION – Reasonable adjustments
The Tribunal had erred in only one material respect by making the wrong comparison when comparing, in a reasonable adjustments claim, the impact of erratic payment of sick pay on the Claimant with its impact on others on sick leave for reasons other than mental health related disability such as that from which the Claimant suffered. That issue would be remitted.
The Tribunal had also erred by not dealing adequately with the issue of ‘legitimate aim’ and proportionality when applying to the Claimant’s dismissal the justification test in section 15(1)(b) of the Equality Act 2010. But its error was not material as it cannot have affected the result.
The Tribunal had been entitled to find that the Claimant was not treated unfavourably by reason of something arising in consequence of his disability when deciding that the reason for erratic and incorrect sick pay payments was not something arising in consequence of his disability but in consequence of technical and administrative difficulty in the operation of the sick pay payment system.

Citations:

[2018] UKEAT 0184 – 18 – 1611

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 May 2022; Ref: scu.633790

Lakeview Computers Plc v Steadman: 26 Nov 1999

Citations:

Unreported, 26 November 1999

Jurisdiction:

England and Wales

Cited by:

Cited – Ultraframe UK Limited v Clayton, Fielding and Others ChD 3-Oct-2002
The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 May 2022; Ref: scu.191134

Anderson v James Sutherland (Peterhead) Ltd: 1941

The court discussed the authorities on the question of whether a managing director of a company was an employee or contractor. ‘Each of the decisions was given in cases where the context played a vital part in the conclusions arrived at.’

Judges:

Lord Carmont

Citations:

[1941] SC 203

Jurisdiction:

Scotland

Cited by:

Approved – Trussed Steel Concrete Ltd v Green 1946
A company director required to work full time for the company in return for a salary may be an employee: ‘… the question I have to consider is . . whether a managing director serving under a contract such as that by which Mr Green is bound is a . .
Cited – Ultraframe UK Limited v Clayton, Fielding and Others ChD 3-Oct-2002
The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 May 2022; Ref: scu.191132

Trussed Steel Concrete Ltd v Green: 1946

A company director required to work full time for the company in return for a salary may be an employee: ‘… the question I have to consider is . . whether a managing director serving under a contract such as that by which Mr Green is bound is a person employed in the undertaking within the meaning of the Essential Work (General Provisions) No. 2) Order, 142. My attention has been called to a number of cases in which in certain contexts managing directors have been held not to be in the one case servants and in another case in the employment of a company . . I think the right way of stating the conclusion I have reached is that there is nothing to prevent me giving to the words ‘persons employed in the undertaking’ in cl. 2 of the Essential Work (General Provisions) No. 2) Order, 1942, a wide meaning.’

Judges:

Cohen J

Citations:

[1946] 1 Ch 115

Statutes:

Essential Work (General Provisions) No. 2) Order 1942

Jurisdiction:

England and Wales

Citing:

Approved – Anderson v James Sutherland (Peterhead) Ltd 1941
The court discussed the authorities on the question of whether a managing director of a company was an employee or contractor. ‘Each of the decisions was given in cases where the context played a vital part in the conclusions arrived at.’ . .

Cited by:

Cited – Ultraframe UK Limited v Clayton, Fielding and Others ChD 3-Oct-2002
The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded . .
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 May 2022; Ref: scu.191131

Chief Constable of Kent County Constabulary v Baskerville: CA 3 Sep 2003

The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done also by the employer under section 41(2). The law had been changed after Liversidge. A chief constable must delegate his responsibilities, and the court could not say that what occurred fell outside the scope of s41(2), and it was therefore a question of fact for the tribunal.

Judges:

Sir Andrew Morritt VC, Peter Gibson, Kay LJJ

Citations:

Times 10-Sep-2003, Gazette 16-Oct-2003

Statutes:

Sex Discrimination Act 1975 17(1) 41(2), Police Act 1996 10

Jurisdiction:

England and Wales

Citing:

Distinguished – Chief Constable of Bedfordshire Police v Liversidge EAT 21-Sep-2001
The Chief Constable appealed against a refusal to strike out a claim by the respondent that he had racially discriminated against her. Force members had used code words for racially abusive terms about her. The claim was that he was vicariously . .
Cited – Burton and Another v De Vere Hotels EAT 3-Oct-1996
Two black waitresses, clearing tables in the banqueting hall of a hotel, were made the butt of racist and sexist jibes by a guest speaker entertaining the assembled all-male company at a private dinner party.
Held: The employer of the . .
Cited – Hendricks v The Commissioner of Police of the Metropolis CA 27-Nov-2002
The appellant appealed a finding of the Employment Appeal Tribunal against her. She had complained of sex and race discrimination. She alleged that the Tribunal had concentrated on the issues of policy within the respondent police force.
Held: . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Cited – Farah v Commissioner of Police for Metropolis CA 9-Oct-1996
Individual officers, but not the police force itself are answerable in a race discrimination claim. The force is not vicariously liable for an individual officer’s acts. . .

Cited by:

Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Lists of cited by and citing cases may be incomplete.

Employment, Police, Discrimination

Updated: 09 May 2022; Ref: scu.186305

Manchester University v Jones: 1993

The court prescribed a broad and expansive concept of the pool of comparators in discrimination cases.

Citations:

[1993] ICR 474

Cited by:

Cited – Secretary of State for Trade and Industry v Rutherford and Another; Same v Bentley EAT 2-Oct-2003
The claimants sought to challenge the legislation which removed their employment rights upon attaining the age of 65, arguing that this was discriminatory against men. The Secretary of State appealed the tribunal’s decision.
Held: The tribunal . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 May 2022; Ref: scu.186636

Royal Mail Group Ltd v Jhuti: SC 27 Nov 2019

The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly dismissed her. The Court of Appeal allowed the appeal holding that that a tribunal required to determine the reason for dismissal under section 103A was obliged to consider only the mental processes of the employer’s authorised decision-maker.
Held: J’s appeal succeeded. The reason under section 103A for the dismissal must be correctly identified. Parliament clearly intended to provide that, where the real reason for dismissal was whistleblowing, the automatic consequence should be a finding of unfair dismissal.
Where the real reason is hidden from the decision-maker behind an invented reason, the court must penetrate through the invention. So the answer to the appeal’s key question is, ‘yes, if a person in the hierarchy of responsibility above the employee determines that she should be dismissed for one reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason’.

Judges:

Lady Hale (President), Lord Wilson, Lord Carnwath, Lord Hodge, Lady Arden

Citations:

[2019] UKSC 55, [2020] WLR(D) 13, [2020] IRLR 129, [2020] ICR 731, [2020] 3 All ER 257, UKSC 2017/0207

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Employment Rights Act 1996 103A

Jurisdiction:

England and Wales

Citing:

At EAT (1) – Royal Mail Group Ltd v Jhuti EAT 19-May-2016
EAT Victimisation Discrimination: Dismissal – Whether the Employment Tribunal’s determination that dismissal was not automatically unfair under section 103A Employment Rights Act 1996 because the person who . .
At EAT (2) – Jhuti v Royal Mail Group Ltd and Others EAT 31-Jul-2017
EAT (Practice and Procedure) 1. While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order . .
Cited – Kuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
Cited – Post Office v Crouch 1974
Lord Reid said that that statutory provisions for claims for unfair dismissal ‘must be construed in a broad and reasonable way so that legal technicalities shall not prevail against industrial realities and common sense’
The idea of . .
Cited – Abernethy v Mott Hay and Anderson CA 1974
Lord Cairns said: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, . .
Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Meridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
At CA – Royal Mail Ltd v Jhuti CA 20-Oct-2017
The employee complained of her dismissal having made protected disclosures. The company said that the dismissal was for reasons of inadequate work.
Held: The company’s appeal succeeded. Subject to possible qualifications said to be irrelevant . .
At EAT (3) – Royal Mail Group Ltd v Jhuti EAT 19-Mar-2018
Practice and Procedure
The appeal and cross-appeal challenge
(i) whether the detriment claims are in time in circumstances where the grievance detriment claim failed; and
(ii) whether the grievance detriment claim was wrongly . .
Cited – Orr v Milton Keynes Council CA 1-Feb-2011
The employee was involved in offensive and insubordinate behaviour with his team leader. He was dismissed by a more senior manager, after a hearing in which the first manager gave evidence but which the claimant did not attend. It was later shown . .
Cited – The Co-Operative Group Ltd v Baddeley CA 15-May-2014
Underhill LJ referred to a situation in which the decision-maker’s beliefs had ‘been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation’. ‘For short,’ Underhill LJ had added, ‘an Iago situation’. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 May 2022; Ref: scu.645433

Smyth v Croft Inns Ltd: 1996

A barman in a public house with Protestant customers in a ‘loyalist’ area of Belfast was constructively dismissed because he was a Roman Catholic.
Held: That was discrimination ‘on the ground of religious belief’ within the section. The employer’s conduct did not cease to be discrimination on that ground because the employer would have treated in the same way a Protestant barman in a public house with Roman Catholic customers. That showed only that the employer would be guilty of religious discrimination against both barmen.

Judges:

Sir Brian Hutton LCJ

Citations:

[1996] IRLR 84

Statutes:

Fair Employment (Northern Ireland) Act 1976 16

Jurisdiction:

Northern Ireland

Cited by:

Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 08 May 2022; Ref: scu.183867

White v Pressed Steel Fisher: 1980

The case tested whether the Industrial Tribunal had jurisdiction to hear a complaint under the regulations. The regulations applied the provisions of the section, but the section had been repealed.
Held: The transitional provisions were sufficient to preserve the jurisdiction under the new Act.

Citations:

[1980] IRLR 176

Statutes:

Trade Union and Labour Relations Act 1974, Safety Representatives and Safety Committees Regulations 1977 (1977 No 500) 4(2) 11(5), Employment Protection (Consolidation) Act 1978 128

Cited by:

Re-applied – W A Duthie v Bath and North East Somerset Council EAT 29-Apr-2003
The claimant said he had not been given time off from work to attend relevant health and safety training courses. The company responded that the regulations had been repealed, and the tribunal had no jurisdiction.
Held: Jurisdiction was . .
Lists of cited by and citing cases may be incomplete.

Employment, Health and Safety

Updated: 08 May 2022; Ref: scu.182361

Healey v Bridgend County Borough Council: CA 14 Nov 2002

The teacher was ill and was not to return to work. She expressed her willingness to take early retirement, but then claimed her full entitlement to four months’ notice of her dismissal.
Held: The expression of willingness was to be taken as her notice to leave the job if the condition was fulfilled. She had not been dismissed, and was not entitled to an additional four months’ pay. She knew that she would not be returning to work, and that her entitlement to sick pay would also cease. ‘It seems to me to be plain ( and it is agreed) that at the meeting with the Director, it was not only agreed that the appellant would be applying for ill-health retirement, but that she must at that meeting as I have explained, have conveyed to the Director a decision, as she said, to retire on the grounds of ill-health. That must, in my judgment, amount to a notice of resignation.’ and ‘An objective consideration of the communicated decision to retire, treated as a notice to retire, would carry with it the implication that it was to be effective only if the application for benefit were successful. That condition has been fulfilled. In my judgment the other implication which ineluctably arises from the facts is that her retirement would become effective from the earliest date that benefits become payable.’ and ‘If the officious bystander were to determine when that retirement would become effective, he would say, ‘when the benefits become available to her’. Describing Mrs Healey’s actions Ward LJ said: ‘She was doing two things : first she was applying to a third party for these retirement benefits: but secondly, she was giving her employers notice of the decision to retire’.

Judges:

Ward, Schiemann, Longmore LJJ

Citations:

Times 02-Dec-2002, Gazette 30-Jan-2003, [2002] EWCA 1996

Statutes:

Teachers Pensions Regulations 1997 (1997 No 3001)

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.
Lists of cited by and citing cases may be incomplete.

Education, Employment

Updated: 08 May 2022; Ref: scu.178306

Hobson v Hackney London Borough Council: CA 31 Jul 2002

In presenting its judgment on the applicant’s sex and race discrimination case, the employment tribunal had stated that the applicant had been over sensitive.
Held: Tribunals should avoid making aspersive comments about the parties before them. This area is one necessarily involving strong emotions, and no case could be helped by such comments. A tribunal can and should make its views known, but need not do so in this way.

Judges:

Gibson, Arden LLJ, Cresswell J

Citations:

Times 22-Oct-2002

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 08 May 2022; Ref: scu.177482

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 should be particularly careful before refusing to exercise it. Here they had doubts about the veracity of a medical certificate, but there had been alternatives to refusing an adjournment and proceeding in the applicant’s absence. To proceed in his absence was to deny him his right to a fair trial under the Convention. The exercise of a discretion could be set aside where the court had taken into account an irrelevant factor. The EAT had been right to uphold an appeal against the dismissal of the claim. Each such application fell to be decided on its own facts, and the court was not introducing a rule as to how such matters were to be dealt with.

Judges:

Lord Justice Peter Gibson, Lady Justice Arden and Mr Justice Buckley

Citations:

Times 21-Aug-2002, [2002] IRLR 721

Statutes:

European Convention on Human Rights 10

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Appeal from – Teinaz v Wandsworth Borough Council EAT 25-Jan-2001
Preliminary hearing. . .

Cited by:

See Also – Teinaz v Wandsworth EAT 22-Nov-2001
EAT Procedural Issues – Employment Tribunal. . .
Cited – O’Cathail v Transport for London EAT 13-Jan-2012
EAT PRACTICE AND PROCEDURE
Case management
Postponement or stay (refusal of adjournment)
The Claimant submitted medical evidence to the effect that he was unfit to attend the hearing of his claim . .
Cited – Riley v The Crown Prosecution Service CA 30-Jul-2013
The claimant’s employment action had been struck out when the Tribunal concluded that given the medical evidence a fair trial would not be possible within the forseeable future. . .
Lists of cited by and citing cases may be incomplete.

Employment, Human Rights

Updated: 08 May 2022; Ref: scu.174715

Zaiwalla and Co (a Firm) v Walia: EAT 24 Jul 2002

The claimant sought aggravated damages for the aggressive way the respondent firm had defended her action for sex discrimination.
Held: In exceptional circumstances, and this was one, the tribunal could award additional damages where a respondent behaved in his defence in an over-enthusiastic way: ‘If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim. It is easy to imagine cases in which the misconduct amounting to victimisation might only arise at a late stage of the proceedings, perhaps only during the hearing. It seems to us that it would be regrettable if such victimisation could only be compensated by the commencement of further proceedings.’ Generally a party should be warned in advance that this might be considered, and such awards should remain the exception.
The defendant said that the tribunal had not demonstrated its independence, but had restricted his cross examination of the claimant and had made many interruptions. The EAT found the allegation of bias unfounded.
Though there had been a delay of three months before promulgation of the decision, there was no reason to think that it was undermined. The defendant had not met the test for alleging perversity as set down in Yeboah.
‘overenthusiastic litigants and litigants in Employment Tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. ‘

Judges:

Mr Justice Maurice Kay, Dr D. Grieves and Mr P. R. A. Jacques

Citations:

Times 01-Aug-2002, EAT/827/00, EAT/451/00, [2002] IRLR 697

Links:

EATn

Statutes:

Sex Discrimination Act 1975 65

Citing:

See Also – Zaiwalla and Co and Another v Walia EAT 16-Nov-2000
. .
See Also – Zaiwalla and Co and Another v Walia EAT 18-Sep-2001
. .
Cited – Hauschildt v Denmark ECHR 24-May-1989
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
Cited – Nash v Chelsea College of Art and Design QBD 11-Jul-2001
A student’s appeal against her examination marking was heard, but the reasons were only given some months later.
Held: When looking to see whether those reasons should be admitted, a court should be careful before accepting late reasons, . .
Applied – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Armitage Marsden and HM Prison Service v Johnson EAT 1997
The tribunal set out the relevant principles for assessing awards for injury to feelings for unlawful discrimination. The principles are: ‘(1) Awards for injury to feelings are compensatory. They should be just to both parties. They should . .
Cited – The Chief Constable of West Yorkshire Police v Vento EAT 4-Dec-2001
EAT Sex Discrimination – Direct . .

Cited by:

Cited – Ministry of Defence v Fletcher EAT 9-Oct-2009
mod_fletcherEAT2009
EAT SEX DISCRIMINATION
Injury to feelings
SEXUAL ORIENTATION DISCRIMINATION
Where there is overlap between the basis of aggravated damages and compensation for injury to feelings, double counting . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages, Discrimination

Updated: 08 May 2022; Ref: scu.174744

Esso Petroleum Company v Jarvis and others Brentvine Limited: EAT 14 Nov 2001

The claimants had come to the employer through an agency. The issue now was whether they were the employees of the respondent. The employer said there was no mutuality of obligation, and therefore no contract, and no possible dismissal.
Held: The tribunals findings of fact could not support their conclusion that in law the claiments were employees of the respondent.

Judges:

His Honour Judge D Pugsley

Citations:

EAT/0831/00

Statutes:

Employment Agency Act 1973

Citing:

Cited – Hewlett Packard Ltd v M O’Murphy EAT 26-Sep-2001
The applicant, a computer programmer, worked through his own limited company. That company contracted with an agency to provide his services, and the agency contracted with appellant to supply on those services. The contracts did contain some . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Stevedoring and Haulage Services Limited v A M Fuller and others CA 9-May-2001
The claimants were stevedores whose contracts were intermittent. The employer denied that they were employees.
Held: There was no contract while the claimants were not at work. There was no overarching or global contract, and it was not . .
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Motorola Ltd v Gary Davidson, Melville Craig Group Ltd EAT 18-May-2000
EAT Contract of Employment – Definition of Employee . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 May 2022; Ref: scu.172078

John E Melville v Brown Brothers and Co Ltd: EAT 8 Jun 1999

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

Judges:

The Honourable Lord Johnston

Citations:

EAT/110/00

Links:

EAT

Cited by:

Cited – Matheson v Mazars Solutions Ltd EAT 16-Dec-2003
EAT Practice and Procedure – Application. The application had been presented timeously at the ET in Edinburgh, but was out of time when retransmitted to Glasgow. The tribunal had found the Edinburgh office to be . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 May 2022; Ref: scu.171366

A G Davies and others v M J Wyatt (Decorators) Ltd: EAT 13 Jul 2000

Upon implementation of the Working Time Directive requiring employers to provide paid holiday, the respondents adjusted the wages of their staff down to balance the new holiday payments. The Regulations provided that the new rights should not affect any other existing contractual right, and accordingly the reduction was unlawful.
EAT Unlawful Deduction from Wages –

Judges:

His Honour Judge David Wilcox

Citations:

Times 24-Oct-2000, EAT/1262/99

Links:

EAT

Statutes:

Council Directive 93/104/EC

Jurisdiction:

England and Wales

Employment

Updated: 08 May 2022; Ref: scu.171454

Able and others v IBC Vehicles Ltd: EAT 20 Apr 2002

The parties sought construction of a term of the contract of employment as to the payments due when an employee was not required to work (lay-off). It provided for a payment during such a period, but the company suspended the clause after two weeks. Had the company given appropriate notice?
Held: The EAT was in as good a position as the original tribunal to construe a document. There were no issues of fact to settle. The clause required work to be unavailable at the time when the notice was given. The company could not give notice anticipating reduced demand. The idea was to give the workforce a breathing space once the company found itself in this position. There had been an unlawful deduction from the wages.

Judges:

His Hon Judge Clark

Citations:

EAT/409/01

Employment, Contract

Updated: 08 May 2022; Ref: scu.172148

Leslie Cook, Winifred Cook v Norlands Limited: PC 27 Nov 2001

(Isle of Man) The claimants had been employed for 27 years managing an amusement centre. They had a lower salary, reflecting a promise that the tied accommodation was to be ‘theirs’ after 7 years. After dismissal, the company sought possession, and the claimants sought transfer of the freehold, and asserted a proprietary estoppel. However there was no evidence as to the details of any calculations made, and the claimants had continued to accept low wages long after the house might have been paid for. The claim of a contract was void for uncertainty, and past performance issues did not arise.

Citations:

Appeal No 51 of 2000

Links:

PC, PC

Statutes:

Law Reform (Enforcement of Contracts) Act 1956 (Isle of Man)

Land, Limitation, Employment, Estoppel

Updated: 08 May 2022; Ref: scu.166940

Roberts v Tate and Lyle (Judgment): ECJ 26 Feb 1986

Europa The term ‘ dismissal ‘ contained in article 5(1) of directive no 76/207 must be given a wide meaning ; an age limit for the compulsory redundancy of workers as part of a mass redundancy falls within the term ‘ dismissal ‘ construed in that manner, even if the redundancy involves the grant of an early retirement pension.
In view of the fundamental importance of the principle of equality of treatment for men and women, article 1 (2) of directive no 76/207 on the implementation of that principle as regards access to employment and working conditions, which excludes social security matters from the scope of the directive, must be interpreted strictly. It follows that the exception to the prohibition of discrimination on grounds of sex provided for in article 7 (1)(a) of directive no 79/7 on the progressive implementation of the principle of equal treatment in matters of social security applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.
Article 5 (1) of directive no 76/207 must be interpreted as meaning that a contractual provision which lays down a single age for the dismissal of men and women under a mass redundancy involving the grant of an early retirement pension, whereas the normal retirement age is different for men and women, does not constitute discrimination on grounds of sex, contrary to community law.

Citations:

C-151/84

European, Employment, Discrimination

Updated: 08 May 2022; Ref: scu.133906

Van Binsbergen v Bedrijfsvereniging Voor De Metaalnijverheid: ECJ 3 Dec 1974

A Member State cannot be denied the right to take measures to prevent the exercise by a person providing services whose activity is entirely or principally directed towards its territory of the freedom guaranteed by Article 59 [on freedom to provide services] for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within the State.

Citations:

[1974] ECR 1299 [13]:, C-33/74

Jurisdiction:

European

European, Employment

Updated: 08 May 2022; Ref: scu.132374

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 required to continue the employment. The identity of the employer and employee were relevant factors.
Lord Jauncey said: ‘The character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-a-vis the employer must all be considered in determining the extent of the duty and the seriousness of any breach thereof.’ and ‘conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.’ and ‘The question of whether there has been a repudiatory breach of that duty justifying instant dismissal must now be addressed. Whether misconduct justifies summary dismissal of a servant is a question of fact.’

Judges:

Lord Jauncey of Tullichettle

Citations:

Gazette 09-Jun-1999, [1999] IRLR 288

Jurisdiction:

England and Wales

Citing:

Cited – Clouston and Company Limited v Corry PC 1-Dec-1905
(New Zealand) . .
Cited – 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 . .
Cited – Sinclair v Neighbour CA 1967
The manager of a betting shop took andpound;15 from the shop till for the purpose of gambling; he knew that he would not have been given permission to do so if he had asked. He put an IOU in the till and repaid the money next day. He was summarily . .
Cited – Lewis v Motorworld Garages Ltd CA 1985
The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: ‘This breach of this implied obligation of trust and confidence may consist of a series of action on . .

Cited by:

Cited – C Lo Sterzo v London Borough of Lewisham EAT 2-Oct-2000
The applicant had been dismissed for gross misconduct in his supervision of building works carried out for his respondent employer. He appealed dismissal of his claim on the basis that no tribunal could properly find the employers decision to be . .
Cited – Fulham Football Club (1987) Ltd v Tigana CA 19-Jul-2005
The defendant had acted as manager of the claimant. The claimant appealed dismissal of its claim for breach of contract and of fiduciary duty, and his claim for payment of sums due under share options granted to him.
Held: The appeal failed. . .
Cited – Mars UK Ltd T/A Masterfoods v K Parker EAT 24-Oct-2005
EAT Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of section 98 of the Employment Rights Act . .
Cited – 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: 08 May 2022; Ref: scu.84238

Nothman v Barnet London Borough County Council (No 2): CA 1980

Ormrod, LJ discussed the making of an order for re-instatement after an unfair dismissal finding, saying: ‘Miss Nothman has mentioned in her proposed Notice of Appeal (and from time to time touched on it in this Court) what she believes to be the background of this case, that is her belief that there has been a long-standing conspiracy against her. We have made it clear in this Court that we cannot investigate that. It is only right to say that anyone who believes that they are a victim of conspiracy, and particularly by their employers, is not likely to be a satisfactory employee in any circumstances if reinstated or re-engaged. In my judgment the Employment Appeal Tribunal – and as my Lord in the course of argument has pointed out it is not just Mr Justice Slynn but he and two very experienced members of the Tribunal – came to the conclusion that it was in their words ‘impossible to order reinstatement’. Then in the next sentence the judgment continues:
‘We are not aware of any other vacancy which the authority would consider suitable for her. Her application for an order for reinstatement is refused.’
In my judgment there is no possible way in which that exercise of their discretion by the Employment Appeal Tribunal can be challenged in this case. It seems to me, speaking for myself, an absolutely inevitable conclusion. This legislation is not designed to enable complainants to re-establish their reputation or vindicate their reputation or anything of that kind. It is concerned with whether they were fairly or unfairly dismissed and once a conclusion is reached that they were unfairly dismissed, the question is how reasonably and most sensibly to compensate the unfairly dismissed employee.’
Sir David Cairns said: ‘When Miss Nothman made her application for leave to appeal, it was dealt with by Mr Justice Slynn on behalf of the Employment Appeal Tribunal in this way. He refused Miss Nothman’s application for leave to appeal to the Court of Appeal and said:
‘Our decision not to order reinstatement is an exercise of our discretion based on our assessment of the facts of the case. We do not consider that her wish to appeal on the conspiracy issue raises a matter of law; it raises a question of fact.’
Those are observations with which I entirely agree . .’

Judges:

Ormorod LJ, Sir David Cairns

Citations:

[1980] IRLR 65

Jurisdiction:

England and Wales

Citing:

See Also – 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:

Cited – Wood Group Heavy Industrial Turbines Ltd v Crossham EAT 1998
Re-instatement may be inappropriate where an employer has lost confidence in an employee. The Employment Tribunal’s order for re-engagement was set aside where the Respondent genuinely believed that the Claimant was using and dealing in drugs in the . .
Distinguished – Wolff v Oasis Community Learning (Unfair Dismissal : Reinstatement/Re-Engagement) EAT 17-May-2013
EAT UNFAIR DISMISSAL – Reinstatement/Re-engagement
Claimant a teacher working for an institution responsible for schools in different parts of the country – Held to have been unfairly dismissed – In . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 May 2022; Ref: scu.509334

Molaudi v Ministry of Defence: CA 21 Mar 2012

Affirmed

Judges:

Hooper LJ

Citations:

[2012] EWCA Civ 576

Jurisdiction:

England and Wales

Citing:

Appeal from – Molaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .

Cited by:

Cited – Williams v The Ministry of Defence EAT 7-Sep-2012
EAT Jurisdictional Points : Excluded Employments – The Claimant was in the RAF. Before presenting a discrimination claim to the Employment Tribunal she was required to go through the service complaints procedure. . .
Lists of cited by and citing cases may be incomplete.

Employment, Armed Forces

Updated: 08 May 2022; Ref: scu.470921

Walsall Borough Council v Sidhu: EAT 1980

EAT The appellant Council had withdrawn its appeal at the last moment. The successful individual respondent in the Employment Appeal Tribunal, had been given assistance by the CRE, and had herself incurred no costs, whereas the CRE, on her behalf, had. As the jurisdiction under the Rule was only that a payor could be obliged to pay costs and expenses ‘incurred by that other party’, it followed upon the respondent having incurred nothing, that she could be paid nothing.
An order for costs by an Industrial Tribunal can only be made in favour of a party, and not for a non-party, such as a solicitor representing one of the parties.
Slynn J said as to the rules: ‘As a matter of construction, the power to order costs or expenses to be paid to ‘any other party’ must be a party to the proceedings. That seems to us clear as a matter of construction of the rule; but in any event is put beyond doubt if one turns to paragraph 19 of Schedule 11 to the Employment Protection (Consolidation) Act 1978 which is repeating earlier legislation and which refers to the power of this Tribunal to order that costs may be paid to any other ‘party to the proceedings’.
It seems to us here that before we can make an order the local authority shall pay any monies to the Applicant we must be satisfied that she has incurred costs or expenses. The important word is ‘incurred’. Apparently, the position in this particular case is that the Applicant has not incurred any costs or expenses.’

Judges:

Slynn J

Citations:

[1980] ICR 519

Statutes:

Employment Appeal Tribunal Rules 1976 2191), Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Cited by:

Cited – Taiwo v Olaigbe and Another EAT 5-Mar-2013
EAT Race Discrimination Direct
Indirect
PRACTICE AND PROCEDURE
A Tribunal dismissed claims by a Nigerian it found to have been mistreated when she worked for the Respondents as a domestic worker (a . .
Lists of cited by and citing cases may be incomplete.

Employment, Costs

Updated: 08 May 2022; Ref: scu.471567

Monie v Coral Racing Ltd: CA 1980

The employee appealed. He had been dismissed. The employer knew that there had been thefts but could not identify which of two employees was responsible. It dismissed them both. The claimant had been one of the two and now appealed against rejection of his claim for unfair dismissal.
Held: The appeal failed. The employer had acted properly.

Citations:

[1980] IRLR 464

Jurisdiction:

England and Wales

Employment

Updated: 08 May 2022; Ref: scu.470362

Nottinghamshire County Council v Lee: CA 1980

In the case of a fixed term contract which expired and had not been renewed: ‘Why was not the employee’s contract renewed?’ If the answer was, in the case of a teacher, that there was no more work for him to do and the requirements of the school or college for teachers or lecturers had diminished and were expected to be diminished, there was a dismissal for redundancy. Eveleigh LJ said: ‘The fact that the failure to renew was foreseen right from the beginning in no way alters the conclusion in my view that the dismissal was attributable to the ‘redundancy situation’.

Judges:

Eveleigh LJ

Citations:

[1980] ICR 635

Statutes:

Redundancy Payments Act 1965

Jurisdiction:

England and Wales

Cited by:

Cited – Pfaffinger and Another v City of Liverpool Community College and Another EAT 4-Mar-1996
The EAT considered the status of part time lecturers of courses at colleges of higher education. They were employed on fixed term contracts for a term at a time. The court was asked whether, if a contract was not renewed, that amounted to a . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 May 2022; Ref: scu.460435

Morton Sundour Fabrics v Shaw: QBD 1966

The court considered whether the employee had been given a notice falling within the Act so as to give rise to a redundancy.
Held: Widgery J said: ‘there are certain formalities about the type of notice necessary to determine a contract of employment. The notice may be a peremptory notice, sometimes referred to as a dismissal without notice, but if it is to operate on a future day, the notice must specify that date, or at least contain facts from which that date is ascertainable.’

Judges:

Widgery J

Citations:

(1966) KIR 1, [1967] ITR 84

Statutes:

Redundancy Payments Act 1965 3

Jurisdiction:

England and Wales

Cited by:

Cited – Slee v Secretary of State for Justice (1) Admn 19-Nov-2007
The claimant sought compensation under the Regulations as a result of her dismissal on the re-organisation of the Magistrates Court at Wimbledon from her position as court clerk. The EAT had allowed her claim for unfair dismissal. Her position on . .
Distinguished – The Governing Body of Wishmorecross School v Balado EAT 12-Jul-2011
EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
Claimant given notice of dismissal subject to a right of appeal and on the basis that the employment would not terminate if she . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 May 2022; Ref: scu.450028

Lowndes v Specialist Heavy Engineering Ltd: 1977

Citations:

[1977] ICR 1

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 May 2022; Ref: scu.441862

Mont v Mills: 1993

Simon Brown LJ said: ‘I cannot accept that the law’s only concern underlying the doctrine of restraint of trade is to ensure that employees can earn their living . . If this were so, such restraints could always be purchased outright and yet the cases clearly show that they cannot be. And in any event, public policy clearly has regard too to the public interest in competition and in the proper use of an employee’s skills.’

Judges:

Simon Brown LJ

Citations:

[1993] IRLR 173

Jurisdiction:

England and Wales

Cited by:

Cited – Caterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 May 2022; Ref: scu.449766

Duke v Reliance Systems Limited: EAT 1982

The EAT was asked whether a policy in regard to a retiring age had been communicated to employees or whether there was evidence of any universal practice to that effect. Browne-Wilkinson J said: ‘[T]here was no evidence that the employers’ policy of retirement for women at the age of 60 had been communicated to such employees in 1978 nor was there any evidence of any universal practice to that effect. A policy adopted by management unilaterally cannot become a term of the employee’s contracts on the grounds that it is an established custom and practice unless it is shown that the policy has been drawn to the attention of the employees or has been followed without exception for a substantial period.’

Judges:

Browne-Wilkinson J

Citations:

[1982] ICR 449

Jurisdiction:

England and Wales

Cited by:

Appeal from – Duke v GEC Reliance Systems Limited CA 16-Feb-1987
The court was said to have failed to have proper regard to a European Directive.
The court discussed the meaning of the phrase ‘per incuriam’: ‘I have always understood that the doctrine of per incuriam only applies where another division of . .
At EAT – Duke v GEC Reliance Systems Limited HL 2-Jan-1988
The court was asked about the differential in retirement ages between men and women in private sector employment, and whether it constituted sex discrimination.
Held: Section 2(4) of the 1972 Act did not allow a British Court to distort the . .
Cited – Garratt v Mirror Group Newspapers Ltd CA 13-Apr-2011
The claimant had been employed by the defendant. They made him redundant. He claimed and enhanced payment saying that his emloyment was covered by a collective agreement, but when he refused to sign a compromise agreement, the company paid him only . .
Cited – Quinn v Calder EAT 1996
Employees sought to establish a contractual right to an enhanced redundancy payment. Lord Coulsfield referred to Duke and said: ‘In a case such as the present, the factors to which Browne-Wilkinson J referred are likely to be among the most . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 08 May 2022; Ref: scu.434916

Pritchard-Rhodes Limited v Boon and Milton: EAT 1979

An application to the Industrial Tribunal for a redundancy payment was not effective because it failed to comply with the statutory requirements which, on their true construction, provided that an application could not be effectively made to an Industrial Tribunal for redundancy payment earlier than the date of termination of the contract. The application was not made in proper time because they were made before the date of termination.

Citations:

[1979] IRLR 19

Jurisdiction:

England and Wales

Citing:

Applied – Watts v Rubery Owen Conveyancer Limited EAT 1977
The claimant sought a redundancy payment. The employer said that his employment had not yet finished.
Held: Kilner Brown J said: ‘The effect of these cases is that where an application is made to an Industrial Tribunal before the act of . .

Cited by:

Mentioned – 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

Updated: 08 May 2022; Ref: scu.430686

Hooper v British Railways Board: CA 1988

Lord Justice Ralph Gibson said: ‘Before dealing with Mr Marr-Johnson’s submissions reference must be made to what are, in my judgment, certain basic principles of the law of contract. (i) An offer which, upon acceptance, is relied upon as altering the legal relationship between the parties, must be construed objectively. Evidence to show what the offeror intended to be the meaning of the term is not admissible for that purpose: see Prenn v Simmonds (1971) 1 WLR 1381.’

Judges:

Ralph Gibson LJ

Citations:

[1988] IRLR 517

Jurisdiction:

England and Wales

Cited by:

Cited – Rolls Royce Motor Cars Ltd v Price and others EAT 2-Feb-1993
The company appealed against findings of unfair dismissal of the claimants, saying that they had been made redundant. The claimants said that the company had broken the agreed procedure, and that the dismissals were automatically unfair.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.393007

Daniel v Homerton Hospital Trust: CA 9 Jul 2009

Gibson LJ set out the proper approach for the EAT considering an appeal against the use of the discretion to extend the time to present a claim to the tribunal: ‘The discretion of the Tribunal is a wide one. This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong’.

Judges:

Gibson LJ

Citations:

Unreported 9 July 2009

Jurisdiction:

England and Wales

Cited by:

Cited – Chief Constable of Lincolnshire Police v Caston CA 8-Dec-2009
The appellant challenged the extension of time given to the claimant to begin his claim for disability discrimination.
Held: The appeal failed: ‘the discretion under the Statute is at large. It falls to be exercised ‘in all the circumstances . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.384142

Bodha (Vishnudut) v Hampshire Area Health Authority: EAT 1982

EAT Bodha was dismissed for professional misconduct on 23 December after a disciplinary hearing. On 24 December the employers wrote to him informing him of their decision stating that any internal appeal should be made within 21 days.
The employee was advised by his Union to use the internal disciplinary procedure and then, if that was unsuccessful, to make a complaint of unfair dismissal to an Industrial Tribunal, even if it meant that the application to the Tribunal would be late.
The internal appeal was dismissed on 15 April and the employee then presented his complaint to the Industrial Tribunal. The Tribunal held that it was reasonably practicable for the complaint to have been presented in time. Held The employee’s appeal was dismissed.
Browne-Wilkinson J discussed applications to extend the time for filing an unfair dismissal claim: ‘There may be cases where the special facts (additional to the fact that there is an internal appeal pending) may persuade an industrial tribunal, as a question of fact, that it was not reasonably practicable to complain to the industrial tribunal within the time limit. But we do not think that the mere fact of a pending internal appeal, by itself, is sufficient to justify a finding of fact that it was not ‘reasonably practicable’ to present a complaint to the industrial tribunal.’
and ‘The statutory test remains one of practicability. The statutory words still require the Industrial Tribunal to have regard to what could be done albeit what is practicable in an common-sense way. The statutory test is not satisfied just because it was reasonable not to do what could be done . . Reasonably practicable means ‘reasonable capable of being done’ not ‘reasonable’.

Judges:

Browne-Wilkinson J P

Citations:

[1982] ICR 200

Jurisdiction:

England and Wales

Cited by:

Cited – The Royal Bank of Scotland Plc v Theobald EAT 10-Jan-2007
EAT Claim for unfair dismissal not presented timeously, within three months, but was presented thirteen days thereafter. During most of the three month period, the Claimant had an outstanding appeal process . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.383829

Spencer v Paragon Wallpapers Ltd: 1976

The court set out what was expected of an employer undertaking a dismissal on ill-health grounds. Philips J emphasised the importance of scrutinising all the relevant factors:- ‘Every case depends on its own circumstances. The basis question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?
Relevant circumstances included the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do.’

Citations:

[1976] ICR 301, [1976] IRLR 373

Jurisdiction:

England and Wales

Cited by:

Cited – Rothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Cited – First West Yorkshire Ltd (T/A First Leeds) v Haigh EAT 20-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Where an employee is long-term absent on grounds of ill health, and his pension scheme contains provisions entitling him to an ill health pension on grounds . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.377522

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 cases of constructive dismissal, notwithstanding the somewhat artificial approach to language which is involved, the two-stage test for unfair dismissal (whether there was a breach and what was the reason for it) must still be conducted.

Judges:

Waller LJ

Citations:

[1982] IRLR 166

Jurisdiction:

England and Wales

Citing:

Applied – 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 . .

Cited by:

Cited – Berriman v Delabole Slate Ltd CA 1985
Browne-Wilkinson LJ described the potential difficulty of fitting together the concept of fairness and a constructive dismissal, but said: ‘In our judgment, the only way in which the statutory requirements . . can be made to fit a case of . .
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.
Cited – F and G Cleaners v Saddington and Others EAT 16-Aug-2012
EAT UNFAIR DISMISSAL – Mitigation of loss
The Claimants worked for Respondent 1 who supplied window cleaning services under contract to a local authority. The contract was subject to a re-tendering process; . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.377344

Morris Angel and Son Ltd v Hollande: CA 1993

The managing director of a Group of companies agreed a covenant in restraint of trade in his service contract. For one year after ceasing to be so employed he would not do business ‘With any firm or company who has at any time during the one year immediately preceding done business with the Group’. The Group was then taken over by the Plaintiffs and the managing director was dismissed. There was a Regulation 5(1) transfer. The Plaintiffs sought to enforce the restrictive covenant against the managing director. What did the contract mean in the context of the transfer? Did it bar the erstwhile Group managing director from doing business with people who had done business with the Plaintiffs in the next preceding year (a thing he was not attempting to do) or with those who had done business in that period with the original Group? Turner J, having referred to the words in Regulation 5(1) that the effect was to be as if the contract was made with the transferee Plaintiff, held the former to be the case. As that type of breach of covenant was not threatened, Turner J granted no injunction against the managing director.
Held: Dillon LJ dealt with the question of the transfer generally. Speaking of Turner J.’s construction he said:- ‘The difficulty about that approach to my mind is that it turns the obligation on the employee . . into a quite different and possibly much wider obligation than the obligation which bound him before the transfer, that is to say an obligation not to do business etc. with the person who had done business in the relevant year with the Plaintiffs and not the company. Such an obligation was not remotely in contemplation when the services agreement was entered into and I can see no reason why the regulation should have sought to change the burden on the employee. As Lord Templeman pointed out, the object was that the benefit and burden should devolve on the new employer. That would mean in the present context that the transferee should be able to enforce the same restriction. The more reasonable construction is in my judgment that the words ‘the transfer shall have effect . . ‘are to be read as referring to the transferee as the owner of the undertaking transferred or in respect of the undertaking transferred. The effect therefore is that [the relevant clause] can be enforced by the Plaintiffs if Mr Hollande within the year after 27th April 1992 does business with persons who in the previous year had done business with the undertaking transferred, of which the Plaintiffs are deemed as a result of the transfer retrospectively to have been the owner. The Plaintiffs are thus given locus standi to enforce the restriction’.

Judges:

Dillon LJ

Citations:

[1993] IRLR 169

Jurisdiction:

England and Wales

Cited by:

Cited – Tapere v South London and Maudsley NHS Trust EAT 19-Aug-2009
EAT CONTRACT OF EMPLOYMENT
Construction of term
The Employment Tribunal erred in construing the terms and conditions of employment as permitting the employer to transfer the employee to another . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.373265

Page v Freight Hire (Tank Haulage) Ltd: EAT 1981

The complainant was a female lorry driver, aged 23, employed by a firm specialising in the carriage of chemicals. One chemical was potentially embryotoxic, and the manufacturers warned that special precautions should be taken to avoid women of child-bearing age being exposed to it. The employers therefore refused to allow the complainant to drive lorries carrying the chemical in question. She complained of sex discrimination.
Held: Her appeal failed. The employers had a defence under section 51(1) of the 1975 Act, which excluded liability for an otherwise unlawfully discriminatory act ‘if it was necessary for [the respondent] to do it in order to comply with a requirement . . of an Act passed before this Act’. The employers were obliged to act in the way complained of in order to comply with their duty under section 2(1) of the 1974 Act and could rely on the defence. The Equal Opportunity Commission submitted ‘that the employers had to show ‘that there is no other way of protecting [the] woman . . other than’ by subjecting her to the detriment complained of, and that that must be demonstrated by reference to an absolute standard, irrespective of any limits on the employer’s knowledge or understanding of the safety risk. Slynn J. rejected that submission, holding that it was enough that the employers could show that the act complained of was necessary on the information available to them.

Judges:

Slynn J

Citations:

[1981] ICR 299

Statutes:

Sex Discrimination Act 1975 51(1), Health and Safety at Work Act 1974 2(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Health and Safety

Updated: 07 May 2022; Ref: scu.374668

Nikitas v Solihull Metropolitan Borough Council: EAT 1986

An interlocutory order once made may be revisited by the Employment Tribunal. Waterhouse J said: ‘It is abundantly clear, therefore, that interlocutory orders do not constitute a decision within the meaning of the Industrial Tribunal (Rules of Procedure) Regulations 1980. Moreover, the power of review provided by rule 10(1) applies only to a decision within the meaning of the Rules. It follows that neither the full tribunal not the chairman sitting alone has power to review interlocutory orders previously made or the refusal of such orders within the provisions of rule 10. When a party to proceedings before a tribunal is dissatisfied with an interlocutory order that has been made, or by the refusal of an interlocutory order, it is clear that his remedy is to apply again to the tribunal for directions in accordance with the provisions of rule 13(2). Accordingly, the chairman of the tribunal in this case was entitled to deal with the applications made by the employee following the hearing on 3 June 1981, as applications for further directions within the terms of rule 13(2), and to adjudicate upon them in the way that he did.’

Judges:

Waterhouse J

Citations:

[1986] ICR 291

Statutes:

Industrial Tribunal (Rules of Procedure) Regulations 1980

Jurisdiction:

England and Wales

Cited by:

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

Employment

Updated: 07 May 2022; Ref: scu.347420

British Railways Board v Natarajan: EAT 1979

Arnold J considered when it was appropriate for the company’s confidential material to be disclosed to employee claimants in tribunal proceedings: ‘We think that before deciding whether an examination is necessary, the judge or chairman of the tribunal . . must decide whether there is any prima facie prospect of relevance of the confidential material to an issue which arises in the litigation; put another way whether it is reasonable to expect that there is any real likelihood of such relevance emerging from the examination. If there is not, we do not think that the exercise of examination is necessary or should take place’.

Judges:

Arnold J

Citations:

[1979] ICR 326

Jurisdiction:

England and Wales

Cited by:

Approved – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – A v B and Another EAT 18-Feb-1997
The respondents appealed against a finding of unlawful sex discrimination. The claimant had been seeking psychotherapy, and the defendant sought discovery of her therapy history.
Held: The notes may have been relevant, and an order should have . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Cited – Asda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.347276

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 compensatory award because of that failure. Her solicitor said nothing. When he received the written decision of the tribunal he initially put in an application for review. He submitted in the grounds for review that he had not had the opportunity to address the Tribunal on the issue of mitigation of loss. The Tribunal therefore held a review hearing, following which it held that the error, if there was an error, was a major error of law and that the jurisdiction of the Industrial Tribunal was limited to small matters and did not extend to a substantial or important area of law.
Held: The interests of justice did not require a review because the right step, if any, was an appeal to the Employment Appeal Tribunal, something which the appellant had not set in motion. The EAT allowed the appeal from the refusal to carry out a review. The EAT noted that the case had become overcomplicated by technicalities: ‘Instead of dealing with the substance of the matter, we have now got into a complicated series of reviews and appeals from reviews which will still leave the fundamental question unresolved. However, the parties, have chosen to adopt their course and, therefore, we must deal with the appeal against a review decision on its merits.
As it seems to us the fundamental question is whether or not the Industrial Tribunal’s decision that Miss Trimble had failed to mitigate her loss was reached after Miss Trimble had had a fair and proper opportunity to present her case on the point, being aware that it was a point which was in issue. We do not think that it is appropriate for an Industrial Tribunal to review its decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by the Appeal Tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the Tribunal which, in our view, can be correctly dealt with by review under Rule 10 however important the point of law of fact [sic] may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument.

Judges:

Browne-Wilkinson P

Citations:

[1982] IRLR 451, [1982] ICR 440

Jurisdiction:

England and Wales

Citing:

Cited – British Midland Airways Limited v Lewis EAT 1978
An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the . .
Cited – 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 . .
Cited – D G Moncrieff (Farmers) v MacDonald EAT 1978
The ability of a tribunal to revisit its own judgments, the review procedure, was only appropriate for use in exceptional circumstances. . .

Cited by:

Cited – Williams v Ferrosan Ltd EAT 5-Mar-2004
Acting on guidance, the parties representatives and the tribunal had assumed that part of the award relating to loss of future earnings would not be taxable. The question now was whether the tribunal had power of its own motion to review its . .
Cited – Lindsay v Ironsides Ray and Vials EAT 27-Jan-1994
The industrial tribunal had refused the applicant an extension of time.
Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary . .
Cited – Council of The City of Newcastle Upon Tyne v Marsden (Rev 1) EAT 23-Jan-2010
EAT PRACTICE AND PROCEDURE – Review
Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.347412

Evans Executors v Metropolitan Police Authority: CA 1993

The court considered that the approach in striking out an employment case should generally follow that in Birkett.

Citations:

[1993] ICR 151

Jurisdiction:

England and Wales

Citing:

Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Appeal from – Evans (Deceased), Executors of v The Metropolitan Police Authority EAT 18-Jul-1991
. .

Cited by:

Cited – Abegaze v Shrewsbury College of Arts and Technology CA 20-Feb-2009
In 2000 the claimant succeeded in his claim for discrimination, but had not pursued his remedy. He now appealed against a refusal to allow him to take it further. He had initially failed to pursue the matter for ill health. He later refused to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.301664

Carr v British International Helicopter: EAT 1993

An employee claimed re-instatement following alleged unfair selection for redundancy by an administrator.
Held: The effect of the 1986 Act was not that proceedings brought against a company in administration without consent or the permission of the court were a nullity, but only that they were liable to be stayed as other proceedings in section 11(3)(d). Lord Coulsfield said: ‘It seems to us that there is no way of construing section 11 so as to exclude from its scope claims under the employment protection legislation.’

Judges:

Lord Coulsfield

Citations:

[1994] ICR 18, [1993] BCC 855, [1994] 2 BCLC 474

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 188, Insolvency Act 1986 11(3)(d)

Jurisdiction:

England and Wales

Cited by:

Applied – Unite the Union and others v Sayers Confectioners Ltd EAT 9-Feb-2009
EAT PRACTICE AND PROCEDURE Application/claim
Tribunal wrong to refuse to accept complaint presented against company in administration – correct course to accept the complaint but stay it – Carr v British . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency, Scotland

Updated: 07 May 2022; Ref: scu.316668

Knight v Attorney General: 1979

A judge’s status does not bring her within the scope of the 1975 Act as an ’employee’.

Citations:

[1979] ICR 194

Statutes:

Sex Discrimination Act 1975

Jurisdiction:

England and Wales

Cited by:

Cited – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions

Updated: 07 May 2022; Ref: scu.279055

Post Office v Roberts: EAT 1980

When looking to see whether there had been a fundamental breach of an employer’s or employee’s obligations, the conduct of the parties has to be looked at as a whole and its cumulative impact assessed: ‘in each case, in our view, you have to look at the conduct of the party whose behaviour is challenged and determine whether it is such that its effect, judged reasonably and sensibly, is to disable the other party from properly carrying out his or her obligations. If it is so found that that is the result, then it may be that a Tribunal could find a repudiation of contract.’ There was however no implied obligation on an employer to treat an employee reasonably: ‘So expressed, in our view, such a term is too wide and too uncertain and we could not endorse any such implied term in those terms. It is, of course, plain that there are some obligations in a contract of employment which the employer must comply with reasonably and an employee must comply with reasonably. There are other terms, such as the payment of salaries or wages due, which do not admit of any reasonable compliance, there must be compliance.’

Judges:

Talbot J

Citations:

[1980] IRLR 347

Jurisdiction:

England and Wales

Cited by:

Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Cited – Baldwin v Brighton and Hove City Council EAT 14-Dec-2006
EAT Sex Discrimination – Transsexualism
Unfair Dismissal – Constructive dismissal
Gender reassignment. Employer’s lack of knowledge. Meaning of ‘treats’ (SDA s2A(1)(a).
Constructive dismissal – . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.279812

Savage v J Sainsbury Ltd: CA 1980

Brightman LJ discussed the effect on time requirements of an employee’s appeal against the employers decision to dismiss him: ‘The matter came before the Employment Appeal Tribunal with commendable expedition on 4.10.78. Judgment was reserved until 6 October when the appeal was allowed. It is sufficient for my purpose to read one paragraph from the judgment which summarises the reasoning of the Tribunal. I read from page 8 of the transcript, between lines D and E. ”In our view, when a Notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered, then the dismissed employee is to be treated as being ‘suspended’ without pay during the termination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back-pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act.”

Judges:

Brightman LJ

Citations:

[1980] IRLR 109, [1981] ICR 1

Jurisdiction:

England and Wales

Cited by:

Approved – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Prakash v Wolverhampton City Council EAT 1-Sep-2006
EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.280276

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 dismissal. The industrial tribunal held that they had repudiated their contracts of contract and they had not been dismissed.
Held: The employees’ appeals succeeded. They had all been dismissed.

Judges:

Waterhouse J

Citations:

[1980] ICR 494

Jurisdiction:

England and Wales

Citing:

Applied – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – 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 . .

Cited by:

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: 07 May 2022; Ref: scu.278576

Sagar v Ridehalgh: 1931

A contractually agreed reduction for poor workmanship is not to be treated as an unlawful deduction from wages.

Citations:

[1931] Ch 310

Jurisdiction:

England and Wales

Cited by:

Cited – New Century Cleaning Co Ltd v Church CA 26-Mar-1999
The employer had withheld ten per cent of the claimant’s wages, Employees worked in teams cleaning windows in office blocks. The team agreed how the fee for the block would be divided. The employer reduced its fees to customers, and accordingly the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.276938

Hadjioannou v Coral Casinos Ltd: EAT 1981

There had been alleged differential treatment of an employee in relation to a similar offence on a different occasion.
Held: Waterhouse J set out three possible ways where decisions made by an employer in truly parallel circumstances in relation to a different employee may be relevant. In the first, employees may be led by an employer to believe that certain categories of conduct will be overlooked or will be more mercifully treated in the light of the way that other employees have been dealt with in the past. Secondly, it may show that the dismissal in the instant case is not for the reason put forward i.e. that the asserted reason is not the real or genuine reason. Thirdly, ‘Evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.’ Waterhouse J continued: ‘It is only in the limited circumstances that we have indicated that the argument [that is the disparity argument] is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by [the equivalent of s98 of the 1996 Act]. The emphasis in that section is upon the particular circumstances of the individual employee’s case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues when dismissal is being considered.’

Judges:

Waterhouse J

Citations:

[1981] IRLR 352

Jurisdiction:

England and Wales

Cited by:

Cited – Epstein v Royal Borough of Windsor and Maidenhead EAT 15-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Dismissal by Employment Tribunal of Appellant lifeguard’s claim for unfair dismissal challenged, because the Tribunal is said to have erred in not . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.276833

Holland v London Society of Compositors and Another: 1924

A provincial trade union had agreed with a London union that if a member of the former was offered a job in London, he would be entitled to membership of the latter. Mr Justice Lush said that: ‘He could not accept the contention that the contract was made for any individual or for his behoof and benefit, but it was made by the trade unions concerned for their own purposes.’

Citations:

1924 Times LR 440

Jurisdiction:

England and Wales

Cited by:

Cited – The Highland Council v TGWU and Unison EAT 3-Jun-2008
EAT EQUAL PAY ACT: Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.276939

Kelly v Ingersoll-Rand Co Ltd: 1982

Browne-Wilkinson J noted that the Employment Tribunals operate under their own rules and said: ‘It is to be remembered that industrial tribunals are statutory bodies whose powers are exclusively conferred and regulated by statute. They have no inherent jurisdiction: any jurisdiction they have has to be found in their regulating statutory provisions.’

Judges:

Browne-Wilkinson J

Citations:

[1982] ICR 476

Jurisdiction:

England and Wales

Cited by:

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.

Employment

Updated: 07 May 2022; Ref: scu.277523

Securicor Ltd v Smith: CA 1989

When the tribunal looks at the decision by the employer to dismiss, it should ask not what its own opinion was but whether the employers response was within the band of reasonable responses open to in acting on its findings. Where two employees are dismissed for the same incident and one is successful on appeal but the other is not, in determining the fairness of the latter’s dismissal, the proper question is whether the employer had consciously sought to distinguish between the two cases and, if he had, whether he had done so on rational grounds.

Citations:

[1989] IRLR 356

Jurisdiction:

England and Wales

Cited by:

Cited – London Borough of Harrow v Cunningham EAT 2-Nov-1995
The council appealed a finding that the claimant had been unfairly dismissed. He worked in the Cleansing Department, but took on additional private work in refuge disposal in breach of his contract. A co-worker who had done the same was not . .
Cited – Epstein v Royal Borough of Windsor and Maidenhead EAT 15-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Dismissal by Employment Tribunal of Appellant lifeguard’s claim for unfair dismissal challenged, because the Tribunal is said to have erred in not . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.276831

Rowe v Radio Rentals Ltd: 1982

It was not in general necessary that the manager hearing an appeal in a disciplinary matter should insulate himself from the manager who has recommended or implemented a dismissal, and treat himself as a judge hearing two contending parties. The person originally dismissing will often appear at the appeal.

Citations:

[1982] IRLR 177

Jurisdiction:

England and Wales

Cited by:

Cited – Associated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.276830

Morison v Moat: 20 Aug 1851

A servant, Moat, sought to use a secret formula of his employer’s. The plaintiff requested an injunction to restrain use of the formula.
Held: The Vice Chancellor reiterated the principles, as to which he said there was ‘no doubt’, adding: ‘The Defendant admits that the secret was communicated to him by Thomas Moat . . The question then is whether there was an equity against him; and I am of opinion that there was. It was clearly a breach of faith and of contract on the part of Thomas Moat to communicate the secret. The Defendant derives under that breach of faith and of contract, and I think he can gain no title by it . . the cases of Tipping v Clarke and Prince Albert v Strange shew that the equity prevails against parties deriving under the breach of contract or duty.
It might indeed be different if the Defendant was a purchaser for value of the secret without notice of any obligation affecting it; and the Defendant’s case was attempted to be put upon this ground . . but I do not think that this view of the case can avail him . . So far as the secret is concerned he is a mere volunteer deriving under a breach of trust or of contract.’

Judges:

Sir George Turner VC

Citations:

(1851) 9 Hare 241, [1851] EngR 790, (1851) 68 ER 492

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Morison v Moat 1852
Affirmed . .
Cited – Lord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Approved – Lamb v Evans CA 1893
The plaintiff printed and published a multi-lingual European trade directory, engaging the defendants as commission agents to solicit paid entries for the directory. The businessmen could, if they wished, supply wood blocks or other materials from . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Lists of cited by and citing cases may be incomplete.

Employment, Information

Updated: 07 May 2022; Ref: scu.270393

House v Emmerson Electric Industrial Controls: EAT 1980

An unsuccessful Applicant sought leave to argue a jurisdictional point which he had not raised at the hearing before the Industrial Tribunal.
Held: Talbot J allowed the point to be raised saying: ‘For instance, if an Industrial Tribunal had accepted jurisdiction and made a finding in favour of an employee when quite plainly that Industrial Tribunal had no such jurisdiction to do so, what they did would have been a nullity and this Appeal Tribunal ought to say so. It seems to us that it is impossible to put the contrary in any different light. If an Industrial Tribunal has accepted jurisdiction when it had no jurisdiction to do so, and it that emerges at the hearing of an Appeal, then it is for the Appeal Tribunal to rule upon it accordingly. Though, therefore, this is a new point presented to us, and though this is in a way a departure from what is a settled practice, we think that it involves a matter of jurisdiction and that we ought to consider it.’

Judges:

Talbot J

Citations:

[1980] ICR 795

Jurisdiction:

England and Wales

Cited by:

Distinguished – Russell v Elmdon Freight Terminal Limited EAT 1989
The claimant faced a finding that the Industrial Tribunal did not have jurisdiction. He sought leave to appeal to establish by another route under Schedule 13, the necessary continuity of employment under Section 64(1)(a).
Held: Continuity of . .
Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Cited – Barber v Thames Television plc EAT 1991
The EAT has a power exceptionally, to receive an argument which had not been put to tribunal. Knox J said: ‘We do not accept the proposition that any and every contention by a party to an appeal that that party by calling further evidence can show . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.270357

Gardiner v London Borough of Merton: 1980

The continuity of the period of employment is not broken when an employee is taken into the employment of an ‘associated employer’ of the first employer but the claimant can take advantage of that only if at least one of the employers is a limited company.

Citations:

[1980] IRLR 472

Statutes:

Employment Protection (Consolidation) Act 1978 151 Sch 13

Jurisdiction:

England and Wales

Cited by:

Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.270355

Lock v Beswick: 1989

The court examined the remedies available to an employer who wished to recover confidential and other material allegedly taken by an employee.
Held: Hoffmann J said: ‘Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff’s rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of the customers with whom they were in contact while employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them.’

Judges:

Hoffmann J

Citations:

[1989] 1 WLR 1268

Cited by:

Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice

Updated: 07 May 2022; Ref: scu.270396

Rowan v Machinery Installations (South Wales) Ltd: EAT 1981

The claimant was made redundant. He was given statutory redundancy pay, but continued from week to week for two years more. He was again made redundant but calculated only from the earlier date.
Held: Although paragraph 12 of Schedule 13 of the 1978 Act provided that the continuity of employment should be treated as broken where a redundancy payment had been paid to the employee, whether a redundancy payment had been paid within the meaning of paragraph 12 depended on the circumstances in which the payment was made. To amount to a redundancy payment it had to be made in circumstances in which the employer was liable to pay a sum under the redundancy provisions of the section; ‘redundancy payment’ must mean a statutory, not a voluntary redundancy payment.
Slynn J said: ‘If a sum of money is paid under the belief that a redundancy payment is due or for any other reason, but where there is no liability on the employer to make it as a redundancy payment, then it seems to us that subparagraph (a)(i) of subparagraph (2) of paragraph 12 is not satisfied, and accordingly no reliance can be placed upon the provisions of paragraph 12(1) that the period of employment is to be treated as having been broken.’

Judges:

Slynn J

Citations:

[1981] IRLR 122, [1981] ICR 386

Jurisdiction:

England and Wales

Cited by:

Cited – Lassman and Others v Secretary of State for Trade and Industry CA 19-Apr-2000
The claimants worked for Rotaprint when it went into receivership in 1988, and then for the receiver before being transferred to Pan Graphics. Statutory redundany payments were made on the receivership of Rotaprint. The claimants sought further . .
Cited – Senior Heat Treatment Ltd v Bell and others EAT 20-Jun-1997
The employer appealed a finding as to the period of continuous employment of the claimants. Before a transfer of the undertaking to the employer, the former emloyer had paid redundancy payments to several employees, some whom in practice left to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 07 May 2022; Ref: scu.270272

Staffordshire County Council v Donovan: 1981

Mrs Donovan was an assistant principal planning officer who was subject to ongoing disciplinary proceedings which were themselves subject to a right of appeal on her part. Mrs Donovan was represented in those proceedings by her union organiser and the union solicitor. They negotiated terms on her behalf whereby she was allowed to resign at the end of six months on terms as to payment and the provision of an appropriate testimonial.
Held: She had resigned. Where a person chooses to resign rather than to be the subject of disciplinary proceedings that will be held to be a resignation as the outcome of the disciplinary hearing would not be known.

Citations:

[1981] IRLR 108

Jurisdiction:

England and Wales

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: 07 May 2022; Ref: scu.268096

W and J Wass Ltd v Binns: CA 1982

Judges:

Browne-Wilkinson J

Citations:

[1982] ICR 486

Jurisdiction:

England and Wales

Citing:

Criticised but binding – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .

Cited by:

Overruled – 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 – 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: 07 May 2022; Ref: scu.268062