Appeals against refusal to re-instate fire fighters despite successful appeals to the Secretary of State.

Citations:

[2004] EWHC 431 (Admin)

Links:

Bailii

Statutes:

Fire Service (Discipline) Regulations 1985 7

Jurisdiction:

England and Wales

Employment

Updated: 07 May 2022; Ref: scu.226862

An employee was contractually entitled to a minimum period of notice of termination of employment upon redundancy, such termination being required to take place on stipulated dates referable to school terms.
Following an unsuccessful trial period in an alternative position, which was terminated early, it was not possible to convene a meeting between the parties before the Claimant left the country on agreed leave, during which time she was unable to access her work email account. The Respondent sent a letter by post and email giving notice of termination. The letter was dated 11 October and to be effective to terminate on the next applicable date (31 December) had to have been received by the Claimant by 31 October.
She contended in her ET1 that the letter had not been delivered to her home and that she subsequently learned of its contents from her union representative. By that time (6th November) it was too late for the required notice to be given to terminate on 31st December. Consequently she was entitled to notice pay until 30 April.
The ET did not give sufficient reasons for its finding that the employment terminated on 31 December, and, in particular, as to whether the letter had been (or should be deemed to have been) delivered to the Claimant. The issue was therefore remitted for determination to a fresh Tribunal.
A cross-appeal relating to the ET’s failure to apply a Polkey reduction to an award for loss of statutory rights was also allowed.

Citations:

[2020] UKEAT 0235 – 19 – 0708

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 May 2022; Ref: scu.655539

Claim for automatic unfair dismissal.

Citations:

[2011] EWCA Civ 1565, [2012] 2 All ER 812, [2012] ICR 520, [2012] IRLR 111

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 2006 7(1)

Jurisdiction:

England and Wales

Employment

Updated: 07 May 2022; Ref: scu.450055

The question of what constituted a trade secret or similar is a question of degree.

Judges:

Lloyd LJ

Citations:

[1992] IRLR 279

Jurisdiction:

England and Wales

Cited by:

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

Employment

Updated: 07 May 2022; Ref: scu.249230

An assistant solicitor had already worked for his employer in humbler status for many years when, aged 27, he signed a covenant restricting his acting in competition with his employer within seven miles of Tamworth Town Hall for an unlimited time. He complained of the temporal restriction.
Held: Lord Birkenhead LC said: ‘What are the facts here? A boy of the age of 14 is taken from a humble employment in the office of the local co-operative society and he is trained in the office of a solicitor of position in this particular neighbourhood . . Indeed I am of the opinion that it is in the public interest that a proper restrictive agreement of this kind between an established solicitor, possibly an elderly man, and a younger man should be allowed. It is in the public interest because otherwise solicitors carrying on their business without a partner would be extremely chary of admitting competent young men to their offices and to the confidential knowledge to be derived by frequenting those offices.’

Judges:

Lord Birkenhead LC

Citations:

[1921] 2 AC 158

Jurisdiction:

England and Wales

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: 07 May 2022; Ref: scu.240034

Decision affirmed

Judges:

Lord Chancellor Chelmsford

Citations:

(1867) 5 M (HL) 36

Jurisdiction:

England and Wales

Citing:

Appeal from – Forbes v Eden 1865
A clergyman complained of a change in the doctrinal standards of the church.
Held: Since the matter concerned an eccliastical issue and not that he had been deprived of his status as a minister, the court could not intervene. Lord . .

Cited by:

Mentioned – 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: 07 May 2022; Ref: scu.236517

EAT Practice and Procedures
ET member failed to disclose past connection with employer. Application to revise on second day of hearing granted, unopposed. Application for discharge penalized in costs for second day on grounds of late application. Appeal allowed; costs order set aside.

Judges:

His Honour Judge Peter Clark

Citations:

UKEAT/0114/05, [2005] UKEAT 0114 – 05 – 1410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 May 2022; Ref: scu.235010

The court discussed section 11(2) of the 1984 Act: ‘Simplifying that a little bit and reading it with section 11(1), which defines who is qualified and entitled to vote, section 11(2) is saying ‘If you do not allow somebody to vote, if you say ‘You are not entitled to vote,’ then you cannot call him out on strike. He has not had an opportunity to express his view, and, if you do call him out on strike, then the whole ballot fails and the strike or other industrial action cannot be justified.’ Nobody has suggested that anybody entitled to vote has been disqualified from voting. What Mr Carr says is that if they were not given an opportunity of voting they were denied their entitlement to vote. I disagree. There is a profound difference, as I think, between denying someone’s entitlement to vote and inadvertently failing to give him an opportunity to vote’.

Judges:

Lord Donaldson of Lymington MR

Citations:

[1989] ICR 678

Statutes:

Trade Union Act 1984 11(2)

Jurisdiction:

England and Wales

Cited by:

Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.223725

Use of discretion to allow appeals out of time.

Judges:

Wood J (President)

Citations:

[1989] ICR 24

Jurisdiction:

England and Wales

Cited by:

Cited – United Arab Emirates v Abdelghafar and others EAT 29-Jul-1994
At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.214636

Appeals on the ground of perversity will only succeed where it is shown that no reasonable Tribunal, properly directed in law, could have reached the decision made. The court set out the duties and powers of appellate courts in employment law: ‘It is common ground that the appeal from the industrial tribunal to the Employment Appeal Tribunal and thence to the courts is open only on a question of law. The appellate tribunals are therefore only entitled to interfere with the decision of the industrial tribunal if the appellants can succeed in showing, as they seek to do, that it has either misdirected itself in law or reached a decision which no reasonable tribunal, directing itself properly on the law, could have reached (or that it has gone fundamentally wrong in certain other respects none of which is here alleged). The fact that the appellate tribunal would have reached a different conclusion on the facts is not a sufficient ground for allowing an appeal.’
Lord Fraser of Tullybelton said: ‘My Lords, it is clear from the findings of the industrial tribunal that there were some factors pointing towards this transaction being a change of ownership of part of the appellants’ business, and other factors pointing towards it being a mere change of ownership of particular assets. The decision between those two views was one of fact and degree for the industrial tribunal, as it must be in all, or almost all, such cases.’ and ‘It seems to me that the essential distinction between the transfer of a business, or part of a business, and a transfer of physical assets, is that in the former case the business is transferred as a going concern ‘so that the business remains the same business but in different hands’ – if I may quote from Lord Denning MR in Lloyd v Brassey 2 QB 98, 107 in a passage quoted by the industrial tribunal – whereas in the latter case the assets are transferred to the new owner to be used in whatever business he chooses. Individual employees may continue to do the same work in the same environment and they may not appreciate that they are working in a different business, but that may be the true position on consideration of the whole circumstances.’

Judges:

Lord Fraser of Tullybelton

Citations:

[1981] ICR 43

Jurisdiction:

Scotland

Citing:

Appeal from – Melon v Hector Powe Ltd SCS 1980
. .
Cited – Lloyd v Brassey CA 1969
A farm was sold as a going concern with land and all stock-in-trade.
Held: This was a ‘transfer of a trade, business, or undertaking.’ It was the same business being carried on both before and after the transfer. The same staff were employed. . .

Cited by:

Cited – Duffy v Yeoman and Partners Ltd CA 15-Jul-1994
Redundancy decision without consultation where ‘no difference’ was found, and there was no alternative, was not unfair. . .
Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.214602

Citations:

[1980] 1 All ER 529

Jurisdiction:

England and Wales

Citing:

Appeal from – Duport Steels Ltd v Sirs QBD 1980
. .

Cited by:

At CA – Duport Steels Ltd v Sirs HL 3-Jan-1980
Judiciary must Interpret, not Remedy the Law
The House emphasised the need for courts to be even handed in interpreting statutes dealing with industrial relations. Where the words of the statute are plain and unambiguous, the Court ought to give effect to that plain meaning.
Lord Diplock . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.200599

Citations:

[1980] 1 All ER 529, [1980] 1 WLR 142, [1980] IRLR 116, [1980] ICR 161

Jurisdiction:

England and Wales

Cited by:

Appeal from – Duport Steels Ltd v Sirs CA 2-Jan-1980
. .
At EAT – Duport Steels Ltd v Sirs HL 3-Jan-1980
Judiciary must Interpret, not Remedy the Law
The House emphasised the need for courts to be even handed in interpreting statutes dealing with industrial relations. Where the words of the statute are plain and unambiguous, the Court ought to give effect to that plain meaning.
Lord Diplock . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.200600

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, after the change. Paragraph 9(5) does not cover the situation although perhaps it should.’

Judges:

Sir John Donaldson

Citations:

[1974] ICR 347

Statutes:

Contracts of Employment Act 1972 Sch 1 Par 9

Cited by:

Applied – Wynne v Hair Control 1978
A sole proprietorship gave way to a partnership of which the previous sole proprietor was a member. The employee’s continuous employment was broken. . .
Obiter – 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’ . .
Not followed – Allen and Son v Coventry EAT 1980
. .
Not Followed – 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: 06 May 2022; Ref: scu.197755

A solicitor acting in an employment matter can be expected to be aware of the applicable procedures.

Citations:

[1993] IRLR 430

Jurisdiction:

England and Wales

Cited by:

Cited – Peters v Sat Katar Co Ltd (in liquidation) CA 20-Jun-2003
The claimant had sent a notice of appeal, but it was lost in the post. He now appealed a refusal of leave to apply out of time.
Held: The EAT should look at the circumstances. Here a litigant in person would not have been alerted to the need . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.184148

The Court discussed how to evaluate whether the employers acted reasonably: ‘Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity – and that, of course, means common fairness and not a particular branch of the law – and to the substantial merits of the case, the tribunal’s duty is really very plain. It has to look at the question in the round and without regard to a lawyer’s technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane.’
The purpose of the tribunal’s decision was to tell the parties why they have won or lost.
Donaldson LJ discussed the standard of reasons to be given: ‘Industrial Tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law . . their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.’

Judges:

Donaldson LJ

Citations:

[1981] IRLR 225, [1981] ICR 542

Jurisdiction:

England and Wales

Cited by:

Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited – TSB Bank Plc v L M Harris EAT 1-Dec-1999
EAT Unfair Dismissal – Reason for Dismissal
The employer appealed a finding against them. An employee, when applying for another job, discovered that the reference given revealed many complaints against her . .
Cited – H v East Sussex County Council and Others CA 31-Mar-2009
The claimant had a statement of special educational needs, which she sought to have altered to specify a different school. She appealed from a refusal to amend the statement, saying that the Tribunal had not given sufficient weight to educational . .
Cited – W v Leeds City Council and SENDIST CA 29-Jul-2005
The court recognised a distinction between educational and non-educational provision as it affected a statement of special educational needs. Judge LJ: ‘Consistent with the relevant statutory provision, Part 3 of the Statement must make provision . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.183410

Citations:

B3/1999/1194

Jurisdiction:

England and Wales

Cited by:

Applied – Tomlinson v Congleton Borough Council and Cheshire County Council CA 18-Jun-2001
The appellant sought leave to appeal against an order dismissing his claim for damages. He had been injured swimming in water on the defendant’s land. The defendant asserted that they had no duty of care to those who came onto the land and imperiled . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.182894

The employee sought to amend his pleadings to add an allegation that the employer had failed to disclose documents, allowing a misleading impression to be left. The rules prevailing in Employment Tribunals made no express provision for disclosure of documents.
Held: ‘ The omission from the Rules of any duty of disclosure in the absence of a formal discovery order must, we agree, be presumed to have been deliberate. Nevertheless, the freedom of a party to keep documents up his sleeve must be subject to some limitation to prevent it from being abused as an instrument of fraud or oppression . . We therefore accept the general proposition that no party is under any obligation, in the absence of an order from the [Employment Tribunal] to give discovery in the Tribunal proceedings. That is subject, however, to the important qualification that any party who chooses to make voluntary discovery of any document in his possession or power must not be unfairly selective in his disclosure. Once, that is to say, a party has disclosed certain documents (whether they appear to him to support his case or for any other reason) it becomes his duty not to withhold from disclosure any further documents in his possession or power (regardless of whether they support his case or not) if there is any risk that the effect of withholding them might be to convey to his opponent or to the Tribunal a false or misleading impression as to the true nature purport or effect of any disclosed document’

Citations:

[1985] ICR 278, [1985] IRLR 47

Jurisdiction:

England and Wales

Employment

Updated: 06 May 2022; Ref: scu.561939

The EAT considered whether the claimant had acted frivolously under the Rules which referred to awarding costs where a party had acted frivolously or vexatiously, and the Employment Appeal Tribunal took account of pre-proceedings conduct.
Held: For a costs order to be made against a party in an employment claim, it would seem that the party must at least know or to be taken to have known that his case is unmeritorious. Claimants had a responsibility to ascertain whether or not their claims were properly based and justifiable.

Judges:

Philips J

Citations:

[1978] IRLR 315

Jurisdiction:

England and Wales

Cited by:

Cited – Vaughan v London Borough of Lewisham and Others (Practice and Procedure : Costs) EAT 6-Jun-2013
EAT Practice and Procedure : Costs – Tribunal orders that Appellant should pay Respondents one-third of their costs (estimated prior to assessment at andpound;260,000) on the basis that the claim was misconceived . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.510702

EAT The employee who had an unresolved bonus query refused to work in a section of the employer’s plant different from where he normally worked until the query was sorted out. He was then dismissed. The employer took the point that the tribunal had no jurisdiction because the employee was taking part in industrial action.
Held: That submission was rejected. Neill J presiding said: ‘We do not consider that Mr. Blake’s refusal to go to the rotary section constituted ‘taking part in . . industrial action’. The words ‘taking part in’ suggest some participation with other people or some concerted action and the provisions of Section 62(2) indicate that the action contemplated by the previous sub-section is action by at least two persons. Moreover in our view the ordinary meaning of the words ‘industrial action’ does not include action by one person alone.’

Judges:

Neill J

Citations:

EAT/552/81

Cited by:

Cited – Norris and Others v London Fire and Emergency Planning Authority EAT 8-Mar-2013
EAT UNLAWFUL DEDUCTION FROM WAGES – Industrial action
Firefighter objects to being asked to ‘act up’ as watch manager but continues to do so under protest – Eventually refuses to do so in the context of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.471568

Section 26 of the Interpretation Act 1889 applied to the receipt of notice of the proceedings leading to a decision of the Industrial Tribunal. The presumption as to receipt only arose where it was first established that the correspondence in question had been properly addressed.

Judges:

Slynn J

Citations:

[1979] ICR 597

Statutes:

Interpretation Act 1889 26

Cited by:

Cited – Scotford v Smithkline Beecham EAT 25-Oct-2001
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.469539

As long as the employer did not change the facts upon which he relied at the date of dismissal, it was open to him to change the label he attached to the reasons for the dismissal where that led to no procedural or evidential disadvantage to the other side: ‘The position, according to authority, appears to be as follows. In satisfying the Industrial Tribunal as to the reason for the dismissal under s.57(1) of the 1978 Act, the employer is not tied to the label he happens to put upon the particular facts relied on. Thus he may say ‘I made the employee redundant’. But he will not be prevented from saying later ‘No I have changed my mind. It was really a case of incapability.’ Nor will he be prevented from running the two as alternatives: either redundancy or lack of capability. By the same token, the Industrial Tribunal may (it appears) of its own motion declare that the reasons relied upon by the employer was not the real reason; for the real reason may be something that he shrank from mentioning, either through ignorance of the technicalities involved or perhaps through sheer kindness of heart or natural delicacy. In the same way, some other substantial reason under section 57(1)(b) may be advanced by the employer or found by the Tribunal to be the real reason for dismissal, differing from the sole or principal reason, such as redundancy or incapability, that my have been advanced by the employer himself.
That appears to us to the effect of the decisions of the Court of Appeal in Abernethy v Mott, Hay and Anderson [1974] IRLR 213 and of this Appeal Tribunal in Gorman v London Computer Training Centre [1978] IRLR 22. What the employer may not do, however, is to change after the date of dismissal the facts upon which he relied at the time as the basis for dismissal. That is made plain by the decision of the Court of Appeal in Monie v Coral Racing Ltd [1980] IRLR 464.
Finally, even in those cases where what is referred to in the authorities as no more than a change of label is involved – in the cases we have mentioned, for example, where lack of capability is treated as an alternative label for redundancy – great care must always be taken to ensure that the employee is not placed, as a result of the change in the label given to the reason for his dismissal, at a procedural or evidential disadvantage. That is made plain by the decision of the Appeal Tribunal in Murphy v Epsom College [1983] IRLR 395.’
Allegations of dishonesty and/or deliberate misconduct must be squarely raised and put: ‘We are very well aware that the proceedings before an Industrial Tribunal are informal – and long may they remain so. That was the Parliamentary intention. But, when once dishonesty is introduced into a case, the relevant allegation has to be put with sufficient formality and at an early enough stage to provide a full opportunity for answer. One of the hazards of the Tribunal system, and part of the price necessarily paid for informality, is that misadventures are bound to occur from time to time, as result of which that necessary formality of expression and that opportunity of answering are denied.’

Judges:

Waite J

Citations:

[1984] IRLR 422

Citing:

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 – Gorman v London Computer Training Centre EAT 1978
It was not necessary for an employer to ‘plead’ some other substantial reason in the full technical sense of the word to defend an allegation of unfair dismissal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.470360

The defendant, a collector salesman entered the employment of a firm of credit drapers at a weekly wage of andpound;10. He brought with him the connection of customers acquired in previous employments. He entered into a restrictive covenant that he would not for a period of 5 years, following the termination of his service, canvass or solicit orders in the way of the business of a credit draper from anyone who had during the three years immediately preceding such termination, been a customer upon whom he, the servant, had called in the course of his duties for the firm.
Held: The covenant was unreasonably restrictive having regard to the firm’s business and the salesman’s employment, to the duration of the restriction and to the circumstances that a large proportion of the customers covered by the covenant were persons who had formed the salesman’s connection before he entered the firm’s employment.
Morris LJ said: ‘I do not consider that restriction would necessarily be held to bunreasonable merely because it could be shown possibly to extend to one or two cases beyond the range of contemplated protection.’

Judges:

Morris LJ

Citations:

[1956] 3 All ER 814, [1957] 1 WLR 9

Citing:

Distinguished – Gilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .

Cited by:

Cited – Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 May 2022; Ref: scu.416454

The Industrial Tribunal had been entitled to conclude that 14 separate construction sites linked by telephone to the Company’s headquarters constituted one establishment for the purpose of redundancy consultation with the trade union under Part IV of the 19754 Act, as opposed to each site constituting a separate establishment.

Citations:

[1978] ICR 319

Statutes:

Employment Protection Act 1975 Part IV

Cited by:

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

Employment

Updated: 06 May 2022; Ref: scu.421400

EAT UNFAIR DISMISSAL: Exclusions including worker/jurisdiction
JURISDICTIONAL POINTS: Worker, employee or neither
The employee was a waitress at the Appellant’s Italian restaurant in Bath. The Employment Tribunal found that she was an employee and had been unfairly dismissed. The appeal was directed at the former finding. She was able to choose her own holiday; and there was a 6-week period in which there was no work for her; but the Employment Tribunal found that the Appellants were bound to offer her work; and she was bound to accept it absent a reasonable explanation.
Held that the Employment Tribunal had applied the correct tests and were entitled to find that there was sufficient mutuality of obligation and that she was an employee.

Judges:

Burke QC J

Citations:

[2008] UKEAT 0144 – 08 – 2411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 06 May 2022; Ref: scu.278235

The court considered selection procedures in redundancy situations. Stamp LJ said: ‘It may be hard on employers in the embarrassing situation in which Mr Benfield [the employer] found himself in this case to have the matter so largely removed out of their control and left to the discretion of the so-called industrial jury. But once the case falls within [Section 98(4)] then the tribunal is entitled to take everything into account.’
and ‘but it does not in the least follow . . that when coming to consider under subsection (6) whether the employers had acted reasonably or unreasonably in the circumstances, it is not open to the tribunal to take into account as one of the matters affecting that question that fact that if the employers had to make a painful choice between selecting one employee or another for dismissal, it is, other things being equal, generally regarded as fair to retain the services of that employee who has been longest in service.’

Judges:

Lord Justice Stamp

Citations:

[1977] ICR 821

Statutes:

Trade Union and Labour Relations Act 1974 98(4)

Cited by:

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

Employment

Updated: 05 May 2022; Ref: scu.374399

Citations:

[1977] ICR 952

Jurisdiction:

England and Wales

Citing:

Approved – Gilbert v Goldstone Ltd EAT 1976
Unreasonable conduct by an employer was sufficient to amount to constructive dismissal, regardless of whether it involved a breach of contract by the employer. . .

Cited by:

Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.377342

A hemp-dresser is not a trade within the 5 Eliz c4 s31

Citations:

[1792] EngR 2554, (1792) Cro Car 499, (1792) 79 ER 1030 (B)

Links:

Commonlii

Employment

Updated: 05 May 2022; Ref: scu.360766

Michael Wilson a poor boy, with the assent of two justices, was bound apprentice to Thomas Jackson of Austwick, who was tenant to Thomas Jackson, clerk of Clapham, who had agreed to indemnify T Jackson of Austwick, who sent the pauper the next day to Mr Jackson of Clapham, with whom he stayed about seven or eight weeks, and attended his sheep, and then ran away to his mother, whereupon Mr J of Clapham agreed the pauper should stay with his mother, and that he would pay her for the boy’s board and clothes, which he did for between two and three years ; afterwards Mr Jackson of Clapham agreed with the boy’s brother, who was a mason, and lived at Austwick, that the boy should serve him for the remainder of the time in the indenture ; accordingly the boy did serve his brother the mason at Austwick the remainder of the time.
By the order of two justices, which was confirmed by the sessions, the boy was removed to Clapham; and now Mr Clayton, on behalf of the parish of Austwick, came to shew cause why both the orders should not be quashed ; and objected, that although one master might consent that his apprentice might go to another master and serve out his time with him, yet that a second master could not turn him over to a third, as has been done here ; for if so, the apprentice might be turned over to forty different masters; and therfore he said the pauper was well settled at Clapham, where his last legal service was.

Citations:

[1799] EngR 53, (1799) 1 Wils KB 158, (1799) 95 ER 548 (B)

Links:

Commonlii

Employment

Updated: 05 May 2022; Ref: scu.347880

The rules required a notice to be sent not less than 14 days before a date fixed for a hearing.
Held: The word ‘send’ in Rule 5 refers to the date when the notice is received or deemed to have been received under the Interpretation Act. In so concluding, it relied upon section 7 of that Act. Popplewell J said: ‘In the present case the Regulations provide an authorised service by post. In our judgment, that therefore requires this appeal tribunal and the industrial tribunal to have regard to the Interpretation Act 1978. If regard is had to the Interpretation Act 1978, it is the date of deemed receipt or actual receipt (it matters not in this case) to be applied and not the date on which it is sent and we see nothing in the Regulations to lead us to a contrary view. There is nothing to suggest that there is anything in the Regulations where the contrary intention appears.’

Judges:

Popplewell J

Citations:

[1986] ICR 546

Statutes:

Interpretation Act 1978 7

Cited by:

Applied – Immigration Advisory Services v Oommen EAT 19-Mar-1997
The claimant had been ordered to pay a deposit as a condition of being allowed to proceed with the claim which the tribunal had judged to have no reasonable prospect of success. The claim was struck out after the tribunal had been wrongly told that . .
Disapproved – Mock v Inland Revenue EAT 1-Mar-1999
In the context of the time for appealing to the EAT under Rule 3(3) EAT Rules 1993, as amended, ‘sent’ referred to the date appearing on the ET ‘decision’.
Morison P said: ‘Industrial Tribunal chairmen are required to produce reasons. When . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.347415

The tribunal was asked as to the determination of an employee’s ‘average weekly rate of remuneration’ in a particular period of 12 weeks for the purpose of calculating a redundancy payment, and whether a weekly sum which the employee was paid to cover the expenses he incurred in carrying out his duties should be included in the calculation of his ‘weekly rate of remuneration’.
Held: The tribunal identified two categories of payment (categories (1) and (3)) that would ordinarily be regarded as part of an employee’s weekly remuneration; and one type of benefit (category (2)) that would not. It depended on whether the sum ‘represents a profit or surplus in the hands of the employee’, and to the extent that it did it formed part of his remuneration. Indeed, the court went further and said that any sum ‘which is paid as a wage or salary without qualification is part of the employee’s remuneration’. Benefits in kind are not pay.

Judges:

Sir John Donaldson

Citations:

[1974] IRLR 283

Jurisdiction:

England and Wales

Cited by:

Cited – British Airways Plc v Williams and Others CA 3-Apr-2009
The company appealed against an adverse finding on its holiday pay payments to its pilots, saying that the pay was subject to the 2004 Regulations alone. The Directive suggested that holiday pay should be at normal average rates of pay, but the . .
Cited – British Airways Plc v Williams and Others CA 3-Apr-2009
The company appealed against an adverse finding on its holiday pay payments to its pilots, saying that the pay was subject to the 2004 Regulations alone. The Directive suggested that holiday pay should be at normal average rates of pay, but the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.330252

The doctrine of issue estoppel applies also in Industrial Tribunal cases.

Citations:

[1989] ICR 1

Jurisdiction:

England and Wales

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

Cited by:

Cited – Divine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.293901

An employee who continues to work under protest after a unilateral variation by the employer will not be prevented from bringing a claim for damages for breach of contract.

Citations:

[1984] IRLR 91

Jurisdiction:

England and Wales

Cited by:

Cited – GAP Personnel Franchises Ltd v Robinson EAT 16-Oct-2007
EAT Contract of employment – Damages for breach of contract
Unlawful deduction from wages
Whether express term of contract as to mileage expenses was consensually varied by the Claimant’s . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.280143

Sir John Donaldson sets out the considerations when a witness order is sought in an employment dispute before the court. He said: ‘We are quite clear that tribunals have a discretion in deciding whether or not to issue witness orders. There is no automatic right to witness orders. But that discretion must be exercised judicially and it must be exercised with due regard to the fact that a tribunal is dealing with litigants in person who may not have the benefit of any advice. . It seems to the court that there are only two matters of which tribunals should be satisfied before they issue a witness order. The first is that the witness prima facie can give evidence which is relevant to issues in dispute. For that purpose they will no doubt wish to ask the applicant what evidence can be given by the person who is the proposed subject of the witness order. We do not suggest that the tribunal should ask the applicant to give a full proof of that evidence, but applicants should indicate the subject matter of the evidence and show the extent to which it is relevant. The second matter of which the tribunal should be satisfied is that it is necessary to issue a witness order. In the present case the tribunal seem to have taken the view that it would be wrong, indeed, in their letter of March 11, 1974, they say that it would not be possible, to issue a witness order, unless they could be satisfied that the person concerned was unwilling to attend voluntarily. We think that this policy is erroneous to the point of amounting to an error of law. . . We do not seek in any way to fetter the discretion of tribunals. What we are saying is that tribunals should be satisfied that the witness can give relevant evidence and that it is necessary to issue a witness order. But if they are satisfied on both those matters they ought to issue such an order.’

Judges:

Sir John Donaldson

Citations:

[1974] ICR 559

Jurisdiction:

England and Wales

Cited by:

Cited – Merseyside Tec Limited v Noorani CA 21-Nov-1997
Application for leave to appeal. The respondent had said that the EAT had erred in overturning the tribunal chair’s decision not to issue witness summonses.
Held: Leave was granted. . .
Cited – Noorani v Merseyside TEC Ltd EAT 17-Jun-1997
The claimant appealed against the dismissal of his complaint of race discrimination saying that the tribunal had erred in not issuing a witness summons. The tribunal had said that the potential evidence was not relevant.
Held: There had been . .
Cited – Noorani v Merseyside TEC Limited CA 19-Oct-1998
The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.280439

The Court was asked to consider whether an employee, who wrote out a letter of resignation, had actually resigned in the light of the special state of anxiety of the employee when he wrote that letter.
Held: Lord Wylie said: ‘where possible exceptions to a general rule are suggested in obiter dicta such as that used in the case of Sothern, there may be a tendency for tribunals to apply the exception to the rule rather than the rule itself and I wish to emphasise that only in highly exceptional circumstances will this be justified.’

Judges:

Lord Wylie

Citations:

[1989] SLT 729

Jurisdiction:

Scotland

Citing:

Cited – Sothern v Frank Charlesly and Co CA 1981
Where an employee gives an unequivocal and unambiguous notice of his resignation, then that can be accepted by an employer and there is no dismissal. Where the unambiguous words are said in a moment of anger or in the heat of the moment or where . .

Cited by:

Cited – Ali v Birmingham City Council EAT 27-Oct-2008
EAT UNFAIR DISMISSAL: Dismissal/ambiguous resignation
1. The claimant handed in a letter of resignation to the respondents and he was then given a period of about 30 minutes to reconsider his decision.
Cited – Willoughby v C F Capital Plc EAT 13-Jul-2010
EAT UNFAIR DISMISSAL – Dismissal/ambiguous resignation
Whether employee was dismissed – unambiguous words of dismissal used by employer – Tribunal erred in law in holding that by reason of ‘special . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.277183

A former assistant solicitor, whose contract had been brought to an end by the dissolution of the partnership which had employed him, was held to be bound by a restrictive provision expressed to operate once the agreement ‘shall have determined for whatever reason.’
Held: The clause was not binding.
Scott J said: ‘I am unable to accept this submission. First the obligation to which the defendant subjected himself under clause 8 cannot in my opinion be wholly separated from the other provisions of the agreement. The bargain between the plaintiff and Mr. Rees on the one hand and the defendant on the other hand was, in broad terms, that in return for a five-year employment on clause 6 remuneration terms, the defendant would, during the five-year term, discharge the duties imposed on him and after the termination of his employment observe the clause 8 restraint. The plaintiff and Mr Rees were together responsible for withholding from the defendant the benefit of employment for the last year of the five-year term. One year out of five is certainly not de minimis. The defendant was deprived, by a breach of contract for which the plaintiff and Mr Rees were together responsible, of the full consideration in exchange for which he accepted the clause 8 restriction. In such a case, in my opinion, he is not bound by the restriction. Secondly, and this is another way of putting the same point, the breach of contract for which, as I have held, the plaintiff and Mr Rees were jointly responsible, was accepted by the defendant as putting an end to the contract. In such a case outstanding contractual obligations of the injured party are in law discharged together with the contract. This result does not, in my judgment, depend on the construction of the contract.
But the point goes further. Suppose I am wrong. Suppose Mr Johnson is right in submitting that under the true construction of the contract clause 8 binds the defendant regardless of whether the 1979 agreement is brought to an end by the decision of the plaintiff and Mr Rees to discontinue their partnership, or by some other wrongful dismissal of the defendant. The termination of the defendant’s employment under the 1979 agreement could, on that footing, have taken place at any time after 3 September 1979, but the defendant would still have been bound by the five-year restraint clause. It is well settled that the reasonableness of a restraint clause is to be tested by reference to the position as at the date of the contract of which it forms part. If Mr Johnson’s submissions are right I would regard the clause 8 restraint as unreasonable as between the parties. A contract under which an employee could be immediately and wrongfully dismissed but would nevertheless remain subject to an anti-competitive restraint seems to me to be grossly unreasonable. I would not be prepared to enforce the restraint in such a contract.’

Judges:

Scott J

Citations:

[1990] ICR 473

Jurisdiction:

England and Wales

Cited by:

Cited – Rock Refrigeration Limited v Jones and Seward Refrigeration Limited CA 10-Oct-1996
The claimant sought to enforce a post employment restrictive covenant given by the defendant. The defendant replied that the clause was too widely framed and was unreasonable since it applied to a temination of his contract ‘howsoever occasioned’. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.276819

Union rules should not be interpreted literally or like statutory provisions but in a looser and more benign way

Citations:

[1987] ICR 150

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: 05 May 2022; Ref: scu.276827

The appellant had been employed as a Staff Nurse. He was dismissed after being found to have slapped an elderly patient twice across the buttocks. That incident had been report to the Director of Nursing Services by another Nurse. He was suspended pending an investigation and as part of his investigation th edirector had gone straight in to look at the patient and he had seen a red mark on the body and concluded that was consistent with a blow having been struck by an open hand, a doctor also present reached that same conclusion. In a later disciplinary hearing it was the same Director who presided. He was informed of the charges against him and he made his case, but the director decided on the evidence that Mr Slater had lost his temper with the patient and struck two gratuitous blows, that was gross misconduct and he dismissed him. The Industrial Tribunal dismissed the complaint of unfair dismissal, they found that the disciplinary hearing was fair.
Held: Merely because a person conducting a disciplinary hearing has carried out a preliminary investigation does not mean that that person is unable to conduct a fair hearing or inquiry into events.
Parker LJ said: ‘[Counsel] for the appellant relies principally on the general principle that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but be seen to be done, and that if an observer with full knowledge of the facts would conclude that the hearing might not be impartial that is enough. . .
I accept both the general rule and the exceptions [the example given was a one man firm]. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [ET] consider the question raised in s [98(4)] of the Act.’

Judges:

Parker LJ

Citations:

[1989] IRLR 16

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: 05 May 2022; Ref: scu.276829

The tribunal was asked, inter alia, whether the tribunal had erred in law in determining that a father’s request for ‘a month or two’ of unpaid leave to look after his children, when his partner had unexpectedly left home, was a request to take off a reasonable amount of time because section 57A is intended to deal with short-term emergencies.
Held: Nelson J said: ‘We are satisfied that Mr Howarth’s submissions are correct on the law and that the Employment Tribunal fell into error in both their interpretation and application of s.57A(1)(d). The purpose of the legislation is to cover emergencies and enable other care arrangements to be put into place. These cases are all fact sensitive but a period as long as one month or even longer for care by a parent would rarely, almost never, fall within s.57A and cannot on the facts before the Tribunal have done so here. If longer leave is required than a short period of unpaid parental leave is available but that was not so here because it is not available for emergency situations and a request has to be put in writing. We are satisfied that one month especially where there is no evidence that any other arrangements were sought, for example, neighbours or other relatives or any other kind cannot be reasonable on the facts as found by the Employment Tribunal. They were in error in law, as we have said, in interpreting and applying s.57A. We have no doubt given the facts before them that they felt a strong sympathy towards Mr O’Toole and Ms Hyde for the predicament for which they found themselves but that is not a reason for extending what is intended to be the time for putting in place other care which the section under the Act provides for. As there was no absence under s.57A the dismissal cannot have been automatically unfair under the Maternity and Parental Leave Regulations 1999. We substitute for those of the Tribunal our findings that the request did not fall within s.57A of the Act.
As to ground 3 we are also clear that s.57A does not permit a parent to become the child minder for a period as long as occurred here, just short of one month, when the maximum period thought to be possible was two months but it is, as s.57A intended, to give the parent the breathing space to enable a replacement carer to be found. Here the Respondent made it clear that he was to be the carer and Ms Hyde has said that there was no other option open to them. Paragraphs 15 and 16 of the case of Qua are again relevant as indeed is the guidance and we are satisfied that s.57A also does not apply here for this reason.’

Judges:

Nelson J

Citations:

EAT/0470/07

Statutes:

Employment Rights Act 1996 57A

Citing:

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

Employment

Updated: 05 May 2022; Ref: scu.276693

The Appellant employee had applied for leave to amend his first application by substituting the name of the parent company. The Tribunal held that the rules of procedure relating to time limits went to their jurisdiction and that the amended application would be allowed but would bear the date of the amendment and would accordingly be out of time. They were satisfied that it would have been reasonably practicable for the second complaint to have been presented in time and both complaints were dismissed.
Held: The appeal was allowed. The rules of the court do not require that the complaint as presented should be free of all defects or should be in the form in which it finally comes before the tribunal for adjudication.
At a hearing before an Employment Tribunal, an application for leave to substitute a fresh Respondent relates back to the date of the original application.
The Court set out seven general propositions as to the correct approach in cases of amendments ‘changing the basis of the claim or . . adding or substituting respondents’.
Sir John Donaldson said: ‘In every case in which a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or substituting respondents they should proceed as follows.
(1) They should ask themselves whether the unamended originating application complied with rule 1 of the Schedule to the Regulations of 1972: see, in relation to home-made forms of complaint, Smith v. Automobile Proprietary Ltd [1973] ICR 306.
(2) If it did not, there is no power to amend and a new originating application must be presented.’
(3) (4) if the new claim sought to be advanced was out of time at the date of the original application there was no discretion in the Employment Tribunal to allow the amendment. However, if it was then in time the Tribunal has a discretion to allow the amendment.
(5) It was essential too consider whther the proposed addition would be used to elide a statutory time bar
(6) In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be , to be claimed against.
‘(7) in deciding whether or not to exercise their discretion to allow an amendment, the Tribunal should in every case have regard to all of the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.’

Judges:

Sir John Donaldson P

Citations:

[1974] ICR 650

Jurisdiction:

England and Wales

Cited by:

Endorsed – British Newspaper Printing Corporation v Kelly CA 1989
A group of employees had brought proceedings which appeared (though there was some ambiguity) to be intended as claims for redundancy payments. More than three months after the effective date of termination they sought to amend to plead alternative . .
Cited – Transport and General Workers Union v Safeway Stores Ltd EAT 23-Mar-2007
EAT Practice and Procedure – Amendment

Safeway closed a depot, leading to a large number of redundancies. The Union alleged that consultation was inadequate. Proceedings were initially commenced claiming only . .
Cited – Gillick v BP Chemicals EAT 1993
Ms Gillick had made an application based on sex discrimination in the first place against an agency which had contracted out her services to various divisions of BP Chemicals Ltd. The Respondents were the Company which had done that and in their . .
Cited – Linbourne v B R Constable (Gatwick Moat House) EAT 9-Feb-1993
The application proceeded against one named respondent. Even though the true identity of the intended defendant was known throughout, no application to substitute the correct defendant was made. An unfair diamissal was found, but not as against the . .
Cited – 1A Centre Community Association Ltd v Gwiazda and others EAT 14-Jul-2000
The claimants alleged an unlawful deduction from their wages, and unfair dismissal. The employer appealed, complaining that the limited company had been added late. . .
Cited – Heald Nickinson Solicitors v Summers and others EAT 21-May-2002
The firm of solicitors appealed an order in which they had been substituted as defendants to a claim for unfair dismissal. They said they had been given no opportunity to object. They had taken over part of a firm which had got into difficulties and . .
Cited – Onwuka v Spherion Technology UK Ltd and others EAT 26-Nov-2004
EAT The two appeals raised questions as to (i) whether the Chairman of an employment tribunal had misdirected herself in relation to an application to amend an originating application, and (ii) as to the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.270714

Citations:

[1999] UKEAT 617 – 98 – 0102

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 May 2022; Ref: scu.204828

In a case where union member employees were not granted the same pay rise as was given to non-union members they were not personally treated worse for their trade union membership.

Judges:

Dillon, Butler-Sloss and Farquharson LJJ

Citations:

Gazette 07-Jul-1993, Times 05-May-1993, Independent 05-May-1993, Times 05-May-1993, [1994] ICR 97

Statutes:

Employment Protection (Consolidation) Act 1978 23

Jurisdiction:

England and Wales

Citing:

Appeal from – Associated British Ports v Palmer and Others; Associated Newspapers Ltd v Wilson EAT 23-Jul-1992
It was wrongful treatment to give differential pay rises according to whether or not an employee chose to be a member of a trade union. An offer of personal contracts to abandon union membership was not a penalty. . .

Cited by:

Appeal from – Associated Newspapers Ltd v Wilson; Associated British Ports v Palmer HL 31-Mar-1995
The Daily Mail had recognised the Union to which their journalists belonged. They wanted to end this arrangement, and offered a better rate of pay to non-members. The union said this was an unlawful action taken because of union membership. Similar . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.77918

A member may not claim for misfeasance despite the Union being outside the definition.

Citations:

Ind Summary 28-Mar-1994

Statutes:

Trades Union & Labour Relations Act 1992

Jurisdiction:

England and Wales

Employment

Updated: 05 May 2022; Ref: scu.78460

EAT Respondent dismissed for redundancy. Procedure unfair in that the appeal process was not properly conducted. Employment Tribunal made no Polkey deduction. On proper analysis of fact if a fair procedure had been adopted Respondent would still have been dismissed and at the same date. Therefore there should be 100% reduction.

Judges:

His Honour Judge J R Reid QC

Citations:

UKEAT/0785/04/CK, [2005] UKEAT 0785 – 04 – 0508

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 05 May 2022; Ref: scu.229260

EAT Unfair Dismissal – A claim by former employees that they were dismissed for complaining about alleged unlawful deductions from wages, and for threatening to commence proceedings in the ET is capable of amounting to an assertion of a statutory right under section 104(4)(c) of the ERA. Accordingly if the claim is proved, any dismissal will be automatically unfair.

Judges:

His Honour Judge Serota QC

Citations:

[2004] UKEAT 0465 – 04 – 2010, UKEAT/0465/04

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 May 2022; Ref: scu.219488

In this case of unfair dismissal the ET held that although the Claimant had stated in evidence that she did not return to work after her maternity leave because her statutory maternity pay had been discontinued in a circumstance where the employer had been entitled to discontinue her payments, there were a variety of other factors that justified her decision not to return to work and those factors being repudiatory in character, the Claimant was entitled to refuse to return to work and treat the employer’s conduct as constructive dismissal. The ET further held that her failure to return to work constituted a communication of her decision not to return to work, even though nothing was said to the employer. The EAT held (1) that the ET was correct to treat the various repudiatory acts as a sufficient ground for the Claimant’s decision to rescind the contract and claim constructive dismissal; and (2) that while ordinarily it was necessary to communicate a decision not to return to work, the circumstances of this case were eloquent of such a decision and the employer could not have been in any doubt that this was what she intended; and decision of ET affirmed.

Citations:

[2020] UKEAT 0036 – 19 – 1808

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.655538

Judges:

Lord Justice Underhill

Citations:

[2020] EWCA Civ 1487

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.655569

EAT Unfair Dismissal – Other

Judges:

The Honourable Mr Justice Wall

Citations:

EAT/1113/01

Links:

EAT

Employment

Updated: 04 May 2022; Ref: scu.256210

EAT Trade Union Membership – (no sub-topic).

Judges:

His Honour Judge Birtles

Citations:

UKEAT/0122/03

Links:

EAT

Employment

Updated: 04 May 2022; Ref: scu.256959

EAT Unfair Dismissal – Other

Judges:

His Hon Judge Clark

Citations:

EAT/347/01, EAT/1427/00

Links:

EAT

Employment

Updated: 04 May 2022; Ref: scu.255948

EAT Unfair Dismissal – Constructive dismissal.

Judges:

His Honour Judge Ansell

Citations:

UKEAT/0274/04

Links:

EAT

Employment

Updated: 04 May 2022; Ref: scu.257080

EAT Unfair Dismissal – Compensation.

Judges:

The Honourable Mr Justice Lindsay (President)

Citations:

EAT/265/99 EAT/293/99

Links:

EAT

Employment

Updated: 04 May 2022; Ref: scu.255234

An employment contract made on or about 1st April 1982, under which a teaching post was offered to and accepted by the respondent to commence on 1st May 1982. The 1st May was a Saturday and 3rd May was a Bank Holiday, so that the respondent only undertook her duties as from Tuesday, 4th May. This governed the calculation of the period of continuous employment. The issue was whether she had ‘started work’ on the Saturday or only on the Tuesday.
Held: This referred to the Saturday: ‘The phrase ‘starts work’ in section 151(3) is not intended to refer to the undertaking of the full time duties of the employment: it is intended to refer to the beginning of the employee’s employment under the relevant contract of employment.’

Citations:

[1984] ICR 498

Statutes:

Employment Protection (Consolidation) Act 1978 151(3)

Cited by:

Cited – Sarker v South Tees Acute Hospitals NHS Trust EAT 25-Mar-1997
CS The appellant applied for a job with the respondent. Her offer was confirmed in writing. When the offer was withdrawn before she began to work, she claimed damages under s131.
Held: The employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.244643

Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: ‘Ultimately, an industrial tribunal has to answer the question whether the dismissal is fair, bearing in mind the wording of section 57(3) of the Employment Protection (Consolidation) Act 1978 and all the circumstances of the case including the equity and substantial merits. The issue is often posed in the form – has the employer, on the facts of the case as found by the Tribunal, and in all the circumstances, reached a decision which an employer could reasonably have reached? . . It follows that the fairness issue must be decided after the appeal process has been completed.’
As to the principles to be applied in deciding whether a hearing had been fair: ‘It would follow therefore that not every formality of legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing.
If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a mere review. . . . This was not a rehearing in any sense of the word. It was simply a review of what had already occurred with further opportunity to making representations. It follows therefore, in our judgment, that the errors at the earlier hearing were not rectified.’

Citations:

[1988] ICR 776, [1988] IRLR 501

Statutes:

Employment Protection (Consolidation) Act 1978 57(3)

Jurisdiction:

England and Wales

Citing:

Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .

Cited by:

Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.242341