The Claimant was dismissed on 13 July 2017. Following a liability hearing, the ET upheld his claim of automatic unfair dismissal on the grounds of his protected disclosure on the day before his dismissal (s.103A ERA 1996). It also held that the Claimant had been subjected to detriment by the Respondent’s introduction of a new contract in March 2016 on the ground of a protected disclosure in October 2015 (ss.47B/48(1A) ERA 1996); but adjourned to the Remedy hearing an outstanding issue on the time limit for that claim (s.48(3)(4)).
In its Remedy Judgment, the ET held (i) time issue : that the introduction of the new contract in March 2016 was a ‘one-off’ event with continuing consequences, not an act which ‘extend[ed] over a period’ and continued until his dismissal in July 2017; that it was reasonably practicable to present the complaint within the 3-month period; and that accordingly the s.48(1A) claim was out of time; and (ii) compensation for unfair dismissal : that the application for an ‘ACAS uplift’ (s.207A TULRCA 1992) should be refused, as disciplinary procedures, both generally and within the ACAS Code of Practice on Disciplinary and Grievance Procedures (2015), had no application to dismissal on the grounds of protected disclosures.
On the time issue, the EAT dismissed the Claimant’s appeal, upholding the ET’s decision that the introduction of the new contract was a one-off event with continuing consequences. On the ACAS uplift issue, the appeal was allowed. Whilst the ET was correct insofar as the Claimant’s application related to disciplinary procedures, on a fair reading the application also extended to the Grievance section of the ACAS Code of Practice. As the Respondent rightly accepted, the protected disclosure of 12 July 2017 was a grievance within the Code’s definition of a ‘concern, problem or complaint’; and thus potentially engaged the provisions of s.207A. Accordingly the matter was remitted to the ET for consideration of the application having regard to the Grievance section of the Code.

Citations:

[2020] UKEAT 0243 – 19 – 0705

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.655537

UNLAWFUL DEDUCTION FROM WAGES
CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
The Claimant was given a small shareholding in her employer as a condition of its sale to the Respondent and sold the shares to them under a Share Purchase Agreement. Part of the consideration for the shares were deferred earn-out shares and loan notes. By reason of that agreement, other agreements and the Articles of Association a Bad Leaver forfeited their loan notes and their shares were re-acquired. An employee who voluntarily resigned was defined in the relevant documentation as a Bad Leaver. The Claimant resigned and was treated as a Bad Leaver. The Employment Tribunal did not err in holding that the Bad Leaver provisions were not unconscionable or a penalty. The criteria for setting aside an agreement as unconscionable explained in Alec Lobb (Garages) Ltd v Total Oil (GB) Ltd [1983] 1 WLR 87 and Brian Strydom v Vendside Ltd [2009] EWHC 2130 were not satisfied. The ET did not err in holding that the Bad Leaver provisions were not a penalty as they were not imposed on breach of contract by the Claimant. Cavendish Square Holdings BV v Makdessi [2016] AC 1172 considered. The ET did not err in holding that the Bad Leaver provisions were not a deduction from wages within the meaning of the Employment Rights Act 1996 as the claim was excluded by section 27(2)(e). The Claimant was not permitted to pursue an argument that the Bad Leaver provisions were a restraint of trade. This point had not been taken in the ET and it would have required additional findings of fact. The Blackpool Fylde and Wyre Society for the Blind v Begg UKEAT/0035/05 and Rance v Secretary of State for Health [2007] IRLR 665 applied.

Citations:

[2019] UKEAT 0100 – 18 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.634368

JURISDICTIONAL POINTS
WORKING TIME REGULATIONS
The Claimant presented a claim which alleged breach of Regulation 12 of the Working Time Regulations 1998 (‘WTR’), namely the failure to provide rest breaks. The claim was dismissed, but on appeal (HHJ Eady QC) was remitted. By written submissions before the Remitted Hearing the Respondent for the first time contended that all claims of refusal to provide rest breaks before 5 July 2014 were out of time (WTR Reg.30(2)), so that the ET had no jurisdiction to that extent. The new point was entertained and upheld by the ET. The Respondent conceded breach for the residual claims, which amounted to refusal of rest breaks on 14 days between 6 July and 14 September 2014. Taking account of evidence as to the effect of the absence of rest breaks on the appellant’s pre-existing medical condition which was known to the Respondent, the ET awarded compensation of pounds 750.
On appeal the Claimant contended that the Employment Tribunal (‘ET’) had no jurisdiction to entertain the new point since it did not fall within the terms of the order for remission Aparau v Iceland Frozen Foods plc (No.2) [2000] ICR 341. The Employment Appeal Tribunal (‘EAT’) dismissed the appeal. An arguable point on jurisdiction having been taken, the ET was bound to consider it Radakovits v Abbey National plc [2010] IRLR 307.
On the cross-appeal, the Respondent contended that the compensation represented an award for injury to feelings and/or personal injury, which in either case were not permitted, citing Santos Gomes v Higher Level Care Ltd [2018] ICR 1571, and/or had no adequate evidential basis and was excessive. The EAT dismissed the appeal, holding that the award was for personal injury; Santos Gomes did not bar such an award; and that it was sufficiently supported by the evidence and not excessive.

Citations:

[2018] UKEAT 0304 – 17 – 0810

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.634373

Two grounds of appeal were conceded by the Respondent, and in addition, the Employment Tribunal made further significant factual errors in relation to the question of knowledge of protected disclosures made by the Claimant.
In light of the factual errors conceded and those found to have been made, the Employment Appeal Tribunal could not be confident that the errors did not affect or undermine the finding that the dismissal was not by reason of the protected disclosures.
The appeal was therefore allowed on the disputed ground

Citations:

[2019] UKEAT 0229 – 18 – 2202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.634366

UNFAIR DISMISSAL: Reasonableness of Dismissal
The claimant was dismissed following an unauthorised absence from work against a background of a poor disciplinary record and during a period of suspended dismissal. His alcohol consumption was part of the context, but he did not formally admit to having a drink problem until the stage of the internal appeal against dismissal. The Tribunal found that the dismissal was procedurally and substantively fair. On an appeal in relation to the single question of whether the appeals officer should have paused the appeal process for further investigation in light of the late admission by the claimant of his alcohol dependence
Held: The material available to the Tribunal included the comprehensive findings of the appeals officer on the issue now raised. That material had been fully and satisfactorily considered by the Tribunal. It could not be said that the claimant had not been given a full opportunity to present his position on appropriate sanction. The case of Weddel and Co v Tepper [1980] IRLR 96 was of no assistance to the claimant in the circumstances of the present case, where the actings of the employer, including at the appeal stage, fell squarely within the band of reasonable responses.
Appeal dismissed.

Citations:

[2018] UKEAT 0012 – 18 – 1411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.634377

UNFAIR DISMISSAL
The claimant was dismissed for misconduct following an earlier final written warning for a different type of misconduct. While she succeeded in an unfair dismissal claim before the Tribunal on the basis of procedural unfairness, her compensatory award was reduced to nil on the basis of a Polkey assessment that, had a fair procedure been followed there was a 100 per cent chance that she would have been dismissed anyway.
On appeal the claimant contended that the Tribunal had erred in concluding that the earlier final written warning was valid and so the Polkey deduction could not stand.
Held:
1) Following Wincanton Group plc v Stone and Another UKEAT/0011/12/LA, the overriding issue was whether, absent oblique motive or bad faith, there had been prima facie ground for issuing the warning
2) It is not part of the general function of the appellate tribunal to re-open the issue of whether the final warning should have been issued or not – Bandara v BBC UKEAT/0335/15/JOJ
3) That there was a sufficient basis in the evidence for the Tribunal’s findings and conclusion on the issue of the earlier written warning and it was not for the appellate tribunal to interfere even if it took a different view of the facts
Appeal dismissed.

Citations:

[2018] UKEAT 0019 – 17 – 1109

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.634372

UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Comparison
The Claimant was employed as a Prison Custody Officer (PCO). He was dismissed following an assault on a prisoner committed whilst the prisoner was being restrained. The Claimant alleged that the dismissal was unfair and discriminatory on the grounds of race as other white PCOs had not been dismissed for similar assaults on prisoners. The Employment Tribunal (ET) dismissed his claims.
The principal ground of appeal was that the ET should have constructed a hypothetical comparator based on the information as to the other white PCOs. That ground was not upheld as the ET’s approach to the hypothetical comparator disclosed no error of law. The Claimant had not sought to challenge the Respondent’s evidence that the circumstances in which the white PCOs were dismissed were materially different from those of the Claimant. As such, the ET could not be criticised for not constructing a comparator in the manner suggested. The ET did consider whether the Respondent would also have dismissed a white PCO who had committed the same offence as the Claimant, and found that it would. That hypothetical comparator was adequate in the circumstances, and the conclusion that that person would also have been dismissed was supported by evidence.

Citations:

[2019] UKEAT 0189 – 18 – 3001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.633780

UNFAIR DISMISSAL – Automatically unfair reasons
On the true construction of section 104(1)(b) of the Employment Rights Act 1996, there must be an allegation by an employee that there has been an infringement of a statutory right, not merely that the employer may, or will, or threatens to, or intends to infringe such a right. Mennell v Newell and Wright (Transport Contractors) Limited [1997] IRLR 519 considered.
Appeal dismissed.

Citations:

[2018] UKEAT 0142 – 18 – 1910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.633789

Citations:

[2018] EWCA Civ 1320

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 May 2022; Ref: scu.617325

A child, Jasmine Beckford, had died and the claimant social workers were criticised in a report. The claimants were summarily dismissed, and claimed unfair dismissal.
Held: Where a disciplinary procedure is set out in a contract, a failure to implement that procedure may in itself be a breach of the contract. The contract may itself limit the matters which can be subject to disciplinary proceedings.

Citations:

[1988] ICR 842, [1988] IRLR 299

Citing:

See Also – Dietmann v Brent London Borough Council CA 1987
An enquiry into the death of Jasmine Beckford had led to the two social workers being peremptorily dismissed. The report had accused them on not intervening effectively. Each had been involved in her care, and each brought claims of unfair . .
Appeal from – Dietmann v London Borough of Brent; Wahlstron v Same EAT 2-Jan-1987
EAT Two social workers had been peremptorily dismissed after adverse findings against them in an enquiry into the death of Jasmine Beckford. They appealed saying that they should have been allowed a disciplinary . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.536805

An enquiry into the death of Jasmine Beckford had led to the two social workers being peremptorily dismissed. The report had accused them on not intervening effectively. Each had been involved in her care, and each brought claims of unfair dismissal. They noew appealed against a decision that their cases should be heard together. They said that the answers of one given in cross examination might be prejudicial to the other.
Held: The appeal failed. The question was one for the discretion of the tribunal chairman by virtue of regulation 15. An exercise of that discretion could only be disturbed if it could be shown tp be unreasonable in that he or she had either taken some irrelevant consideration into account, or had failed to take a relevant consideration into account, or had oherwise acted perversley. A joint hearing need not lead to unfairness or prejudice, and justice would be seen to be done if the cases were held together, allowing the appropriate apportionment of blame
Sir John Donaldson MR said that it was clearly in the interests of everyone that the two cases should be heard together.
As to appeals, they are restricted to pints of law whether the point invoved is substantive or procedural.
Balcombe LJ, giving the leading judgment in this court adopted Hodgson J’s comment in the court below in relation to the local authority’s submission that no disciplinary meeting was necessary where the charge was one of gross misconduct.

Judges:

Sir John Donaldson MR, Balcombe LJ

Citations:

[1987] IRLR 146

Statutes:

Industrial Tribunal (Rules of Procedure) Regulations 1985 15 18.1

Citing:

Appeal from – Dietmann v London Borough of Brent; Wahlstron v Same EAT 2-Jan-1987
EAT Two social workers had been peremptorily dismissed after adverse findings against them in an enquiry into the death of Jasmine Beckford. They appealed saying that they should have been allowed a disciplinary . .

Cited by:

See Also – Dietmann v Brent London Borough Council CA 1988
A child, Jasmine Beckford, had died and the claimant social workers were criticised in a report. The claimants were summarily dismissed, and claimed unfair dismissal.
Held: Where a disciplinary procedure is set out in a contract, a failure to . .
See Also – Dietmann v London Borough of Brent; Wahlstron v Same EAT 2-Jan-1987
EAT Two social workers had been peremptorily dismissed after adverse findings against them in an enquiry into the death of Jasmine Beckford. They appealed saying that they should have been allowed a disciplinary . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.536804

EAT Two social workers had been peremptorily dismissed after adverse findings against them in an enquiry into the death of Jasmine Beckford. They appealed saying that they should have been allowed a disciplinary hearing. They objected also to the hearing of both cases together.
Held: In answer to the suggestion that in a case of serious misconduct no disciplinary hearing may be necessary, Hodgson J said: ‘Such a construction would mean that the more serious the offence . . the less procedural protection the employee charged with misconduct would have’.
Mr Justice Hodgson also discussed a conflict of view which between various eminent judges as to whether it is right to say that a wrongful dismissal must be accepted to become effective. He concluded that the ‘acceptance view’ is the correct view and that in a proper case, the court can, where there has been a wrongful dismissal, prevent, by injunction, the implementation of that dismissal until, for instance, the proper procedures laid down in the contract have been followed.
Arepudiation by one party to an employment contract must be accepted by the innocent party to be deemed effective.

Judges:

Hodgson J

Citations:

[1987] IRLR 259, [1987] ICR 387

Statutes:

Industrial Tribunal (Rules of Procedure) Regulations 1985 15 18.1

Citing:

See Also – Dietmann v Brent London Borough Council CA 1987
An enquiry into the death of Jasmine Beckford had led to the two social workers being peremptorily dismissed. The report had accused them on not intervening effectively. Each had been involved in her care, and each brought claims of unfair . .

Cited by:

Appeal from – Dietmann v Brent London Borough Council CA 1987
An enquiry into the death of Jasmine Beckford had led to the two social workers being peremptorily dismissed. The report had accused them on not intervening effectively. Each had been involved in her care, and each brought claims of unfair . .
Appeal from – Dietmann v Brent London Borough Council CA 1988
A child, Jasmine Beckford, had died and the claimant social workers were criticised in a report. The claimants were summarily dismissed, and claimed unfair dismissal.
Held: Where a disciplinary procedure is set out in a contract, a failure to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.536803

An assistant accountant was dismissed for lack of management ability in that he couldn’t do as he was told and was unable to supervise or co-operate with staff.
Held: The employee may have lacked dynamism, but had not been employed as a manager, and should not have been expected to perform as such. No real evidence had been brought to show him to be lacking in capability to perform the job he was employed to do.

Citations:

[1975] IRLR 356

Employment

Updated: 04 May 2022; Ref: scu.536420

Complaint was made that the claimant had been given incorrect advice by the Tribunal office.

Citations:

[1991] IRLR 153

Employment

Updated: 04 May 2022; Ref: scu.519439

The employer complained of the alleged misuse of property taken during the course of his employment by the defendant.

Judges:

Nelson J

Citations:

[2002] EWHC 2480

Cited by:

Not on Point – Fairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.514226

EAT The EAT set out a procedure for affidavit evidence by an appellant who had never entered a notice of appearance and was seeking to appeal against a substantive decision on the merits reached adversely to him.

Citations:

[1995] ICR 56

Cited by:

Cited – Kwik Save Stores Ltd v Swain EAT 1997
An appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors.
When considering barring a party for . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.510941

The employee driver had complained of a change in the base from which he was employed. The contract of employment was silent as to whether the employer had any right to transfer the employee from one depot to another, and the employer asked that a term could be implied.
Held: The employer’s appeal succeeded. An employee in this particular context could not reasonably have objected to an express term that he should be employed within daily travelling distance of his home or, if you please, within a reasonable distance of his home. Slade LJ said: ‘The court merely has to be satisfied that the implied term is one which the parties would probably have agreed if they were being reasonable.’

Judges:

Slade LJ

Citations:

[1988] ICR 451

Citing:

Cited – Jones v Associated Tunnelling Co Ltd EAT 16-Oct-1981
The tribunal had been asked as to the circumstances under which the acceptance of new employment terms can be inferred from an employee’s continuing to work.
Browne-Wilkinson P said: ‘The starting point must be that a contract of employment . .

Cited by:

Cited – Luke v Stoke on Trent City Council EAT 15-Dec-2006
Contract of Employment – Implied term
Unlawful Deduction from Wages – Ready, Willing and Able to Work
The employee had been off work following allegations that she was bullied by her manager. An independent investigator rejected her . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.511342

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.

Citations:

[1978] IRLR 22

Cited by:

Cited – Hotson v Wisbech Conservative Club EAT 1984
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 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.470361

The claimant had been absent through sickness. When he recovered to be able to return, his co-employees were on strike. He joined the strike. All the strikers were dismissed.
Held: At common law, by going on strike, employees commit repudiatory breaches of their contracts of employment. It is on the employer to decide whether to accept the breach as an end to the contract or to allow the contract to continue despite the breach.
Phillips J said: ‘One of the matters considered at length by the Donovan Commission was the effect of strikes on the contract of employment . . it was clearly the view of the commission that at common law a contract cannot be terminated unilaterally and that if an employee refuses to carry on working under his contract of employment, his employer has the option either to ignore the breach of contract and to insist upon performance of it, or alternatively to accept such a fundamental breach as a repudiation of the contract and to treat himself as no longer bound by it. In our judgment this view was in accordance with general principle and supported by authority. In short, refusal to work during a strike did not involve ‘self dismissal’ by the strikers but left the parties to the contract hoping that the strike would one day be settled and the contract be alive unless and until the employer exercised his right to dismiss the employee.’

Judges:

Phillips J

Citations:

[1977] 1 All ER 775, [1976] 3 WLR 901, [1977] ICR 61, [1977] QB 284

Citing:

Explained – Morgan v Fry CA 1968
The threat was made by union officials of calling a strike by giving notice.
Held: The act of going on strike constitutes a fundamental breach by an employee of his contract of employment, the act of going on strike amounting to a unilateral . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.447653

Citations:

[1992] UKEAT 79 – 91 – 1510

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Royston v Symphony Group Plc EAT 21-Feb-2006
EAT Practice and Procedure: Case Management; Unfair Dismissal: Reason For Dismissal Including Substantial Other Reason
In deciding that the employee’s dismissal was for redundancy, the ET rejected his case . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 May 2022; Ref: scu.211124

The parties had reached an agreement not to continue unfair dismissal proceedings, but the defendant now complained of the claimant’s attempt to do so.
Held: The section renders void an agreement to withdraw a claim already made to the Tribunal: ‘We find ourselves constrained by those considerations to regard the phrase ‘bringing any proceedings before an industrial tribunal’ as being intended to be wide enough to comprehend proceeding with a complaint which has been presented [under paragraph 17] . . ‘

Citations:

[1978] ICR 631

Statutes:

Employment Protection (Consolidation) Act 1978 140(1)

Cited by:

Cited – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.430834

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 dismissal has taken place it is a premature application and the Industrial Tribunal has no jurisdiction’.

Judges:

Kilner Brown J

Citations:

[1977] 2 All ER 1

Cited by:

Applied – 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 . .
Still Good Law – 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: 02 May 2022; Ref: scu.430685

The EAT considered what would amount to a series of acts of detriment when considering whether a protected disclosure action was out of time.
Held: HHJ JR Reid QC asked: ‘What then is the meaning of ‘a series of similar acts or failures’? ‘Series’ necessarily connotes some factual linkage between events. It is not simply some concatenation of similar acts or failures. The whole point about that particular phrase is that it enables an employee to bring proceedings within 3 months of the last of the series, provided there are similar acts or failures. That in itself necessarily connotes a temporal element to it; one event following on another.
Then we have the words ‘similar acts or failures’ and here it seems to me that some meaning must be given to the word ‘similar.’ It is not enough that there should have been a series of acts or failures, if Parliament had meant to say ‘part of a series of acts or failures’ it would have said so. Thus, it seems to me, that the learned Chairman was correct in saying that it is necessary that there should be a significant degree of linkage between the events.’

Judges:

HHJ JR Reid QC

Citations:

Unreported, 13 June 2005

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Cited by:

Appeal from – Arthur v London Eastern Railway Ltd (T/A One Stansted Express) CA 25-Oct-2006
The claimant brought a claim for detriment suffered after he had made a protected disclosure. The employer replied that he was out of the three month time limit. He had been off sick after being assaulted, and said that his employers had treated him . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.428300

The Government had imposed restrictions on employees’ wages being raised.
Held: The level of remuneration is a fundamental element in any contract of employment, and a reduction in payments may amount to a repudiation founding a constructive dismissal. Even so, a constructive dismissal is not necessarily an unfair one.

Citations:

[1977] IRLR 389

Employment

Updated: 02 May 2022; Ref: scu.427201

Appeal by the claimant company, Wincanton, against an order dismissing their application for interlocutory injunctions to enforce various restrictive covenants in the first defendant’s, Mr Cranny’s, contract of employment.

Citations:

[2000] EWCA Civ 5567, [2000] IRLR 716

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 May 2022; Ref: scu.428029

The EAT upheld an Industrial Tribunal decision that individual depots at which employees were made redundant were each separate establishments, rather than forming one grouping for the purposes of the duty to consult under s.99 of the Employment Protection Act 1975.

Citations:

[1978] ICR 190

Statutes:

Employment Protection Act 1975 99

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: 02 May 2022; Ref: scu.421401

When an employment covenant is unlimited, the covenant cannot be rewritten to limit its territorial extent.

Judges:

Collins MR

Citations:

[1904] 1 KB 45

Jurisdiction:

England and Wales

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: 02 May 2022; Ref: scu.416386

The employees were sewing machinists employed in the employers’ upholstery factory. Because of a downturn in work, the employers decided to transfer them to their bedding factory, which was very nearby. The work at the bedding factory would be less skilled but was essentially of the same character. The intention was that the transfer would be temporary only, and on terms which protected the employees’ earnings. The employees refused to transfer and resigned and claimed (constructive) unfair dismissal. The Industrial Tribunal held that the employers had not been entitled to require the employees to transfer and that they had accordingly indeed been constructively dismissed.
Held: The appeal failed. Removing a member of staff from a position of responsibility against his or her will is likely to lead to dissatisfaction and low moral, and might even amount to construct dismissal.
Browne-Wilkinson P said: ‘The first question must be whether the requirement to transfer to the bedding department does constitute a breach of contract. We can accept that if an employer, under the stresses of the requirements of his business, directs an employee to transfer to other suitable work on a purely temporary basis and at no diminution in wages, that may, in the ordinary case, not constitute a breach of contract. But in saying that, we think it must be clear that the word ‘temporary’ means a period which is either defined as being a short fixed period, or which, as in the Aveling Barford [1977] IRLR 419 case, is in its nature one of limited duration. Similarly, when dealing with no diminution in wages, we think it is clear that it is on the employers to bring home to the employee, that the order to transfer is on the basis that there will be no diminution in wages. When one refers to this case, first of all, although the transfer was temporary, it was of unlimited and very uncertain duration, because it was to last until the work in the upholstery department picked up again. Secondly, as to the wages, although the Industrial Tribunal found that it was Mr Kroll’s intention to make it clear that he was guaranteeing that their wages would not be decreased, the ladies certainly did not understand that. The statement that there would be no drop in money is ambiguous. It could either mean ‘I forecast that with your skills you will make enough or at least as much money in the bedding department’, or it might mean a guarantee ‘Whatever happens, we will see that you get the same amount of money’. It is inherent in the decision of the Industrial Tribunal that it was not made clear to the employees that they would suffer no diminution of wages in any event.’

Judges:

Browne-Wilkinson P J

Citations:

[1981] IRLR 309

Cited by:

Cited – Haberdasher’s Monmount School for Girls v Turner EAT 8-Mar-2004
EAT Unfair Dismissal
ET incorrectly applied Sir John Donaldson’s dictum in Bridgen [1987] IRLR 58 (based on Woodar v Wimpey): assertion of wrong interpretation of contract not enough for repudiation, which . .
Cited – Luke v Stoke on Trent City Council EAT 15-Dec-2006
Contract of Employment – Implied term
Unlawful Deduction from Wages – Ready, Willing and Able to Work
The employee had been off work following allegations that she was bullied by her manager. An independent investigator rejected her . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.416752

The employee was summarily dismissed by the night production foreman for missing a night shift immediately before taking his annual leave. The personnel officer told the employee about his right of appeal; but the employee decided not to appeal as he did not think there was any point in doing so. The following week the employers made another attempt to persuade the employee to appeal; he was told that there was nothing to lose; but eventually he decided not to do so. The Industrial Tribunal found him unfairly dismissed, but that he had contributed to the dismissal by his own fault in culpably absenting himself from work, making no attempt to explain or apologise before he went on his holiday, becoming excited and truculent at the dismissal hearing and failing to make use of the appeal procedure, which might well have secured a reversal of the decision to dismiss. The Tribunal would therefore have reduced both the basic and compensatory awards by 50%.
Held: A failure to pursue an internal appeal does not affect the fairness of a dismissal. The employee’s failure to use an appellate process is not a matter to be taken into account when the reasonableness of the employers’ actions is being considered under section 57(3), nor can it be construed as any kind of acquiesence in the dismissal but that it can be taken into account when determining whether the employee has mitigated his loss.
‘We have also to consider the submission that the employee failed in his duty to mitigate his loss; see section 74(4) of the Employment Protection (Consolidation) Act 1978. It does seem to us that where there is an appeal procedure which might result in the rescission of a dismissal decision, and where, as in this case, the industrial tribunal have found that his making use of the appeal procedure might well have secured a reversal of the decision, then it is open to argument, and in our view can properly be argued, that he has not taken all reasonable steps to mitigate the loss which must flow from his dismissal, should it shown to be unfair. We do not consider bearing in mind the matters that can properly be taken into account, whether it is on the question of contribution by reason of his own culpable or blameworthy fault, or whether it is by reason of his failure to mitigate his loss, that it can be said that his compensatory award should be reduced by 100%. Although the industrial tribunal in considering the question of contribution erred in taking into account his failure to use the appeal procedure, it does seem that this was a matter which could properly be considered when looking to see whether he had taken all necessary and reasonable steps to mitigate his loss. In all these circumstances we do not consider that it would be right to find that there was any error in the assessment of the industrial tribunal that his basic and compensatory awards should be reduced by 50%.’

Citations:

[1980] ICR 239

Statutes:

Employment Protection (Consolidation) Act 1978 74(4)

Cited by:

Doubted – Lock v Connell Estate Agents EAT 10-May-1994
The employee had failed to meet targets in a difficult sales market. He was dismissed. The ET had found that the sales targets were impossible. The EAT considered what was the effect of his failure to appeal against his dismissal.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.402933

The tribunal had ruled that a document sent by a Union District Secretary to head office claiming dispute benefit for the Claimant and other employees of the Appellant employer; although admissible in evidence at common law, would not be received into evidence because its prejudicial effect on those employees it did not affect outweighed its probative value in other cases. The EAT was asked in the case to which the document was relevant, whether the Employment Tribunal’s jurisdiction to hear claims of unfair dismissal was excluded under section 62 because the Claimants were dismissed while on strike.
Held: The document should have been admitted. In the alternative, if the Employment Tribunal had a discretion to exclude the document, that discretion was wrongly exercised in law in these circumstances.
Talbot J said: ‘But that leaves a matter of some importance to be decided, whether that gives a discretion to an Industrial Tribunal to refuse to admit evidence which is otherwise admissible and prerogative. In our judgment there is no such discretion in an Industrial Tribunal to refuse to admit evidence which is admissible and prerogative of one or more of the issues before it. That opinion has sufficiently disposed of this appeal because in our judgment the Industrial Tribunal were wrong in law in holding that they have a discretion to refuse to admit such evidence and in so refusing to admit it.’

Judges:

Talbot J

Citations:

[1980] ICR 816

Statutes:

Employment Protection (Consolidation) Act 1978 62

Cited by:

Cited – Digby v East Cambridgeshire District Council EAT 30-Nov-2006
EAT Unfair dismissal – Reasonableness of dismissal
Practice and Procedure – Admissibility of evidence
Total exclusion of evidence relating to final written warning inextricably linked with sanction of . .
Doubted (obiter) – Snowball v Gardner Merchant EAT 1987
The employee claimed that she had been sexually harassed by her manager. In the course of her evidence the employers sought to cross-examine her as to her general attitude towards sexual matters, based on events which had occurred during the course . .
Cited – Krelle v C Ransom Tradeteam Ltd EAT 27-Jan-2006
EAT Unfair Dismissal: Reason for Dismissal including Substantial Other Reason:
Practice and Procedure: Appellate Jurisdiction / Reasons / Burns-Barke
ET did not state what acts or omissions . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.393371

The claimant had committed an act of serious negligence, jeopardising the safety of his colleagues. He was removed from his post as a scenic carpenter but offered an alternative post of maintenance carpenter on a trial basis, which was unacceptable to him. He resigned and successfully claimed constructive dismissal.
Held: The imposition of a punishment which is ‘grossly out of proportion to the offence’ can amount to the repudiation of a contract of service. It was for the Tribunal to decide whether the penalty of demotion to maintenance carpenter was within the band of reasonable penalties which a reasonable employer might impose on a man with Mr Beckett’s service with the BBC.

Judges:

Neill J

Citations:

[1983] IRLR 43

Citing:

Cited – Federal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .

Cited by:

Cited – Digby v East Cambridgeshire District Council EAT 30-Nov-2006
EAT Unfair dismissal – Reasonableness of dismissal
Practice and Procedure – Admissibility of evidence
Total exclusion of evidence relating to final written warning inextricably linked with sanction of . .
Cited – Stanley (Wainfleet ) Ltd v J F Sheridan EAT 18-Jul-2002
EAT Procedural Issues – Employment Tribunal . .
Cited – Haberdasher’s Monmount School for Girls v Turner EAT 8-Mar-2004
EAT Unfair Dismissal
ET incorrectly applied Sir John Donaldson’s dictum in Bridgen [1987] IRLR 58 (based on Woodar v Wimpey): assertion of wrong interpretation of contract not enough for repudiation, which . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.393374

‘In the particular sphere of redundancy, good industrial relations practice in the ordinary case requires consultation with the redundant employee so that the employer may find out whether the needs of the business can be met in some way other than by dismissal and, if not, what other steps the employer can take to ameliorate the blow to the employee. In some cases (though not this one) the employee may be able to suggest some re-organisation which will obviate the need for dismissal; in virtually all cases the employer if he consults will find out what steps he can take to find the employee alternative employment either within the company or outside it. For example, in present day conditions when so many people are unemployed many employees facing redundancy by reason of the disappearance of their existing job are prepared to take other jobs of lower status and commanding less pay. Only by consulting the employee can the employer discover whether such an option is open in any given case. Therefore good industrial relations practice requires that, unless there are special circumstances which render such consultation impossible or unnecessary, a fair employer will consult with the employee before dismissing him.
We must emphasise that we are not saying that good industrial relations practice invariably requires such consultation. There may well be circumstances (for example a catastrophic cash flow problem making it essential to take immediate steps to reduce the wages bill) which render consultation impracticable. We are only saying that we would expect a reasonable employer, if he has not consulted the employee prior to dismissal for redundancy in any given case, to be able to show some special reason why he had not done so.’

Judges:

Browne-Wilkinson J

Citations:

[1982] IRLR 443

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: 02 May 2022; Ref: scu.393008

There are restricted circumstances in which the tribunal can interfere on appeal with the tribunal’s exercise of its discretion. Stephenson LJ said: ‘All the reasons which he gave seem to me to be good reasons for the decision to which he came; many important issues are indeed the same in both proceedings; and if it were necessary for me to express my agreement with his exercise of discretion I do not think I would find any difficulty in doing it; but I do not regard it as the function of this court, or the function of the appeal tribunal, to approve the exercise of the industrial tribunal’s discretion to postpone. All the appeal tribunal has to do is to see whether there is any error in law, and they can only do that, it seems to me, in accordance with the guidance given by the precedents of the appeal tribunal in other cases: they must look to see whether there is anything wrong in law with the decision, and whether it is so surprising that something must have gone wrong with it and that it could be characterised as perverse or a decision which no reasonable tribunal could have come to.’

Judges:

Stephenson LJ

Citations:

[1979] IRLR 361, [1979] ICR 908

Jurisdiction:

England and Wales

Citing:

Approved – 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 . .

Cited by:

Mentioned – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Bull Information Systems Ltd v Joy and Rose EAT 13-Apr-1999
The claimants complained of unfair dismissal. The appellant company said that the contracts, as apprenticeships, did not give rise to continuous service accruals. The company appealed against a refusal of an adjournment of the hearing.
Held: . .
Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.380323

Whether an employer’s behaviour amounts to a fundamental breach of the employment contract is essentially a question of fact for the tribunal.

Citations:

[1981] ICR 674

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: 02 May 2022; Ref: scu.377346

The tribunal emphasised the need for a disciplinary procedure to be fair in providing an employee opportunities to know the case against him, and the evidence, and to be given chance to dispute that evidence.

Judges:

Knox J

Citations:

[1991] IRLR 336

Cited by:

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

Employment

Updated: 02 May 2022; Ref: scu.377814

The system of job evaluation when selecting for redundancies, for which there is uniquely by statue the designation of an expert, is one which is susceptible to different methodologies.

Judges:

Lord Chancellor, Lord Thankerton, Lord Russell of Killowen, Lord Macmillan, Lord Wright, Lord Porter, Lord Clauson

Citations:

[1984] IRLR 463

Jurisdiction:

England and Wales

Cited by:

See Also – Hayward v Cammell Laird Shipbuilders Ltd (No. 2) HL 1988
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with . .
Cited – Middlesbrough Borough Council v Surtees and others EAT 24-Aug-2007
EAT Equal Pay Act – Equal value
When an Independent Expert has been appointed by an Employment Tribunal to report on an equal value question, rule 11(4) of Sched 6 to Employment Tribunal Regulations 2004 . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.377520

Unreasonable conduct by an employer was sufficient to amount to constructive dismissal, regardless of whether it involved a breach of contract by the employer.

Judges:

Kilner-Brown J

Citations:

[1976] IRLR 257

Cited by:

Approved – Turner v London Transport Executive CA 1977
. .
Overruled – 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 – 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: 02 May 2022; Ref: scu.377341

Slynn P summarised the case law on implying terms into employment contracts: ‘In our judgment the proper approach is to look at all the facts and the circumstances to see whether a term is to be implied that wages shall or shall not be paid during periods of absence through sickness. Such a term as the cases show may be implied from the custom or practice in the industry. It may be implied from the knowledge of the parties at the time the contract is made. The implication may depend upon whether the contract is one whether payment is due if the servant is ready, willing and able to work. It may depend not so much as to whether the employee is willing and ready or willing and able to work but on whether payment for the wages of the consideration for faithful service at other times during the contract and during the period of absence rather than for a particular week’s work actually performed. These are all matters which will have to be taken into account; so will the nature of the contract itself.’

Judges:

Slynn P

Citations:

[1981] IRLR 99

Citing:

Cited – Marrison v Bell CA 1939
Scott LJ referred to the authorities on implying terms as to payment of sick pay into employment contracts: ‘Those cases say in my opinion quite clearly that under a contract of service irrespective of the question of length of notice provided by . .

Cited by:

Appeal from – Mears v Safecar Security Ltd CA 2-Jan-1981
There is generally a presumption that sick pay will be paid. A term would be implied if the contract was silent on the point. In implying terms into a contract of employment (the terms in that case relating to sick pay) courts and tribunals were not . .
Cited – Lindsey Beveridge v KLM UK Ltd EAT 16-Feb-2000
EAT The claimant appealed refusal of her claim for unlawful deduction. She had been off sick long term. Her doctor certified her fit to return, and she asked to return, but her employer waited a further six weeks . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.374255

Any failure by an employer to pay any amount of wages properly payable to an employee amounts to a deduction from his wages for the purposes of section 7. The basic object of the 1986 Act is ‘to see that workers receive their wages in full at the time they are due’.
The 1986 Act does not draw a distinction between, on the one hand, a mere non-payment or refusal to pay wages, and, on the other hand, a deduction from wages. The position is that any shortfall in the payment of the amount of wages properly payable to the worker is to be treated as a deduction. Nicholls LJ said: ‘If on his pay day, when an employee is due to be paid, a worker receives less wages than he should have done, the deficiency is to be regarded as a deduction for the purposes of the Act.’

Judges:

Nicholls LJ

Citations:

[1991] IRLR 112

Statutes:

Wages Act 1986 7

Cited by:

Appeal from – Delaney v Staples HL 15-Apr-1992
The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The . .
Cited – Revenue and Customs v Stringer, Ainsworth and Others HL 10-Jun-2009
In each case, the employee had retired after long term sickness. The Employment tribunal had upheld their ability to claim arrears of sickness pay arising under the 1998 Regulations, as an unlawful deduction from their wages. They now appealed . .
Cited – Bruce and Others v Wiggins Teape (Stationery) Ltd EAT 13-May-1994
Employees appealed against decisions that their employer had not made unlawful deductions from their wages. The company had unilaterally reduced the rate of overtime pay.
Held: The appeal was allowed.
Mummery J P said: ‘the reason why the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.374670

Scott LJ referred to the authorities on implying terms as to payment of sick pay into employment contracts: ‘Those cases say in my opinion quite clearly that under a contract of service irrespective of the question of length of notice provided by that contract, wages continue through sickness and incapacity from sickness to do the work contracted for until the contract is terminated by a notice by the employer in accordance with the terms of the contract.’

Judges:

Scott LJ

Citations:

[1939] 1 ALL ER 745

Cited by:

Cited – Mears v Safecar Security Ltd EAT 1981
Slynn P summarised the case law on implying terms into employment contracts: ‘In our judgment the proper approach is to look at all the facts and the circumstances to see whether a term is to be implied that wages shall or shall not be paid during . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.374256

The employee was dismissed on refusing to accept new terms and conditions which were proposed to bring into line the terms and conditions of employees in their original business with those of employees, including the claimant, of another business taken over by the employers. The proposed new terms were financially and otherwise to his detriment. The Industrial Tribunal held there had been an unfair dismissal holding in reliance on Chubb Fire Security Ltd v Harper [1983] IRLR 311 that the question which fell to be considered was: ‘whether the respondents were acting reasonably in deciding that the advantages to them of implementing the proposed reorganisation outweighed any disadvantage which they should have contemplated that the applicant might suffer.’ The IT concluded: ‘The offer as made to the applicant was unduly disadvantageous to him as compared with any advantage to the respondents . . no matter how one looks at it he was worse off under the offered terms and he was entitled to reject them.’
Held: The employer’s appeal succeeded. The complaint of unfair dismissal had not been made out. ‘The Industrial Tribunal erred in holding that the appellants had acted unreasonably in dismissing the respondent for refusing to accept changes in his terms and conditions of employment which would bring him into line with existing employees holding similar positions, on the grounds that he would be worse off under the new terms. The Industrial Tribunal had misdirected themselves in law in interpreting the EAT’s decision in Chubb Fire Security v. Harper as indicating that the sole question to be answered was whether the appellants had acted reasonably in deciding that the advantages to them of implementing the proposed changes outweighed any disadvantages which they should have contemplated that the respondent might suffer.’
and ‘In determining whether an employer has acted reasonably in dismissing an employee who refuses to agree to changes in his terms and conditions of employment consequent upon a reorganisation, Industrial Tribunals should confine themselves to the question posed under s.57(3) of the Employment Protection (Consolidation) Act, ie whether the dismissal was fair or unfair, having regard to the reasons shown by the employer, depends on whether, in the circumstances, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and that question should be determined in accordance with equity and the substantial merits of the case. When that question has had to be considered in other cases, Industrial Tribunals have approached it on the basis of considering the range of responses open to an employer in the circumstances and if the action taken by the employer to dismiss is within the range of reasonable responses of an employer in a similar situation, then the dismissal is fair, provided all the other requirements are complied with. The task of weighing the advantages to the employer against the disadvantages to the employee is merely one factor which the Tribunal have to take into account in determining the question in accordance with equity and the substantial merits of the case. It does not follow that because there are disadvantages to the employee, the employer acted unreasonably in treating his refusal to accept the changes as a reason for dismissing him.’

Judges:

Beldam J

Citations:

[1985] IRLR179

Statutes:

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

Cited by:

Cited – St John of God (Care Services) Ltd v Brooks and others EAT 8-Apr-1992
The appellant had suffered a reduction in its income. It made an offer to staff, on the point of dismissing for refusal to sign, of less favourable terms, including reduced pay and holiday entitlement and the abolition of overtime rates for weekend . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.374118

The Tribunal dealt with the question that arose when an Industrial Tribunal had considered The EAT was asked whether it was reasonable for an employee to decline the new terms of a contract. The Tribunal’s judgment had said: ‘If it was reasonable for him to decline these terms then obviously it would have been unreasonable for the employers to dismiss him for such refusal.’
Held: That was a wrong approach. Balcombe J stated: ‘We must respectfully disagree with that conclusion. It may be perfectly reasonable for an employee to decline to work extra overtime having regard for his family commitments, yet from the employer’s point of view having regard to his business commitments, it may be perfectly reasonable to require an employee to work overtime. . . We agree with the comment . . in Harvey . . ‘it does not follow that if one party is acting reasonably the other is acting unreasonably.’

Judges:

Balcombe J

Citations:

[1983] IRLR 311

Statutes:

Employment Protection (Consolidation) Act 1978 57(1)

Cited by:

Cited – St John of God (Care Services) Ltd v Brooks and others EAT 8-Apr-1992
The appellant had suffered a reduction in its income. It made an offer to staff, on the point of dismissing for refusal to sign, of less favourable terms, including reduced pay and holiday entitlement and the abolition of overtime rates for weekend . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.374119

A by-law which is uncertain, or contrary to a statute, is void. In an action for money had and received to the plaintiff’s use, it was found by a special verdict; that the Company of Cutlers in Hallamshire in the county of York, which were incorporated by the 21 Ja. 1, c. 31, have a power given by that statute of making such by-laws as are not contrary to the law of the land ; that in the year 1718, the company made a by-law, whereby it is ordered, that the clerk of the company shall receive fifteen shillings for every pair of indentures of apprenticeship which shall be inrolled by him, arid that it shall be referred to the master and wardens of the company, to ascertain how much of the fifteen shillings shall be deducted for the benefit of the company ; and that the clerk of the company had insisted upon and received fifteen shillings from the plaintiff for the enrolling of a pair of indentures, by which the plaintiff’s son was bound an apprentice to a member of the company. The question was, if this by-law be good? It was holden, that it is not.

Judges:

Ryder CJ

Citations:

[1790] EngR 1079, (1790) Say 251, (1790) 96 ER 870 (C)

Links:

Commonlii

Employment

Updated: 02 May 2022; Ref: scu.364132

The ability of a tribunal to revisit its own judgments, the review procedure, was only appropriate for use in exceptional circumstances.

Citations:

[1978] IRLR 112

Cited by:

Cited – Trimble v Supertravel Ltd EAT 1982
The Industrial Tribunal had held that the appellant’s dismissal was unfair but then decided that she had failed to mitigate her loss. At the conclusion of the hearing, the Tribunal announced its decision and stated that she was to get no . .
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 – 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: 02 May 2022; Ref: scu.347413

EAT UNFAIR DISMISSAL
S.98A(2) ERA / Reasonableness of dismissal / Polkey deduction / Compensation
Change of terms and conditions of employment. Dismissal on notice with offer of re-engagement. Whether inadequate consultation rendered dismissals unfair under s98(4). Application of s98A(2). Approach to Polkey question in assessing financial compensation.

Judges:

Peter Clark J

Citations:

[2009] UKEAT 0522 – 08 – 2606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 May 2022; Ref: scu.347326

The plaintiff claimed benefits after an injury to a member while riding his motor cycle in the course of the performance of his duties as a ‘sick steward’ of the union. The applicant, who was an employee of a public corporation, had become a sick steward by nomination under the rules of the union. He could have been fined had he refused to act. Neglect of duties would have led to fining and, eventually, to dismissal. The rules laid down the duties of the sick steward, which were, primarily, to visit sick members once a week, make payments to him, account for monies and such like. The issue for the court was whether, at the time of the accident, the applicant was ‘in insurable employment’ as defined statutorily and, in particular, whether the particular arrangement whereby a member of the union was appointed a sick steward and paid for performing the duties of a sick steward (one shilling for each visit and travelling expenses) came within the meaning of ‘contract of service’ in the relevant statutory provision.
Held: Construing the statutory provision, there had to be a contract which provided for employment of one person by another person and, if so, the provisions as to employment were contract of service provisions, as opposed to contract for services provisions.

Judges:

Megaw J

Citations:

[1963] 1 WLR 441

Cited by:

Cited – Lambden v Henley Rugby Football Club and Another EAT 29-May-2009
lambden_henlryrfcEAT2009
EAT CONTRACT OF EMPLOYMENT: Whether established
The Claimant was a part time Rugby Coach. The Employment Tribunal found that he had freely elected to be paid as an independent contractor though a limited . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.346605

Wood J said: ‘It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case.’

Judges:

Wood J P

Citations:

[1990] IRLR 320

Cited by:

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

Employment

Updated: 02 May 2022; Ref: scu.341171

The court upheld the dismissal by employers of a long-serving employee who had stolen and subsequently altered a road fund licence belonging to his employers and had persistently lied about the incident.
Held: When considering the decision of an employer’s disciplinary panel, it was not for the Tribunal to consider whether a lesser sanction would have been reasonable; but whether the dismissal itself was within the band of reasonable responses. The correct test is to ask whether it was reasonable to dismiss the employee? If no reasonable employer would have dismissed him, then the dismissal is unfair. If a reasonable employer might reasonably have dismissed him, then the dismissal is fair. There is a band of reasonableness within which one employer might reasonably dismiss the employee whilst another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose. If it was reasonable to dismiss, the dismissal must be upheld as fair even though some other employers might not have dismissed.

Judges:

Lord Denning MR

Citations:

[1981] IRLR 91

Cited by:

Cited – Santamera v Express Cargo Forwarding (T/A IEC Ltd) EAT 26-Nov-2002
The claimant appealed against a decision that she had not been unfairly dismissed. She had been dismissed after complaints by a colleague, but had not been given the opportunity to examine him during the process.
Held: An employer was not duty . .
Cited – 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: 02 May 2022; Ref: scu.341170

Alleged contributory conduct towards his dismissal on the part of an employee may be considered by a Tribunal even if the employer had put up a bogus reason for the dismissal.
Kilnour-Brown J said: ‘In our view the proper approach is to decide first what was the real reason for dismissal and then to see whether the employee’s conduct played any part at all in the history of events leading to dismissal. In some cases, set against the real reason, it may be apparent that the employee’s conduct, even if reprehensible, was of no relevance whatsoever and made no impact on the situation. In the present case the employers made great use of the employee’s conduct in the process of dismissal. They had every justification for so doing, for the conduct was extremely reprehensible. The employee’s conduct certainly contributed to his dismissal in the sense that it was a factor in the minds of the employers. Put another way, the real reason for dismissal was not exclusive of all other matters and a bogus reason does not necessarily shut out the employer completely if there was material to support the reason relied upon. We conclude, therefore, that the employee’s conduct ought to be considered not only with reference to incompetence but also with reference to misconduct. In our view the weight to be given to the employee’s conduct ought to be decided in a broad common sense manner.’

Judges:

Kilnour-Brown J

Citations:

[1978] ICR 89

Cited by:

Cited – Swallow Security Services Ltd v Millicent EAT 19-Mar-2009
EAT UNFAIR DISMISSAL: Contributory fault
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.323743

Citations:

1983 SLT 630

Jurisdiction:

Scotland

Cited by:

Cited – Sweetin v Coral Racing EAT 20-Dec-2005
EAT Claimant sought compensation for unfair constructive dismissal and failure to consult prior to a TUPE transfer of a bookmaker’s business for which the claimant worked. Her contract of employment described her . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.306954

Master and servant, Wages. Deduction.-Upon a complaint under stat. 20 G. 2, c. 19, s. 1, by an artificer against his master for nonpayment of wages, the justices may make a deduction from the wages on the ground that the work was badly done.

Citations:

[1862] EngR 1027, (1862) 3 B and S 139, (1862) 122 ER 53

Links:

Commonlii

Employment

Updated: 02 May 2022; Ref: scu.287193

The employee sought witness summonses for his employer’s senior management to attend. The tribunal judged that they would be most unlikely to be able to add anything to the witness in middle management who was to be called in relation to deal with the issues on which the senior management could help.
Held: The summons was refused. If during the course of the case it seemed that the original decision not to issue a witness summons might be wrong, then the Tribunal can always remedy the matter, adjourning if necessary.

Judges:

Slynn J

Citations:

Unreported, 23 October 1980

Cited by:

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: 02 May 2022; Ref: scu.280440

The test for determining whether there has been a repudiatory breach of contract sufficient to entitle the employee to leave and claim constructive dismissal is an objective one to be determined by the Tribunal itself. The Employment Appeal Tribunal will not interfere with such findings unless they amount to a conclusion which no reasonable tribunal could reach. The tribunal should consider –
(i) What are the terms of the contract of employment?
(ii) Do the facts as found by the tribunal constitute a breach of contract by the employer?
(iii) Does the conduct of the employer amount to a fundamental breach of contract?

Citations:

[1981] ICR 674, [1981] IRLR 173

Jurisdiction:

England and Wales

Cited by:

Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – McBride v Scottish Police Authority (Scotland) SC 15-Jun-2016
The court was asked whether the employment tribunal had been correct, after finding that the appellant had been unfairly dismissed, to order her reinstatement. She had worked as a fingerprint officer, but her reinstatement was to be on terms that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.279813

The loss of a right to an extended period of notice is a proper head of damages in an employment loss case: ‘It is a claim for compensation for the loss of an intangible benefit, namely that of being entitled in the course of one’s employment, to a longer notice than might otherwise be the case.’ After referring to Hilti: ‘Looked at in that way, as the loss of an intangible benefit, rather than the loss of actual remuneration, we think it is clear that the Industrial Tribunal erred in law in this case and ought to have made an award in respect of this particular loss to whatever extent they consider to be appropriate.’

Citations:

[1981] IRLR 385, [1982] ICR 1

Jurisdiction:

England and Wales

Citing:

Applied – Hilti (Great Britain) Ltd v Windridge EAT 1974
EAT The employer appealed against the tribunal’s decision to make an award to compensate the respondent for the loss of entitlement to an extended statutory notice period.
Held: The award was upheld. Lord . .

Cited by:

Cited – Wolff v Kingston Upon Hull City Council and Another EAT 7-Jun-2007
EAT Practice and Procedure: Costs
1. Employment Tribunal entitled to make award of costs where Claimant persisted unreasonably in pursuing his claim for re-engagement.
2. The conventional award for loss . .
Mentioned – Dugdale Plc v Cartlidge EAT 20-Apr-2007
EAT Unfair Dismissal – Automatically unfair reasons / compensation
Employment Tribunal decision that Respondent has failed to comply with Schedule 2 Part 1 of the Employment Act 2002 contrary to authorities . .
Cited – Superdrug Stores Plc v Corbett EAT 12-Sep-2006
EAT Unfair Dismissal – Exclusions including worker/jurisdiction.
The Tribunal had awarded an obviously excessive sum of andpound;1420 for loss of statutory rights, without explanation of their reasons for . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.278666

Citations:

UKEAT/0071/07

Jurisdiction:

England and Wales

Cited by:

Cited – Clyde Valley Housing Association Ltd v Macaulay EAT 3-Apr-2008
clyde_macaulayEAT2008
EAT Jurisdictional Points: 2002 Act and pre-action requirements
Statutory grievance procedure. Modified procedure. Whether letter from claimant’s solicitor set out the basis for her grievance. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 May 2022; Ref: scu.277074

Slynn J considered the power of a tribunal to strike out a case: ‘These cases are not easy. There may well be instances where a tribunal can say, on the face of the application and the reply, that a case is so misconceived that it ought not to be allowed to continue.’

Judges:

Slynn J

Citations:

[1981] ICR 351

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: 02 May 2022; Ref: scu.277524

Citations:

[1993] UKEAT 404 – 91 – 0903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 May 2022; Ref: scu.210517

An employer’s failure to provide a reasonable amount of work, barring force majeure, is a breach of the contract of employment.

Citations:

[1906] 2 KB 728

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: 01 May 2022; Ref: scu.276937

The tribunal had found the employee claimant to have been unfairly dismissed when the employer dismissed for redundancy or reorganisation. Although there was a redundancy situation they were not satisfied that the employee was dismissed for that reason rather than that being a pretext for dismissing for another reason, namely his performance.
Browne-Wilkinson J said: ‘First, it is submitted that since the Industrial Tribunal had found that there was a redundancy situation (or alternatively that there had been a re-organisation of the managerial structure) they should have found that the reason for dismissal was either redundancy or some other substantial reason of a kind such as to justify dismissal. The submission was that the evidence of redundancy being clear, in the absence of compelling proof or some other reason, the Industrial Tribunal ought to have found that the redundancy or re-organisation was the reason. It was urged that since the employers had tendered the evidence as to Mr Thomson’s alleged unsatisfactory performance in his job as evidence of the reason why he, rather than others, was selected for redundancy, it was not open to the Industrial Tribunal to look at such evidence as suggesting that it was the incapacity not the redundancy that was the reason for dismissal. We reject this submission. In our view, there is no such presumption as it is suggested. Even where there is a redundancy situation, it is possible for an employer to use such situation as a pretext for getting rid of an employer he wishes to dismiss. In such circumstances the reason for the dismissal will not necessarily be redundancy. It is for the Industrial Tribunal in each case to see whether, on all the evidence, the employer has shown them what the reason for the dismissal, that being the burden cast on the employer by s.57(1) of the Act. The evidence in this case, even though possibly tendered for some other purpose, certainly raised the possibility that redundancy was used as a pretext for getting rid of Mr Thomson. The Industrial Tribunal was entitled to hold that they were not satisfied as to the reason for dismissal. On that basis the employers’ defence to the claim failed at the first hurdle and a finding of unfair dismissal followed as of course.’

Judges:

Browne-Wilkinson J

Citations:

[1981] IRLR 522

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 . .
Cited – McBride v Scottish Police Authority (Scotland) SC 15-Jun-2016
The court was asked whether the employment tribunal had been correct, after finding that the appellant had been unfairly dismissed, to order her reinstatement. She had worked as a fingerprint officer, but her reinstatement was to be on terms that . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.276825

A post employment restrictive covenant operated for a period of six months after the end of his employment ‘however that comes about and whether lawful or not.’
Held: Lord Coulsfield found this wholly unreasonable.

Judges:

Lord Coulsfield

Citations:

[1994] IRLR 69

Jurisdiction:

Scotland

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: 01 May 2022; Ref: scu.276820

The house considered a clause imposing a post employment restrictive covenant which was to operate for twelve months ‘following the termination of [the employee’s] employment hereunder (howsoever caused).’
Held: Lord Caplan said: ‘With regard to the argument that the reference to termination of employment ‘howsoever caused’ is too wide, because it would countenance a situation where the employer could unlawfully dismiss his employee and then avail himself of the covenant, I find difficulty in following this. I find no difficulty with the views expressed by Lord Coulsfield and Lord Abernethy to the effect that a provision which provided for the operation of a covenant on a termination of employment however caused, be it lawfully or unlawfully on the part of the employer would be objectionable. However, the question remains whether the particular provision being considered is as wide as this and I need not concern myself with the construction that it was approriate to place on the provisions in the Living Design case and the Lux case. In my view the relevant provision ‘howsoever caused’ in the present case is not apt to cover unlawful termination. There are many ways in which an employment contract can be lawfully terminated. The contract may be terminated upon proper notice, the term of a contract may expire, the parties may agree that it should be terminated precipitately, or the employer may dismiss the employee if he has a legitimate reason for doing so. In all of these situations the employer will have a valid interest in applying the restrictive covenant to protect his business connection. On the other hand, there would be no effective purpose in providing against a termination caused by the employer’s unlawful conduct. If the employer were to dismiss his employee unlawfully then by the operation of the principle of mutuality of contractual provisions the restrictive covenant would not be available to him. In the situation considered by Lord Coulsfield in the Living Design case the contract (for some reason) specifically provided that the covenant should cover an unlawful termination. However, in the absence of such a specific provision I do not think that it can be readily inferred that the parties intended that the contract be read so as to incorporate such a provision.’

Judges:

Lord Caplan

Citations:

[1996] IRLR 188

Jurisdiction:

Scotland

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: 01 May 2022; Ref: scu.276821

The court considered what was a trade dispute.

Citations:

[1960] AC 132

Cited by:

Cited – Torquay Hotel v Cousins CA 17-Dec-1968
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.272904

The plaintiffs sought various remedies against an ex-employee who had set up a company in competition with the plaintiffs. One was for breach of confidence in respect of a card index of customer contacts, a copy of which the first defendant had taken with him when he left the plaintiffs. That copy had been recovered on the execution of an Anton Piller order. Falconer J had granted various interlocutory injunctions, including an injunction restraining the defendants from entering into or fulfilling any contract with a person who had been approached by them at a time when they were in possession of the card index.
Held: The plaintiffs had a strong prima facie case of misuse of confidential information, and the injunction had been properly granted. Nevertheless the Court limited the duration of the injunction to one year, being the period of the restrictive covenant contained in the employment contract.
In general, all the employer’s information, the use or disclosure of which would harm the employer, is protected during employment whereas only trade secrets and information dishonestly obtained will be protected after employment ends.
Nourse LJ said: ‘it is necessary to start by restating, so far as they are material, the principles of law upon which an employer’s right to sue an employee for misuse of confidential information is founded. Those principles have, I believe, been clarified in the recent judgments of Mr. Justice Goulding and this court in Faccenda Chicken Ltd. v. Fowler [1985] 1 AER 724 and [1986] 1 AER 617. What is now clear, at all events in cases where there is no express agreement between the parties, is that the confidential information whose misuse is actionable at the suit of the employer may fall into one of two distinct classes. For present purposes it is convenient to state them in the reverse order to that in which they were stated in Faccenda Chicken v. Fowler. First, there are what this court compendiously described as trade secrets or their equivalent. They may not in any circumstances be used by the employee, either during or after the employment, except for the benefit of the employer. It was in order to protect information of that class that the second injunction was granted in the present case. Secondly, there is information which, although not falling into the first class, must nevertheless be treated as confidential by the employee in the discharge of his general implied duty of good faith to his employer. Such information may not be used by the employee during the employment except for the benefit of the employer but, if and only to the extent that it is inevitably carried away in the employee’s head after the employment has ended, it may then freely be used for the benefit either of himself or of others.
In the present case it is, correctly, not suggested by Mr Price, for the plaintiffs, that the information contained in the card index falls into the first of these two classes. He submits that it falls into the second class and that it is covered by the following passage in the judgment of this court which was delivered by Lord Justice Neill in Faccenda Chicken Ltd. v. Fowler [1986] 1 AER at page 625E:
‘(3) While the employee remains in the employment of the employer the obligations are included in the implied term which imposes a duty of good faith or fidelity on the employee. For the purpose of the present appeal it is not necessary to consider the precise limits of this implied term, but it may be noted: (a) that the extent of the duty of good faith will vary according to the nature of the contract (see Vokes Ltd. v. Heather); (b) that the duty of good faith will be broken if an employee makes or copies a list of the customers of the employer for use after his employment ends or deliberately memorises such a list, even though, except in special circumstances, there is no general restriction on an ex-employee canvassing or doing business with customers of his former employer (see Robb v. Green [1895] 2 QB 315 . . and Wessex Dairies Ltd. v. Smith [1935] 2 KB 80’
Mr. Fitzgerald did not, as I understood his argument, contend that the information contained in the card index did not prima facie fall into the second class of confidential information. I think it is clear that it did. Moreover, it is obvious that, if it is a breach of the duty of good faith for the employee to make or copy a list of the employer’s customers, the removal of a card index of the customers is an a fortiori case. ‘

Judges:

Nourse LJ

Citations:

[1987] ICR 464, [1987] IRLR 491, [1987] FSR 172

Citing:

Cited – Faccenda Chicken Ltd v Fowler CA 1986
Nature of Confidentiality in Information
The appellant plaintiff company had employed the defendant as sales manager. The contract of employment made no provision restricting use of confidential information. He left to set up in competition. The company now sought to prevent him using . .

Cited by:

Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Cited – Universal Thermosensors Ltd v Hibben and Others ChD 8-Jul-1992
After complex litigation, the remaining issues were a claim for damages by the claimant in respect of the defendant’s misuse of confidential information and a counterclaim by the defendants for loss falling within the claimant’s cross-undertaking in . .
Cited – Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others ChD 26-Jun-2009
Arnold J reviewed the authorities and expressed his conclusion that an injunction will not be granted to prevent a future publication of information that has ceased to be confidential. He qualified this statement in relation to information that . .
Cited – British Broadcasting Corporation v Harpercollins Publishers Ltd and Another ChD 4-Oct-2010
The claimant sought an injunction and damages to prevent the defendant publishing a book identifying himself as ‘the Stig’ saying that this broke his undertaking of confidentialty as to his identity, a necessary part of the character in the TV . .
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: 01 May 2022; Ref: scu.270352

The applicant was a hairdresser, who refused to work on Saturday afternoons and was told at a meeting with her employers that they were not prepared to employ her any longer on that basis and that she would have to go. She left before the formal dismissal and claimed to have been dismissed.
Held: She was dismissed and had not resigned voluntarily.

Citations:

[1974] IRLR 325

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: 01 May 2022; Ref: scu.268099

The employers were unhappy about the claimant’s performance though they gave him no warning. He was invited to a meeting in London to discuss pay but was there told that they were to discuss his shortcomings. A list was read out to him, and he was told that one way of resolving the problem was to part company, on a voluntary basis. It was stated thus: ‘What we are suggesting is a voluntary arrangement, and it is not a question of us dismissing you tomorrow as an alternative’. Later that day, and over the next few days, negotiations took place, after which C was presented with a resignation letter, which he signed, and a cheque for andpound;5,570, which he accepted. He subsequently claimed unfair dismissal. His claim succeeded before the Industrial Tribunal.
Held: The emloyers appeal succeeded. He and his employer had come to a genuine agreement, free from pressure, that there should be a resignation on suitable terms. It was for Mr. Crowley to show that the employers’ conduct caused him to leave: he had not done so and could not claim constructive dismissal.
Slynn J said:- ‘The cases to which they (the Tribunal) were referred do not decide that an employee cannot resign pursuant to an agreement with his employers. What those cases decide is that if the departure of the employee is caused by the threat of dismissal if the man does not resign, or if the agreement to resign is not a genuine one and arrived at without pressure, then there is a dismissal. But they leave open the possibility that the cause of the departure is not the threat of the dismissal, but is the agreement which is arrived at and possibly the payment of money as a result of that agreement. So we consider here that the tribunal did on this aspect of the case properly and correctly direct themselves in law.
They considered whether there really had been a resignation free from pressure by the time it was arrived at, or whether there was here a dismissal disguised behind a request for resignation. They were satisfied that the gap between what happened on the 14 July and the decision by Mr. Crowley to accept the cheque and to sign the letter on the 18 July was sufficient for this to have been in his case a genuine resignation. They were satisfied that there had been proper negotiation and it is clear that the figures which were discussed rose substantially as we have said from the equivalent of a former salary for four months to something like a year, with a number of extras. It seems to us that there was evidence here upon which the tribunal could conclude that Mr Crowley had deliberately chosen to resign on this occasion; that it was an agreement arrived at free from the unfortunate circumstances in which the first meeting took place and arrived at genuinely.

Judges:

Slynn J

Citations:

[1979] EAT 31/79, Unreported, 20 April 1979

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: 01 May 2022; Ref: scu.268097

The applicant was employed as a process worker who refused to accept a transfer to a different task. He was given the choice of resigning or being dismissed. She left but claimed to have been dismissed.
Held: She had been dismissed.

Citations:

[1975] IRLR 104

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: 01 May 2022; Ref: scu.268100

Mr Salton was a social worker who had been withdrawn against his will from Durham’s emergency duty team. During disciplinary proceedings, he received a letter in which Durham raised additional complaints against him and argued that he should be summarily dismissed. He decided to resign on the basis that Durham had no intention of returning him to what he described as his ‘contractual post’. His union representative, with whom he discussed the matter, negotiated terms on his behalf which resulted in a written agreement. The Employment Tribunal found that he had not been dismissed but that his employment had been terminated by mutual consent in accordance with the terms of a valid agreement, into which he had entered freely and without duress, and under which he benefited from a financial consideration.
Held: The EAT dismissed his appeal. The agreement whereby he resigned had been entered into willingly, without duress and after proper advice, and for good consideration.

Judges:

Wood J

Citations:

[1989] IRLR 99

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: 01 May 2022; Ref: scu.268102

EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke.

Judges:

His Honour Judge Clark

Citations:

UKEAT/0178/07/CEA

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.258113