EAT Practice and Procedure – Case management
Employment Tribunal had refused to grant witness order on the application of Claimants in an unfair dismissal claim because (1) dismissal was admitted and so the onus was, they said, on the Respondents to show both the reason for the dismissal and that it was fair; and (2) the Claimants could ask for sight of the Respondents’ witness list. The witness in question was the manager of a shop to which the Respondents had provided the Claimants as cleaners; the Respondents were asserting that they had had to dismiss the Claimants as the shop manager had required that they be removed from working at those premises. On appeal, the appeal was upheld and an order was substituted ordering that the witness attend the forthcoming hearing and give evidence if called on so to do. The Tribunal’s refusal was perverse: the onus was not on the Respondents to show fairness, the Tribunal had, in any event, taken account of an irrelevant matter in considering onus, and the Tribunal had failed to take account of the fact that seeing the Respondents’ witness list would not, of itself, secure the witness for the Claimants. The witness was plainly one who had potentially relevant evidence to give and the Claimants were entitled to seek to have her evidence available to them.

Judges:

The Honourable Lady Smith

Citations:

UKEATS/0015/07

Links:

EATn

Citing:

See Also – Bedfordshire Police v Liversidge EAT 10-Jul-2000
. .

Cited by:

See Also – Atlas Cleaning Ltd v Liversidge and others EAT 2-Apr-2008
EAT The claimants were employed by the respondents as cleaners. They worked at a ‘Zara’ store and were dismissed when that client required that they no longer work in their premises. They had been offered . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.258151

EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal.

Judges:

Her Honour Judge Wakefield

Citations:

UKEAT/0108/04

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.256802

EAT Practice and Procedure – Application/Claim.

Judges:

His Honour Judge Burke Qc

Citations:

UKEAT/0270/06

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.257895

EAT Practice and Procedure – Costs.

Judges:

The Honourable Mr Justice Silber

Citations:

UKEAT/0842/04

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.257353

EAT Public Interest Disclosure

Judges:

His Honour Judge Peter Clark

Citations:

UKEAT/0635/05

Links:

EAT

Cited by:

Appeal from – Babula v Waltham Forest College CA 21-Jul-2006
Renewed application for permission to appeal. . .
At EAT – Babula v Waltham Forest College CA 7-Mar-2007
The claimant said his dismissal had been automatically unfair under section 106(a) which protected him as a whistleblower. The court was asked whether any disclosure had to relate to an actual criminal offence, or otherwise what would be sufficient. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.257687

EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal.

Judges:

Her Honour Judge Wakefield

Citations:

UKEAT/0013/04

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.256824

EAT Contract of Employment – Incorporation into Contract.

Judges:

His Honour Judge Richardson

Citations:

UKEAT/0331/05

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.257658

EAT Working Time Regulations – Holiday pay.

Judges:

His Honour Judge Mcmullen Qc

Citations:

UKEAT/0035/05

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.256931

EAT Contract of Employment – Sick pay and holiday pay.

Judges:

His Honour Judge Mcmullen Qc

Citations:

UKEAT/0604/05

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.257772

EAT Unfair Dismissal
The Employment Tribunal did not err when it held the Claimant was unfairly constructively dismissed. There was no break in the chain of events leading to the application of the last straw doctrine. London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493 applied.

Judges:

His Honour Judge Mcmullen

Citations:

UKEAT/0044/05

Links:

EATn

Citing:

Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.257304

EAT Transfer of Undertakings – Transfer. TUPE – Botzen – whether employed in the part transferred – no issue of law.

Judges:

The Honourable Mr Justice Bean

Citations:

UKEAT/0838/04

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.257333

EAT Practice and Procedure – Bias, misconduct and procedural irregularity.

Judges:

The Honourable Lady Smith

Citations:

UKEATS/0065/05

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.257836

EAT Working Time Regulations – (no sub-topic).

Judges:

The Honourable Mr Justice Silber

Citations:

UKEAT/0194/06

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.257814

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

Judges:

The Honourable Mr Justice Lindsay (P)

Citations:

EAT/1507/00

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.255884

EAT Unfair Dismissal – Compensation.

Judges:

The Honourable Mr Justice Lindsay (President)

Citations:

EAT/71/00

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.255306

EAT Procedural Issues – Employment Tribunal.

Judges:

His Hon Judge Clark

Citations:

EAT/631/00

Links:

EAT

Citing:

See Also – C Walsh v Margaret McDonagh (on Her Own Behalf and on Behalfof All Other Members of the Labour Party) EAT 20-Dec-2001
EAT Procedural Issues – Employment Tribunal
EAT Procedural Issues – Employment Tribunal. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.255850

EAT Unfair Dismissal – ‘This case is about whistle blowing, the treatment of an employee who makes disclosure in the public interest about wrong doing by others. ‘

Judges:

His Hon Judge McMullen QC

Citations:

EAT/54/03

Links:

EAT

Statutes:

Public Interest Disclosure Act 1998

Cited by:

Appeal from – De Haney v Mind and Another CA 27-Oct-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.256542

EAT Procedural Issues – Employment Tribunal

Judges:

The Honourable Mr Justice Lindsay (P)

Citations:

EAT/432/02

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.256044

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

Judges:

His Honour Judge D Pugsley

Citations:

EAT/1456/99

Links:

EAT

Employment

Updated: 01 May 2022; Ref: scu.255261

B who was mentally disabled, worked cleaning up swing-parks. There was an altercation with the District Manager and the Foreman which ended by Mr Barclay saying that he wanted his books ‘the next day.’ The next day was a pay day and the manager gave instructions for B to sign the form to terminate his employment. Though not keen to B did sign, but over the weekend realised what had happened and went into work on the Monday. He was sent home by the foreman saying that he had resigned.
Held: Lord McDonald said ‘It may be that the majority of the tribunal were correct in holding that when the appellant demanded his books on the Thursday, notwithstanding that it was in the heat of the moment, he meant it at the time. The real question however is whether or not in the special circumstances the respondents were entitled to assume that this was a conscious rational decision. It is true that the majority refer to the exceptional circumstances of the case but we do not consider that having regard to the observations in Sothern v. Franks Charlesly and Co, it is sufficient to dismiss the unusual aspect of this case in this way. We consider that the proper approach is to have regard, not merely to what was said on the Thursday, but to what happened the following day and indeed to the fact that the appellant did report for work on the following Monday apparently under the impression that he was still employed. At the very least there was, in our view, an obligation upon the respondents when the appellant reported on Friday to seek some form of confirmation that his act of resignation was in fact a genuine one and fully understood. Instead of that they adopted what we consider to be the indefensible practice of requiring him against his will, to sign a blank document which presumably on some subsequent occasion was filled in by them with the word ‘resigned’ written opposite the entry ‘Reason for Leaving’. Further we agree with the observation of the dissenting member that in the special circumstances of this case a reasonable employer would at least have consulted with one of the appellant’s sisters before assuming the appellant meant the words that he had used. For these reasons we propose to allow the appeal’

Judges:

Lord McDonald

Citations:

[1983] IRLR 313

Citing:

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

Cited by:

Cited – Kwik-Fit (GB) Ltd v Lineham EAT 5-Feb-1992
The applicant claimed unfair dismissal. The employer replied that the employee had resigned.
Held: The employer’s appeal was dismissed. The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able . .
Cited – Willoughby v C F Capital Plc EAT 13-Jul-2010
EAT UNFAIR DISMISSAL – Dismissal/ambiguous resignation
Whether employee was dismissed – unambiguous words of dismissal used by employer – Tribunal erred in law in holding that by reason of ‘special . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.251739

The claimant had worked for the employer for many years. There was a disagreement, and the employee said ‘I am leaving, I want my cards’. He claimed unfair dismissal.
Held: The EAT upheld the employer’s appeal against a finding of unfair dismissal. although it was undesirable for an employer to accept a resignation of long serving employee without giving him a chance to reconsider his decision nevertheless where the words were clear and unambiguous the employer was entitled to accept the resignation. Arnold J: ‘But we do not think there is anything in industrial law which could be employed to reverse the conclusion that there was here a resignation merely by reason of the reservation which we have about the desirability from the point of view of general industrial relations of accepting finally without any invitation to reconsider a resignation which comes out in this way.’

Judges:

Arnold J

Citations:

[1978] ICR 1149

Cited by:

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

Employment

Updated: 01 May 2022; Ref: scu.251734

The claimant was a flight operations manager answerable to a general manager, operations and traffic. The employer re-organised abolishing both posts to one job of operations manager, with different tasks, new responsibilities and enhanced status for the occupant. Both post holders were dismissed. The employer paid appropriate redundancy pay but the employee complained he had been unfairly dismissed.
Held: The case was not a case of unfair dismissal but of redundancy. It could not be right that, if a dismissal had been caused by re-organisation, the reason could not be redundancy. Phillips J: ‘In truth a re-organisation may or may not end in redundancy; it all depends on the nature and effect of the re-organisation.’ The work of the new post was different in kind from that done by either of the two previous employees: ‘Thus in our judgment it can truly be said that the dismissal of the employee was attributable to the fact that the requirements of the business for employees to carry out work of a particular kind had ceased or diminished and that each was redundant.’

Judges:

Phillips J

Citations:

[1978] ICR 304

Cited by:

Cited – Shawkat v Nottingham City Hospital NHS Trust CA 21-Jun-2001
The claimant doctor had been dismissed. He said it was unfairly, and the Trust replied that he had been made redundant ‘for some other reason’ since he had nt acceted new conditions of work.
Held: The employee’s appeal failed. The EAT had . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.242102

The employee was unfairly dismissed for redundancy. He was given 5 weeks pay in lieu, a statutory redundancy payment and a severance payment under the employers’ own scheme. He did not obtain another job until well after his period of notice had expired. The tribunal assessed compensation on the basis that the factory was to close anyway he would have been made redundant. They awarded loss of earnings for the whole period and deducted the pay in lieu and made other adjustments. The EAT said that the severance payment should not have been deducted.
Held: The Norton principle should be upheld as it had been applied without operating unfairly for many years. Ex gratia payments were not recoverable where the judgment of the EAT on this topic was not the subject of an appeal by the employers.
Ralph Gibson LJ said that it was not always good industrial relations practice to make a full payment in lieu of notice: ‘It seems to me, however, that circumstances may arise in which, having regard to the length of notice required, and the known likelihood of the employee getting new employment within a short period of time, or for other sufficient reason, an employer may show that a payment less than the wages due over the full period of notice did not offend good industrial practice. The employer might tender two months’ in respect of a six-month period of notice and ask to be informed if the expected new job was for any reason not obtained. I am unable to accept that any rule of law exists which requires that in all circumstances, irrespective of the terms upon which a payment in lieu of notice was made, and of any jurisdiction for not making payment in full of wages in advance for the full period of notice, the employee is entitled in claiming a compensatory award under Section 74 to disregard wages earned from another employer during the notice period. The number of cases in which an employer will be able, in view of an industrial Tribunal, to justify departure from the general practice will probably be small. But in my view no rule of law exists to prevent the industrial Tribunal from considering such a case or from giving effect to it if it is so established.’
Sir John Donaldson MR considered that Norton was still good law, although emphasising that it was not ‘holy writ’. He explained its juridical basis: ‘If the Norton case was rightly decided, and I think it was, or, if it was not, it should not be disturbed because it had been so widely accepted as correct for so long, it does indeed lay down a rule of law, but one that is more limited than is sometimes appreciated. That rule, is that, in assessing compensation for unfair dismissal, it is just and equitable to regard a claimant as having suffered an additional loss if the employer in unfairly dismissing him did not otherwise act in accordance with good industrial practice. That there is nothing inconsistent in expecting an employer who dismisses unfairly so to act is well illustrated by the instant case, where an employer does just that. What the Norton case did not, and could not, decide as a rule of law, was that in all circumstances good industrial practice required that notice of dismissal should be accompanied by the payment of ‘money in lieu.’ Good industrial relations practice can change and, in any event, what is good industrial practice in relation to a weekly wage earner entitled to notice measured in weeks, may be quite different from that which is appropriate in the case of senior salaried staff entitled to notice measured in months or years.’

Judges:

Ralph Gibson LJ, Donaldson MR and Bingham LJ

Citations:

[1987] ICR 805, [1987] IRLR 173

Jurisdiction:

England and Wales

Cited by:

Cited – Langley and Another v Burso EAT 3-Mar-2006
The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by . .
Cited – Burlo v Langley and Carter CA 21-Dec-2006
The claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The . .
Cited – Knapton and others v ECC Card Clothing Ltd EAT 7-Mar-2006
EAT Unfair Dismissal: Compensation
Reversing the Employment Tribunal, in the assessment of compensation for unfair dismissal under Employment Rights Act 1996 section 123, an employee who took early receipt . .
Cited – Stuart Peters Limited v Bell EAT 22-Oct-2008
EAT UNFAIR DISMISSAL: Compensation/Mitigation of loss
The employee was unfairly constructively dismissed. She was entitled to a 6 month notice period that was not paid by the employees in that period, . .
Cited – Stuart Peters Ltd v Bell CA 30-Jul-2009
The claimant had a contract entitling her to six month’s notice. She left claiming constructive dismissed, but found work shortly after. She still sought the full six months’ pay. The EAT found in her favour. The employer appealed.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.240327

The employee, an airline pilot, was entitled to three months contractual notice. The Tribunal had awarded compensation for the full three months even although he had earned a salary from other employment during part of that period.
Bristow J said: ‘Now the reason that the Industrial Tribunal awarded the equivalent of the wages that Mr Fletcher would have earned during the whole period was that they followed the observations of the National Industrial Relations Court in Norton Tool Co Ltd v Tewson [1972] IRLR 86, as interpreted in Vaughan v Weighpack [1974] IRLR 105 (another decision of the same Court). As we see it, they took those cases as laying it down as a rule of law that (to quote the judgment in Vaughan v Weighpack) ‘that was to be considered as the irreducible minimum to which the employee is entitled under this head of compensation’. In our judgment, if the Industrial Relations Court intended to lay that down as a rule of law, they were wrong to do so. The law and the whole law on this matter is contained in the provisions of the Statute, and the provisions of the Industrial Relations Act 1971, under which those deci sions were made, were in effect the same as the provisions of s.74 of the Employment Protection (Consolidation) Act 1978, It was not until the Employment Protection Act 1975 that, in addition to compensatory award, a provision was made, enshrined in ss.72 and 73 of the 1978 Act, that there should be a basic award which would always be awarded, irrespective of the actual amount of the loss sustained by the employee; and that is, of course, the equivalent of the ‘irreducible minimum to which the employee is entitled’, referred to in Norton v Tewson and Vaughan v Weighpack.
We think that the Industrial Relations Court was doing no more than to say that, in general, an Industrial Tribunal, considering what it was just and equitable to award, might well come to the conclusion that they should start with what the employee would have earned through the notice period if he had not been dismissed. Maybe there are cases in which it might be just and equitable for an Industrial Tribunal to take that view before the basic award was introduced by the 1975 Act. But, in our judgment, it is difficult to imagine any situation, during the period in which the basic award obtained, in which it could be just and equitable to make any compensatory award which was not directly related to financial compensation for actual financial loss . . . . In our judgment, the concept of a basic irreducible minimum, apart from actual monetary loss sustained, is quite foreign to the way in which the whole matter of compensatory award is approached.’

Judges:

Bristow J

Citations:

[1981] IRLR 272

Jurisdiction:

England and Wales

Citing:

Cited – 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 – Vaughan v Weighpack Ltd NIRC 1974
(National Industrial Relations Court) In a claim for compensation for unfair dismissal, the employee should be treated as having suffered a loss in so far as he received less than he would have received in accordance with good industrial practice. . .
Not applied – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .

Cited by:

Cited – Langley and Another v Burso EAT 3-Mar-2006
The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by . .
Cited – Burlo v Langley and Carter CA 21-Dec-2006
The claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The . .
Cited – TBA Industrial Products Ltd v Locke EAT 1984
The employee had been unfairly dismissed with 12 weeks pay in lieu of notice.
Held: The court re-affirmed the narrow principle of Norton Tool v Tewson. Browne Wilkinson J P said: ‘It seems to us that the decision in the Tradewinds [1981] IRLR . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.240325

Sir John Brightman referred to Norton Tool, Stepek and Hilti and then said: ‘The principle behind these three cases is clear. If an employee is unfairly dismissed without due notice and without pay in lieu of notice, he is prima facie entitled to compensation equal to his net pay for the proper period of notice. No deduction is to be made for anything which the employee may earn elsewhere, for example, from another employer, during the period for which he should have received notice.’

Judges:

Sir John Brightman

Citations:

[1974] ICR 525

Jurisdiction:

England and Wales

Citing:

Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Cited – Stepek (J) Ltd v Hough NIRC 1973
. .
Cited – 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 – Vaughan v Weighpack Ltd NIRC 1974
(National Industrial Relations Court) In a claim for compensation for unfair dismissal, the employee should be treated as having suffered a loss in so far as he received less than he would have received in accordance with good industrial practice. . .

Cited by:

Cited – Langley and Another v Burso EAT 3-Mar-2006
The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by . .
Cited – Burlo v Langley and Carter CA 21-Dec-2006
The claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.240323

The employee had been unfairly dismissed with 12 weeks pay in lieu of notice.
Held: The court re-affirmed the narrow principle of Norton Tool v Tewson. Browne Wilkinson J P said: ‘It seems to us that the decision in the Tradewinds [1981] IRLR 272 case is quite inconsistent with the earlier cases. We have to decide which authority to follow. In the realm of industrial relations (where settlement by negotiation must be the prime objective) it is even more undesirable than usual that there should be conflicting decisions. If we were satisfied that the decision in Norton [1972] IRLR 86 line of cases was wrong in principle or, due to changes in industrial relations practice, had ceased to be appropriate, we would say so but suggest that the parties should correct the matter in the Court of Appeal rather than produce conflicting authority in this Tribunal. But in our judgment the line of authorities stemming from the Norton [1972] IRLR 86 case is not unsound in principle and there has been no change in law or practice which merits departure from it.
There is no doubt that in assessing compensation under section 74 of the 1978 Act the Industrial Tribunal in deciding what compensation is just and equitable has to have regard to the loss sustained by the employee in consequence of the dismissal. In order to ascertain the loss, one has to discover what the employee would have received if had not been unfairly dismissed. The Appeal Tribunal in the Tradewinds [1981] IRLR 272 case had regard to what, as a matter of contract and the common law remedy for breach of contract, the employee would have got. At common law there is no doubt that the employee is bound to mitigate his loss seeking alternative employment during the notice period and, if successful, his damages for breach of contract are reduced by the amount of his earnings during the notice period from his new employment. The Tradewinds [1981] IRLR 272 case therefore identifies this as his loss.
In making exactly the same assessment (ie the loss suffered by the employee) the Norton [1972] IRLR 86 line of cases starts from a different premise, i.e. that the employer would act not only in accordance with his contractual duties but also in accordance with good industrial practice which would require (in the absence of gross misconduct) that an employee who is summarily dismissed should at the time of his dismissal be paid a payment in lieu of notice covering the notice period. If such good industrial practice is adopted, there is no right for the employer to recover any part of it from the ex-employee if, during the notice period given, he obtains alternative employment. Therefore on this basis the loss suffered by the employee is the full amount of his wages during the notice period without any deductions for wages from the alternative employment.
We can see no flaw in the reasoning of the authorities stemming from the Norton [1972] IRLR 86 case, unless it can be said that the loss referred to in s.74(1) must be limited to the loss which can be recoverable in an action for wrongful dismissal. We can see no reason why such limit should be placed on the wide words of s.74.
We note that the important decisions in the Everwear case and the Blackwell [1976] IRLR 144 case were not cited to this Appeal Tribunal in the Tradewinds [1981] IRLR 272 case. Moreover, in our judgment the suggestion that the introduction of the basic award by the 1975 Act has altered the position is not well founded. The basic award was introduced to compensate an employee for the loss of his accrued rights to a redundancy payment; it has no connection with loss of wages during the notice period.’

Judges:

Browne Wilkinson J P

Citations:

[1984] ICR 228, [1984] IRLR 48

Jurisdiction:

England and Wales

Citing:

Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Cited – Tradewinds Airways v Fletcher EAT 1981
The employee, an airline pilot, was entitled to three months contractual notice. The Tribunal had awarded compensation for the full three months even although he had earned a salary from other employment during part of that period.
Bristow J . .

Cited by:

Cited – Langley and Another v Burso EAT 3-Mar-2006
The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice.
Held: ‘We are put in the invidious position of being bound by . .
Cited – Burlo v Langley and Carter CA 21-Dec-2006
The claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The . .
Cited – Stuart Peters Limited v Bell EAT 22-Oct-2008
EAT UNFAIR DISMISSAL: Compensation/Mitigation of loss
The employee was unfairly constructively dismissed. She was entitled to a 6 month notice period that was not paid by the employees in that period, . .
Cited – Stuart Peters Ltd v Bell CA 30-Jul-2009
The claimant had a contract entitling her to six month’s notice. She left claiming constructive dismissed, but found work shortly after. She still sought the full six months’ pay. The EAT found in her favour. The employer appealed.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.240326

When construing restrictive covenants in an employment contract, the court should construe the contract in the light of the object and intent of the contract as a whole. It may be read down and need not be read literally. Lord Denning said that it is just because there may be serious difficulties in identifying precisely what is or what is not confidential information that a non-competition clause may be the most satisfactory form of restraint, provided that it is reasonable in time and space.
Lord Denning MR said: ‘It is thus established that an employer can stipulate for protection against having his confidential information passed on to a rival in trade but experience has shown that it is not satisfactory to have simply a covenant against disclosing confidential information. The reason is because it is so difficult to draw the line between information which is confidential and information which is not and it is very difficult to prove a breach when the information is of such a character that a servant can carry it away in his head. The difficulties are such that the only practicable solution is to take a covenant from the servant by which he is not to go to work for a rival in trade. Such a covenant may well be held to be reasonable if limited to a short period. That appears from the judgment of Mr Justice Cross in Printers and Finishers Limited v Holloway . .’

Judges:

Lord Denning MR

Citations:

[1977] 1 WLR 1472, [1978] 1 All ER 1026

Jurisdiction:

England and Wales

Citing:

Cited – Printers and Finishers Limited v Holloway 1965
The court considered the questions arising from the use of information acquired by an employee during his employment after that employment had ended, and noted that information the future use of which will not be restrained is information not . .

Cited by:

Mentioned – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Cited – Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others CA 25-May-2006
The employer appealed a finding that he had been unreasonable in seeking to vary the employment contracts of his staff by adding post employment restrictive covenants, and that the consequent dismissals were unfair. Copies of the new contracts had . .
Cited – Scully UK Limited v Lee CA 9-Feb-1998
An employee had covenanted that throughout the year following termination he would not engage in or be ‘otherwise interested in, whether as a shareholder . . employee or . . in any other capacity’ any business, which was defined in terms not limited . .
Cited – Thomas v Farr Plc and Another CA 20-Feb-2007
The employee, the former chairman of the company, appealed a finding that his contract which restricted his being employed for one year in the same field after termination, was valid and enforceable. The company had provided insurance services to . .
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.240028

In deciding whether in the case of employment under a series of short contracts the intervals between the contracts amount to temporary cessation of work, one must look back from the date of termination of the employment over the whole period during which the employee has been employed. There is a material difference in law between the calculation of continuity for the purposes of redundancy, and the right to apply under Part X in relation to unfair dismissal.
Lord Diplock said: ‘There are many employments, of which teaching is one of the largest and most obvious, in which it is perfectly possible to predict with accuracy the periods in which the educational institution at which a teacher is employed to conduct courses in particular subjects will have no work available for that teacher to do ie, during the three annual school holidays or during vacations at universities and other institutions of further education. As the evidence in the instant case discloses, it is common practice to employ part-time teachers of courses at institutions of further education under successive fixed term contracts the length of which is fixed according to the duration of the particular course and expires at the end of it. In the interval between successive courses which may coincide with the end of one academic year at an institution of further education and the beginning of the next but may be considerably longer, there is no work available at the institution for the teacher to do, and he remains without any contract of employment until the course is resumed, when he again becomes employed under a fresh fixed term contract.
A somewhat similar practice is followed in relation to what are known as ‘supply teachers’ in schools, although in their case each fixed term contract is for a single term only. During each of the three annual school holidays between school terms the supply teacher has no contract of employment.’ and
‘So the continuity of employment for the purposes of the Act in relation to unfair dismissal and redundancy payments is not broken unless and until, looking backwards from the date of the expiry of the fixed term contract on which the employee’s claim is based, there is to be found between one fixed term contract and its immediate predecessor an interval that cannot be characterised as short relatively to the combined duration of the two fixed term contracts. Whether it can be so characterised is a question of fact and degree and so is for the decision of an Industrial Tribunal rather by the Employment Appeal Tribunal or an appellate court of law.’

Judges:

Lord Diplock

Citations:

[1983] ICR 273, [1983] IRLR 126

Jurisdiction:

England and Wales

Cited by:

Cited – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
Cited – Pfaffinger and Another v City of Liverpool Community College and Another EAT 4-Mar-1996
The EAT considered the status of part time lecturers of courses at colleges of higher education. They were employed on fixed term contracts for a term at a time. The court was asked whether, if a contract was not renewed, that amounted to a . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.238721

At common law, and office is ‘a subsisting, permanent, substantive position, which had an existence independently of the person who filled it, and which went on and was filled in succession by successive holders.’

Judges:

Rowlatt J

Citations:

[1920] 3 KB 266

Cited by:

Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Adopted – McMillan v Guest HL 1942
The House considered whether the taxpayer held a public office.
Held: Lord Wright: The word ‘office’ as applied in an employment law context is of indefinite content. Lord Atkin said: ‘Without adopting the sentence as a complete definition one . .
Cited – Sharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 May 2022; Ref: scu.236520

A stipendiary lay reader claimed for unfair dismissal. The respondent denied there was any contract of service.
Held: The Tribunal rejected a submission that the claimant was an office holder and, as such, that it followed he was not employed under a contract of service: ‘Merely to say that someone holds an office does not seem to us to decide the question which has to be decided under [the 1974 Act]. Some office holders may well not be employed under a contract of service. It does not follow that an office holder cannot be employed under a contract of service. The question . . is whether the office he holds is one the appointment to which is made by, or is co-existent with, a contract of service. If it is, then he is entitled to the protection of the Act of 1974.’ and ‘It may be difficult to establish who is the other contracting party, but we are not satisfied that clergy when working within the framework of the Church cannot be engaged under a contract. It may well be that the contract, if it exists, is for services rather than of service.’

Judges:

Slynn J

Citations:

[1979] ICR 900

Statutes:

Trade Union and Labour Relations Act 1974

Cited by:

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

Employment

Updated: 30 April 2022; Ref: scu.236485

EAT Trade Union Rights – Action short of dismissal.

Judges:

His Honour Judge Pugsley

Citations:

UKEAT/0222/05, UKEAT/0757/04

Jurisdiction:

England and Wales

Employment

Updated: 30 April 2022; Ref: scu.235312

A court should not infer that a person is an employee not an independent contractor only because he or she does not appear to be running a business. The tribunal should have applied the definition from the 1976 Regulations which defined a self employed person as some employed ‘otherwise than under a contract of services or apprenticeship.’

Citations:

[1988] IRLR 461

Statutes:

Employment Protection (Consolidation) Act 1978 55 81(2)(b) 91(2), Conduct of Emp[loyment Agencies and Employment Buisnesses Regulations 1976 (1976 No 715) 1 9(4) 9(6)(a)(I)

Jurisdiction:

England and Wales

Cited by:

Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.227041

If reference needs to be made to the evidence for the purposes of a statutory appeal, the ordinary resort is to as much of the documentation and notes of evidence as will help to determine what material basis there was for the impugned part of the decision. Amongst the cases in which Chairman’s Notes can properly be ordered is a case where it is said that evidence was given but where no findings as to that evidence are to be found in the decision of the Employment Tribunal in question. Where there is an allegation of perversity in the sense that no Industrial Tribunal properly directed could have reached the conclusion which the tribunal did, that that was a permissible ground on the basis of which an order for the production of the Chairman’s Notes might be made. They will not be ordered where a party is on a ‘fishing expedition’, casting around for possible grounds of appeal, or so that a party can check the reasoning of the Tribunal.

Judges:

Browne-Wilkinson J P

Citations:

[1981] ICR 811

Jurisdiction:

England and Wales

Cited by:

Cited – Oxfordshire County Council v GB and Others CA 22-Aug-2001
When an appeal was lodged against the decision of the Special Educational Needs Tribunal, it was wrong for that Tribunal later to expand on its reasons, save in exceptional circumstances. Parental preference was not an overriding consideration, . .
Cited – Hitt v Lightning Despatch Ltd EAT 20-Feb-1997
Application for order to Tribunal chairman to produce his notes of Evidence.
Held: The court would have been ready to cut through the requirements established in Webb and the relevant Practice Note if that were required to do justice to the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.224964

The employee was dismissed after failing to tell the employer of breaches by a fellow employee of company rules.
Held: An employer seeking to rely upon such a failure as gross misconduct must show that the obligation had been clearly spelled out.

Citations:

Daily Telegraph 21-Apr-1989

Employment

Updated: 30 April 2022; Ref: scu.223971

Referring to the test set out in Marshall: ‘That is helpful, but one needs to know in what kind of circumstances can it be said that further performance of his obligations in the future will be possible? It seems to us that an important question to be asked in cases such as the present – we are not suggesting that it is the only question – is: ‘has the time arrived when the employer can no longer reasonably be expected to keep the absent employee’s post open for him?”
and ‘Among the matters to be taken into account in such a case in reaching a decision are these: (1) the length of the previous employment; (2) how long it had been expected that the employment would continue; (3) the nature of the job; (4) the nature, length and effect of the illness or disabling event; (5) the need of the employer for the work to be done, and the need for a replacement to do it; (6) the risk to the employer of acquiring obligations in respect of redundancy payments or compensation for unfair dismissal to the replacement employee; (7) whether wages have continued to be paid; (8) the acts including the dismissal of, or failure to dismiss, the employee; and (9) whether in all the circumstances a reasonable employer could be expected to wait any longer.’

Judges:

Phillips J

Citations:

[1977] ICR 260

Citing:

Cited – Marshall v Harland and Wolff Ltd NIRC 1972
The doctrine of frustration can apply to contracts of employment. The Court looked at the situations in which it should extend time for an appeal to be filed: ‘Was the employee’s incapacity, looked at before the purported dismissal, of such a . .

Cited by:

Cited – James v The Greytree Trust EAT 17-Jan-1996
The tribunal was asked whether, due to incapacity, an employee has been dismissed, or his contract of employment frustrated. . .
Cited – Williams v Watsons Coaches Limited EAT 1990
‘A number of principles relevant to the application of the doctrine to contracts of employment can be derived from these decisions which, in any event, are rare occurrences in the realm of employment law.
First, that the court must guard . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.221581

‘A number of principles relevant to the application of the doctrine to contracts of employment can be derived from these decisions which, in any event, are rare occurrences in the realm of employment law.
First, that the court must guard against too easy an application of the doctrine, more especially when redundancy occurs and also when the true situation may be a dismissal by reason of disability. Secondly, that although it is not necessary to decide that frustration occurred on a particular date, nevertheless an attempt to decide the relevant date is far from a useless exercise as it may help to determine in the mind of the court whether it really is a true frustration situation. Thirdly, that there are a number of factors which may help to decide the issue as they may each point in one or other direction. ‘ (reference to Egg Stores (Stamford Hill) Ltd . . . To these we would add the terms of the contract as to the provisions for sickness pay, if any, and also, a consideration of the prospects of recovery. Fourthly – see F C Shepherd and Co Ltd v. Jerrom [1986] I.C.R. 802 – the party alleging frustration should not be allowed to rely upon the frustrating event if that event was caused by that party – at least where it was caused by its fault.’

Judges:

President Sir John Wood

Citations:

[1990] ICR 536

Citing:

Cited – Egg Stores (Stamford Hill) Limited v Leibovici EAT 1977
Referring to the test set out in Marshall: ‘That is helpful, but one needs to know in what kind of circumstances can it be said that further performance of his obligations in the future will be possible? It seems to us that an important question to . .

Cited by:

Cited – James v The Greytree Trust EAT 17-Jan-1996
The tribunal was asked whether, due to incapacity, an employee has been dismissed, or his contract of employment frustrated. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.221580

In order to test whether there has been a redundancy the statute asks as to the requirements of the business for employees to do work of a particular kind. The personal attributes of the employee are not relevant except in so far as they reflect upon his ability to perform the relevant tasks.

Citations:

(1966) 1 ITR 307

Cited by:

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

Employment

Updated: 30 April 2022; Ref: scu.214634

Meaning of ‘work of a particular kind’ in the context of redundancy.

Citations:

[1971] 7 ITR 20

Cited by:

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

Employment

Updated: 30 April 2022; Ref: scu.214631

The tribunal reviewed cases under the TUPE regulations. Having found: ‘There is no doubt that the transfer of the business from Mr Golding to Mr Patel was the reason, or was connected with the reason, for the employee’s dismissal. So the case prima facie falls within regulation 8(1).’
Held: ‘The ‘economic’ reasons apt to bring the case within paragraph (2) must, in our view, be reasons which relate to the conduct of the business. If the economic reasons were no more than a desire to obtain an enhanced price, or no more than a desire to achieve a sale, it would not be a reason which related to the conduct of the business. It would not in our judgment be an ‘economic’ reason for the purposes of paragraph (2).’ On the facts, the case fell within Regulation 8(1), because it had not been shown that there was an economic reason within Regulation 8(2). The reason put forward did not relate to the conduct of the business. It simply related to the desire of the transferor to sell the undertaking.

Judges:

Scott J

Citations:

[1987] ICR 631

Cited by:

Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.214601

The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that morning and that the employers had acted reasonably and had fairly dismissed the employee even though they had not warned him about his previous misbehaviour or given him an opportunity to explain his conduct on that morning. It decided that even had there been an investigation the employee would still have been dismissed because on the balance of probabilities the employers would not have accepted his explanation and the dismissal was therefore fair.
Held: Even though in the then context the employer’s decision to dsmiss the employee was not reasonable because of a failure to follow a fair procedure, the dismissal may still be fair if, on the facts proved before the industrial tribunal, the industrial tribunal comes to the conclusion that the employer could reasonably have decided to dismiss if he had followed a fair procedure.

Judges:

Slynn J

Citations:

[1979] ICR 347, [1979] IRLR 94

Cited by:

Criticised – Sillifant v Powell Duffryn Timber Ltd CA 1983
The court explained the principle on ‘British Labour Pump’ as follows: ‘even if, judged in the light of the circumstances known at the time of dismissal, the employer’s decision was not reasonable because of some failure to follow a fair procedure . .
Cited – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .
Wrongly decided – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Mentioned – O’Donoghue v Redcar and Cleveland Borough Council CA 17-May-2001
The Tribunal had been entitled to find on the evidence that an employee unfairly dismissed by reason of sex would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. The . .
Mentioned – Duffy v Yeomans and Partners Ltd EAT 7-Apr-1993
. .
Criticised but binding – W and J Wass Ltd v Binns CA 1982
. .
Cited – Bolton Metropolitan Borough Council v Scranage EAT 8-May-2003
EAT Unfair Dismissal – Reason for dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Baker v Fleet Car Contracts Ltd EAT 23-Jul-1997
. .
Mentioned – Layton v Blackpool Football Club Ltd EAT 6-Dec-1999
EAT Redundancy – Fairness . .
Mentioned – Red Bank Manufacturing Co Ltd v Meadows EAT 1992
A party wishing to complain about a member of the employment tribunal should make his complaint to that tribunal rather than at the EAT. The Polkey principle must be considered by the Tribunal in assessing compensation for unfair dismissal even . .
Mentioned – Kelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
Mentioned – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
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: . .
Effetively re-instated – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.200299

Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, but in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the employer’s conduct amounts to a fundamental breach of the contract.

Judges:

Browne-Wilkinson J

Citations:

[1981] ICR 666, [1981] IRLR 347

Citing:

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

Cited by:

Appeal from – Woods v W M Car Services (Peterborough) Ltd EAT 1981
An employer will be guilty of a breach which entitles an employee to resign and claim constructive dismissal if the employer behaves in such a way as to destroy the relationship of trust and confidence. An employer shall not ‘without reasonable and . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
Cited – London Borough of Newham v Skingle CA 20-Feb-2003
Local Government pensions . .
Cited – Watson v University of Strathclyde EAT 1-Feb-2011
EAT UNFAIR DISMISSAL – Constructive dismissal
Apparent bias. Whether Employment Tribunal had erred in failing to find that there was apparent bias where a member of the panel (the University Secretary) . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.199219

Though the 1971 Act made no reference to it, nonetheless there could be an unfair dismissal deriving from a constructive dismissal. An argument that the converse interpretation should be adopted because earlier legislation (the 1965 Act) had defined dismissal expressly so as to include constructive dismissal was roundly rejected: ‘That comparison points, it is said, to Parliament having intended that there should be no room for an ‘unfair constructive dismissal’. We entirely reject that contention. We consider that the omission arose solely because the draftsman thought it unnecessary to include the subsection. We have no doubt that there can be constructive unfair dismissals and that any amendment of the 1971 Act to include a subsection (c) equivalent to that contained in the 1965 Act would have no effect other than to dispose of a misconstruction of the Act.’

Judges:

Sir John Donaldson

Citations:

[1973] ICR 560, [1973] IRLR 304

Statutes:

Industrial Relations Act 1971, Redundancy Payments Act 1965 3(1)(c)

Jurisdiction:

England and Wales

Cited by:

Cited – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – Meikle v Nottinghamshire County Council EAT 19-Aug-2003
EAT Disability Discrimination – Less favourable treatment. The appellant brought proceedings against the Respondents alleging that they had failed to make adjustments to her workplace and conditions so as to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.199222

Citations:

[1992] IRLR 362

Jurisdiction:

England and Wales

Cited by:

Cited – X v Y (Employment: Sex Offender) CA 28-May-2004
The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 April 2022; Ref: scu.197892

The EAT may exceptionally hear a point not raised at the tribunal where no new facts were required to be pleaded.

Judges:

Talbot J

Citations:

[1980] ICR 795

Jurisdiction:

England and Wales

Citing:

Exception to – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .

Cited by:

Cited – M Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.195717

Citations:

[1985] ICR 143

Jurisdiction:

England and Wales

Cited by:

Cited – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.195688

The proper approach when setting a protective award for non-consultation was to start with the maximum period and to make allowance according to any mitigation found.

Citations:

[1992] IRLR 514

Jurisdiction:

Scotland

Cited by:

Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.194620

Citations:

[1966] 1 All ER 499

Jurisdiction:

England and Wales

Employment

Updated: 29 April 2022; Ref: scu.190049

The company had been owned equally by Mr. Sheffield and Mr. Raison. The Raisons gained effective control of the company on the issue of shares. Mr. and Mrs. Sheffield had been employed, but after a row, she was told she would have to go. This prompted Mr Sheffield to say: ‘Well, if she goes, I go.’ The same day, Mr Raison asked Mr Sheffield how much he wanted in order to go, and was told andpound;10,000. The company could not pay all at once. Mr Raison prepared draft heads of agreement, which they discussed further, before the heads were initialed to show agreement. Mrs Sheffield then signed her ‘resignation letter’. The tribunal was asked whether Mr Sheffield’s resignation in the agreement was something which terminated the contract of employment on the initiative of Mr Sheffield, or whether, it was made from a threat that he would be dismissed if he did not resign with a result that that was a dismissal by the company notwithstanding the intermediate negotiation.
Held: He had resigned.
Arnold J said: ‘It is plain, we think, that there must exist a principle, exemplified by the four cases to which we have referred, that where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than be dismissed (the alternative having been expressed to him by the employer in terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such as that we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation letter or to be willing to give and to give the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases. In such a case he resigns because he is willing to resign as a result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory. Therefore we think that the finding that Mr Sheffield had agreed to terms upon which he was prepared to agree to terminate his employment with the company – terms which were satisfactory to him – means that there is no room for the principle and that it is impossible to upset the conclusion of the Tribunal that he was not dismissed.’

Judges:

Arnold J

Citations:

[1979] ICR 396, [1979] IRLR 133

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
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 . .
Cited – Jones v Mid-Glamorgan County Council CA 13-May-1997
On being told he was to be dismissed, Mr Jones had taken early retirement. He made a claim in the County Court that his pension had been wrongly reduced, The court rejected his allegation that he had acted under duress. His subsequent claim of . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.185974

The tribunal had declined a submission of no case to answer.
Philips J said: ‘It seems to us that that the [decision] was a very proper course to have adopted, and we recommend it as being the course which is in most circumstances the right course to adopt. It further seems to us that, while the burden of proof lies upon the applicant, it would only be in exceptional or frivolous cases that it would be right for the Industrial Tribunal to find at the end of the applicant’s case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it.’

Judges:

Philips J

Citations:

[1977] ICR 885

Jurisdiction:

England and Wales

Cited by:

Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.185972

Slynn J said: ‘We do not think there is a rigid rule of the kind which Mr Brooke first contended for [viz, that a submission of no case should never be allowed except perhaps if there was an error of law]. It is clear that in many cases it is of great importance to hear both sides. We think that would be the normal position. This tribunal has already said in cases alleging race or sex discrimination that it is right normally to hear both sides. It has been said also that where constructive dismissal is alleged, in the ordinary case it is important to call upon both sides to give evidence . . But as we understand it, this tribunal has never said that the Industrial Tribunal cannot stop a hearing at the end of the case of the party whose evidence and submissions come first. It is clearly a power which must be exercised with caution but if the tribunal is satisfied that the party upon whom the onus lies and who goes first has clearly failed either in law or fact to establish what he set out to establish, then it seems to us that the tribunal is entitled to decide the case at that stage.’

Judges:

Slynn J

Citations:

[1979] IRLR 390, [1979] ICR 607

Jurisdiction:

England and Wales

Cited by:

Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.185970

The claimant asserted constructive dismissal.
Held: ‘The argument has revolved around the fact that because of the invitation to the respondent employers to call no evidence their side of the story was never given and so the case was never fully investigated. At first sight that might sound odd because, of course, the onus of proof lay upon Mr Ridley as claimant to show that he was dismissed, and it may be asked, why was it necessary for him in order to do that to be able to pray in aid evidence other than himself and any witnesses he chose to call? But in reality the position is somewhat different in this class of case, where what is being alleged is constructive dismissal. In effect the claimant is saying that he was driven out by the conduct of the employer. The test varied from time to time, but is now firmly established. However it is put, in order to understand the whole position it is very often necessary to see what is said on the employer’s side. Only then can the whole picture be seen. Furthermore, as the Appeal Tribunal has said more than once in different classes of case, the cases which are heard by Industrial Tribunals, are very different from the ordinary case heard by regular courts, and the litigation of necessity takes – or certainly at all events ought to take – something of the form of an inquiry: so that ordinary customary legal procedures need to be applied with that requirement in mind. It is really essential that at the end of the day the parties should feel that the whole of the facts have been investigated. Particularly of course is that so in a case such as this where the complaint is one of constructive dismissal. … It seems to us that in all the circumstances of this case [stopping the case at the end of Mr Ridley’s evidence] was not a satisfactory approach, and they would have been wiser to have heard what the employers had to say.’

Judges:

Philips J

Citations:

[1978] 13 ITR 195

Jurisdiction:

England and Wales

Cited by:

Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.185971

Where an Industrial Tribunal’s decision could not be reviewed because under the rules, the new evidence had been available, a review based on the new evidence should only be granted where there existed some mitigation causing the failure to bring the matter within the rules, rather than the nature of the dispute at large, making it such that the interests of justice required a review. ‘ . . in logic and in law this (that which is in the interests of justice) has to be geared to [the particular provisions at issue] and not to the nature of the dispute at large.’

Judges:

Bristow J

Citations:

[1985] 1 ICR 198

Jurisdiction:

England and Wales

Citing:

Applied – Flint v Eastern Electricity Board EAT 1975
The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He . .

Cited by:

Cited – Stanley Cole (Wainfleet) Ltd v Sheridan CA 25-Jul-2003
The employment tribunal, in delivering its judgment had cited a decision which was not among those referred to by the parties, but it did not give an opportunity to them to comment on it before delivering its decision.
Held: Such an ommission . .
Cited – Saggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
Appeal from – Deria v General Council of British Shipping 1986
The claimant alleged race discrimination by an employment agency against when he applied for work on a British registered ship, which was not an establishment in Great Britain at the relevant time. At the time of refusal it was not contemplated or . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.185967

The Employment Appeal Tribunal had no jurisdiction to hear appeals which do not attempt to disturb an order of the tribunal.

Citations:

[1981] ICR 8

Cited by:

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

Employment

Updated: 29 April 2022; Ref: scu.185535

The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: ‘This breach of this implied obligation of trust and confidence may consist of a series of action on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? ‘ This is the ‘last straw’ doctrine.’ and
‘This case raises another issue of principle which, so far as I can ascertain, has not yet been considered by this court. If the employer is in breach of an express term of a contract, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part – the start – of a series of actions which, taken together with the employer’s other actions, might cumulatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly ‘yes’.
It follows, in my judgment, then in the present case the industrial tribunal should have asked themselves the question whether the employer’s treatment of the employee starting with the demotion in November 1981 including reduction in pay, the loss of the use of the use of an office and the various memoranda of complaint in 1982, culminating in that of 2 August 1987, cumulatively constituted a breach of the implied obligation of trust and confidence of sufficient gravity to justify the employee in leaving his employment in August 1982 and claiming that he had been dismissed. Did the Tribunal ask themselves this question, and if so how did they answer it? In so posing the question, I realise that I am, with respect, disagreeing with the approach of the appeal tribunal.’
Neill LJ said: ‘Moreover where an employee complains that he has been constructively dismissed, it is necessary for him to prove that he terminated the contract in circumstances such that he was entitled to terminate it without notice by reason of the employer’s conduct: see section 55(2) of the Act of 1978. The conduct must be repudiatory and sufficiently serious to enable the employee to leave at once. On the other hand it is now established that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of the contract of employment that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see Woods v W.M. Car Services (Peterborough) Ltd. [1981] ICR 666 in the Employment Appeal Tribunal.’

Judges:

Glidewell LJ, Neill LJ

Citations:

[1986] ICR 157, [1985] IRLR 46

Jurisdiction:

England and Wales

Citing:

Approved – Woods v W M Car Services (Peterborough) Ltd EAT 1981
An employer will be guilty of a breach which entitles an employee to resign and claim constructive dismissal if the employer behaves in such a way as to destroy the relationship of trust and confidence. An employer shall not ‘without reasonable and . .

Cited by:

Cited – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Cited – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2001
The claimant appealed against dismissal of her claim of unfair constructive dismissal. She complained of having been publicly told off. The court considered whether this amounted to a breach of a fundamental term of her contract entitling her to . .
Cited – Muschett v Parkwood Healthcare EAT 16-Mar-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal did not approach the question of constructive unfair dismissal in a last straw case by reference to the steps in Omilaju. To take an . .
Cited – Neary and Neary v Dean of Westminster 9-Jun-1999
Financial wrong-doing short of dishonesty can be a basis for summary dismissal. Gross misconduct sufficient to justify dismissal must in the particular circumstances so undermine the trust and confidence of an employer that he should no longer be . .
Mentioned – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
Cited – Meikle v Nottingham City Council EAT 14-Apr-1994
The appellant challenged dismissal of her claim for indirect racial discrimination based on two grounds. First, that the Tribunal’s decision was perverse; in other words that it was a decision which, on the evidence before it, no reasonable tribunal . .
Cited – Meikle v Nottinghamshire County Council EAT 19-Aug-2003
EAT Disability Discrimination – Less favourable treatment. The appellant brought proceedings against the Respondents alleging that they had failed to make adjustments to her workplace and conditions so as to . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 29 April 2022; Ref: scu.185214

A contract of apprenticeship is, in law, less readily terminable by the employer than an ordinary contract of employment.

Citations:

[1941] 1 All ER 552

Cited by:

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

Employment

Updated: 29 April 2022; Ref: scu.184781