Working Time – Concept of Worker – Foster Parents – Opinion – Request for a preliminary ruling – Directive 2003/88/EC – Working time – Scope – Concept of worker – Foster parents – Exclusion

Citations:

ECLI:EU:C:2018:518, [2018] EUECJ C-147/17 – O

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 24 April 2022; Ref: scu.619026

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
CONTRACT OF EMPLOYMENT – Wrongful dismissal
DISABILITY DISCRIMINATION – Direct disability discrimination
The Tribunal had erred in its findings on the claims of unfair and wrongful dismissal. The Claimant’s dismissal had arisen from his alleged intention to act in breach of policies requiring him to notify his line manager of certain disqualifying criminal offences within 14 days. The disciplinary process had commenced at a time when the notification period had not expired and he had then notified his line manager within the 14-day period. The Tribunal ought to have considered the claims of unfair and wrongful dismissal in the context of the proper construction of the Respondent’s policies. Both claims would be remitted for that purpose, in accordance with this Judgment. The Tribunal did not err when considering the claim of direct disability discrimination.

Citations:

[2018] UKEAT 0106 – 17 – 0207

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618923

CONTRACT OF EMPLOYMENT: Construction of Term
PERSONAL BAR: Mora taciturnity and acquiescence
The claimants were successful before the Tribunal in arguing that night allowances were properly payable to them in terms of their contracts of employment. The respondent appealed and contended that the Tribunal had erred in its approach to the construction of the contracts. It was not in dispute that clauses in a collective agreement had been incorporated therein, although the material provisions were not known to the claimants at the time of contracting. The respondent also appealed the Tribunal’s decision that the doctrine of mora taciturnity and acquiescence did not apply to such claims.
Held:
Appeal allowed in relation to the ground relative to construction of contract. The Tribunal had erred in concluding that the reasonable person test applied in circumstances where the claimants were unaware of the term they subsequently claimed was incorporated. The relevant clause was clear and provided for two equally valid alternative approaches to payment of allowances. There was no default or implied provision. The question of which option applied to the claimant’s’ contract was a matter for evidence. There was material before the Tribunal on which it could make findings in relation to the issue of which option applied. The case would be remitted for the Tribunal to make those findings based on the evidence already available.
Appeal dismissed in relation to the ground relying on mora taciturnity and acquiescence. The plea is not apposite where statute imposes a limited period during which a remedy can be sought. The respondent had not sought to amend to introduce a plea of delay and affirmation. Further, as the claimants were party litigants it would be unfair and inappropriate simply now to treat the argument as one of delay and affirmation.

Citations:

[2018] UKEAT 0012 – 17 – 1805

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618920

EAT CONTRACT OF EMPLOYMENT – Whether established
JURISDICTIONAL POINTS – Worker, employee or neither
The Tribunal erred in concluding that there was an overarching contract so as to give rise to an employment contract. The terms of appointment, which were not properly taken into account, provided that there was no obligation to provide or accept work, and the other features of the relationship were not inconsistent with those terms. Accordingly, the Claimant was not an employee of the Respondent.

Citations:

[2018] UKEAT 0107 – 17 – 0806

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618921

EAT JURISDICTIONAL POINTS – Excluded employments
The appeal is dismissed. The Tribunal decided that the Claimant was not in employment in the extended sense. That conclusion was reached not just on the basis that the Claimant was party to a ‘group contract’ but on all the circumstances relevant to the issue. The main plank on which the Claimant’s appeal rests therefore falls away. There was no ‘lacuna’ in the legislation as suggested since the Tribunal did not conclude that any worker providing services through a group arrangement was thereby excluded from the protection of the Equality Act 2010. Whether or not an employee was entitled to the protection depended on whether she satisfied the requirements of the statute. On the facts of this case, the Claimant did not satisfy those requirements in that, as the Tribunal found, she was not employed under a contract personally to do work.

Citations:

[2018] UKEAT 0241 – 17 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618912

JURISDICTIONAL POINTS – Extension of time: reasonably practicable
JURISDICTIONAL POINTS – Extension of time: just and equitable
An Employment Tribunal erred in law in failing to provide adequate reasons for its permitting an extension of time in unfair dismissal and disability discrimination proceedings lodged over 16 months after the dismissal. No medical evidence had been provided, and the Employment Tribunal failed to address issues which had been in contention at the hearing.

Citations:

[2018] UKEAT 0209 – 17 – 0604

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618918

PRACTICE AND PROCEDURE – Costs
The Respondents acted unreasonably on the day before the hearing of one appeal in seeking to resile from an agreement that reconsideration of the making of a costs order be remitted to a differently constituted Employment Tribunal. Further the Respondents acted unreasonably in withholding consent to the adjournment of a second appeal against the amount of costs the Claimant had been ordered to pay. If the costs order were varied on reconsideration the amount of costs would be affected. The Claimant too was at fault in failing to take steps to relist the matter before the Employment Tribunal for reconsideration. The Respondents were ordered to pay three quarters of the summarily assessed costs of the hearing before the EAT on 13 March 2018.

Citations:

[2018] UKEAT 0104 – 17 – 1303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618913

UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
The Claimant was dismissed when he failed to produce evidence of an in-time application which extended his right to work. He was not afforded an opportunity to appeal. The Employment Judge decided that it was not unfair to dismiss the Claimant without affording him the opportunity to appeal because, against the immigration background, there was ‘nothing to appeal against’. Appeal allowed. The Claimant at all material times had a right to work; the requisite evidence of that right could have been established during an internal appeal process; and if it had been the Respondent was not prohibited by any law, criminal or civil, from reinstating him. Provisions of the Immigration, Asylum and Nationality Act 2006 and the Immigration (Restrictions on Employment) Order 2007 considered.

Citations:

[2018] UKEAT 0265 – 17 – 1304

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618916

EAT UNAUTHORISED DEDUCTION FROM WAGES
Unauthorised deduction from wages – section 13 Employment Rights Act 1996 – zero hours’ contract
The Claimant was an employee of the Respondent, working shifts around her college commitments pursuant to a zero hours’ contract. On 6 March 2016, the Respondent suspended the Claimant pending a disciplinary investigation; it accepted before the ET that it had been required to pay her at her normal average weekly rate for the duration of the disciplinary suspension but it had failed to do so. The period of the disciplinary suspension continued until 13 December 2016, with no offers of shifts being made to the Claimant during this period. Meanwhile, the Respondent failed to progress the disciplinary process and matters were left in abeyance until 13 December, when further shifts were offered to the Claimant. In the meantime, on 22 August 2016, the Claimant had accepted other employment; she did not disclose this fact to the Respondent. The ET found that the Claimant had declined the offer of shifts for the Respondent in December 2016 as she no longer wished to work for it. Prior to that point, however, the Respondent had not made any offer of shifts to the Claimant because of the disciplinary suspension and she had therefore been entitled to be paid (at her normal average rate) for that period.
The Respondent appealed, contending once the Claimant obtained work with another employer, there were no sums ‘properly payable’ to her for the purposes of section 13(3) Employment Rights Act 1996, alternatively her failure to disclose her other employment meant she should not have been entitled to wages from the Respondent after 22 August 2016.
Held: dismissing the appeal.
As the Respondent accepted, under her contract of employment, the Clamant was entitled to accept other employment and was under no obligation to notify the Respondent of this. It further accepted that it was unable to say whether the Claimant would or would not have accepted shifts offered prior to 13 December 2016 because she had been offered none due to the disciplinary suspension. The Respondent could not point to any conduct on the part of the Claimant that would have entitled it to summarily dismiss her (had it been aware of that conduct at the relevant time); she had thus remained entitled to be paid during the period of disciplinary suspension.

Citations:

[2018] UKEAT 0240 – 17 – 0203

Links:

Bailii

Statutes:

Employment Rights Act 1996 13

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618915

CONTRACT OF EMPLOYMENT – Written particulars
UNFAIR DISMISSAL – Dismissal/ambiguous resignation
UNFAIR DISMISSAL – Contributory fault
UNFAIR DISMISSAL – Polkey deduction
The Tribunal erred in concluding that there had been no statement of particulars. The employee had been provided with a Service Agreement, which included his job title. There was no material change to his job title. Accordingly, the Service Agreement satisfied the requirements of sections 1 and 4 of the Employment Rights Act 1996. The award of two weeks’ pay is set aside.
The Tribunal erred in concluding that the employee could withdraw an unambiguous resignation. Even if the resignation had been given ‘in the heat of the moment’, the employee did not seek to withdraw the resignation until some 12 days later after he had been dismissed for gross misconduct. By that stage, it was too late. The finding that there would be no Polkey limitation on compensation would be set aside.
The Tribunal erred in its assessment that the employee’s contributory conduct warranted a 50% reduction in compensation. This was one of those rare instances where it could be said that the Tribunal’s assessment was wholly inconsistent with its findings as to the employee’s conduct and was perverse. Any contribution was undoubtedly at the lesser end of the scale. Based on the facts found, the Employment Appeal Tribunal felt able to substitute an assessment of 15%.

Citations:

[2018] UKEAT 0251 – 17 – 0803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618914

(Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 44/2001 – Jurisdiction over individual contracts of employment – Article 20(2) – Employer sued before the courts of the Member State in which it is domiciled – Counter-claim by the employer – Determination of the court with jurisdiction

Citations:

ECLI:EU:C:2018:478, [2018] EUECJ C-1/17

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 24 April 2022; Ref: scu.618764

Appeal from rejection of claim for detrimental treatment after protected disclosure.

Citations:

[2018] EWCA Civ 1436

Links:

Bailii

Statutes:

Employment Rights Act 1996 43B

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618458

Citations:

[2003] UKEAT 0586 – 03 – 1311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.618372

Citations:

[2001] UKEAT 0453 – 01 – 1712

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 April 2022; Ref: scu.204586

The claimant trade union contended that the defendant Fire and Rescue Authority had committed itself to an unlawful shift pattern at four fire stations in South Yorkshire; unlawful, says the FBU, because it cannot operate without the interested party breaching its obligations as the employer of firefighters under the Working Time Regulations 1998

Judges:

Kerr J

Citations:

[2018] EWHC 1229 (Admin)

Links:

Bailii

Statutes:

Working Time Regulations 1998

Jurisdiction:

England and Wales

Employment

Updated: 23 April 2022; Ref: scu.618104

(Grand Chamber) Framework Agreement On Fixed-Term Work – Judgment – Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4 – Principle of non-discrimination – Definition of ’employment conditions’ – Comparability of situations – Justification – Definition of ‘objective grounds’ – Compensation in the event of termination of a permanent employment contract on objective grounds – Lesser amount of compensation paid on expiry of a fixed-term ‘relief’ employment contract

Citations:

ECLI:EU:C:2018:390, [2018] EUECJ C-574/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 22 April 2022; Ref: scu.616996

Framework Agreement On Fixed-Term Work – Judgment – Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4 – Principle of non-discrimination – Definition of ’employment conditions’ – Comparability of situations – Justification – Definition of ‘objective grounds’ – Compensation in the event of termination of an employment contract of indefinite duration on objective grounds – No compensation on expiry of a fixed-term ‘interinidad’ contract

Citations:

ECLI:EU:C:2018:393, [2018] EUECJ C-677/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 22 April 2022; Ref: scu.616999

Fixed-Term Employment – Opinion – Request for a preliminary ruling – Social policy – Fixed-term employment – ETUC-UNICE-CEEP – Framework agreement on fixed-term work – Principle of non-discrimination – Interim civil servants and established civil servants within the meaning of Spanish law – Teachers employed as interim civil servants – Early dismissal at the end of the school term – Difference in treatment in relation to comparable permanent workers – Objective ground for different treatment

Citations:

ECLI:EU:C:2018:365, [2018] EUECJ C-245/17 – O

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 22 April 2022; Ref: scu.616989

Breach of Contract
1. This appeal concerns claims by former teachers in Wales for SEN allowance payable under their contracts. The Employment Tribunal held that the conditions for entitlement were satisfied in each case, and accordingly, that the failure to pay SEN allowance was a breach of contract.
2. The Employment Tribunal erred in so concluding in two respects. First, by construing the conditions of entitlement in paragraph 25.2(d) of the Document so as to give no effect to the requirement that the setting of a teacher’s work must be ‘analogous to a designated special class or unit’ to qualify, the Employment Tribunal erred in law. Secondly, the Employment Tribunal erred in its approach to condition (iii) in concluding that the ‘unit or service’ for the purposes of determining whether the claimants had ‘a greater involvement in the teaching of children with [SEN] than is the normal requirement of teachers throughout . . the unit or service’ was the whole education authority rather than the home tutoring service.
3. On a proper construction of the Document, and in light of the evidence, the Claimants are not entitled to be paid SEN allowance for the relevant periods because (a) home tutoring was not an analogous setting to a designated special class or unit; and (b) because they did not establish that they had a greater involvement in the teaching of children with SEN than is the normal requirement of teachers throughout the unit or service, when condition (iii) is properly understood and applied to the facts of their case.
4. The appeal is therefore allowed. Further, for the reasons explained in the judgment, their claims for breach of contract fail and are dismissed.

Citations:

[2018] UKEAT 0253 – 17 – 0205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616894

Equal Pay Act – Sex Discrimination – Indirect
The Claimant claimed indirect sex discrimination under provisions in the Respondent Police Force in that the only option for men taking leave after the birth of their child is shared parental leave (‘SPL’) at the statutory rate of pay whereas women have the option of taking maternity leave (‘ML’) on full pay. The Employment Tribunal did not err in holding that the claim was for indirect sex discrimination and not for equal pay within the meaning of Equality Act 2010 (‘EqA’) section 66. The exclusion in EqA Schedule 7 Part 1 paragraph 2 in relation to terms of work affording special treatment for women in connection with pregnancy or childbirth did not apply. Cross-appeal dismissed. The ET erred in adopting their reasons for rejecting women on maternity leave as a comparator for a direct discrimination claim for the purposes of the indirect discrimination claim. The identifying of a pool for testing disparate impact of a PCP on men and women in materially indistinguishable circumstances is a different exercise from that in a direct discrimination claim. Further the ET erred in failing to base their decision on the disparate impact relied upon : fathers have no choice but to take SPL at the statutory rate of pay whereas mothers have the option of ML at full pay. Appeal allowed. Claim of indirect sex discrimination remitted for rehearing to a differently constituted ET.

Citations:

[2018] UKEAT 0139 – 17 – 0105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616891

PRACTICE AND PROCEDURE – Postponement or stay
The Employment Judge did not err in law in declining the Claimant’s application to adjourn these proceedings until after the completion of proceedings which she had brought against the United Reformed Church in 2012.

Citations:

[2018] UKEAT 0300 – 17 – 0504

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616887

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Employment Judge’s reasons for refusing an application for interim relief did not sufficiently explain his decision to meet the legal standard for reasons. Al Qasimi v Robinson UKEAT/0283/17 at paragraph 59 applied.

Citations:

[2018] UKEAT 0053 – 18 – 0404

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616888

JURISDICTIONAL POINTS – Extension of time: reasonably practicable
JURISDICTIONAL POINTS – Extension of time: just and equitable
An Employment Tribunal was entitled to find, on the evidence before it, that it had not been reasonably practicable for a Claimant to have served proceedings within the relevant time limit, that he had done so within a reasonable period after learning of the time limits.

Citations:

[2018] UKEAT 0019 – 18 – 1004

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616886

PART TIME WORKERS
A worker employed under an associate lecturer’s contract of employment described by the Employment Tribunal as a zero-hours contract, was employed under the same type of contract as a lecturer on a full-time contract for the purposes of Regulation 2(2) and 2(4)(a)(i) Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
The Employment Tribunal had erred in concluding that Wippel v Peek and Cloppenburg GmbH and Co KG [2005] IRLR 211 ECJ led to the conclusion that the Claimant and his full-time comparator were not employed on the same type of contract.
The case is remitted to the Tribunal to determine whether the part-time worker is engaged in the same, or broadly similar, work pursuant to Regulation 2(4)(a)(ii) and, if so, whether he has been subjected to unjustified less favourable treatment contrary to Regulation 5.
The following principles as to the proper approach to Regulation 2(3) for the purposes of Regulation 2(2) and 2(4) emerge from the case law[1]:
Regulation 2(3) provides a comprehensive list of categories of different types of contract for the purposes of paragraphs 2(1), (2) and (4);
The categories in Regulation 2(3) are broadly defined and, since the purpose of the Regulation is to provide a threshold to require a comparison of full and part-time workers to take place, the threshold is deliberately set not too high;
A contract cannot be treated as being of a different type from another just because the terms and conditions that it lays down are different, nor because an employer chooses to treat workers of a particular type differently;
Where a worker and his or her comparator are both employed under contracts that answer to the same description given in the same paragraph in Regulation 2(3), they are both to be regarded as employed under the same type of contract for the purposes of Regulation 2(4);
In order to satisfy the requirements of Regulation 2(4)(a)(i), it is not necessary to go further than to find that both workers are employed under contracts that fit into one or other of the listed categories;
The categories are designed to be mutually exclusive;
The category in Regulation 2(3)(d)[2] is a residual category. It refers to a description of worker who is different from those mentioned in categories (a) to (c) and does not apply to a worker who falls into one of those categories. An example of a description of worker who would fall within category (d) has yet to be identified. A zero-hours contract is not, of itself, a type of contract.

Citations:

[2018] UKEAT 0299 – 17 – 2603

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616882

Working Time Regulations – Holiday Pay – Worker – The Claimant was a cycle courier with the Respondent. The ET upheld his claim that he was a ‘limb (b) worker’ within the meaning of Regulation 2 of the Working Time Regulations (‘WTR’); and in consequence entitled to holiday pay thereunder. In doing so it held that the written terms of contract between the parties, describing G as an ‘independent contractor’, did not reflect the reality of the relationship; and that, during the period when G was ‘logged on’ to the Respondent’s app, there was a contract with mutual obligations for ‘jobs’ to be offered and accepted.
The Respondent appealed on two grounds.
First, that on the facts as found by the ET, there was no basis to conclude that G was under any legal obligation to work, i.e. to accept jobs offered to him when logged on. His decision whether or not to do so (as with his entitlement to log on or off at will) was a matter for his whim and fancy. Accordingly the claim must fail for lack of the necessary mutuality of obligation.
Further or alternatively, that the ET’s ‘multi-factorial assessment’ that G had the status of a ‘limb (b) worker’ was vitiated by factual error and should be remitted to another Tribunal.
The EAT rejected both grounds of appeal.

Citations:

[2018] UKEAT 0289 – 17 – 1105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616889

UNFAIR DISMISSAL – Automatically unfair reasons
VICTIMISATION DISCRIMINATION – Protected disclosure
Unfair dismissal – automatically unfair reason for dismissal (protected disclosure) – section 103A Employment Rights Act 1996
Detriment – protected disclosure- section 47B Employment Rights Act 1996
The Claimant was employed by the Respondent as an Anaesthetics Nurse. He was also a steward for the Royal College of Nursing. The ET found that the Claimant was a campaigner and effective trade union representative and had been viewed as a nuisance and source of irritation by managers within the Respondent. It was against that background that the Claimant made the protected disclosures relied on in these proceedings. The ET was satisfied that the Claimant had discharged the initial (evidential) burden of showing his protected disclosures had materially influenced the Respondent’s decision that he should be suspended and subjected to a disciplinary process and had been the reason or principal reason for his dismissal. The ET rejected the potentially fair reasons relied on by the Respondent – conduct or some other substantial reason, namely a breakdown in relations. The ET further found that the managers involved in the dismissal and appeal decisions had been aware both what a nuisance the Claimant had been and of his whistleblowing. Rejecting the suggestion that this was a case akin to Panayiotou v Chief Constable of Hampshire Police [2014] IRLR 500 EAT, the ET concluded that the reason for dismissal was the fact that the Claimant had made the protected disclosures relied on. It further found the reason for the Claimant’s suspension was not made out and again concluded this had been because of his protected disclosures. The Respondent appealed against the ET’s findings on the Claimant’s whistleblowing complaints.
Held: allowing the appeal in part
Having found that the relevant decision takers in respect of the Claimant’s dismissal and appeal had in mind both that he had been a nuisance in his campaigning and trade union activities and the fact of his having made protected disclosures, the ET needed to engage with the question which had been the real reason or principal reason for the dismissal? Although it had stated it had found that the reason for dismissal had been the Claimant’s protected disclosures, there was nothing to demonstrate it had considered the alternative – that the decision takers’ view of the Claimant as a nuisance was the principal reason. On the ET’s findings, however, that had been left as a possibility, notwithstanding its rejection of the Respondent’s positive case on the dismissal having been for a reason related to the Claimant’s conduct or for some other substantial reason (Kuzel v Roche Products Ltd [2008] IRLR 530 CA applied). The appeal would therefore be allowed in this respect and the question of the reason or principal reason for dismissal remitted to the ET.
The ET had, however, been entitled to distinguish this case from that of Panayiotou v CC Hampshire Police; the issue in this case was not the manner in which the Claimant had made his protected disclosures but his entirely separate conduct that led the Respondent to view him as a ‘nuisance’. The separate grounds of appeal on this point would be dismissed.

Citations:

[2018] UKEAT 0239 – 17 – 0503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616880

CONTRACT OF EMPLOYMENT – Wrongful dismissal
The claim of wrongful dismissal is remitted back to the same Employment Tribunal to make findings of fact (with additional evidence only if the Tribunal considers it necessary) and to decide for itself whether the Claimant was wrongfully dismissed. The Tribunal erred in appearing to decide the wrongful dismissal claim by reference to the statutory test for unfair dismissal. In scrupulously resisting the temptation of the substitution mindset for the purposes of the unfair dismissal claim in accordance with the wording in section 98 Employment Rights Act 1996 and the applicable case law, the Tribunal does not appear to have directed itself on the wrongful dismissal cause of action nor made the findings of fact necessary to make a determination of the question.

Citations:

[2018] UKEAT 0301 – 17 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616879

Practice and Procedure – Right To Be Heard – PRACTICE AND PROCEDURE – Case management
The wide discretion given to Employment Tribunals to make case management decisions is not to be interfered with on appeal save in limited circumstances. This was one. The refusal by the Regional Employment Judge to be taken by counsel on behalf of the Respondent applicant to passages in the ET1 and witness statement of the Claimant sought to be redacted was so unreasonable that the decision on the application cannot stand. Counsel was inhibited from making submissions on material which was at the heart of the application. Rejection of the application for redaction set aside. Application remitted to the Regional Employment Judge for rehearing.

Citations:

[2018] UKEAT 0238 – 17 – 2204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616885

Unfair Dismissal – Reasonableness of Dismissal – Unfair dismissal – reasonableness of the dismissal – section 98(4) Employment Rights Act 1996
The Claimant was dismissed, on notice, for a reason relating to his conduct; initially this was found to amount to gross misconduct but, on his internal appeal, the Respondent accepted it was more properly to be categorised as serious misconduct. The ET found the Claimant’s dismissal for this reason was unfair: it had been unreasonable to characterise his conduct as gross misconduct at the original dismissal decision and once it was recognised it was something less – serious misconduct – that meant a warning was the only reasonable response, dismissal was not. The Respondent appealed.

Held: allowing the appeal.
The ET had unduly restricted its assessment of the fairness of the dismissal for the purposes of section 98(4) ERA by assuming as a general rule that a finding of conduct short of gross misconduct meant dismissal for a first offence was necessarily unfair; section 98(4) made no such prescription and the ET had failed to demonstrate it had correctly approached the question of fairness, alternatively, it had impermissibly substituted its view as to the appropriate sanction for that of the reasonable employer in the particular circumstances of the case.

Citations:

[2018] UKEAT 0255 – 17 – 1603

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616881

PRACTICE AND PROCEDURE – Absence of Party
The Tribunal was not obliged to make any more adjustments to its procedure than it did for a disabled Claimant. The Tribunal erred in not considering whether to cause a telephone call to be made to enquire as to the Claimant’s reasons for not attending a hearing. However, that error made no difference to the outcome.

Judges:

Lavender J

Citations:

[2018] UKEAT 0229 – 17 – 0105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616893

DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Constructive dismissal
Disability discrimination – reasonable adjustments – sections 20 and 21 Equality Act 2010
Unfair dismissal – constructive dismissal – section 95 Employment Rights Act 1996
The Claimant, who had been employed by the Respondent as a Probation Service Officer (‘PSO’) from April 1999, was a disabled person for the purposes of the Equality Act 2010 by reason of his anxiety and depression; something of which the Respondent had constructive knowledge from 2014. It was accepted that the provision, criterion or practice (‘PCP’) of requiring him to undertake urgent Court duties placed the Claimant at a substantial disadvantage and when the Claimant returned from a period of ill-health absence in April 2015 he was put into an Enforcement Officer role that did not require him to do these duties. Going into the autumn of 2015, however, the ET found the Claimant’s duties essentially slid back to his former role and included the Court duties that placed him under particular stress. The Claimant responded badly to this and began to avoid attending Court. In early and mid-February 2016, he asked the Respondent to consider moving him to a different role as a Victim Liaison Officer (‘VLO’) but no enquiries were made, although a VLO vacancy was advertised in March, only 11 days after the Claimant’s second request. In late February 2016, the Claimant was involved in an altercation at work and left, commencing a further period of sick leave. In early April 2016, the Claimant was offered a position in the Offender Management Unit (‘OMU’). He raised a number of concerns about this but the ET found his subjective fears were ill-founded and the Respondent had complied with its obligations to make reasonable adjustments. The ET was also satisfied that the Claimant was employed in a generic role such that he could be moved to other positions by the Respondent, including the OMU post. In any event, the Claimant had been given time to think about the OMU offer but had decided instead to retire. His retirement was accepted by the Respondent, thus bringing his employment to an end by mutual agreement. The Claimant appealed.

Held: allowing the appeal
The Claimant’s complaint of a failure to make reasonable adjustments was not limited to events in March/April 2016 but also encompassed the latter part of 2015 and early 2016. On the ET’s findings of fact, the Claimant’s Enforcement Officer position had changed such that he was again subject to the PCP (Court duties) that placed him at a substantial disadvantage; the ET had, however, not demonstrated that it had engaged with the Claimant’s complaint that the Respondent had failed to comply with its obligation to make reasonable adjustments at this stage. This was also the case in respect of the Claimant’s complaint that the Respondent had been under an obligation to look at the possibility of alternative positions when he raised the question of moving to a VLO post in February 2016; although the ET had been entitled to assess the reasonableness of the Respondent’s subsequent step (offering the Claimant the OMU role) on an objective basis, it was not irrelevant to that assessment that the position being offered was likely to exacerbate the Claimant’s stress (the substantial disadvantage of which he complained) and there seemed to be another role available that did not have that effect. If seen in the light of the Claimant’s case as to the obligation to make an earlier reasonable adjustment, the ET might have better appreciated the relevance of the point. Separately, the Claimant was contending that the OMU role did not fall within his contract. The ET rejected that argument, finding he was employed in a generic position, allowing the Respondent to move him to other roles. Its conclusion in this regard was, however, inadequately explained. And, although the ET had found that the Claimant had not left his employment because of any breach of contract, that conclusion was rendered unsafe once regard was had to the potential relevance of the history from the autumn of 2015 and the first two months of 2016. In the circumstances, the ET’s decisions on the Claimant’s claims could not stand and the matter would be remitted to a different ET for re-hearing.

Citations:

[2018] UKEAT 0274 – 17 – 2903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616884

Practice and Procedure – Striking-Out/Dismissal – The Tribunal erred in not taking the Claimant’s case at its highest for the purposes of determining whether to strike it out. There were clear disputes of fact which went to key issues relating to the period when the alleged harassment commenced, the date on which the line manager was allegedly informed about the harassment and, consequently, when the alleged protected act was done. The decision to strike out would therefore be set aside. However, the Tribunal’s alternative conclusion that the Claimant’s claims had little reasonable prospect of success, which was not the subject of the appeal, was correct. The matter would be remitted to the Tribunal to make the appropriate deposit orders having regard to the Claimant’s means.

Citations:

[2018] UKEAT 0145 – 17 – 0903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616883

UNFAIR DISMISSAL – Polkey deduction
Upon a remission by the EAT to reconsider its Polkey decision without any further evidence, the ET concluded that there was a 75% chance that the Claimant would have been dismissed on the same date in any event. The Claimant appealed on the basis that the ET had again not properly considered the remitted question and sought remission to a fresh Tribunal; the Respondent cross-appealed on the basis that the ET had fettered its decision by limiting the percentages to ‘quarters’ and that on its findings the appropriate deduction was 90%. The appeal and cross-appeal were dismissed.

Citations:

[2018] UKEAT 0179 – 17 – 1302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616873

DISABILITY DISCRIMINATION – Direct disability discrimination -Reasonable adjustments – Justification – direct discrimination (section 13 Equality Act 2010) – indirect discrimination (section 19) – failure to make reasonable adjustments (sections 20 and 21) – justification
The Claimant who was disabled by reason of having undergone double below-knee amputations and suffering from type 2 diabetes and other health conditions, was denied the opportunity to take up an assignment in Dubai because his disabilities were considered to give rise to a risk if he were deployed at a location remote from the UK. The Claimant complained that this amounted to direct and/or indirect disability discrimination and/or that the Respondents had failed to comply with an obligation to make reasonable adjustments. The ET unanimously rejected the Claimant’s complaint of direct discrimination and, by a majority, dismissed his claims of indirect discrimination and of a failure to make reasonable adjustments. The Claimant appealed.

Held: dismissing the appeal
At the heart of the Claimant’s appeal was his contention that the ET had misinterpreted the medical evidence that had informed the Respondents’ decision that he should not take up the assignment; failing to appreciate that the medical advice went no further than identifying the risks the Claimant lived with on a day-to-day basis given his disabilities. On the direct discrimination claim, however, the ET had been entitled to find that a similarly placed comparator – subject to medical advice that they were at a high risk of needing medical assistance if deployed at a location remote from the UK – would have been treated in the same way as the Claimant. As for the claims of indirect discrimination and failure to make reasonable adjustments, the ET majority had correctly undertaken a staged approach to the issues it was required to determine. On the indirect discrimination complaint, ultimately the question was whether the Respondents had established that the requirement to undertake a medical assessment was justified. Given the legitimate aims the ET had found proven (essentially the avoidance of risk), the ET majority had permissibly found that this was justified. As for the reasonable adjustments complaint, the only adjustment identified by the medical advice was not to permit the Claimant to take up the assignment; otherwise, the Claimant’s complaint was really whether the Respondents should have undertaken a further assessment but that went to process rather than any adjustment.

Citations:

[2018] UKEAT 0210 – 17 – 2302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616877

Citations:

[2018] ScotCS CSOH – 54

Links:

Bailii

Jurisdiction:

Scotland

Employment

Updated: 22 April 2022; Ref: scu.616866

CENTRAL ARBITRATION COMMITTEE (CAC)
The PCS made complaint to the CAC pursuant to the Information and Consultation of Employees Regulations 2004 (‘ICER’) that ACAS, as an employer, had failed to consult with its employees pursuant to a collective agreement. ACAS disputed the jurisdiction of the CAC on the basis that it was not an ‘undertaking’ within the meaning of Regulation 2 of the ICER because it was not ‘carrying out an economic activity, whether or not operating for gain’.
The CAC dismissed the challenge to the jurisdiction, holding that all of ACAS’ activities satisfied that requirement; alternatively, that a sufficient part of its activities did so.
The EAT dismissed the appeal, upholding the CAC’s decision on its alternative basis.

Citations:

[2018] UKEAT 0160 – 17 – 0502

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616872

Contract of Employment – A contract of employment was entered into by the Claimant. When dismissed he claimed that the dismissal was both unfair and wrongful, and that the appropriate Respondent amongst a group of companies (whom he said was the Second Respondent to the claim) was in breach of the contract it had made with him. The First Respondent, another member of the group, argued that it was the true contracting entity, since a written contract had been entered into with it. A written contract was entered into with the First Respondent, but on the same day the Claimant was given a letter to the passport office from the Second Respondent as if it was his employer. The Employment Tribunal concluded that the parties would never have, and did not at the time of entering the contract, intend that the Claimant would work for the First Respondent (which had no place at which he could have worked); the First Respondent appealed. Each of four grounds was considered and rejected.

Citations:

[2018] UKEAT 0091 – 17 – 2501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616871

PRACTICE AND PROCEDURE – Amendment
PRACTICE AND PROCEDURE – Case management
JURISDICTIONAL POINTS – Extension of time: reasonably practicable
In a multiple holiday pay claim, the parties were unable to reach a mutual understanding of the effect of an ET decision (‘the first decision’) giving leave for claims to be amended so as to include unlawful deductions from wages claims which post-dated presentation of the claim forms, on the question of time limits.
At a Preliminary Hearing before a differently constituted Tribunal, the Tribunal held that the effect of the first decision was to preclude any argument on time limits and that no residual power to extend time remained (‘the second decision’). Those claims that were outside the primary three-month time limit were therefore dismissed.
On appeal from the second decision, the appeal was allowed. The second decision had varied the first decision which it had no power to do under Rule 29 ET Rules of Procedure (Serco Ltd v Wells [2016] ICR 768), and/or had in any event wrongly interpreted the first decision.
The second decision erred in purporting to preclude the Tribunal from determining the issue of time limits, which had not been decided and on which there had been no evidence or legal argument, since time limits are a jurisdictional issue for the Tribunal to resolve (Radakovits v Abbey National plc [2009] EWCA Civ 1346.
The case is remitted back for the Tribunal to decide the time limits issue.

Citations:

[2018] UKEAT 0103 – 17 – 2803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616878

Contract of Employment – Notice and Pay In Lieu – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
PRACTICE AND PROCEDURE – New evidence on appeal
The Respondent Employee resigned, giving 4 weeks’ notice and claimed pay during that period. The claim was made on the basis of resignation not dismissal. The ET awarded 4 weeks’ notice pay. The Employer appealed on grounds including that upon receipt of the resignation it had immediately waived the requirement of notice, thereby terminating the contract and reducing any award to the notice period (1 week) which applied to termination by the Employer. The EAT dismissed the appeal, holding that the Employer had merely waived the Employee’s obligation to work and that the contract continued.
The Employee’s claim for commission depended on construction of the meaning of the word ‘images’ in the contract. The ET rejected the Employer’s interpretation. The Employer appealed on grounds that the conclusion was perverse and/or that fresh evidence should be admitted. The EAT rejected both arguments. As to fresh evidence, the first requirement of Ladd v Marshall was not satisfied.

Citations:

[2018] UKEAT 0149 – 17 – 0202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616875

Oral hearing to consider whether the Notice of Appeal discloses any reasonable grounds for bringing the appeal.

Citations:

[2018] UKEAT 0378 – 17 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616870

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Following a 14-day hearing the ET comprehensively rejected a large number of claims.
The Claimant appealed on the basis of ‘apparent bias’ on the part of the Employment Judge. She relied on two incidents during the hearing; the first arose from questions asked of the Claimant by the Employment Judge at the conclusion of her evidence; the second from his treatment of her counsel following an incident between counsel where the Claimant’s counsel had stated that conduct by her opponent could be seen as an attempt to corrupt the witness evidence.
On analysing the facts and looking at what happened in context, the EAT decided that a fair-minded and informed observer would not have concluded that there was a real possibility that the Employment Judge was biased against the Claimant.
The appeal therefore failed.

Citations:

[2018] UKEAT 0191 – 17 – 0602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616874

Practice and Procedure – Postponement or Stay
Practice and procedure – postponement – hearing of interim relief application – section 128(5) Employment Rights Act 1996
The Appellants had lodged separate whistleblowing claims against the Respondents and had both applied for interim relief. They had instructed counsel under the Bar Council’s direct access scheme and he had advised them on their claims and had settled their respective particulars of claim attached to the ET1 forms. The ET had expedited the listing of the interim relief applications for a date on which the Appellants’ counsel had a prior court commitment; that was immediately drawn to the ET’s attention, the Appellants’ counsel applying for a postponement and re-listing of the hearing, explaining he was instructed on a direct access basis and the Appellants would be unable to obtain alternative legal representation for the interim relief hearing; and further offering a number of alternative dates, the earliest of which were within five working days of the existing listing. The ET refused the application, reasoning that a postponement of an interim relief application was prohibited under sections 128(5) ERA 1996, save where there were special circumstances and counsel’s convenience did not amount to special circumstances. The Appellants appealed.
Held: allowing the appeal
Although there were good reasons for the ET to list interim applications on an urgent basis and to expect the parties to make themselves available for the hearing at short notice – postponements only being granted where there were special circumstances (section 128(5) ERA), that did not mean that the Appellants had to demonstrate that the circumstances in question were exceptional and the ET’s construction of the statutory provision suggested it had set a higher standard than was in fact required and/or had unduly fettered its discretion. In the present case, it might not be exceptional for the Appellants to have instructed counsel on a direct access basis but it did mean that they were faced with a particular difficulty in obtaining alternative legal representation at such short notice. Having regard to the overriding objective – in particular, to save expense, to be flexible and to seek to ensure that the parties were on an equal footing – this gave rise to a special circumstance on the particular facts of this case. Moreover, given that it seemed the parties could make an alternative listing less than a matter of five working days after the existing date of hearing, it had been perverse to refuse the application in this instance and the appeal would accordingly be allowed and the ET’s decision set aside and substituted by an Order that the hearing be postponed.

Citations:

[2018] UKEAT 0039 – 18 – 2602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616876

Appeal from rejection of complaint of unfair dismissal as out of time. The court considered the effective date of termination after

Judges:

Laws, Lindblom, King LJJ

Citations:

[2016] EWCA Civ 1017, [2017] IRLR 147

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616604

Citations:

[2016] EWCA Civ 832, [2017] IRLR 81

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Employment

Updated: 22 April 2022; Ref: scu.616603

Appeal by employment judge against dismissal of whistleblower’s claim.
Held: Dismissed. An employment judge is an office-holder, and neither office holder nor worker.

Judges:

Lady Justice Gloster
(Vice President of the Court of Appeal (Civil Division))
Lord Justice Underhill
And
Lord Justice Singh

Citations:

[2017] EWCA Civ 2220, [2018] IRLR 315, [2018] 3 All ER 521, [2018] ICR 827

Links:

Bailii

Statutes:

Public Interest Disclosure Act 1998

Jurisdiction:

England and Wales

Citing:

Appeal from (EAT) – Gilham v Ministry of Justice EAT 31-Oct-2016
Jurisdictional Points: Worker, Employee or Neither – The Employment Judge made no error of law in concluding that District Judges are office-holders and do not also work under a contract of employment or for services. . .

Cited by:

Appeal from (CA) – Gilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 April 2022; Ref: scu.602606

The appellant challenged the approach taken by the Employment Tribunal on her claim for constructive unfair dismissal.

Judges:

Underhill, Singh LJJ

Citations:

[2018] EWCA Civ 978, [2018] WLR(D) 268

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 20 April 2022; Ref: scu.614922

Defendant’s counterclaim for wrongful dismissal.

Citations:

[2018] EWHC 910 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 20 April 2022; Ref: scu.614887

Contract of employment – implied term/variation/construction of term
unfair dismissal – reason for dismissal including substantial other reason
unfair dismissal – automatically unfair dismissal
The claimant was employed under a fixed-term contract and was not entitled to notice of termination of her contract. The decision not to renew her contract was taken because she was assessed and her performance was judged to be extremely poor. The decision was not made on the ground that she made protected disclosures.

Citations:

[2018] UKEAT 0194 – 17 – 2703

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 18 April 2022; Ref: scu.621084

Prison officers may not refuse to accept responsibility for prisoners properly committed to the care of the prison by the courts.

Citations:

Times 19-Dec-1994

Statutes:

Prison Act 1952 8

Jurisdiction:

England and Wales

Employment

Updated: 14 April 2022; Ref: scu.89108

Civil Service – Temporary Staff – Judgment

Citations:

T-200/17, [2018] EUECJ T-200/17

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 14 April 2022; Ref: scu.609521

Staff Regulations of Officials and Conditions of Employment of Other Servants – Judgment

Citations:

T-574/16, [2018] EUECJ T-574/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 14 April 2022; Ref: scu.609511

Staff Regulations of Officials and Conditions of Employment of Other Servants – Judgment

Citations:

T-747/16, [2018] EUECJ T-747/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 14 April 2022; Ref: scu.609331

Jurisdictional Points – Claim In Time and Effect Date of Termination – – Application/claim – Preliminary issues
The statutory provisions in the Employment Rights Act 1996, the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and the Equality Act 2010, which operate to extend time limits to facilitate conciliation before the institution of proceedings, are to be applied sequentially and do not provide for alternative limitation periods.

Citations:

[2018] UKEAT 0180 – 17 – 1204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609163

Practice and Procedure – Amendment – Application to amend – race discrimination – complaint of unequal pay – whether direct or indirect race discrimination
The Claimant – acting in person – had put his case of race discriminatory unequal pay as a complaint of direct discrimination, albeit relying on general statistical evidence in support. After taking legal advice, he subsequently sought to amend: to add details about a subsequent decision on his internal grievance; to add a claim of indirect discrimination in the alternative; to include a further basis for his complaint of direct discrimination. The ET permitted the application to amend in respect of the internal grievance but only to the extent this was background information; it otherwise refused the amendments, concluding these were not simply different labels but added substantively new causes of action and arguments that had been raised too late (the parties had fully prepared their respective cases on the basis of the claim as already pleaded) and had already led to the postponement of the listed Full Merits Hearing; in the circumstances, the balance of prejudice supported the refusal of the application. The Claimant appealed.

Held: dismissing the appeal
The ET permissibly understood the application to amend in respect of the internal grievance to have been limited to adding an update to the factual background; on this basis the Respondents had not objected to the amendment and it had been allowed. That was an entirely appropriate exercise of the ET’s case management powers and there was no proper basis of challenge.
As for the indirect discrimination case, the ET was entitled to conclude this was not previously identified by the Claimant as part of his claim. Although the fact that it might still be in time was a potentially significant factor (Gillett v Bridge 86 Ltd UKEAT/0051/17 applied), the ET had permissibly taken the view that whether or not there was a continuing act could only be determined at the final Merits Hearing. It was, moreover, open to the ET to conclude that the different issues raised by the indirect discrimination claim meant the balance weighed against hearing that together with the existing direct discrimination claim, in particular given the prejudice caused to the Respondents.
Similarly, the ET had been entitled to see the new argument raised in respect of the direct discrimination claim as giving rise to substantively new issues for determination such as to cause unfair prejudice if this amendment was permitted. To the extent the Claimant was only seeking to make this amendment to explain how he argued that the burden of proof shifted to the Respondent, that remained open to him given he had always made it clear he intended to rely on the statistical evidence to this purpose.

Judges:

Eady C HHJ

Citations:

[2018] UKEAT 0190 – 17 – 1204

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609164

Citations:

[2018] UKEAT 0173 – 17 – 2301

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609156

CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Constructive dismissal
UNFAIR DISMISSAL – Reasonableness of dismissal
The EAT allowed the appeal of the Claimant against a Judgment of the ET dismissing, among other claims, his claim for constructive unfair dismissal. The Claimant had relied on a threat unilaterally to impose a substantial cut in his basic pay (before commission) as a breach of the implied term of trust and confidence. The ET held that the Claimant resigned because of the breach and that the breach was a breach of the implied term, but that the Respondent had reasonable and probable cause for imposing the pay cut. The EAT held that, given that the breach relied on was a significant breach of an important express term (as well as a pleaded breach of the implied term) the ET had erred in law in asking itself whether the employer had reasonable and probable cause for repudiating the contract of employment. It also held that the ET’s conditional decision that any dismissal was unfair could not stand. The case was remitted to a different ET for it to consider whether or not the Claimant was unfairly dismissed.

Judges:

Elisabeth Laing DBE HHJ

Citations:

[2018] UKEAT 0158 – 17 – 2202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609158

NATIONAL MINIMUM WAGE
The Employment Tribunal did not address the Appellant’s compatibility challenge in relation to Regulation 2(2) NMWR 1999 and refused reconsideration of this issue. That was an error of law. The compatibility issue is remitted for consideration, preferably, by a Regional Employment Judge.
The Employment Tribunal would need to reconsider the question of the number of hours of housework performed by the Appellant and whether that was voluntary or contractual as a matter of custom and practice or otherwise.
The perversity ground failed.

Judges:

Simler P DBE J

Citations:

[2018] UKEAT 0165 – 17 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609155

Sex Discrimination – SEX DISCRIMINATION – Indirect
VICTIMISATION DISCRIMINATION – Detriment
A father who wished to take shared parental leave so that his wife could go back to work claimed direct sex discrimination in not being entitled to pay at the higher maternity pay rate for 12 weeks after the 2 weeks compulsory maternity leave but only that paid for shared parental leave.
The Employment Tribunal erred in failing to consider or have regard to the purpose of maternity leave with pay which is the rationale for domestic law provision for maternity leave and pay and the European legislation which it implements. That purpose is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. The Employment Tribunal erred in holding that the circumstances of the Claimant father were comparable within the meaning of the Equality Act 2010 section 23(1) to those of a woman who had recently given birth as both had leave to care for their child. Such a finding fails to have regard to the purpose of maternity leave and pay. A mother will care for her baby but that is a consequence not the purpose of maternity leave and pay. Whether and for how much there is an entitlement to pay depends upon and is inseparable from the type of leave taken. Shared parental leave is given on the same terms for men and women. Hofmann v Barmer Ersatzkasse [1985] ICR 731 and Betriu Montull v Instituto NSS [2013] ICR 1323 considered. Further the ET erred for similar reasons in holding that the payment to a woman who had recently given birth and was on maternity leave at a higher rate than that given to parents of either sex on shared parental leave the purpose of which was different, the care of the child, did not fall within Equality Act 2010 section13(6)(b). Eversheds v Legal Services De Belin [2011] ICR 1137 considered.
Appeal from finding of direct sex discrimination allowed. Finding set aside.
Appeal from three findings of victimisation under Equality Act 2010 section 27 dismissed. Decision in respect of one finding of victimisation was not Meek-compliant. Appeal allowed in respect of this claim of victimisation allowed. Claim of victimisation remitted for hearing before the same Employment Tribunal, if practicable.

Judges:

Slade DBE J

Citations:

[2018] UKEAT 0161 – 17 – 1104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609161

Practice and Procedure – Case Management – witness order – exercise of ET’s discretion – overriding objective
The Claimant was pursuing complaints of race discrimination before the ET, specifically contending the real reason for his dismissal by the Respondent was because of racial dislike of him on the part of his line manager, Mr Pandya. Just over a week before the commencement of the Full Merits Hearing, the Respondent applied for a witness order in respect of Mr Pandya, who had left its employment and had stopped responding to its communications. The ET refused the application, questioning whether the Respondent had shown that Mr Pandya was an unwilling witness and expressing concern regarding the late timing of the application and the problem this might cause for the witness. The Respondent appealed.

Held: allowing the appeal
In considering an application for a witness order, the ET had to be satisfied both that the evidence in question would be relevant and that it was necessary to make the order (Dada v Metal Box Company Ltd [1974] IRLR 251 NIRC). This involved an exercise of discretion by the ET, which it was required to carry out judicially. In the present case, there was no indication that the ET has considered the relevance of the proposed evidence. Even if it had (although not stated in the Reasons provided for refusing the application), there was no indication that it had assessed the significance of the evidence – whether it was of marginal relevance or (as the Respondent urged) was central to the issues to be determined. Undertaking that exercise, as it was common ground that Mr Pandya’s evidence would be of considerable relevance in this case, it would be perverse to find the matters cited by the ET outweighed the grant of a witness order in these circumstances; at the time of the ET’s decision, there was no basis for concluding that granting the application might lead to a postponement of the hearing (as the Claimant contended) and the ET’s concern for the difficulties that might (but might not) be faced by Mr Pandya was disproportionate to the interests of justice in seeking to ensure that he give evidence.

Judges:

Eady QC HHJ

Citations:

[2018] UKEAT 0027 – 18 – 1602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609159

PRACTICE AND PROCEDURE – Amendment
The Appellant had issued an ET1 including a claim under section 15 Equality Act 2010. He applied out of time to add a claim under section 13 Equality Act 2010, contending that it raised no new facts or matters and thus was a mere relabelling exercise (Selkent). The Employment Judge accepted that argument and granted leave to amend. Appeal allowed: the section 13 claim involved more than relabelling. The application was remitted to the Employment Judge to consider the exercise of discretion.

Citations:

[2018] UKEAT 0258 – 17 – 1602

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609160

PRACTICE AND PROCEDURE
The Respondent sought to challenge a case management order made by the Employment Tribunal following an appeal that remitted allegations of unlawful victimisation be redetermined. The order permitted the parties to adduce additional evidence on the issue of knowledge of the protected act.
The appeal failed. The order made by the Employment Tribunal did not exceed its jurisdiction. The Employment Appeal Tribunal’s Judgment expressly anticipated the possibility of additional evidence being heard and the order did not limit this possibility.
Further, in the unusual circumstances of this case, the order was a permissible option and well within the case management discretion available to the Employment Tribunal.

Judges:

Simler DBE P J

Citations:

[2018] UKEAT 0308 – 17 – 1201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609154

Practice and Procedure – Bias, Misconduct and Procedural Irregularity – Disposal of Appeal including remission
The Appellant argued that the ET had failed to comply with an Order by which the EAT remitted the case to the ET for it to consider the issues set out in that Order. The EAT held that the ET had erred in law by misinterpreting the EAT’s Decision remitting the case, and by embarking on its own inquiry, rather than by considering the issues which the EAT had required it to consider. The EAT remitted the case to a different ET for it to consider the issues originally remitted to the ET by the EAT.

Citations:

[2018] UKEAT 0105 – 17 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609157

Application to enforce post employment restrictive covenants

Judges:

Mr Daniel Alexander (sitting as a Deputy Judge of the High Court Chancery Division)

Citations:

[2018] EWHC 850 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609079

Claim for payment of contractual bonus

Judges:

EggersC DHCJ

Citations:

[2018] EWHC 876 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.609092

Appeal against a decision of the Employment Appeal Tribunal dismissing an appeal against an order of the Registrar refusing the Appellant an extension of time for filing his appeal.

Judges:

Sir Brian Leveson P QBD, Underhill, Leggatt LJJ

Citations:

[2018] EWCA Civ 751, [2019] ICR 771

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 April 2022; Ref: scu.608720