Category: Employment

Farmah v Birmingham City Council (2): EAT 20 Jun 2017

Procedure – Rule 9 of the Tribunal Procedure Rules 2013 – Equal Pay Claims – Inclusion of Claims by Two or More Claimants On the Same Claim Form – Whether Irregular – Whether Discretion to Strike out – Whether Appropriate to Exercise Discretion to Strike Out Claims or Waive Any Irregularity
These five appeals concerned claims for equal pay. Three appeals concerned claims brought, largely, by female retail staff working in different jobs in supermarkets who claimed they were performing equal work with men working in distribution centres. Women doing different jobs included their claims in the same claim forms. Some men also included claims within the same claim form contending that, if the female Claimants were successful, then they did equal work with those successful female Claimants. Two of the appeals involved claims by women undertaking different jobs in local government who claimed that their work was equal work with men performing a variety of jobs. The Respondents contended that the Claimants’ claims were not based on the same set of facts within the meaning of Rule 9 of the Tribunal Procedure Rules 2013 and their claims should be struck out.
Rule 9 required a Tribunal to identify the complaints that the Claimants were making, then identify the set of facts upon which those complaints was based or founded and then to consider if the sets of facts were the same. In the context of a claim for equal pay, that is a claim contending breach of an equality clause included in a contract of employment by virtue of the Equality Act 2010, claims made by female Claimants doing different work, or jobs, were not based on the same set of facts as the claims involved a comparison of different jobs with the work of the male comparators. Similarly, claims made by male Claimants were not based on the same set of facts as they sought to compare their work with the work of female Claimants not with other male comparators. The Judgment sets out the appropriate approach to the discretion to strike out claims or waive the irregularity.

Judges:

Lewis J

Citations:

[2017] UKEAT 0289 – 15 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 March 2022; Ref: scu.597420

Ministry of Defence v Dixon: EAT 4 Oct 2017

EAT Unfair Dismissal : Dismissal : Ambiguous Resignation –
PRACTICE AND PROCEDURE
– Application/claim – Amendment – Appellate jurisdiction/reasons/Burns-Barke –
Unfair dismissal – dismissal – fixed-term employee – Practice and procedure – claim – application to amend – whether raised below – appellate jurisdiction – The Claimant, not legally trained and acting in person (assisted by her husband, also not legally trained), lodged a claim with the Employment Tribunal (‘the ET’) before the termination of her employment with the Respondent; that claim (‘the first ET1’) related to her status as a fixed-term worker. By the time of the initial case management Preliminary Hearing (‘PH’), the Claimant had been dismissed and she therefore sought to apply to amend her claim to include a complaint of unfair dismissal – indicating her intention to make that application when completing the ET’s pro forma case management document, which she sent to the Respondent’s solicitors and to the ET. The Respondent’s solicitor did not complete a separate pro forma document but provided a draft list of issues, which he stated included the matters raised by the Claimant. The unfair dismissal claim was included in the draft list. At the case management PH, the Claimant was not asked about her application to amend but the Respondent’s solicitor confirmed that it understood that the claim included a complaint of unfair dismissal. Although asking for further particulars regarding another aspect of the claim, the Respondent did not seek further information about the unfair dismissal complaint. Subsequent to the case management PH, the Claimant sought to lodge a another ET1 (‘the second ET1’), this time ticking the box to show that she was claiming unfair dismissal; she confirmed, however, that this was simply the complaint that had already been referred to and the ET did not treat this as a new claim.
Subsequently, after the time limit for making a complaint of unfair dismissal had passed, the Respondent objected that the ET had no jurisdiction to hear that claim as the Claimant had not been dismissed when she lodged her first ET1 (‘the prematurity argument’). It appeared that those advising the Respondent had only spotted this point at or around that stage. A further PH was therefore listed to consider the prematurity argument. At that PH, the ET accepted that the Claimant had never intended to include a claim of unfair dismissal in her first ET1 but, in any event, considered she could rely on an earlier letter sent to her by the Respondent as notice of dismissal and thus the ET would be afforded jurisdiction to hear the claim by virtue of section 111(3) Employment Rights Act 1996 (‘ERA’). In the alternative, the ET considered the procedural history meant it had not been reasonably practicable for the Claimant to present her complaint of unfair dismissal earlier and so time would be extended for her to do so at that stage.
The Respondent appealed. In resisting the appeal, the Claimant relied on the ET’s reasoning and additional grounds, referring back to her intention when lodging the first ET1 and her earlier application to amend.
Held: dismissing the appeal on the alternative basis relied on by the Claimant.
It was correct that the ET had fallen into error in identifying the Respondent’s letter as notice of dismissal: the Respondent had written to the Claimant about the forthcoming expiration of her fixed-term contract but that contract only terminated later, by effluxion of time and that was how the Claimant had been dismissed (not by notice) – after the lodgement of her first ET1. The ET’s decision could not be upheld on this basis. Equally, although a point raised in argument rather than the Notice of Appeal, the Respondent was correct to object to the alternative basis for the ET’s decision – its purported extension of time in respect of a claim that had not yet been made. That also disclosed an error of law on the part of the ET.
Although the Respondent objected to the Claimant’s alternative ground for resisting the appeal on the basis that it was not a point she had taken below, even if that was correct (which was unclear) given the procedural history it would be unjust not to permit her to rely on her earlier application to amend the first ET1. Moreover, it was apparent that the ET at the second PH had accepted that the Claimant had never intended to include a complaint of unfair dismissal in her first ET1 (even if the Respondent had mistakenly thought that she had) and the application to amend itself had been validly made and the ET would have had jurisdiction to consider it. Although the amendment (adequately particularised given that the Claimant was merely attaching a label to matters already raised) would introduce a cause of action that had arisen only after the first ET1 was lodged, that was not fatal: the ET would need to consider the application on normal Selkent principles (see Selkent Bus Company Ltd v Moore [1996] IRLR 661 EAT) (Okugade v Shaw Trust [2005] UKEAT 0172 – 05 – 1108 and Prakash v Wolverhampton City Council [2006] UKEAT 0140 – 06 – 0109 applied).

Citations:

[2017] UKEAT 0050 – 17 – 0410

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 March 2022; Ref: scu.597421

MM Packaging (UK) Ltd v Philip Potter and Others: CA 31 Jul 2017

Interpretation of a formal settlement agreement made between the appellant company, which had closed a factory operated by it in Bootle, and the former employees and their trade union.

Judges:

Underhill, Lindblom, Thirlwall LJJ

Citations:

[2017] EWCA Civ 1471

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Employment

Updated: 30 March 2022; Ref: scu.595812

Hanschmann v Europol: ECFI 26 Sep 2017

(Judgment) Civil service – Europol – Non-renewal of a contract – Refusal to grant an indefinite contract – Compensation – Annulment by the Civil Service Tribunal – Execution of judgments in Cases F-27/09 and F-104 / 12

Citations:

ECLI:EU:T:2017:664, [2017] EUECJ T-562/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 30 March 2022; Ref: scu.595436

Knoll v Europol: ECFI 26 Sep 2017

(Judgment) Civil service – Europol – Non-renewal of a contract – Refusal to grant an indefinite contract – Compensation – Annulment by the Civil Service Tribunal – Execution of judgments in Cases F-44/09 and F-105 / 12

Citations:

ECLI:EU:T:2017:665, [2017] EUECJ T-563/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 30 March 2022; Ref: scu.595437

Ibrahim v HCA International Ltd: EAT 13 Sep 2018

VICTIMISATION DISCRIMINATION – Whistleblowing
In a whistleblowing claim the issue was whether the Tribunal had correctly interpreted and applied section 43B(1)(b) Employment Rights Act 1996 in two respects; (1) what amounts to an allegation of a breach of a legal obligation and (2) the public interest element in light of the guidance from the Court of Appeal in Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979.
The Tribunal erred in concluding that a complaint by an employee that others are falsely blaming him for breaches of confidentiality, of such seriousness that he has to ‘clear his name’, is not a complaint that those others have failed to comply with a legal obligation to which they are subject in accordance with section 43B(1)(b). The provision is broad enough to include tortious duties, including defamation and breach of statutory duty such as those contained in the Defamation Act 2013. It is immaterial that he did not use the legal terminology of defamation when making his disclosure.
However, the Tribunal did not err in its analysis that the disclosure did not meet the public interest test. The Tribunal has to ask itself (a) whether the worker believed at the time that he was making it that the disclosure was in the public interest and (b) if so, whether that belief was reasonable. The Tribunal found that the Claimant did not have a subjective belief in the public interest element of his disclosure – his concern was only that false rumours had been made about him, and the effect of those rumours on him. Those facts were the Tribunal’s to make and open to it on the evidence before them. Since the Claimant did not have a subjective belief in the public interest of his disclosure, the Tribunal’s enquiry ended there and there was no error in the conclusion that the Claimant had not made a protected disclosure.
Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979 followed and applied.

Citations:

[2018] UKEAT 0105 – 18 – 1309

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.633783

Cabezuelo v Stella Travel Serivces Uk Ltd and Another (Practice and Procedure – Disposal of Appeal Including Remission): EAT 17 Oct 2018

PRACTICE AND PROCEDURE – Disposal of appeal including remission
The parties agreed that the Claimant’s appeal against a Costs Order made against him in the Employment Tribunal (‘ET’) should be allowed to the extent of deducting the VAT which had wrongly been included in the sum ordered to be paid.
In allowing the appeal and substituting an Order for the payment of the lesser amount, the Employment Appeal Tribunal (‘EAT’) also had jurisdiction by virtue of section 35(1)(a) of the Employment Tribunals Act 1996 and Rule 66 of the Employment Tribunal Rules to specify a time for payment of the new amount.

Citations:

[2018] UKEAT 0137 – 18 – 1710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.633787

Nwaki v Tube Lines Ltd: EAT 28 Sep 2018

UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
A Tribunal was entitled to find, on the facts, that where the Claimant’s inability to satisfy his employer that he was legally entitled to continue working in the UK arose as a result of an error on the part of the Border Agency, his dismissal was not unfair.
The fact that the Skeleton Argument served by the Respondent below tended to focus primarily on the issue of ‘some other substantial reason’ did not mean that the Employment Tribunal (‘ET’) was disentitled to find that the reason for dismissal fell within section 98(2)(d), namely that ‘the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.’

Citations:

[2018] UKEAT 0117 – 18 – 2809

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.633785

Mvula v The Co-Operative Group Ltd (Practice and Procedure – Postponement or Stay): EAT 11 Sep 2018

PRACTICE AND PROCEDURE – Postponement or stay
There was no error in the ET’s decision not to postpone a costs hearing, even though it meant the hearing took place in the Claimant’s absence. The medical evidence was vague and did not provide sufficient evidence that the Claimant was unfit to attend the hearing. The line of Authorities from Teinaz v London Borough of Wandsworth [2002] IRLR 721, Andreou v The Lord Chancellor’s Department [2002] IRLR 728, Beardshall v Rotherham Metropolitan Borough Council and others UKEAT/0073/12/ZT considered, followed and applied.

Citations:

[2018] UKEAT 0076 – 18 – 1109

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.633784

Galloway v Wood Group Uk Ltd (Procedure : Meaning of ‘An Email Address’): EAT 18 Jan 2019

The EAT was asked to decide what the words ‘an email address’ in paragraph 9(2) of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 meant. The EAT decided that Parliament meant an actual email address. The Appellant had in error supplied an email address that did not exist. Parties were agreed that if ACAS’s abortive attempt to issue an early conciliation certificate using this non-existent email address could not be said to involve the use of an ’email address’ within the meaning of the Regulations, then time had not begun to run in terms of s. 207B(2)(b) of the Employment Rights Act 1996 and the Appellant was not out of time for the purposes of claiming lodging his claim for unfair dismissal.

Citations:

[2019] UKEAT 0017 – 18 – 1801

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.633779

Nwakwu v Westminster City Council: EAT 17 Sep 2018

PRACTICE AND PROCEDURE – Disposal of appeal including remission
The Respondent to the appeal conceded that the Tribunal had erred in its approach to time limits in the Claimant’s claim for breach of the Agency Workers Regulations 2010. The parties could not agree whether the matter should be remitted back to the same or a fresh Tribunal. On applying the familiar authority of Sinclair Roche and Temperley v Heard [2004] IRLR 763 EAT, the matter is remitted to a fresh Tribunal for re-hearing on the discreet issue on which the appeal was successful.

Citations:

[2018] UKEAT 0102 – 18 – 1709

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.633786

Hamilton v Solomon and Wu Ltd (Victimisation Discrimination – Health and Safety): EAT 24 Sep 2018

VICTIMISATION DISCRIMINATION – Health and Safety
In considering a claim under section100(1)(d) of the Employment Rights Act 1996 (‘ERA’), there are no arguable grounds for concluding the Tribunal erred.
The Tribunal made the necessary findings on the evidence before it to conclude (1) that there were no circumstances of danger; (2) the Claimant did not have a reasonable belief in serious or imminent danger that he could not reasonably be expected to avert: and (3) he was dismissed for his inability to accept instructions, which had been an ongoing problem prior to his raising any concerns about dust in the workplace.
Appeal dismissed.

Citations:

[2018] UKEAT 0126 – 18 – 2409

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.633782

The British Council v Jeffery and Others: CA 16 Oct 2018

The respondents worked outside the UK, living and working for United Kingdom company. Their contracts of employment were expressed to be governed by English law. The court was asked whether that created a sufficient connection with British employment law to bring claims of detrimental treatment in employment tribunal.
Held: The appeal failed. Making the contract subject to English law was enough to create the connection needed.

Judges:

Underhill, Longmore, Peter Jackson LJJ

Citations:

[2018] EWCA Civ 2253, [2018] WLR(D) 629

Links:

Bailii, WLRD

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Jurisdiction, Employment

Updated: 30 March 2022; Ref: scu.625953

Wanrgue v Comittee of The Regions: ECFI 22 Sep 2017

(Judgment) Appeal – Civil service – Officials – Working conditions – Overtime – Driver of AST grade 6 – Elimination of the right to flat-rate overtime allowance – Equal weapons – Obligation to state reasons – Errors of law – Distortion of the facts

Citations:

T-682/15, [2017] EUECJ T-682/15, ECLI:EU:T:2017:644

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 30 March 2022; Ref: scu.595422

Socha and Others v Szpital Specjalistyczny im. A. Falkiewicza we Wroclawiu: ECJ 21 Sep 2017

Approximation of Laws Approximation of Laws Social Policy : Judgment – Reference for a preliminary ruling – Social policy – Collective redundancies – Directive 98/59/EC – Article 1(1) – Concept of ‘redundancies’ – Assimilation to redundancies of ‘terminations of an employment contract which occur on the employer’s initiative’ – Unilateral amendment by the employer of pay and working conditions

Citations:

C-149/16, [2017] EUECJ C-149/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 30 March 2022; Ref: scu.595417

British Airways v Pinaud (Part Time Workers): EAT 1 Aug 2017

EAT PART TIME WORKERS
The Employment Tribunal correctly approached the question whether the Claimant was treated by the Respondent less favourably than it treated a full-time comparator as regards a term of the contract concerned with pattern of availability for work (regulation 5(1)(a) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000).
The Employment Tribunal erred in law by holding, in effect, that statistical evidence produced by the parties was irrelevant to the question of justification (regulation 5(2)(b)).

Judges:

Richardson HHJ

Citations:

[2017] UKEAT 0291 – 16 – 0108

Links:

Bailii

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.595004

Lynam and Another v Birmingham City Council: EAT 6 Sep 2017

EAT Contract of Employment – Implied term/variation/construction of term – In December 2013 the Council announced on their intranet in a notice headed ‘Voluntary Redundancy (VR) Information and guidance for employees’ that they had decided to undertake a process offering a generous VR package in 2014/15. The process was to cover ‘affected’ employees identified as such in a section 188 notice, which included the Claimants. The notice stated that all eligible employees would be contacted and invited to make an application for VR. In September 2014 the Claimants were told that VR would not be available to them and they were made compulsorily redundant with effect from 30 April 2015. They claimed damages for breach of contract based on the Council’s failure to allow them to apply for VR.
The Employment Judge decided that the Claimants had no contractual right to apply for VR because: (a) the Council had only offered an enhanced VR package in one previous year and it was unlikely to be repeated after 2014/15 so that there was no ‘policy’ such as to give rise to a contractual right; (b) only employees invited to apply for VR would be eligible and have a contractual right to do so and, anyway, those who did apply had no right to receive VR; and (c) employees within a pool whose role was being deleted had no right to apply for VR.
In so doing she erred in law in that:
(a) was irrelevant: there was no claim based on a ‘policy’ or ‘custom and practice’; the proper focus was on what the Council had communicated to its employees;
(b) was based on a misinterpretation of the notice: it was clear that ‘eligible’ and ‘affected’ employees were the same thing and the notice stated they would all be contacted and invited to apply for VR; the question whether VR would have been granted went to damages, not liability;
(c) there was no suggestion in any communication from the Council that there was such a restriction on the right to apply for VR and it was not possible to see the rationale for such a restriction or how it would have been framed.
The case would be remitted to the ET to decide whether, on a proper interpretation of the notice, there was a contractual right to apply for VR and, if so, what (if any) damages were suffered by the Claimants by not being afforded the opportunity to apply for VR.

Judges:

Shanks HHJ

Citations:

[2017] UKEAT 0072 – 17 – 0609

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.595009

Kansal v Tullett Prebon Plc and Others (Race Discrimination): EAT 20 Jul 2017

RACE DISCRIMINATION – Direct
VICTIMISATION DISCRIMINATION
RACE DISCRIMINATION – Detriment
JURISDICTIONAL POINTS – Claim in time and effective date of termination
The ET rejected claims of direct discrimination (race) in circumstances where it had found the alleged discriminator to have subjected the Claimant to harassment related to his race, and victimised him for having complained about it. It did so in respect of two allegations by concluding that although the acts complained of had occurred, the employer and its Head of Alternative Investments had not done them for any reason of race. The logic was that the employer had engaged two employees of the same race on similar work, and therefore could not have been motivated by race. This was a misdirection. Further, the ET had not identified that the treatment was less favourable than that which had or would have been given to another not of the Claimant’s race, nor had it identified a comparator for the purposes of any such comparison, nor had it found what the reason was for the treatment (it purported to find what it had not been, but had done so on a false basis), nor did it seek to see whether the burden of proof may have passed to the Respondents to provide such an explanation given the context of the claims and the other findings in respect of the behaviour of the alleged discriminator, to which other conduct it had made no reference when reaching its conclusion that there was no direct discrimination. Appeal in respect of the dismissal of two allegations of direct discrimination allowed.
An appeal against findings that there had been no victimisation by paying the Claimant a bonus ‘only’ of a certain amount was rejected: the ET had been entitled to determine that there had been no detriment, even if, had it done so, its additional reason that there would still have been no finding of victimisation could not have been supported. A cross-appeal seeking to reargue the question whether a finding that the employer had conducted a disciplinary hearing in respect of the employee’s conduct was in revenge for his having complained that the Respondents’ conduct was discriminatory, was dismissed as raising in truth no point of law, but one in respect of the ET concluding that time should be extended on the just and equitable footing for the late bringing of a claim was allowed: the ET should have identified why it was the Claimant was late, and did not appear to have done so, nor clearly evaluate his actual reasons for being late (whatever they were).
The issues in question on the successful appeals to be reheard before the same ET, on the same evidence as adduced previously, though leaving it open to either party to ask the ET if it would consider further evidence, and for the ET to permit them to do so should it consider that appropriate.

Judges:

Langstaff J

Citations:

[2017] UKEAT 0147 – 16 – 2007

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595000

De Mota v ADR Network and Another: EAT 13 Sep 2017

Jurisdictional Points – Early conciliation provisions
The Employment Judge erred in law in:
(1) Examining the process prior to the grant of an early conciliation certificate in order to assess whether the Claimant was barred from instituting proceedings by section 18A(8) of the Employment Tribunals Act 1996.
(2) Holding that it was a mandatory requirement of an early conciliation certificate that it must name only one Respondent, such that the Claimant was barred from instituting proceedings by section 18A(8) of the Employment Tribunals Act 1996.
Science Warehouse Ltd v Mills [2016] ICR 252; Drake International Systems Ltd v Blue Arrow Ltd [2016] ICR 445; Mist v Derby Community Health Services NHS Trust [2016] ICR 543 and Compass Group UK and Ireland Ltd v Morgan [2017] ICR 73 considered and applied.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0305 – 16 – 1309, [2018] ICR D6

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 30 March 2022; Ref: scu.595008

Aziz v The Freemantle Trust (A Charity Limited By Guarantee) (Unfair Dismissal): EAT 25 Jul 2017

UNFAIR DISMISSAL – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Unfair dismissal – fairness of dismissal – wrongful dismissal – adequacy of reasons
The issue raised by the appeal concerned the ET’s approach to a contractual mobility clause; specifically, whether it had made adequate findings and/or had sufficiently engaged with the question whether the employer had exercised that clause lawfully – a question that was relevant to both the Claimant’s unfair and wrongful dismissal claims. In the alternative, the Claimant contended that the ET’s decision was inadequately reasoned.
Held: dismissing the appeal
Reading the ET’s reasoning as a whole, it was apparent that it had adequately engaged with the issues arising in relation to the mobility clause for the purposes of both claims and its explanation of its reasoning and conclusions was sufficient to the task required of it.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0027 – 17 – 2507

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.594999

Abbeyfield Wessex Society Ltd v Edwards (National Minimum Wage): EAT 28 Jul 2017

EAT NATIONAL MINIMUM WAGE
The Employment Judge erred in law in his approach to the question whether the Claimant was engaged in time work while she was employed overnight as a Sleep-in Assistant. In particular he (1) did not take the terms of the contract as his starting point – he did not make any satisfactory determination of what those terms were, or how they were operated in practice; and (2) proceeded largely by analogy with a decided case, rather than making findings of fact and assessing his findings as a whole. Focus Care Agency Ltd v Roberts [2017] IRLR 588 applied.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0256 – 16 – 2807

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.594998

Xerox Business Services Philippines Inc Ltd v Zeb (Transfer of Undertakings): EAT 24 Jul 2017

EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
TRANSFER OF UNDERTAKINGS – Dismissal/automatically unfair dismissal
REDUNDANCY – Definition
Within the Xerox group of companies the work of a Finance Accounting Team was transferred from a UK company in Wakefield to a Philippines company and then taken offshore to Manila. It was agreed that there was a TUPE transfer. The Claimant stated that he wished to relocate to the Philippines on UK terms and conditions. The Respondent dismissed him for redundancy, stating that he was employed to work in Wakefield and that it was prepared to transfer him only on local terms and conditions. The Employment Judge found that there was a variation of his contract of employment by which he was entitled to work in the Philippines on UK terms and conditions; and that he was not redundant.
Appeal allowed. On the Employment Judge’s own findings there had been no variation of the contract; and her reasons for finding that the Claimant was not redundant had failed to apply the statutory wording in section 139(1)(b)(ii) of the Employment Rights Act 1996. Comments also on the importance of addressing regulation 7 of TUPE 2006 in a case of this kind.

Judges:

Richardson HHJ

Citations:

[2017] UKEAT 0121 – 16 – 2407

Links:

Bailii

Statutes:

Employment Rights Act 1996 139(1)(b)(ii), Transfer of Undertakings (Protection of Employment) Regulations 2006

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.595002

Kwele-Siakam v The Co-Operative Group Ltd (Practice and Procedure): EAT 27 Jul 2017

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge erred in striking out claims of direct race discrimination by conducting more than a mini-trial into the main issue in the case, the reason for the acts of which complaint was made. The Claimant gave evidence and was extensively cross-examined in a two-day hearing. The Employment Judge failed to apply the principles in Ezsias v North Glamorgan NHS Trust [2007] IRLR 603. Observations on the dangers of conducting a strike out hearing at which findings on the credibility of the Claimant are made which are central to the main issue in the claim. Qdos Consulting Ltd v Swanson UKEAT/0495/11 and Chandhok v Tirkey [2015] IRLR 195 considered.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0039 – 17 – 2707

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595001

Ifere v North Cumbria University Teachings Hospitals Trust: EAT 3 Aug 2017

EAT RACE DISCRIMINATION – Other losses
In the course of assessing the Claimant’s compensation for unlawful victimisation by the Respondent, the Employment Tribunal was required to consider whether it should award legal costs which the Claimant had incurred in defending proceedings before the Interim Orders Panel of the Medical Practitioners Tribunal Service. In its Liability Judgment and Reasons it had made findings which effectively precluded such an award. In its Remedy Judgment and Reasons it effectively reconsidered those findings and awarded compensation which reflected those legal costs. But, accepting that the Respondent had not understood it intended to take this course and had not made submissions upon it, the Employment Tribunal reconsidered the Liability Judgment; and revoked that part of the award. The Claimant appealed.
Held. The Employment Tribunal did not err in law in revoking that part of the award which required the Respondent to pay a sum to reflect the legal costs which the Claimant had incurred in defending proceedings before the Interim Orders Panel of the Medical Practitioners Tribunal Service.

Judges:

Richardson HHJ

Citations:

[2017] UKEAT 0073 – 17 – 0308

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Damages

Updated: 30 March 2022; Ref: scu.595005

Asda Stores Ltd v Brierley and Others (Equal Pay Act): EAT 31 Aug 2017

EQUAL PAY ACT – Article 141/European law
EQUAL PAY ACT – Equal value
EQUAL PAY ACT – Other establishments
1. Although the point is not acte clair, the better view is that article 157 of the Treaty on the Functioning of the European Union is directly effective in a claim founded on equal pay for work of equal value. The Appeal Tribunal declines to make a reference to the Court of Justice of the European Union seeking a determination of this (or any) point.
2. Where there is a ‘single source’ of pay and conditions for both claimant and comparator, a comparison between them is permitted independently of whether unequal treatment arises from legislation or collective agreements and whether or not the employment is in the same establishment or service.
3. Where no comparator works at the establishment where the claimant is employed, comparison is permitted applying the North hypothetical test. The better view is that the North hypothetical test remains good law and has survived the replacement of section 1(6) of the Equal Pay Act 1970 by section 79 of the Equality Act 2010.
4. The Employment Judge did not err in law in deciding that the law is as stated above. He did not misapply the law. Nor were any of his findings of fact perverse. He reached conclusions that were open to him on the facts. There is no basis for interfering with his decision that the Claimants can compare themselves with their chosen comparators.

Judges:

Kerr J

Citations:

[2017] UKEAT 0011 – 17 – 3108

Links:

Bailii

Statutes:

Equality Act 2010

Jurisdiction:

England and Wales

Employment, European, Discrimination

Updated: 30 March 2022; Ref: scu.595003

Thomas Cook Airlines Ltd v British Airline Pilots Association: QBD 6 Sep 2017

The claimant company seeks an injunction to restrain the defendant trade union from calling a strike. The context is a dispute between the parties over the pay and conditions of pilots employed by the claimant.

Judges:

Lavender J

Citations:

[2017] EWHC 2253 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593631

Bowden v Ministry of Justice and Another: EAT 25 Aug 2017

EAT PART TIME WORKERS
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Employment Judge did not apply correct principles of law when deciding whether it was just and equitable to consider the Claimant’s claim out of time. He placed impermissible reliance on his decision in Miller and Others v Ministry of Justice and did not consider whether, in the Claimant’s case, he was reasonably ignorant of his right to bring the claim, and how the prejudice to both parties should be balanced.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0018 – 17 – 2508

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593139

Islam v HSBC Bank Plc (Practice and Procedure: Review): EAT 26 Jun 2017

PRACTICE AND PROCEDURE – Review
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Reconsideration – Fair Hearing
The Claimant’s case had been dismissed upon his having applied to withdraw during the course of the Full Merits Hearing. Subsequently, he had applied for a reconsideration of that decision significantly out of time. The ET refused that application. The Claimant appealed.
Held: dismissing the appeal
The ET had permissibly exercised its discretion to refuse to extend time for the reconsideration application; in particular, it had been entitled to take the view that the Claimant had failed to provide adequate medical evidence to explain the delay (over six months) before making his application. It had also been entitled to conclude it would not be in the interests of justice to re-open the original decision. On the material before it, the ET had permissibly concluded that the Claimant had not been denied a fair hearing and it was thus not open to him to seek to go behind his earlier withdrawal of his claim. Assessing the question of fair hearing as an appellate Tribunal (applying R (on the application of Osborn) v Parole Board [2014] AC 1115 SC; Galo v Bombardier Aerospace UK [2016] NICA 25, [2016] IRLR 703), it was apparent that the ET had made appropriate adjustments at the Full Merits Hearing (and before), thus affording the Claimant a fair hearing. There was nothing that should have alerted the ET to consider the withdrawal of his claim was other than for the reasons he had provided at the time.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0264 – 16 – 2606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593133

Tree v South East Coastal Ambulance Service NHS Foundation Trust: EAT 4 Jul 2017

EAT PRACTICE AND PROCEDURE – Imposition of deposit
Deposit Order – Rule 39 Employment Tribunal Rules 2013
The Claimant had pursued claims of disability discrimination under sections 13 (direct discrimination) and 15 (discrimination because of something arising in consequence of disability) Equality Act 2010 (‘EqA’). At a Preliminary Hearing listed to determine time limit issues, the Employment Judge (having found it would be just and equitable to extend time) raised the question whether it would be appropriate to make Deposit Orders in respect of these claims. There was then a short exchange between the Employment Judge and counsel for the Claimant before a Deposit Order was made in the sum of pounds 1,000. The Claimant appealed.
Held: Allowing the appeal in part.
When making a Deposit Order, an Employment Tribunal needed to have a proper basis for doubting the likelihood of a Claimant being able to establish the facts essential to make good her claims (see the guidance in Jansen van Rensburg v Royal Borough of Kingston-upon-Thames UKEAT/0096/07; Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14 and Hemdan v Ishmail [2017] ICR 486 EAT). In the present case, whilst the ET had correctly recorded the way the Claimant was putting her section 15 case in its case management Order, it was not apparent it had regard to the way in which that case was being pursued when reaching its decision on the Deposit Order. Moreover, the ET’s reasoning in respect of section 15 EqA demonstrated a misunderstanding of that provision and of the guidance laid down in Pnaiser v NHS England [2016] IRLR 170 EAT. In the circumstances, the Deposit Order in respect of the section 15 claim could not be upheld. As for the section 13 claim, however, even if the ET had been wrong in its view as to the identity of the comparator for the purposes of section 23 EqA (something arguably better left to the Full Merits Hearing), it had been entitled to take the view that the Claimant had little reasonable prospect of succeeding with her complaint of direct discrimination on the ‘reason why’ question (given the difficulties identified in London Borough of Lewisham v Malcolm [2008] IRLR 700 HL); the Deposit Order would be upheld in respect of this part of the claim.
As there was no appeal against the amount awarded, the ET’s global Deposit Order of pounds 1,000 would be set aside and substituted with an Order for pounds 500 in respect of the section 13 claim alone.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0043 – 17 – 0407

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593138

Smolarek v Tewin Bury Farm Hotel Ltd and Another: EAT 5 Jul 2017

PRACTICE AND PROCEDURE – Costs
Costs – Rule 76(1) ET Rules 2013
Having dismissed the Claimant’s claims after a Full Merits Hearing, the ET went on to order that the Claimant pay costs of pounds 5,200 towards the sums incurred by the Respondents (over pounds 29,000). In making that award, the ET had regard to the fact that the Claimant had previously pursued two claims in the ET, which had also included claims of unlawful discrimination, and had faced a previous costs award; in the present case, not only had the Claimant unreasonably pursued claims that had no reasonable prospect of success so as to engage the ET’s costs jurisdiction under Rule 76(1), it was appropriate to make an award of costs in the sum of pounds 5,200, which was set at a level that the Claimant might be expected to be able to pay and also that would cause her to consider carefully before pursuing any further ET claims. Upon the Claimant applying for the ET to reconsider its Judgment, in part because it had wrongly taken into account the need to deter her from pursuing claims when making the costs award, the ET confirmed its earlier decision but said it was merely expressing a hope – not setting out its reason for making the costs award – when it referred to any future deterrence.
The Claimant appealed the original Costs Judgment.
Held: allowing the appeal
The ET’s reasoning expressly stated that, when determining whether it was appropriate to make an award of costs and, if so, as to the level of that award, its award was at least in part informed by reference to what would cause the Claimant to consider carefully whether to bring any future claims (i.e. so as to act as a deterrence). That had been an improper consideration and had thus tainted the ET’s exercise of its judicial discretion. Although the ET had re-visited this issue in its Decision on the reconsideration application, that could not be read as a clarification of its earlier reasoning and it would not be appropriate to seek to make good the error in the original Decision by reference to the Reconsideration Judgment. That said, the Reconsideration Decision did make clear the other bases on which the ET had considered it appropriate to make a costs award in this case and that meant that the real issue was as to the appropriate level of that award absent any consideration of deterrence. In the circumstances that issue would need to be remitted to the ET for further reconsideration.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0031 – 17 – 0507

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Costs

Updated: 29 March 2022; Ref: scu.593137

Hassan v Barts Health NHS Trust and Others (Practice and Procedure): EAT 11 Jul 2017

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
On a Rule 26 ‘initial consideration’ on 26 August 2015 before presentation of the ET3 response, the London Central Employment Tribunal directed a Preliminary Hearing on a jurisdictional issue, to be heard on 2 October 2015. Before receipt of notice of that hearing, the Appellant applied for transfer of the case to another region on grounds of alleged bias. The Tribunal responded with a direction on 9 September 2015 that the issue of transfer would be considered at a Preliminary Hearing on 20 October. At the Preliminary Hearing on 2 October the Tribunal struck out parts of the claim on the grounds of res judicata / Henderson v Henderson / abuse of process; and noted that the application to transfer would be considered on 20 October.
Appeal allowed against the directions and Orders of 26 August, 9 September and 2 October on grounds that (i) the effect of Rules 26 and 54 is that the Tribunal’s jurisdiction for ‘initial consideration’ and any consequent direction for a Preliminary Hearing is dependent on receipt of the ET3 response; and/or (ii) that the transfer application should have been listed for Preliminary Hearing before, not after, the Preliminary Hearing on the jurisdictional issues. The application for transfer was remitted to London Central. The Appellant’s applications under EAT Rules Rule 27(1) / EAT Practice Direction 2013 paragraph 10.3 for Orders for disclosure and for the admission of other evidence were refused.

Judges:

Soole J

Citations:

[2017] UKEAT 0042 – 16 – 1107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593135

Luton Borough Council v Haque (Jurisdictional Points): EAT 31 Jul 2017

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
Claim in time – construction of extension of time provisions under early conciliation regime – appeal permitted to proceed because need for clarity provided compelling reason for it to be heard (along with any other appeals raising the same point).

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0260 – 17 – 3107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593136

The Guinness Partnership v Szymoniak (Disability Discrimination): EAT 10 Jul 2017

EAT DISABILITY DISCRIMINATION – Disability
Disability discrimination – definition of disability – section 6 Equality Act 2010 (‘EqA’)
The Claimant, who was pursuing a complaint of disability discrimination, claimed that he met the definition of a disabled person for the purposes of section 6 EqA by reason of what he contended were the long-term substantial effects of a mental impairment. The ET had not given any directions for expert medical evidence but relied on the Claimant’s own evidence and contemporaneous medical documentation in reaching its conclusion that he had established he had suffered from the condition of which he complained for more than 12 months.
The Respondent appealed on two bases, contending: (1) that the ET had failed to follow relevant authority, in particular RBS v Morris and Royal Borough of Greenwich v Syed in proceeding to determine the question of disability without proper expert medical evidence; and (2) that the ET had misapplied section 6 EqA, finding that the Claimant was disabled on the basis merely that he had suffered from a mental impairment for a period of 12 to 18 months, failing to consider whether the mental impairment had had an effect on the Claimant’s ability to carry out normal day-to-day activities which was both substantial and long-term.
Held: allowing the appeal
The focus of the ET’s reasoning had been on the length of time the Claimant’s condition had lasted; it had failed to demonstrate that it had addressed the question of the effect of his condition, apparently falling into the error of assuming that, if a medical condition has existed for over 12 months, it did not need to further assess the effects of that condition. That was an error of law and the appeal would be allowed on this basis. In the circumstances, it was not possible to determine whether the ET might have been able to reach a permissible conclusion as to whether the Claimant was disabled for the purposes of section 6 EqA on the material before it (i.e. absent expert medical evidence). The issue of disability would be remitted to a different ET for consideration afresh, including as to whether directions should be given for the obtaining of an expert medical report.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0065 – 17 – 1007

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.593134

Jeffery v The British Council: EAT 25 Aug 2016

EAT Jurisdictional Points : Working Outside The Jurisdiction – The Claimant was a UK appointed employee of the British Council, the Respondent, working abroad; he was ‘truly expatriate’ and he was not a civil servant. He was, however, employed under a contract of employment which expressly incorporated English law, entitled him to a Civil Service Pension (by virtue of specific statutory provision) and made a notional deduction for UK tax; and the Respondent for whom he worked was a non departmental public body having an important place in British public life. The Claimant established an overwhelmingly stronger connection with Great Britain and with British employment law than any other system; so he was entitled to bring claims under the Employment Rights Act 1996 and the Equality Act 2010.
Lawson v Serco Ltd [2006] ICR 250 (House of Lords), Duncombe v Secretary of State for Children Schools and Families (No 2) [2011] ICR 1312 (Supreme Court), Ravat v Halliburton Manufacturing and Services Ltd [2012] ICR 389 (Supreme Court), Bates van Winkelhof v Clyde and Co LLP [2013] ICR 883 (Court of Appeal) and Dhunna v CreditSights Ltd [2015] ICR 105 (Court of Appeal) summarised and applied.

Judges:

David Richardson HHJ

Citations:

[2016] UKEAT 0036 – 16 – 2508, [2016] IRLR 935

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.568590

Bakersfield Entertainment Ltd v Church, Stuart: EAT 3 Nov 2005

EAT Unfair Dismissal – Illegality/Fraud. The Employment Tribunal Chairman erred in holding that the contracts of employment were not illegal when the employee-directors of the Respondent company agreed to set up a scheme whereby 50% of what was properly found to be salary was paid gross to fictitious service providers and not declared for tax and NI. Remitted to the same Chairman to determine whether the Claimants knowingly substantially participated in the illegality disentitling them from enforcement of claims of unfair dismissal, wrongful dismissal and unlawful deductions.

Judges:

His Honour Judge Mcmullen Qc

Citations:

UKEAT/0523/05/ZT

Links:

EAT

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.257645

Surrey County Council v Henderson: EAT 3 Nov 2005

EAT Contract of Employment and Unfair Dismissal
Confidentiality of Complainants – need to inform employee of case against him. Application of HSBC v Madden; Sainsbury v Hitt. Range of reasonable responses. Appeal allowed. Whether Wrongful Dismissal finding should also be set aside

Judges:

His Honour Judge Peter Clark

Citations:

[2005] UKEAT 0326 – 05 – 2311, UKEAT/0326/05/ZT

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Citing:

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

Employment

Updated: 29 March 2022; Ref: scu.235448

Uttley v Calderdale Borough Council: EAT 29 Mar 1994

Mrs Uttley appealed against refusal to allow her an extended time in which to appeal the tribunal’s decision, made now some 17 years earlier. She had recently discovered that her sickness benefit had not in fact been stopped, and that therefore the basis on which she had lost her case was she said, no longer correct.
Held: ‘There is a time limit for appealing to the Employment Appeal Tribunal. It is 42 days from the date on which the decision is sent. The Tribunal insists on strict adherence to that time limit. It is only in rare and exceptional circumstances that an extension will be granted. An extension will never be granted, unless the Tribunal has been satisfied by evidence that there was a good reason for not complying with the 42 day time limit.’ No sufficient reason had been shown.

Citations:

[1994] UKEAT 15 – 92 – 2903

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 March 2022; Ref: scu.209803