Category: Employment

Keane v Investigo and Others: EAT 11 Dec 2009

EAT AGE DISCRIMINATION
PRACTICE AND PROCEDURE: Costs
The Claimant, an experienced accountant aged 50, applied for a large number of jobs advertised online as suitable for newly qualified accountants, and when not offered an interview alleged age discrimination – The Tribunal dismissed her claims on the basis (inter alia) that she had no interest in the vacancies and was making the applications only in order to be able to claim compensation and that she had accordingly suffered no detriment – On the same basis it ordered her to pay the Respondent’s costs.
Held that the Tribunal was fully entitled on the evidence before it to reach the conclusion that it did. An applicant for a job who has no interest in accepting it if offered has no claim for discrimination if the application is unsuccessful. Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 considered.

Judges:

Underhill P J

Citations:

[2009] UKEAT 0389 – 09 – 1112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592683

Nationwide Leisure Ltd v Parnham: EAT 6 Nov 2009

EAT (Practice and Procedure : Time for Appealing) Appellant lodged Form EAT 1 in time, accompanied by all necessary documents but omitting page 8 of Form ET1. That was not served on the Appellant employer by the Employment Tribunal originally and never picked up until noticed by a member of the EAT staff.
In those circumstances exceptional case for time to be extended.
Appeal against Registrar’s Order upheld.

Judges:

Peter Clark HHJ

Citations:

[2009] UKEAT 0724 – 09 – 0611

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.592682

Efobi v Royal Mail Group Ltd: EAT 10 Aug 2017

EAT Race Discrimination – Direct – Burden of proof
The Employment Appeal Tribunal (‘the EAT’) allowed an appeal from the Employment Tribunal (‘the ET’). The Claimant claimed that the Respondent discriminated against him because of his race in rejecting job applications which he made.
The EAT held that the ET had misdirected themselves about the effect of section 136 of the Equality Act 2010 by treating it as imposing an initial burden of proof on the Claimant; but that even if the ET had not misdirected themselves in that way, errors in their approach to the evidence made their decision unsafe.
The claim was remitted to a different ET.

Judges:

Laing DBE J

Citations:

[2017] UKEAT 0203 – 16 – 1008

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592679

De-Smith v Awe Plc and Others: EAT 31 Jul 2017

EAT Practice and Procedure – Case management
The Employment Tribunal did not err in law, in principle or reach a perverse decision in refusing the application of the Claimant to postpone on medical grounds the hearing of his claims.
O’Cathail v Transport for London [2013] ICR 614 applied, Beardshall v Rotherham Metropolitan Borough Council UKEAT/0073/12/ZT and Teinaz v Wandsworth London Borough Council [2002] ICR 1471 considered.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0292 – 16 – 3107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.592676

Olukanni v John Lewis Plc (Disability Discrimination): EAT 6 Jun 2017

EAT DISABILITY DISCRIMINATION – Disability
An appeal against the finding that the Appellant had not established that her mental impairment had a substantial adverse effect on her normal day-to-day activities. The Appellant contended that the Employment Judge had wrongly rejected her evidence on the basis that there was no adequate independent corroboration. Appeal dismissed. The Employment Judge had not imposed any such requirement of corroboration but had made her assessment in the light of all the evidence.

Citations:

[2017] UKEAT 0327 – 16 – 0606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.592674

Dudley Metropolitan Borough Council v Willetts and Others: EAT 31 Jul 2017

EAT Working Time Regulations – Holiday Pay
1. Payment for voluntary overtime that is normally worked is within the scope of Article 7 and therefore within the concept of ‘normal remuneration’ for the purposes of calculating Regulation 13 holiday pay.
2. It was open to the Employment Tribunal in this case to conclude that the payments in issue were part of normal remuneration for the Claimants, and no error of law was made out.
3. The appeal was accordingly dismissed.

Judges:

Simpler DBE P J

Citations:

[2017] UKEAT 0334 – 16 – 3107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.592677

University of Sunderland v Drossou (Unfair Dismissal): EAT 13 Jun 2017

EAT Unfair DismissL – Reinstatement/re-engagement – UNFAIR DISMISSAL – Compensation The amount of a week’s pay for the purposes of calculating in accordance with Employment Rights Act 1996 section 124(1ZA)(b) the upper limit of compensation which may be awarded under section 123, applying section 221(2), is the amount of remuneration payable under the contract of employment. This can include pension contributions paid by the employer to a pension fund. Section 221(2) is to be contrasted with section 27(1) which defines wages as any sums ‘payable to the worker’ and therefore only applies to sums payable to a Claimant. Failing to make a reduction in the basic award under section 122(2) where the Claimant had been found to have contributed to her dismissal by her conduct and had her compensatory award reduced by 35 per cent was perverse. RSPCA v Cruden [1986] IRLR 83 applied.

Citations:

[2017] UKEAT 0341 – 16 – 1306

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.592675

Trayhorn v The Secretary of State For Justice: EAT 1 Aug 2017

(Religion or Belief Discrimination) The Employment Tribunal did not err in dismissing claims that the application of the Respondent’s Disciplinary and Equality of Treatment Policies, the first and second Provisions, Criteria or Practices, to the Claimant, a Pentecostal Christian, for quoting in a service in a prison holding a large number of sex offenders a passage from the Bible condemning certain sexual behaviour and speaking of repentance did not constitute indirect religious discrimination. The ET did not err in considering whether the first and second PCPs led to ‘any group disadvantage’. Mba v Merton London Borough Council [2014] 1 WLR 1501 per Elias LJ paragraphs 33 and 35 applied. In any event the ET were not satisfied either that the Claimant as a Christian was disadvantaged by the two PCPs or that other Christians whether ‘singly or as a group’ were disadvantaged. Eweida v United Kingdom [2013] IRLR 231 considered.
Further the ET did not err in holding that any restriction on the expression of the Claimant’s religious belief by the application of the Disciplinary and Equalities Policies was a proportionate means of achieving the legitimate aim of maintaining order and safety in the prison.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0304 – 16 – 0108

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592680

Ajayi v Abu and Another (Labour Exploitation : Human Trafficking : Modern Slavery): QBD 31 Jul 2017

labour exploitation – human trafficking – modern slavery – domestic servitude – minimum wage – domestic worker – employee rights -Immigration and Nationality Directorate – terms and conditions – wage deductions – special hearing arrangements – civil procedure – National Minimum Wage Act 1998 – family worker exemption – UK Visa – ECHR Art. 6 – Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011

Judges:

McCloud LJ

Citations:

[2017] EWHC 1946 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights, European, Employment, Immigration

Updated: 28 March 2022; Ref: scu.592017

Vining v London Borough of Wandsworth: CA 28 Jul 2017

The court was asked as to the rights of members of local authority parks police forces and of their trade unions. Can they bring claims for ‘ordinary’ unfair dismissal and can their trade unions bring claims for a protective award in respect an alleged failure in collective consultation?

Judges:

Sir Terence Etherton MR, Beatson, Underhill LJJ

Citations:

[2017] EWCA Civ 1092

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Local Government

Updated: 28 March 2022; Ref: scu.591689

Public and Commercial Services Union and Others v Minister for The Cabinet Office: Admn 18 Jul 2017

Application for judicial review of the decision to make a scheme under section 1 of the Superannuation Act 1972, which amended the Civil Service Compensation Scheme to reduce the value of certain benefits paid to civil servants on redundancy or taking early retirement or other forms of exit from the civil service

Judges:

Sales LJ, Whipple J

Citations:

[2017] EWHC 1787 (Admin), [2017] WLR(D) 480

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment, Administrative

Updated: 28 March 2022; Ref: scu.591231

Pavlov And Famira v Ausschuss der Wien Rechtsanwaltskamme (External Relations): ECJ 7 Jul 2011

ECJ External relations – Association agreements – National legislation excluding, before the accession of the Republic of Bulgaria to the European Union, Bulgarian nationals from inclusion on the list of trainee lawyers – Compatibility of that legislation with the prohibition of all discrimination based on nationality, as regards working conditions, in the EC-Bulgaria Association Agreement

Citations:

[2011] EUECJ C-101/10

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Pavlov And Famira v Ausschuss der Wien Rechtsanwaltskamme (External Relations) ECJ 17-Mar-2011
ECJ External relations – Association Agreement – Direct effect – National legislation excluding, before the accession of the Republic of Bulgaria to the European Union, nationals of Bulgaria’s entry on the roll . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions

Updated: 28 March 2022; Ref: scu.591249

Tattersall v Liverpool Women’s NHS Foundation Trust: EAT 20 Jul 2017

EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
The Respondent instructed the deduction of certain on-call payments to the Claimant, an Obstetrician and Gynaecologist employed to undertake both clinical and academic work, for a period during which he had refused to undergo certain health screening checks required of those undertaking Exposure Prone Procedures (‘EPPs’). The Respondent had initially contended it was not the Claimant’s employer but had subsequently argued that it had been entitled to make the deductions as a matter of contract (express or implied) because of the refusal to provide validated screening documentation. The Tribunal had concluded that it had been an express term of the contract that the Claimant supply the screening information, which failing such a term could be implied on the ground of patient protection/health and safety.
On appeal the Claimant contended that the express and implied terms defence had not been pled. However, reasonable notice had been given of all of the arguments to be run by each side and the Claimant had shown in submissions that he understood all of the key points in dispute. There was no identifiable material prejudice as a result of the unsatisfactory procedural history of the case and the absence of formal amendment of the pleadings. In any event the Tribunal had been obliged to ascertain the relevant contractual terms before it could reach a decision on what had been ‘properly payable’ to the Claimant in terms of section 13 of the Employment Rights Act 1996. The decision in Agarwal v Cardiff University UKEAT/0210/16/RN would not have been followed had there been a challenge to the Tribunal’s jurisdiction to consider and construe the terms of the contract.
Further, the Tribunal had not erred in its approach to the identification of the express or implied terms. While there was evidence that could have led to a different conclusion on express terms, the decision reached was one that was open to the Tribunal on the evidence led. The Tribunal had given sufficient reasons for relying on a questionnaire as being ‘part and parcel’ of the contractual arrangements. The relevant Occupational Health Policy had not been overlooked; it was included within the various contractual documents. Even had the screening requirement not been sufficiently well incorporated to be an express term, it could be implied from the documentation that made clear that patient protection was an important priority where EPPs were undertaken.
There being no identifiable errors of law in the Judgment, the appeal was dismissed.

Judges:

Wise Lady

Citations:

[2017] UKEAT 0276 – 16 – 2007

Links:

Bailii

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591132

Gillett v Bridge 86 Ltd (Practice and Procedure): EAT 6 Jun 2017

PRACTICE AND PROCEDURE – Amendment
The Claimant, with less than two years’ service, brought a claim for unfair dismissal by reason of disability and disability discrimination. Within three months of dismissal she applied to amend by addition of a claim of unfair dismissal for whistleblowing. The application was refused on the basis, which included the Employment Judge’s assessment, that the proposed claim contradicted or diluted the existing claim based on disability; that its merits were weak; and that the balance of hardship/injustice favoured the Respondent. The appeal was allowed on the basis that it was wrong to refuse the amendment in circumstances where the application was in time; the merits were not such as to have no reasonable prospects of success; and so that the balance of hardship/injustice favoured the Claimant.

Judges:

Soole J

Citations:

[2017] UKEAT 0051 – 17 – 0606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591127

Chard v Trowbridge Office Cleaning Services Ltd: EAT 4 Jul 2017

PRACTICE AND PROCEDURE – Application/claim
PRACTICE AND PROCEDURE – Preliminary issues
PRACTICE AND PROCEDURE – Time for appealing
The Employment Judge had erred in law when considering whether an error as to the correct name of the Respondent in an early conciliation certificate was a ‘minor error’ and whether it was not in the interests of justice to reject the claim.
It was common ground that by the time the error was rectified, the claim was outside the primary limitation period. The Tribunal had decided that it was practicable to have brought the claim within the three month period and therefore refused to extend time.
The parties agreed that, pursuant to section 35(1) of the Employment Tribunals Act 1996, the Appeal Tribunal would decide the ‘minor error’ and ‘interests of justice’ issues, rather than remit the issue back to the Employment Tribunal.
The Appeal Tribunal decided, on the facts, that the error was minor and that it would not be in the interests of justice to reject the claim. The Appeal Tribunal therefore set aside the Decision and substituted a decision that the claim was in time.
The claim would therefore proceed on its merits. If the Appeal Tribunal had not found that the Tribunal had erred in law in relation to the ‘minor error’ issue, it would have found no error in the Employment Judge’s decision to refuse an extension of time.

Judges:

Kerr J

Citations:

[2017] UKEAT 0254 – 16 – 0407, [2017] ICR D21

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: 28 March 2022; Ref: scu.591130

Shui v University of Manchester and Others: EAT 25 Jul 2017

EAT Practice and Procedure – Bias, misconduct and procedural irregularity -postponement or stay
Fair hearing – postponement/adjournment of proceedings
The Claimant – a litigant in person suffering from mental health issues but not lacking capacity for the purposes of the Mental Capacity Act 2005 – had received medical advice that he was unfit to participate in the Full Merits Hearing of his ET claim. Although, at an earlier stage, the ET had itself proactively asked for the medical advice in this regard and had advised the Claimant of his right to seek a postponement of the hearing, he had not done so; at one stage expressing his concern that the on-going proceedings made his health worse. There had also been correspondence between the parties shortly before the Full Merits Hearing, in which the Respondents had set out the different options should the Claimant then seek a postponement of the hearing (including the potential applications to strike out and/or seek costs that might be made) and the issue was also canvassed in the Respondents’ opening submissions, which the Claimant had the opportunity to read on the first day of the hearing. At the outset of the Full Merits Hearing, the ET clarified with the Claimant that he wished to proceed and discussed with the parties the reasonable adjustments that would need to be put in place. The ET did not expressly remind the Claimant of his right to apply for a postponement or adjournment of the hearing but he was aware that it was open to him to do so and he decided not to make such an application. The hearing proceeded with appropriate adjustments being made to enable the Claimant’s participation but he broke down when being cross-examined and the Respondents applied to bring the questioning to an end, notwithstanding that the Claimant had said he was willing to continue. The ET agreed with the Respondents and the parties moved on to closing submissions, with the Claimant having a long weekend to consider the Respondents’ submissions and then to make his own points in reply. Having considered all the evidence and submissions, the ET dismissed the Claimant’s claims.
The Claimant appealed on the basis that he had been denied a fair hearing, specifically arising from (i) the ET’s failure to proactively adjourn the proceedings at the outset of the hearing, or at least raise the possibility of the Claimant making an application to this effect; and (ii) the decision to bring cross-examination to a halt rather than adjourning the hearing at that stage to permit the Claimant time to recover.
Held: dismissing the appeal
Allowing that the appellate Tribunal must itself determine whether a fair procedure was followed at first instance (R (Osborn) v Parole Board [2014] AC 1115 SC, Rackham v NHS Professionals Ltd UKEAT/0110/15/LA, and Galo v Bombardier Aerospace UK [2016] IRLR 703 NICA, applied), in this case the Claimant had not been denied a fair hearing. As he had acknowledged, he was aware of his right to seek a postponement or adjournment at the outset of the hearing but had determined not to do so. The ET had made all appropriate reasonable adjustments thereafter and the Claimant had been able to participate in the hearing and present his case until he broke down in cross-examination. At that stage, the ET adopted an appropriate course in acceding to the Respondents’ request to stop the evidence. In truth, it was a matter for the Respondents as to whether they challenged the Claimant’s evidence by cross-examination; the decision not to continue to do so gave rise to a risk for the Respondents, it did not deny any right of the Claimant. Moreover, the Claimant was still able to present his case and respond to the case against him: he had already cross-examined the Respondents’ witnesses, was able to rely on his own witness statement and had the opportunity to make closing submissions in response to the Respondents’ arguments. Viewed overall, the hearing had been fair.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0230 – 16 – 2507

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591131

Jones v The Secretary of State for Business Innovation and Skills: EAT 29 Jun 2017

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Rule 60, read with Rules 1(3), 32 and 92 of the procedural rules applying in Employment Tribunals (in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) did not, at least in this case, justify the Tribunal not sending a witness order, obtained by a party, to the other party.
The fairness of the subsequent trial was compromised by the omission of the Employment Judge to explain to the other party, who was not professionally represented and was taken by surprise by the attendance of the witness subject to the witness order, the right to apply for an adjournment to secure the attendance of a rebuttal witness who had provided a signed statement and whom the unrepresented party had decided not to call.
It was impossible to conclude that oral evidence from the absent witness would necessarily have made no difference to the outcome of the trial. The Decision would therefore have to be set aside. The matter would be remitted for a rehearing before a freshly constituted Employment Tribunal.

Judges:

Kerr J

Citations:

[2017] UKEAT 0238 – 16 – 2906

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591128

Carpenter v City of Edinburgh Council: EAT 4 Apr 2008

EAT Practice and Procedure – Delay in ET Judgment
Delay. Over three years between last date of hearing (which had taken place over 2.5 years) and issuing of judgment by Tribunal. Whether real risk that claimant had, as a result, been denied his Article 6 right to a fair trial. Circumstances in which the Employment Appeal Tribunal held that such a risk did exist.

Citations:

[2008] UKEAT 0038 – 07 – 0404

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.267425

International Petroleum Ltd and Others v Osipov and Others (Victimisation Discrimination): EAT 19 Jul 2017

VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Protected disclosure
VICTIMISATION DISCRIMINATION – Detriment
VICTIMISATION DISCRIMINATION – Dismissal
UNFAIR DISMISSAL – Compensation
UNFAIR DISMISSAL – Contributory fault
UNFAIR DISMISSAL – Polkey deduction
1. Wide-ranging grounds of appeal and cross-appeal were raised in relation to judgments in the Claimant’s favour to the effect that he was subjected to detriments for whistleblowing and ultimately dismissed for that reason.
2. The appeals were dismissed save in respect of a point (conceded subject to the cross-appeal) concerned with the liability of the Second Respondent. The liability or otherwise of the Third Respondent is remitted for reconsideration.
3. A number of points raised by way of cross-appeal concerning remedy were successful and sums reflecting these points are to be substituted in the award of compensation made.

Judges:

Simpler DBE P J

Citations:

[2017] UKEAT 0058 – 17 – 1907

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.590532

NHS Trust Development Authority (NHS TDA) v Saiger and Others (Practice and Procedure): EAT 17 Jul 2017

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity <
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
In the first appeal (UKEAT/0167/15/LA), the Appellant, the NHS Trust Development Authority (‘TDA’), complained that the Employment Tribunal (‘ET’) had reached conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that there must have been a telephone conversation between an employee of the TDA and an employee of the Third Respondent, IRG Advisors LLP t/a Odgers Berndtson (‘Odgers’), without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In the second appeal (UKEAT/0276/15/LA) the Appellant, North Cumbria University NHS Trust (‘the Trust’), complained in similar terms that the ET had arrived at conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that the Trust, through an agent, had victimised the Claimant without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In order for a serious procedural irregularity to amount to an error of law it must be established that it has led to an unjust or unfair result. There may be a variety of categories of serious procedural irregularity. In the context of this area of law cases such as Hereford and Worcester County Council v Neale [1986] IRLR 168 and Secretary of State for Justice v Lown [2016] IRLR 22 have been concerned with procedural irregularity and on at least one occasion that has been coupled with inadequacy of reasoning (see paragraphs 58 to 62 of the judgment of Underhill LJ in The Co-operative Group Ltd v Baddeley [2014] EWCA Civ 658). But the existence of an inflexible rule of practice, apparently recognised in other common law jurisdictions as the rule in Browne v Dunn (see the House of Lords judgment in Browne v Dunn [1893] 6 R 67), is both doubtful and undesirable (Markem Corporation v Zipher Ltd [2005] EWCA Civ 267, Allied Pastoral Holdings v Federal Commissioner of Taxation [1983] 44 ALR. 607, Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd [2002] EWCA Civ 1396 and paragraphs 12-12 and 12-35 in Chapter 12 of the 18th edition of Phipson on Evidence considered). Any such concept comprises not only a rule of practice but also a rule of evidence and a rule of professional etiquette. In order to amount to an error of law, however, the irregularity must be that of the Tribunal and the extent to which a procedural irregularity will be a serious procedural irregularity resulting in injustice and unfairness such as to amount to an error of law depends on the circumstances of each case and not on the existence of an overarching rule of practice.
Removing an applicant from further consideration during an appointment process (in this case from a preliminary interview stage) can amount to a detriment within the meaning of section 27(1) Equality Act 2010 (‘EqA’) (Shamoon v Chief Constable of the RUC [2003] UKHL 11, [2003] ICR 337 applied) and the Trust’s appeal could not succeed on that basis.
Section 111(7) EqA does not have the effect of excluding corporate bodies from the scope of section 111 and TDA’s appeal could not succeed on that basis. Both sections 111 and 112 EqA considered.
TDA’s appeal succeeded on the ground that the ET had erred in law by reaching a conclusion not supported by the evidence. The ET had reached an inferential conclusion that an employee of TDA had a conversation with an employee of Odgers but the findings of fact could not support the drawing of that inference. In the context of the case it was also a serious procedural irregularity for the ET to have reached that conclusion without indicating to the parties (and the witnesses) that was under consideration and giving an opportunity for the matter to be dealt with both evidentially and in submissions. Having considered paragraph 21 of the judgment of Laws LJ in Lincoln College v Jafri [2014] EWCA Civ 449, [2014] ICR 920 it was concluded that this was an exceptional case in which this Tribunal could conclude, because there was no primary evidence to support the inferential conclusion, that such an inference could never be drawn and therefore the matter was not remitted.
The Trust’s appeal succeeded on the grounds of both inadequacy of reasoning and, in the circumstances of the case, serious procedural irregularity. The appeal was disposed of by a remission to the ET for the evidence of a witness to be re-heard and the judgment reconsidered after that evidence had been given.
The cross-appeal related to the conclusion of the ET that, absent victimisation, the Claimant had a 50% chance of proceeding to the next stage of the appointment process but no chance of either being short listed or appointed. The Court of Appeal’s judgment in Chagger v Abbey National plc and another [2009] EWCA Civ 1202, [2010] IRLR 47 did not mean that as well as eliminating the victimisation from consideration, the prior discrimination constituting the protected act upon which the victimisation was based should also be eliminated from consideration. That would produce an artificial perspective. The cross-appeal was essentially an argument that the conclusion was perverse. It was not; on the contrary it was supported by the evidence and the cross-appeal must fail.

Judges:

Hand QC HHJ

Citations:

[2017] UKEAT 0167 – 15 – 1707

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590533

North Cumbria University Hospitals NHS Trust v Saiger and Others (Practice and Procedure): EAT 17 Jul 2017

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
In the first appeal (UKEAT/0167/15/LA), the Appellant, the NHS Trust Development Authority (‘TDA’), complained that the Employment Tribunal (‘ET’) had reached conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that there must have been a telephone conversation between an employee of the TDA and an employee of the Third Respondent, IRG Advisors LLP t/a Odgers Berndtson (‘Odgers’), without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In the second appeal (UKEAT/0276/15/LA) the Appellant, North Cumbria University NHS Trust (‘the Trust’), complained in similar terms that the ET had arrived at conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that the Trust, through an agent, had victimised the Claimant without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In order for a serious procedural irregularity to amount to an error of law it must be established that it has led to an unjust or unfair result. There may be a variety of categories of serious procedural irregularity. In the context of this area of law cases such as Hereford and Worcester County Council v Neale [1986] IRLR 168 and Secretary of State for Justice v Lown [2016] IRLR 22 have been concerned with procedural irregularity and on at least one occasion that has been coupled with inadequacy of reasoning (see paragraphs 58 to 62 of the judgment of Underhill LJ in The Co-operative Group Ltd v Baddeley [2014] EWCA Civ 658). But the existence of an inflexible rule of practice, apparently recognised in other common law jurisdictions as the rule in Browne v Dunn (see the House of Lords judgment in Browne v Dunn [1893] 6 R 67), is both doubtful and undesirable (Markem Corporation v Zipher Ltd [2005] EWCA Civ 267, Allied Pastoral Holdings v Federal Commissioner of Taxation [1983] 44 ALR. 607, Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd [2002] EWCA Civ 1396 and paragraphs 12-12 and 12-35 in Chapter 12 of the 18th edition of Phipson on Evidence considered). Any such concept comprises not only a rule of practice but also a rule of evidence and a rule of professional etiquette. In order to amount to an error of law, however, the irregularity must be that of the Tribunal and the extent to which a procedural irregularity will be a serious procedural irregularity resulting in injustice and unfairness such as to amount to an error of law depends on the circumstances of each case and not on the existence of an overarching rule of practice.
Removing an applicant from further consideration during an appointment process (in this case from a preliminary interview stage) can amount to a detriment within the meaning of section 27(1) Equality Act 2010 (‘EqA’) (Shamoon v Chief Constable of the RUC [2003] UKHL 11, [2003] ICR 337 applied) and the Trust’s appeal could not succeed on that basis.
Section 111(7) EqA does not have the effect of excluding corporate bodies from the scope of section 111 and TDA’s appeal could not succeed on that basis. Both sections 111 and 112 EqA considered.
TDA’s appeal succeeded on the ground that the ET had erred in law by reaching a conclusion not supported by the evidence. The ET had reached an inferential conclusion that an employee of TDA had a conversation with an employee of Odgers but the findings of fact could not support the drawing of that inference. In the context of the case it was also a serious procedural irregularity for the ET to have reached that conclusion without indicating to the parties (and the witnesses) that was under consideration and giving an opportunity for the matter to be dealt with both evidentially and in submissions. Having considered paragraph 21 of the judgment of Laws LJ in Lincoln College v Jafri [2014] EWCA Civ 449, [2014] ICR 920 it was concluded that this was an exceptional case in which this Tribunal could conclude, because there was no primary evidence to support the inferential conclusion, that such an inference could never be drawn and therefore the matter was not remitted.
The Trust’s appeal succeeded on the grounds of both inadequacy of reasoning and, in the circumstances of the case, serious procedural irregularity. The appeal was disposed of by a remission to the ET for the evidence of a witness to be re-heard and the judgment reconsidered after that evidence had been given.
The cross-appeal related to the conclusion of the ET that, absent victimisation, the Claimant had a 50% chance of proceeding to the next stage of the appointment process but no chance of either being short listed or appointed. The Court of Appeal’s judgment in Chagger v Abbey National plc and another [2009] EWCA Civ 1202, [2010] IRLR 47 did not mean that as well as eliminating the victimisation from consideration, the prior discrimination constituting the protected act upon which the victimisation was based should also be eliminated from consideration. That would produce an artificial perspective. The cross-appeal was essentially an argument that the conclusion was perverse. It was not; on the contrary it was supported by the evidence and the cross-appeal must fail.

Judges:

Hand QC HHJ

Citations:

[2017] UKEAT 0276 – 15 – 1707

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590534

Cooper v National Crime Agency (Unfair Dismissal): EAT 16 Jun 2017

UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal – reasonableness of dismissal – section 98(4) Employment Rights Act 1996
The Claimant was dismissed for a reason relating to his conduct arising from an incident outside work, which had led to his arrest and in respect of which he then faced criminal charges. In pursuing his complaint of unfair dismissal, he raised concerns that information regarding his arrest had been passed to the Respondent by the police – part of a practice of information-sharing between law enforcement agencies – when this was (he contended) in breach of the Data Protection Act 1998. He also complained of the Respondent’s refusal to defer the internal disciplinary process pending the determination of the criminal proceedings notwithstanding the Claimant’s inability (on legal advice) to participate, given that information regarding the internal process would be forwarded to the police by the Respondent as part of the same information-sharing practice. The ET dismissed the claim, finding the Respondent had been entitled to conclude that no issue arose from the sharing of information with the police – the Respondent having investigated the point further to the extent reasonably required given how it had been raised by the Claimant and the evidence being that this was in accord with normal practice. It was also satisfied that the Respondent’s decision not to defer the internal process had fallen within the range of reasonable responses in the circumstances of the case. The Claimant appealed.
Held: allowing the appeal in part
Given the way in which the point had been raised with the Respondent and the steps it had then taken to investigate the Claimant’s concerns, the ET had permissibly concluded that the conduct of the investigation into the issues raised regarding the sharing of information with the police had fallen within the range of reasonable responses and was not unfair.
As for the decision to proceed with the internal disciplinary process, however, it was unclear whether the ET had regard to the point raised by the Claimant relating to the particular practice of information-sharing as between the Respondent and the police and as to how that might prejudice his ability to participate in the internal process when facing on-going criminal proceedings. This was a relevant factor and the ET’s apparent failure to engage with it rendered its conclusion on this point unsafe; it would need to be remitted for reconsideration

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0016 – 17 – 1606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590531

Erzberger v TUI Ag: ECJ 18 Jul 2017

(Judgment) Reference for a preliminary ruling – Freedom of movement for workers – Principle of non-discrimination – Election of workers’ representatives to the supervisory board of a company – National legislation restricting the right to vote and to stand as a candidate only to workers in establishments within the national territory

Citations:

ECLI:EU:C:2017:562, [2017] EUECJ C-566/15

Links:

Bailii

Jurisdiction:

European

Employment, Immigration

Updated: 27 March 2022; Ref: scu.590487

Dessi v EIB: ECFI 19 Jul 2017

(Judgment) Public service – EIB staff – Evaluation – Promotion – Evaluation and promotion exercise 2012 – Decision of the Appeals Committee – Scope of review – Staff representatives – Discrimination

Citations:

ECLI:EU:T:2017:525, [2017] EUECJ T-510/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590481

DD v FRA: ECFI 19 Jul 2017

(Appeal – Civil Service – Members of The Temporary Staff : Judgment) Appeal – Civil service – Members of the temporary staff – Contract of indefinite duration – Disciplinary penalty – Reprimand – Termination of contract – Right to be heard – Non-material harm

Citations:

ECLI:EU:T:2017:528, [2017] EUECJ T-742/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590480

Commission v RN: ECFI 18 Jul 2017

(Judgment) Appeal – Civil service – Officials – Surviving spouse – Pensions – Survivor’s pension – Article 20 of Annex VIII to the Staff Regulations – Conditions of eligibility – Error of law

Citations:

ECLI:EU:T:2017:520, [2017] EUECJ T-695/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590478

Bodson and Others v EIB – T-508/16: ECFI 6 Jul 2017

ECJ Judgment – Public service – EIB staff – Contractual nature of the employment relationship – Remuneration – Reform of the system of premiums – Legitimate expectation – Legal certainty – Manifest error of assessment – Proportionality – Duty to have regard for the welfare of employees – Article 11 (3) Rules of Procedure of the EIB – Equal treatment

Citations:

ECLI:EU:T:2017:469, [2017] EUECJ T-508/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590472

Bodson and Others v EIB – T-506/16: ECFI 6 Jul 2017

ECJ Judgment – Public service – EIB staff – Contractual nature of the employment relationship – Remuneration – Reform of the pay and salary progression system – Legitimate expectation – Legal certainty – Manifest error of assessment – Proportionality – Duty to have regard for the welfare of employees – Article 11 (3) of the EIB’s Rules of Procedure

Citations:

ECLI:EU:T:2017:468, [2017] EUECJ T-506/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590471

Abercrombie and Fitch Italia: ECJ 19 Jul 2017

ECJ (Social Policy – Equal Treatment In Employment and Occupation – Agea : Judgment) Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Article 2(1) – Article 2(2)(a) – Article 6(1) – Age discrimination – On-call employment contract which may be concluded with persons under 25 years of age – Automatic termination of the employment contract when the worker reaches 25 years of age

Citations:

ECLI:EU:C:2017:566, [2017] EUECJ C-143/16

Links:

Bailii

Jurisdiction:

European

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.590456

Mechkarov v Citibank Na (Practice and Procedure): EAT 15 Jun 2017

EAT PRACTICE AND PROCEDURE – Application/claim
PRACTICE AND PROCEDURE – Amendment
The Employment Judge did not err in law in holding that the Claimant had not made a claim of public interest disclosure detriment in his ET1 claim form. The Employment Judge did not err in law in refusing permission to amend in order to introduce such a claim.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0119 – 17 – 1506

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590427

Oppong v Tesco Stores Ltd (Practice and Procedure): EAT 25 May 2017

EAT PRACTICE AND PROCEDURE – Costs
PRACTICE AND PROCEDURE – Right to be heard
The Appellant appealed against the Decision of the Employment Tribunal to order him to pay a contribution to the Respondent’s costs. The Employment Tribunal had struck out his claim because of his deliberate flouting of the procedure Rules and unreasonable conduct. The appeal was on a narrow question: whether the Employment Tribunal had deprived the Appellant of a fair hearing by not permitting him to give evidence or make submissions about his means. Neither the Appellant nor his representative appeared at the hearing of the appeal, having applied unsuccessfully for it to be adjourned. There was no material at the hearing of the appeal which undermined the Employment Tribunal’s approach to the Appellant’s means and the Employment Appeal Tribunal dismissed the appeal.

Citations:

[2017] UKEAT 0008 – 17 – 2505

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590421

Elmore v Darland High School and Another (Unfair Dismissal): EAT 4 May 2017

EAT UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
Despite the absence of a reasoned appeal decision or evidence from a member of the appeal panel, the Employment Tribunal was entitled to infer that the appeal panel upheld the capability dismissal for the same reasons as those relied on by the capability panel itself.
There was no error of law in the Employment Tribunal’s approach which was amply open on the facts and in the circumstances of this case. The appeal was therefore dismissed.

Judges:

Simpler DBE J

Citations:

[2017] UKEAT 0209 – 16 – 0405

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590417

Asghar and Co Solicitors v Habib (Unfair Dismissal): EAT 15 May 2017

EAT UNFAIR DISMISSAL – Constructive dismissal
Constructive dismissal – breach of contract – affirmation
The ET had made findings as to repudiatory breach of contract that went beyond the case pursued by the Claimant, specifically finding that the last straw was an act that had taken place on 14 August 2014, some weeks after the last matter on which the Claimant had relied. That said, the Respondent’s appeal on this basis would not be allowed as the ET had permissibly concluded, in the alternative, that the matters relied on by the Claimant would themselves amount to a cumulative breach of the implied obligation to maintain trust and confidence.
The ET had then, however, also proceeded to determine the question of affirmation on the basis that the last straw had taken place on 14 August 2014 and had considered the question of the Claimant’s delay in resigning and the parties’ interactions only from that time. Although the ET had gone on to assert that it would have reached the same conclusion on affirmation whether the last straw had been 14 August 2014 or some weeks earlier, its reasoning failed to disclose any active consideration of the Claimant’s conduct and the parties’ communications and interactions in the weeks prior to 14 August and it was not possible to understand its explanation for its conclusion with any confidence that it had taken that relevant earlier period into account.
In the circumstances, the Respondent’s appeal would be allowed on the affirmation point and remitted – to the extent that it was still possible – to the same ET for reconsideration.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0332 – 16 – 1505

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590415

Brighton and Sussex University Hospitals Nhs Trust v Akinwunmi and Others (Practice and Procedure : Absence of Party): EAT 29 Jun 2017

PRACTICE AND PROCEDURE – Perversity
PRACTICE AND PROCEDURE – Contribution
UNFAIR DISMISSAL
The Employment Appeal Tribunal (‘the EAT’) dismissed an appeal from a Decision of the Employment Tribunal (‘the ET’) upholding the Claimant’s claim of unfair dismissal, but dismissing his claims of whistleblowing detriment and victimisation. The EAT held that the ET had been entitled, having regard to the complex background of the case, to hold that the Claimant’s dismissal for being absent without authority for 20 months was unfair. Neither that decision, nor the decision that the Claimant had not caused or contributed to his dismissal, was perverse.

Judges:

Elisabeth Laing DBE J

Citations:

[2017] UKEAT 0345 – 16 – 2906

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590424

Savage v JC 1991 Llp (T/A John Campbell, Messengers at Arms and Sheriff Officers) (Practice and Procedure): EAT 17 May 2017

EAT PRACTICE AND PROCEDURE – ACAS Certificates
The claimant raised proceedings against three respondents because there was a lack of clarity as to the identity of her employer. The first and second respondents were the same entity, an LLP. The claimant had been employed from 1998, her contract of employment naming her employer as the individual who was and is the principal actor in the business. However, the identity of her employer appeared to have changed in that by the date of her dismissal in 2016 she was being paid by an LLP. Her position was that she had not been advised or consulted in relation to any change of employer.
She secured two ACAS Certificates naming two prospective employers, namely the individual either with a trading name or possible trading as an unlimited liability partnership and secondly the LLP. The Employment Tribunal had erred in treating the two certificates as if they applied to the first and second respondents, who were the same entity, and in not allowing the claim against the individual to proceed.
Appeal allowed on the basis that the claimant now conceded that the second respondent would be deleted from the proceedings so that the claim would proceed against the individual and the LLP pending final clarification of the identity of the employer.

Citations:

[2017] UKEAT 0002 – 17 – 1705

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590422

J v K and Another (Practice and Procedure: Time for Appealing): EAT 10 May 2017

PRACTICE AND PROCEDURE – Time for appealing
Rule 39(1) of the Employment Appeal Tribunal Rules 1993 (‘the Rules’) is not relevant to the process of deciding whether an appeal has been lodged in time pursuant to Rule 37(1) of the Rules because the appeal process does not start until an appeal is properly instituted and Rule 39 only applies to a properly instituted appeal. Alternatively, where an appeal has been lodged out of time and the Registrar refuses to extend time that refusal will also operate automatically as a direction, pursuant to Rule 39, that Rule 39 does not validate the appeal.
Where it is alleged that a disability has prevented a proposed Appellant from complying with the time limit for the lodging of a properly instituted appeal at this Tribunal then specific medical evidence relevant to the proposed Appellant’s condition explaining how the disability has prevented compliance with the Rule must be presented. Quotations from publications on the Internet about conditions generally, whilst of some assistance, will not be sufficient without additional specific medical evidence.
The proposed Appellant had failed by an hour to submit his proposed appeal in time and had fallen into the trap of attempting to submit too much material attached to one email. This difficulty is clearly referred to in simple terms in guidance material easily accessible and the fact that the proposed Appellant had failed to allow himself sufficient time to submit the material in the series of emails was not a basis for the exercise of discretion in his favour.

Judges:

Hand QC HHJ

Citations:

[2017] UKEAT 0661 – 16 – 1005

Links:

Bailii

Statutes:

Employment Appeal Tribunal Rules 1993 3991)

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590420

Swissport Ltd v Exley and Others (Transfer of Undertakings): EAT 13 Jun 2017

EAT TRANSFER OF UNDERTAKINGS – Economic technical or organisational reason
PRACTICE AND PROCEDURE – Costs
UNFAIR DISMISSAL – Polkey deduction
The Respondent resisted claims for unfair dismissal following the loss of a ground handling contract at an airport. Grounds of resistance to ‘ordinary’ unfair dismissal claims were struck out. Economic technical or organisational (‘ETO’) and Polkey defences proceeded. A Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) assignment defence was conceded. There was no hearing of the ETO ground of resistance. The Respondent failed to establish a Polkey defence. At a Remedies Hearing the Employment Tribunal awarded compensation for future loss of the same period for six of the nine Claimants. Costs were awarded under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 Rule 76(1)(b) on the basis that the assignment, ETO and Polkey defences had no reasonable prospect of success. A ‘period’ award was made from receipt of the ET3 to the conclusion of the Polkey Hearing up to the maximum payable under Damages Based Agreements (‘DBA’) made in accordance with the Damages Based Agreements Regulations 2013 under which Claimants were obliged to pay 10% of compensation recovered for their solicitors’ services.
The Employment Tribunal did not err in holding that a ‘period’ costs award may be made when a party has entered into a DBA. CPR Rules and the indemnity principle apply. The Employment Tribunal did not err in holding that the assignment and ETO defences had no reasonable prospect of success within the meaning of ET Rule 76(1)(b). The Employment Tribunal erred in so holding in respect of Polkey. They failed to consider whether the Claimants would have continued in employment and if so on what terms (Software 2000 Ltd v Andrews [2007] IRLR 568). The Employment Tribunal erred in imposing a tariff for future loss. Remedy and application for costs remitted for rehearing.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0007 – 16 – 1306

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590428

Clarke v Abertawe Bro Morgannwg University Health Board (Practice and Procedure): EAT 15 May 2017

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Protected disclosure
The Appellant’s whistleblowing claim was dismissed by the Employment Tribunal in 2012. Her application dated 7 September 2012 for a review under Rule 34(3) of the 2004 Rules was permitted to proceed to a hearing in terms which expressly referred to her ‘extended application’, which was contained in a document dated 1 October 2012. Before the hearing she supplied a number of further written submissions and a skeleton argument. The hearing proceeded and the review was dismissed by the Employment Tribunal in 2013.
In 2015 the Court of Appeal allowed an appeal against the Employment Appeal Tribunal’s refusal of the Appellant’s Rule 3(10) application in respect of the Review Decision. In 2016 it was discovered that the Employment Tribunal had by error not had the extended application before it at the Review Hearing nor when subsequently considering its Decision. The Appellant added a free-standing ground of appeal that this was a serious procedural irregularity; that a different conclusion might otherwise have been reached; and that the application should be remitted for a rehearing. The Respondent submitted that the extended application added nothing of substance to the documents and oral submissions which the Employment Tribunal had considered; and that the same conclusion would have been reached in any event. The appeal was allowed and the application remitted to the same Employment Tribunal constitution for the review to be heard.

Judges:

Soole J

Citations:

[2017] UKEAT 0311 – 15 – 1505

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590416

Birmingham City Council v Lawrence (Disability Discrimination): EAT 2 Jun 2017

EAT DISABILITY DISCRIMINATION – Section 15
DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL -Reasonableness of dismissal
Disability discrimination – discrimination by means of unfavourable treatment because of something arising in consequence of disability – section 15 Equality Act 2010
Disability discrimination – discrimination by means of a failure to comply with a duty to make reasonable adjustments – sections 20 and 21 Equality Act 2010
Unfair dismissal – fairness of a dismissal for a reason related to capability – section 98(4) Employment Rights Act 1996
The Claimant had been employed by the Respondent since 2000 but had taken long periods of time off work due to ill-health and was dismissed on 6 January 2015 because she had been absent since 31 July 2014 and there was no clear indication as to when she might return. On the Claimant’s claims of disability discrimination and unfair dismissal, the ET found that the Claimant’s absence was connected with her disability (PTSD arising from events outside her employment but which caused her to suffer stress and anxiety at work); she had, however, not been dismissed because she was disabled (so her claim of direct disability discrimination failed) but because of her absences from work. The ET went on to uphold the Claimant’s complaints under section 15 and sections 20 and 21 of the Equality Act 2010 (‘EqA’), finding that the Respondent had not done enough to comply with its obligations under the EqA or under its own procedures. The ET further found the dismissal to have been unfair. The Respondent appealed.
Held: allowing the appeal in part
When considering the Claimant’s complaint under section 15 EqA, the ET had failed to clearly explain its findings as to the reason for the treatment complained of and whether that was connected to her disability (see Pnaiser v NHS England and Anor [2016] IRLR 170 EAT). That said, reading the Judgment as a whole, the answer to those questions could be gleaned from the ET’s earlier findings, in particular under the claim of direct discrimination. A similarly benign reading of the ET’s consideration of justification for the purposes of section 15(1)(b) EqA was, however, not possible. The reasoning did not demonstrate the requisite objective balance between the discriminatory effect and the reasonable needs of the employer (see Land Registry v Houghton UKEAT/0149/14 and Hensman v MoD UKEAT/0067/14), and some of the findings were inconsistent; the appeal would be allowed on the question of justification for the purposes of section 15 EqA.
As for the ET’s Judgment on the Claimant’s reasonable adjustments claim, its reasoning was not to be read as including a finding that the Respondent had failed to make a reasonable adjustment by failing to carry out further investigation or enquiry (insufficient to found a breach of section 20 EqA, see Tarbuck v Sainsbury’s Supermarkets Ltd UKEAT/0136/06); its decision came down to a finding that the Respondent had failed in its duty to make reasonable adjustments in not deferring dismissal until the Claimant had completed her therapy or drawn a provisional conclusion from it. It was not apparent, however, that the ET had properly assessed the question of reasonableness in this regard – an exercise requiring an objective assessment, including asking what difference the adjustment would have made (Griffiths v SoS for Work and Pensions [2017] ICR 160 CA applied), although it was not necessary that the adjustment would inevitably have removed the disadvantage (Noor v Foreign and Commonwealth Office [2011] ICR 695 EAT). The appeal would also be allowed in this respect.
Although required to apply a differently worded test on the unfair dismissal claim (and see Hardy and Hansons plc v Lax [2005] ICR 1565 CA), similar considerations arose to those relevant to the justification defence under section 15 EqA (O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145 applied). In the present case, the ET’s conclusion on unfair dismissal was flawed by its apparent failure to have regard to the relevant factors relating to the impact of the Claimant’s continued absence on the Respondent, a not dissimilar failure to that identified in respect of the EqA claims; the appeal would also be allowed in this respect.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0182 – 16 – 0206

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590423

Ghiglieri v Systech Group Employees Ltd (Contract of Employment): EAT 7 Jun 2017

EAT CONTRACT OF EMPLOYMENT – Implied term / variation / construction of term
UNFAIR DISMISSAL – Constructive dismissal
The Employment Tribunal erred in holding that it was necessary in order for a term to be implied into an employee’s contract of employment as a result of custom and practice that it must be widely known by other employees. The different bases advanced by the Respondent for upholding the decision on implied term were rejected. Further the Employment Tribunal erred in failing to consider or to give reasons for rejecting important matters advanced by the Claimant to support an allegation of breach of trust and confidence entitling him to resign and claim constructive dismissal. Appeal allowed. Claim remitted to an Employment Tribunal.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0310 – 16 – 0706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590426

JP Morgan Securities Plc v Ktorza (Unfair Dismissal): EAT 11 May 2017

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Judge erred in law in holding that to qualify as conduct within the meaning of section 98(2)(b) of the Employment Rights Act 1996 the conduct, in the view of the Tribunal, has to be culpable.
The Employment Judge to a significant extent started from his own findings of fact and opinions, whereas the task under section 98(4) was to start with the Respondent’s reasons for dismissal and apply an objective test of reasonableness to those reasons.
Appeal allowed. Case remitted for re-hearing.

Judges:

David Richrdson HHJ

Citations:

[2017] UKEAT 0311 – 16 – 1105

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590419

Tco In-Well Technologies Uk Ltd v Stuart (Practice and Procedure): EAT 19 Apr 2017

EAT PRACTICE AND ROCEDURE :
REVIEW/ RECONSIDERATION OF JUDGMENTS
Following a judgment in his favour the claimant, through his representatives, sought reconsideration on the basis that the compensatory element of the award made to him should have been ‘ grossed up’ to take account of the incidence of tax. The reconsideration application was out of time and was opposed by the respondent, both in relation to lateness and in substance. Subsequent to receipt of the respondent’s opposition the Tribunal decided to effect reconsideration ‘ of its own initiative’ and purported to gross up the award. The respondent appealed.
Rules 70 – 73 of the Employment Tribunal Rules provide alternative routes to reconsideration. Where an application has been made by a party for such reconsideration, that must be dealt with by the Tribunal. There is no scope for a hybrid process where an application is commenced by a party but is then taken on by the Tribunal of its own initiative, at least where there is a single subject matter for potential reconsideration. The course adopted by the Tribunal was procedurally and substantively unfair. It should have addressed the issue of lateness, and whether to extend time, as a first consideration and thereafter deal with the substance of the reconsideration application only if time was extended. In any event, the purported reconsideration judgment had ignored the respondent’s opposition, was accordingly not balanced and could not withstand scrutiny.
Appeal allowed and case remitted to a fresh Tribunal to consider the out of time reconsideration application.

Judges:

Wise L

Citations:

[2017] UKEAT 0016 – 16 – 1904, [2017] WLR(D) 488

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590412

Treska v The Master and Fellows of University and Another (Jurisdictional Points): EAT 21 Apr 2017

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
JURISDICTIONAL POINTS – Extension of time: reasonably practicable
PRACTICE AND PROCEDURE – Costs
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Reconsideration – claim struck out as out of time – correct early conciliation notification and impact on time limit – whether presentation of claim in time reasonably practicable.
Costs – finding of use of ET claims as ‘device’ – whether Claimant given opportunity to address
The Claimant had pursued claims against the Respondents of unfair dismissal, of protected disclosure detriments and of race and disability discrimination. At an earlier Preliminary Hearing, the ET struck out the claims as having been brought out of time. On the Claimant’s subsequent application for reconsideration, the ET was unable to see that any ground was disclosed on which there was any reasonable prospect of that decision being varied or revoked. It further made an award of costs against the Claimant of over pounds 11,000, considering it appropriate to do so as, in part, he had pursued his discrimination claims as a ‘device’, without any genuine sense of grievance or belief in those claims. The Claimant appealed.
Held: allowing the appeal in part
The ET had previously found the Claimant’s first early conciliation (‘EC’) notification to have been effective; that meant that his ET claim had been presented outside extended time limit allowed by the early conciliation procedure. In applying for a reconsideration of the striking out of his unfair dismissal claim, the Claimant sought to rely on a later EC notification he had made. That, however, went nowhere: the ET had permissibly found that the first EC notification validly complied with the requirements of section 18A Employment Rights Act 1996 (as amended) (Mist v Derby Community Health Services NHS Trust [2016] ICR 543 EAT applied); a subsequent EC notification was of no effect and could not serve to further extend the time limit (see Commissioners for HMRC v Serra Garau UKEAT/0348/16/LA)
As for the question of reasonable practicability, the reconsideration application added nothing to the case that the ET had already considered and (permissibly) rejected at the earlier hearing.
Although the ET’s reasons for rejecting the reconsideration application were short, they adequately referenced the correct legal test and demonstrated that the ET had had regard to the Claimant’s grounds. Given that the point raised in respect of the later EC notification could go nowhere, the ET had not been required to add to its earlier full reasoning in its Judgment on the Preliminary Hearing.
Turning to the question of costs, it was noted that the Respondents had not put the application on the basis of dishonesty or bad faith on the part of the Claimant but that was the effect of the ET’s finding that he had used the discrimination claims as a ‘device’, without any genuine grievance either in respect of race or disability and without belief in the claims he had made. Although the Claimant had the opportunity to explain the background to the claims, he was not on notice that it was being suggested that he had pursued the discrimination claims for improper reasons (Cannock Chase District Council v Kelly [1978] 1 WLR 1 CA, page 6E-F applied). By taking into account its apparent finding of bad faith the ET had, therefore, had regard to an irrelevant factor, which rendered the decision on costs unsafe. The matter would be remitted to a different ET for consideration afresh.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0298 – 16 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590413

West v The Royal Bank of Scotland Plc (Disability Discrimination): EAT 26 Apr 2017

EAT DISABILITY DISCRIMINATION
1. The Employment Tribunal did not err in law in finding that the Claimant had not established a PCP in respect of her allegation of failure to make reasonable adjustments concerning ergonomic assessment. Grounds 2 and 5 dismissed.
2. The Employment Tribunal did not give sufficient reasons on the question whether a changed Occupational Health report was ‘something arising from [the Claimant’s] disability’, and may have adopted a wrong legal approach: Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305 and Pnaiser v NHS England [2016] IRLR 170 considered and applied. Ground 1 allowed.
3. The ET erred in failing to consider and apply PCPs in respect of the Share Save Scheme which the Claimant had pleaded; and in finding that a term of the Respondent’s final salary Pension Scheme, which had not changed and had always been applicable to her employment, has not been applied to her. Grounds 3 and 4 allowed.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0296 – 16 – 2604

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.590414

King v The Sash Window Workshop Ltd: ECJ 8 Jun 2017

ECJ Social Policy – Article 7 of Directive 2003/88/EC and the right to paid annual leave – Article 31 of the EU Charter of Fundamental Rights in horizontal disputes between two private parties – Absence of a facility for the full duration of the employment relationship for exercise of the right to paid annual leave – Member State law requiring workers to first take leave before being able to ascertain if the leave will be paid – Article 7(2) of Directive 2003/88 and the right to an allowance in lieu of leave untaken upon termination of the employment relationship – right to an effective remedy

Citations:

C-214/16, [2017] EUECJ C-214/16

Links:

Bailii

Statutes:

Directive 2003/88/EC 7

Jurisdiction:

European

Human Rights, Employment

Updated: 27 March 2022; Ref: scu.588281

Ruiz Molina v EUIPO: ECFI 27 Jun 2017

Judgment (Extracts) Appeal – Civil Service – Temporary staff – Fixed-term Contract involving a termination clause terminating the contract in the event that the name of the agent is not included on the reserve list the next open competition – termination of the contract under the termination clause – Reclassification of a fixed-term contract into permanent contracts – res judicata – clause 5, paragraph 1, of the framework agreement ETUC, UNICE, CEEP on fixed-term work – Duty to state reason

Citations:

ECLI:EU:T:2017:435, [2017] EUECJ T-233/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.588296

Capita Plc and Another v Darch and Others: ChD 26 May 2017

Application for interim injunctions in proceedings brought by the Claimants against a number of individuals who they formerly employed, asking whether an employer has a claim to property in emails or the content of emails (on the facts, not limited to those concerning business matters) that are sent by employees from the employer’s email accounts.

Judges:

Richard Spearman QC HHJ

Citations:

[2017] EWHC 1248 (Ch), [2017] WLR(D) 366, [2017] IRLR 718

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment, Intellectual Property

Updated: 27 March 2022; Ref: scu.588008

Barwick v Avon and Somerset Constabulary: EAT 31 Mar 2009

EAT UNFAIR DISMISSAL: Constructive dismissal
PRACTICE AND PROCEDURE: Amendment
The substance of the claim brought by the Claimant, a police officer, was that he had been forced to resign as a result of racially instituted discrimination and had then been constructively dismissed. He had, however, incorrectly completed the boxes in his ET1 as he completed the box for dismissed rather than for discrimination. Police officers are only permitted to claim for unfair dismissal if the dismissal is on discriminatory grounds. The Employment Judge was wrong to refuse the Claimant permission to amend. He was not seeking to add a new cause of action but to correctly label his existing claim. Appeal allowed.

Citations:

[2009] UKEAT 0009 – 09 – 3103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.347171

Lowrey-Nesbitt v Commissioner of Police of Metropolis: EAT 16 May 1997

Judges:

Morison J (P)

Citations:

[1997] UKEAT 559 – 97 – 1605

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Commissioner of Police for Metropolis v Lowrey-Nesbitt EAT 13-Jul-1998
A police officer does not work under a contract of employment for Employment Rights Act purposes and so may not claim for unlawful deduction from wages under the Act. Employment is a special statutory relationship, not contractual. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 March 2022; Ref: scu.207488