Judges:

Sir James Munby P FD, Underhill, Sales LJJ

Citations:

[2017] EWCA Civ 66

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.574302

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Contributory fault
PRACTICE AND PROCEDURE – Review
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Unfair dismissal – fairness of dismissal (Employment Rights Act 1996 (‘ERA’) section 98(4)) and band of reasonable responses test – whether the ET was guilty of a substitution mindset.
Wrongful dismissal – whether the ET adopted the correct approach and reached a permissible conclusion, taking into account all relevant material.
Contributory fault – sections 122(2) and 123(6) ERA – whether the ET adopted the correct approach, taking into account all relevant material and/or whether it gave adequate reasons to explain its conclusion.
Reconsideration – whether the ET erred (1) in extending time for the reconsideration application; (2) in failing to reconsider its approach on the evidence before it (in particular given the Claimant’s admissions) and/or as to the adequacy of its reasons.
Adequacy of reasons
The Claimant was a long-serving senior Radiographer who, when preparing her defence to earlier disciplinary proceedings, had utilised confidential patient information. The Respondent considered this was conduct in breach of its policies albeit the disciplinary investigation acknowledged that those policies did not expressly address the position of employees facing disciplinary proceedings; the decision was taken that the Claimant should be summarily dismissed by reason of her gross misconduct; a decision upheld on appeal.
The ET found the decision that the Claimant should be dismissed had been made with a closed mind: the relevant manager had considered a breach of the policy in respect of confidential patient information justified summary dismissal and did not consider the Claimant had not acted wilfully and thus was not guilty of a repudiatory breach of contract such as to warrant summary dismissal. In any event, the Claimant had not been culpable so as to justify any reduction for contributory fault.
The Respondent applied for the ET to reconsider its Judgment out of time, for reasons set out in its application letter. Referring to that letter, the ET extended time for the application but did not consider any proper basis had been demonstrated for it to reconsider its earlier Judgment.
The Respondent appealed against both Judgments. The Claimant cross-appealed against the ET’s Decision to extend time for the reconsideration application.
Held: dismissing the appeal against the ET’s finding of liability for unfair dismissal but otherwise allowing the appeals and dismissing the cross-appeal.
Given the ET’s permissible findings of fact (against which there was no challenge) as to the way in which the Respondent had reached the decision to dismiss, it had been entitled to conclude that the Respondent had adopted an unreasonably constrained approach, which failed to allow for lesser sanctions and ignored mitigating factors identified as potentially relevant in the investigation report. The ET had not been guilty of falling into the substitution mindset but had properly carried out its task in applying the band of reasonable responses test. The appeal against the liability finding on the unfair dismissal claim was therefore dismissed.
The ET’s reasoning on the wrongful dismissal claim and on the question of contributory fault did not, however, demonstrate it had applied the correct approach, considering all the relevant material before it; alternatively failed to adequately explain how the ET had approached its task and reached its conclusions. The Reconsideration Judgment did not rectify these failings and was thus also defective. The Respondent’s appeals in these respects would be allowed.
Even if the cross-appeal raised a matter that the Claimant was entitled to take on appeal, the ET’s reasoning expressly referenced the Respondent’s detailed application for an extension of time and – adopting a proportionate approach (as the ET was entitled to do) – was adequate to the task. The cross-appeal was duly dismissed.

Citations:

[2017] UKEAT 0164 – 16 – 0501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.574087

EAT CERTIFICATION OFFICER
HUMAN RIGHTS
The Certification Officer did not err in holding that Unite had failed to comply with Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) section 30(1) by not giving her access to accounting records showing ‘stand down’ payments to each trade union official of her branch which together totalled a substantial monthly amount. Under sections 28 and 29 the Union was obliged to keep available for inspection accounting records of its transactions necessary to give a true and fair view of the state of affairs of the trade union and to explain its transactions. On the facts the Certification Officer did not err in holding that the cumulative amounts in the accounts relating to ‘stand down’ payments which had been made available did not comply with this obligation. Previous decisions of the Certification Officer in Mortimer v Amicus (D/1/03) and Foster v Musicians Union (D/13-17/03) considered. Nor did the Certification Officer err in refusing to redact the names of the officials in receipt of such payments. Article 8 ECHR considered. Further, on the cross-appeal, the Certification Officer did not err in refusing the application by the union member for access to bank statements when she had been given access to the accounting records regarding sundries to which they relate.
Appeal and cross-appeal dismissed.

Citations:

[2017] UKEAT 0148 – 16 – 0902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.574090

EAT Jurisdictional points and territorial scope. Working outside the jurisdiction. Unfair dismissal, discrimination, Working Time Regulations, and breach of contract.
The claimant was a mariner who worked off shore Nigeria. He lived in Germany. His employer was a limited company registered in Scotland and operating from Aberdeen. The Employment Tribunal (ET) did not err in law in deciding that there was no territorial reach in respect of claims under the Employment Rights Act 1996, the Equality Act 2010, and the Working Time Regulations. The appeal is refused and the case remitted to the ET to hear the claim for breach of contract.

Citations:

[2017] UKEAT 0019 – 13 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.574089

ECJ (Judgment) Appeal – Civil service – Officials – Appraisal report – 2011/2012 appraisal period – Distortion of facts – Error of law – Breach of fiduciary duty – Legitimate expectations

Citations:

ECLI:EU:T:2017:65, [2017] EUECJ T-271/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 29 January 2022; Ref: scu.573935

Judges:

Elias, Lewison LJJ

Citations:

[2017] EWCA Civ 43

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573791

Judges:

Longmore, Elias, David Richards LJJ

Citations:

[2017] EWCA Civ 23

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573620

Appeal againast a finding that the appellant had been lawfully dismissed for gross misconduct. He was a very senior manager, but had undermined the company’s staff engagement policies.

Judges:

Longmore, Elias, David Richards LJJ

Citations:

[2017] EWCA Civ 22, [2017] WLR(D) 37

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573602

EAT Practice and Procedure: Costs – Costs before the Employment Appeal Tribunal – Rules 34A(1) and 34A(2A) Employment Appeal Tribunal Rules 1993 (as amended)
Although the Appellant had been partly successful on its appeal, its conduct of the appeal had been such that no award would be made on its application under Rule 34A(2A) EAT Rules. Moreover, that conduct had been such as to unreasonably put the Respondent (Claimant) to unnecessary expense such that it was appropriate to make an award of costs against the Appellant under Rule 34A(1).

Judges:

Eady QC HHJ

Citations:

[2016] UKEAT 0025 – 16 – 2311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573474

EAT Unfair Dismissal : Reasonableness of Dismissal – An expired warning can be taken into account as part of the overall circumstances under section 98(4) Employment Rights Act 1996 when the ET is considering whether a dismissal was fair or unfair. The facts of the previous misconduct, the fact that a warning was given and the fact that it had expired, were all relevant matters. See: Airbus UK Ltd v Webb [2008] IRLR 309.

Citations:

[2016] UKEAT 0116 – 16 – 3110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573467

Unfair Dismissal : Reasonableness of Dismissal – The Employment Tribunal found the Respondent’s complaints of unfair dismissal and breach of contract to be well founded. The Appellant’s primary ground of appeal that the Employment Tribunal substituted its own view for that of the Appellant failed, as did the contention that the Employment Tribunal reached a perverse decision. The Employment Tribunal misapplied the decision in Ramphal v Department for Transport [2015] IRLR 985 and it is not clear from the Decision whether the Employment Tribunal accepted that physical violence amounted to gross misconduct for the purposes of the Appellant’s disciplinary procedure. The Employment Appeal Tribunal dismissed the unfair dismissal appeal: physical violence amounted to gross misconduct under the Appellant’s disciplinary procedures, but the Appellant failed to have regard to all the surrounding circumstances and the Claimant’s exemplary disciplinary record over 42 years. The appeal against the breach of contract claim was also dismissed.

Citations:

[2016] UKEAT 0170 – 16 – 1511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573468

EAT Practice and Procedure: Estoppel or Abuse of Process – DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Section 15
HARASSMENT
DISABILITY DISCRIMINATION – Exclusions/jurisdictions
UNFAIR DISMISSAL – Reasonableness of dismissal
Practice and procedure – estoppel; disability discrimination reasonable adjustments (sections 20 and 21 Equality Act 2010); discrimination arising from the consequences of disability (section 15 Equality Act); harassment (section 26 Equality Act); time limits (section 123 Equality Act); unfair dismissal (section 98(4) Employment Rights Act 1996)
The Claimant was a teacher who suffered from a disability sustained in the course of her employment. The Respondent had initially refused to recognise that the Claimant was entitled to be paid in full when on sick leave and this and other matters, including other allegations of disability discrimination, were the subject of earlier ET proceedings. The first ET proceedings were ultimately determined in the Claimant’s favour. Meanwhile, however, the Claimant had been subject to the Respondent’s capability procedures and was ultimately dismissed. The Claimant brought a further ET claim, pursuing various complaints of disability discrimination and unfair dismissal.
The ET held that all claims relating to matters prior to the lodgement of the first ET claim were an abuse of process (applying the principle laid down in Henderson v Henderson). Otherwise, it allowed that certain of the Claimant’s complaints of disability discrimination were made out and upheld her claim of unfair dismissal.
On the Respondent’s appeal and the Claimant’s cross-appeal.
Held: allowing the appeal in part and dismissing the cross-appeal.
The ET had failed to address the Respondent’s objection that the Henderson v Henderson principle applied to all matters that had taken place prior to the hearing of the first ET claim (not just the lodgement of the claim); either the ET had assumed that the principle only applied up to the date of the later claim (which would be wrong in law) or it had failed to address the point. Had it done so, it would have been bound to find that the matters that had occurred prior to the hearing of the first ET claim could and should also have been included within those proceedings. In the alternative, on the failure to pay the Claimant her full salary, this had been a matter raised in the first ET proceedings in any event and the Claimant was issue estopped from pursuing it in the second.
The ET had further erred in its approach to the tests to be applied under sections 15 (discrimination because of something arising from the consequences of disability) and 26 (harassment) of the Equality Act 2010. There was no indication that it had considered how the unfavourable treatment was ‘because of’ something arising from the consequences of the Claimant’s disability for the purposes of section 15 or as to how it had found that the unwanted conduct was ‘related to’ the relevant protected characteristic. Either it had failed to apply the correct test or it had failed to explain how it had done so.
The ET had also erred in its approach to time limits in respect of the reasonable adjustments claims, failing to treat the failure to make the adjustments in question as an omission and further failing to determine the date of that failure. Had it been necessary to determine the point, the ET’s conclusion on continuing act was also inadequately explained.
The ET had, however, reached a permissible view on the Claimant’s unfair dismissal claim and the appeal would be dismissed in this regard.

Citations:

[2016] UKEAT 0004 – 16 – 2212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573477

Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – UNFAIR DISMISSAL – Reasonableness of dismissal
REDUNDANCY – Definition
REDUNDANCY – Fairness
Reason for dismissal – unfair dismissal – statutory redundancy payment
Fairness of dismissal – unfair dismissal
Both Claimants were dismissed after the Respondent took the decision to close down the workplace in which they were both employed and sought to invoke a contractual mobility clause: the Claimants had refused to relocate in accordance with the Respondent’s instruction and it had taken the decision that they should be dismissed.
The Claimants pursued claims before the ET, relevantly claiming unfair dismissal and statutory redundancy payments. Their cases were heard separately but by the same Employment Judge, who ruled that they had been dismissed by reason of redundancy, the closure of the workplace constituting a redundancy for the purposes of section 139 Employment Rights Act 1996 (‘ERA’), and were therefore entitled to statutory redundancy payments. The ET also found the dismissals to have been unfair, whether by reason of redundancy or, as the Respondent had argued, for conduct or some other substantial reason (‘SOSR’).
The Respondent appealed.
Held: allowing the appeal against the ET’s decision on the statutory redundancy payment claims but dismissing the appeal against the decision on unfair dismissal
The ET had wrongly approached the question of the reason for the dismissals from the perspective of there having been a redundancy situation within the definition of section 139 ERA when it had found that the reason in the Respondent’s mind was related to the Claimants’ refusal to obey the instruction to relocate, issued in reliance on the mobility clause which featured in their contracts of employment. Whether or not there was a redundancy situation, the ET still had to approach the question of the reason for the dismissal applying the test laid down in Abernethy v Mott, Hay and Anderson [1974] ICR 323 CA. Doing so, it was apparent (on the ET’s findings) that the reason in the Respondent’s mind was one related to the Claimants’ conduct – the refusal to obey the instruction to relocate – and the Respondent had been entitled to rely on that reason notwithstanding the background of the workplace closure (Curling and Ors v Securicor Ltd [1992] IRLR 549 EAT and Home Office v Evans [2008] ICR 302 CA applied). The ET’s finding on the Claimants’ entitlement to statutory redundancy payments could not stand, and the appeal would be allowed in this regard.
That said, in both cases the ET had gone on to consider the question of fairness in the alternative. In so doing, it had applied the three stage test identified by the Respondent, asking (1) whether the instruction was lawful (whether the mobility clause relied on was contractual), (2) whether the Respondent had acted reasonably in giving that instruction, and (3) whether the Claimants had acted reasonably in refusing to comply with that instruction. It had concluded that the mobility clause was too wide and uncertain, had been unreasonably invoked by the Respondent and that the Claimants (both faced with an additional 20-30 hours’ commute each week, and given that Mr Fitton had brought a property near to his former workplace and did not have a car, and that Mr Ewer had worked near to his home town for the Respondent/its predecessor for 25 years, would soon be 64 and due to retire a year later) had reasonably refused to comply with the instruction. As the ET had applied the tests identified by the Respondent in its alternative, ‘conduct’ findings, had reached permissible conclusions on the material before it, and had provided adequate Reasons, there was no basis for overturning the decision on fairness, and the appeal in this regard was dismissed

Citations:

[2016] UKEAT 0205 – 16 – 2111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573470

EAT Practice and Procedure: Compromise – The Appellant employer challenged a decision of the Employment Tribunal (‘the ET’) that the Respondent employee’s claim was not barred by a compromise agreement (‘the agreement’). The Employment Appeal Tribunal (‘the EAT’) held that the ET’s construction of the agreement was correct. The EAT dismissed the appeal.

Judges:

Laing DBE J

Citations:

[2016] UKEAT 0123 – 16 – 1711

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573471

EAT (Disability Discrimination: Disability) The appeal was allowed and the case remitted for rehearing. The findings made by the Employment Judge were not supported by the medical evidence and the issue of whether the Appellant was suffering from a progressive condition, and therefore should be deemed under paragraph 8(2) of Schedule 1 to the Equality Act 2010 to be likely to result in a substantial adverse impairment on his ability to carry out day-to-day activities, should be re-considered in the light of further medical evidence.

Judges:

Hand QC

Citations:

[2016] UKEAT 0353 – 15 – 1612

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573478

EAT (Practice and Procedure: Amendment) An application to re-amend the grounds of appeal was made as result of the Employment Appeal Tribunal raising a query with the parties after the close of submissions as to whether part of the Judgment was sound in law. After considering competing submissions the further amendment was allowed because the prejudice to the Appellant in being subject to an award(s) of compensation that the Employment Tribunal might have no jurisdiction to make and a Judgment, which might be unlawful not being subject to challenge, outweighed the prejudice suffered by the Appellant as a result of further delay.

Citations:

[2017] UKEAT 0092 – 16 – 0411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573479

EAT Practice and Procedure: Imposition of Deposit – 1. A deposit Order was wrongly imposed in circumstances where the Employment Judge recognised that the Claimant would find it difficult to comply with its terms.
2. In fact it was not practically possible for the Claimant to comply with the deposit Order, which was set at so high a level in context as to impede her access to justice because she could not comply with it.
3. The Order imposed was not therefore a proportionate and effective means of signalling to the Claimant the low prospects of success and warning her as to costs.

Judges:

Siler DBE P J

Citations:

[2016] UKEAT 0021 – 16 – 1011

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573475

Jurisdictional Points : Extension of Time: Just and Equitable – The Claimant appealed against a decision of the Employment Tribunal (‘the ET’) not to extend the time for bringing her discrimination claim. The Employment Appeal Tribunal held that the ET had not misdirected itself in law and that its decision was open to it on the facts. The appeal was dismissed.

Judges:

Laing DBE J

Citations:

[2016] UKEAT 0180 – 16 – 1511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573473

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – UNFAIR DISMISSAL – Reasonableness of dismissal
REDUNDANCY – Definition
REDUNDANCY – Fairness
Reason for dismissal – unfair dismissal – statutory redundancy payment
Fairness of dismissal – unfair dismissal
Both Claimants were dismissed after the Respondent took the decision to close down the workplace in which they were both employed and sought to invoke a contractual mobility clause: the Claimants had refused to relocate in accordance with the Respondent’s instruction and it had taken the decision that they should be dismissed.
The Claimants pursued claims before the ET, relevantly claiming unfair dismissal and statutory redundancy payments. Their cases were heard separately but by the same Employment Judge, who ruled that they had been dismissed by reason of redundancy, the closure of the workplace constituting a redundancy for the purposes of section 139 Employment Rights Act 1996 (‘ERA’), and were therefore entitled to statutory redundancy payments. The ET also found the dismissals to have been unfair, whether by reason of redundancy or, as the Respondent had argued, for conduct or some other substantial reason (‘SOSR’).
The Respondent appealed.
Held: allowing the appeal against the ET’s decision on the statutory redundancy payment claims but dismissing the appeal against the decision on unfair dismissal
The ET had wrongly approached the question of the reason for the dismissals from the perspective of there having been a redundancy situation within the definition of section 139 ERA when it had found that the reason in the Respondent’s mind was related to the Claimants’ refusal to obey the instruction to relocate, issued in reliance on the mobility clause which featured in their contracts of employment. Whether or not there was a redundancy situation, the ET still had to approach the question of the reason for the dismissal applying the test laid down in Abernethy v Mott, Hay and Anderson [1974] ICR 323 CA. Doing so, it was apparent (on the ET’s findings) that the reason in the Respondent’s mind was one related to the Claimants’ conduct – the refusal to obey the instruction to relocate – and the Respondent had been entitled to rely on that reason notwithstanding the background of the workplace closure (Curling and Ors v Securicor Ltd [1992] IRLR 549 EAT and Home Office v Evans [2008] ICR 302 CA applied). The ET’s finding on the Claimants’ entitlement to statutory redundancy payments could not stand, and the appeal would be allowed in this regard.
That said, in both cases the ET had gone on to consider the question of fairness in the alternative. In so doing, it had applied the three stage test identified by the Respondent, asking (1) whether the instruction was lawful (whether the mobility clause relied on was contractual), (2) whether the Respondent had acted reasonably in giving that instruction, and (3) whether the Claimants had acted reasonably in refusing to comply with that instruction. It had concluded that the mobility clause was too wide and uncertain, had been unreasonably invoked by the Respondent and that the Claimants (both faced with an additional 20-30 hours’ commute each week, and given that Mr Fitton had brought a property near to his former workplace and did not have a car, and that Mr Ewer had worked near to his home town for the Respondent/its predecessor for 25 years, would soon be 64 and due to retire a year later) had reasonably refused to comply with the instruction. As the ET had applied the tests identified by the Respondent in its alternative, ‘conduct’ findings, had reached permissible conclusions on the material before it, and had provided adequate Reasons, there was no basis for overturning the decision on fairness, and the appeal in this regard was dismissed.

Citations:

[2016] UKEAT 0206 – 16 – 2111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573469

Judges:

McFarlane, Underhill, Briggs LJJ

Citations:

[2017] EWCA Civ 20, [2017] WLR(D) 27

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 January 2022; Ref: scu.573274

ECJ (Judgment) Appeal – Civil service – Officials – Pensions – Reform of the Staff Regulations – Increase of the retirement age – Decision refusing to upgrade the pension entitlement – Principe ne ultra petita – Error in law – Obligation to state reasons

Citations:

ECLI:EU:T:2017:15, [2017] EUECJ T-232/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 28 January 2022; Ref: scu.573245

(Judgment) Appeal – Public service – Temporary staff – Fixed-term contract – Non-renewal decision – Implied decision rejecting – Decision rejecting the complaint – Obligation to state reasons – Duty of care

Citations:

ECLI:EU:T:2017:7, [2017] EUECJ T-719/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 28 January 2022; Ref: scu.573250

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
UNFAIR DISMISSAL – Polkey deduction
The employer’s advocate did not raise a Polkey argument at the Employment Tribunal and the EAT refused to allow it to be raised on appeal: CELTEC applied. But in any event there were sufficient findings on unfair and wrongful dismissal, and lack of contributory fault, to defeat any such argument.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0307 – 10 – 1712

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 January 2022; Ref: scu.430641

EAT Unfair Dismissal: Constructive Dismissal – The Claimant resigned by letter which relied on numerous reasons for his resignation including one which the Employment Tribunal found to constitute a fundamental and subsisting breach of contract. The Respondent contended that the real reason for his resignation was to avoid disciplinary proceedings in relation to a different matter and was not in response to the fundamental breach that he had established. The Employment Tribunal agreed with that contention and found that in those circumstances he could not claim constructive dismissal.
In the light of the way the case was put by the Respondent and on a proper reading of the Reasons, it was clear that the Employment Tribunal were not, as the Claimant maintained on appeal, setting up a false dichotomy between two different reasons for resigning (i.e. avoiding the disciplinary action and the fundamental breach of contract) but were finding, permissibly, that the true reason was to avoid disciplinary action and that the fundamental breach in fact had nothing to do with the resignation.

Shanks HHJ
[2016] UKEAT 0156 – 16 – 0711
Bailii
England and Wales

Employment

Updated: 27 January 2022; Ref: scu.572669

EAT Unfair Dismissal: Constructive Dismissal – Reasonableness of dismissal – CONTRACT OF EMPLOYMENT – Written particulars

Slade J
[2016] UKEAT 0287 – 16 – 2012)
Bailii
England and Wales

Employment

Updated: 27 January 2022; Ref: scu.572675

EAT Unfair Dismissal : Contributory Fault – Unfair dismissal – compensatory award – reduction for conduct/contributory fault – ERA 1996 sections 122(2) (basic award) and 123(6) (compensatory award)
The ET had originally found that the Claimant (a bus driver who was asked to undertake remedial driving training and assessment) had been dismissed for a reason related to her conduct (her refusal to obey a reasonable instruction and insubordination). The EAT had set that decision aside and remitted for the case for consideration as to the reason for dismissal given the Respondent’s approach on the internal appeal. At the remitted hearing, the ET concluded that the fact that the Claimant was given a further opportunity to attend the training and assessment meant her conduct was no longer the principal reason for dismissal on appeal; in confirming the decision to dismiss, the appeal panel principally had in mind the Claimant’s inability to pass the driving assessment once she had attended the driving school; that was a reason related to capability, which had not been raised with the Claimant and this, together with the failure to allow a further attempt to pass the assessment (contrary to the Respondent’s policy) rendered the decision to dismiss unfair. There was no appeal from that finding.
At the subsequent remedies hearing, the ET considered both the basic and compensatory awards should be reduced by 75 per cent, given the Claimant’s earlier conduct in refusing to obey a reasonable instruction and insubordination. Allowing that any reduction in the compensatory award was dependent upon the Claimant’s conduct having caused or contributed to her dismissal, the ET was satisfied it had: the decision on her internal appeal was only made given the fact she had earlier behaved in such a way as to warrant dismissal. The Claimant appealed.
Held: dismissing the appeal
The ET had correctly distinguished the tests required by sections 122(2) and 123(6) Employment Rights Act 1996. It was entitled to find the Claimant had behaved in a blameworthy or culpable way prior to her dismissal such as to mean it was just and equitable to make a reduction in the basic award pursuant to section 122(2). Given the particular facts of the case, the ET was also entitled to find a causative link between the Claimant’s culpable conduct and the ultimate decision to dismiss (that being the decision on her internal appeal). The focus was on the Claimant’s conduct, notwithstanding that the principal reason for the dismissal at that stage was one related to her capability. This was not a case where there was no link between the earlier conduct and that which informed the final decision to dismiss (Nejjary v Aramark Ltd UKEAT/0054/12 distinguished). The ET had been entitled to view the appeal decision in context, which included the Claimant’s earlier misconduct.

Eady QC HHJ
[2016] UKEAT 0166 – 16 – 3110
Bailii
England and Wales

Employment

Updated: 27 January 2022; Ref: scu.572666

ECJ Judgment – Appeal – Civil service – Officials – Promotion – 2011 promotion exercise – Non-inclusion in the list of officials eligible for promotion – Dismissal of the application at first instance – Article 45 of the Staff Regulations – Clause 4 of the Framework Agreement ETUC, UNICE, CEEP On fixed-term work – Equal treatment – Obligation to state reasons – Burden of proof – Obligation of the court to hear the case – Plea of ??illegality – Rule of concordance between the complaint and the action brought before the Court of First Instance ‘Union’

T-366/15, [2016] EUECJ T-366/15
Bailii
European

Employment

Updated: 27 January 2022; Ref: scu.572619

Judgment – CB – ECB staff – Temporary workers – Limitation of the maximum duration of performance of the same temporary worker – Action for annulment – Contested act – Direct and individual assignment – Interest in bringing proceedings – Time-limit for bringing an action – Admissibility – Information and consultation with the applicant trade union organization – Non-contractual liability

ECLI:EU:T:2016:727, [2016] EUECJ T-713/14
Bailii
European

Employment

Updated: 27 January 2022; Ref: scu.572589

ECJ Order – Application for interim measures – Civil service – Contract staff – Termination of an indefinite contract – Application for suspension of operation – Lack of urgency

T-826/16, [2016] EUECJ T-826/16 – CO
Bailii
European

Employment

Updated: 27 January 2022; Ref: scu.572570

ECJ Judgment – Reference for a preliminary ruling – Directive 98/59 / EC – approximation of the laws of the Member States relating to collective redundancies – Article 49 TFEU – Freedom of establishment – Charter of Fundamental Rights of the European Union – Article 16 – Freedom of enterprise – National law conferring on an administrative authority the power to oppose collective redundancies after assessing the conditions of the labor market, the situation of the undertaking and the interests of the national economy – Acute economic crisis – Unemployment rate Particularly high

C-201/15, [2016] EUECJ C-201/15
Bailii
European

Employment

Updated: 27 January 2022; Ref: scu.572560

The claimant renewed his application for leave to appeal against a finding that his claim for unfair dismissal had not been presented within the necessary time limit. It had been outside the period by 88 seconds.
Held: There was an arguable case and the application should be referred to a full court.

Wall LJ
[2008] EWCA Civ 50
Bailii
Employment Rights Act 1996
England and Wales

Employment

Updated: 27 January 2022; Ref: scu.572361

EAT (Disability Discrimination : Exclusions/Jurisdictions) The first Employment Tribunal determined the Appellant was not a disabled person by reason of his hearing impairment. The second Employment Tribunal (following remission) determined the Appellant was a disabled person having regard to his left shoulder impairment, but that the cumulative effect of his hearing condition together with his shoulder impediment did not amount to a situation, independently from the disability arising from his shoulder condition, which involved a further physical impairment within the meaning of section 6 of the Equality Act 2010 at the material time. The Appellant appealed that decision. The Employment Appeal Tribunal determined that the second Employment Tribunal conducted the analysis in relation to the issue of combined effect that it was directed to do. Further it reached a permissible conclusion on the material before it, giving proper reasons for its conclusion. Appeal dismissed.

Supperstone J
[2016] UKEAT 0127 – 16 – 0610
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572019

EAT (Unfair Dismissal : Mitigation of Loss) The claimant was constructively unfairly dismissed by the respondent as a result of a breach of the implied term of trust and confidence during a management restructuring. The employment tribunal decided not to make any compensatory award on the baiss that the claimant had failed to mitigate his loss, having declined an offer of re-employment.
The employment tribunal’s judgement twice stated incorrectly the test for mitigation of loss and used the correct test interchangeably with those incorrect statements. The applicable test is not whether an employee’s conduct in refusing re-employment was reasonable, but whether the employer had shown that the employee’s conduct was unreasonable. A failure ot acknowledge that the onus if prrof was on the wrongdoer coupled with a focus on the employee’s actions without contemplating that more than one course could reasonably have been taken illustrated that the tribunal had failed to follow the principles enunciated in Wilding v British Telecommunications plc 2002 I079, recently re-affirmed in Cooper Contracting Limited v Lindsey UKEAT/0184/15.
It was counter intuitive to regard an employee who was constructively unfairly dismissed as unreasonable in refusing to allow the employer to make amends by re-employing him when the law does not allow such a wrongdoer to ‘ cure’ a repudiatory breach when the employee is deciding whether to affirm or go ( Bournemouth University v Buckland [2010] ICR 908). However, the present case did not require a decision in principle on whether such an outcome was perverse.
Appeal allowed and case remitted to a fresh tribunal on the issue of remedy.

Lady Wise H
[2016] UKEAT 0008 – 16 – 1210
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572021

EAT (Disability Discrimination: Disability Related Discrimination) The Claimant alleged discrimination arising from disability under section 15 Equality Act 2010. He raised six complaints.
In relation to five of them there was no issue as to their factual basis and the Employment Tribunal was satisfied that they amounted to unfavourable treatment. The issue for the Employment Tribunal was whether the treatment in each case was ‘because of something arising in consequence of [the Claimant’s] disability’.
The Employment Tribunal decided that causation was established in relation to the five complaints. However, they considered causation in relation to all five complaints together rather than looking at each of them separately; they did not ask themselves what the subjective reason for the Respondent’s treatment of the Claimant was; and they did not clearly distinguish and address the two elements in the causation test (‘because of something’ and ‘arising in consequence’). They did not therefore follow the proper approach outlined in Pnaiser v NHS England [2016] IRLR 170 and did not analyse the causation issues as they should have.
A proper approach may have led to a different conclusion as to causation. The appeal was therefore allowed and the five section 15 complaints remitted to a fresh Employment Tribunal.

Shanks HHJ
[2016] UKEAT 0194 – 16 – 2411
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572022

EAT (Sex Discrimination : Marital Status) SEXUAL ORIENTATION DISCRIMINATION HARASSMENT
Discrimination – marital status – sexual orientation
Qualifications bodies – relevant qualification – sections 53 and 54 Equality Act 2010
Exceptions from liability – religious requirements relating to marriage – schedule 9 paragraph 2 Equality Act 2010
Harassment – section 26 Equality Act 2010
The Claimant is a Church of England Priest who married his long-term partner. This was a marriage between two persons of the same sex, made permissible by virtue of the Marriage (Same Sex Couples) Act 2013, the enactment of which the Church of England had opposed. As a result of this marriage, the Respondent revoked the Claimant’s Permission to Officiate (‘PTO’) and refused to grant him an Extra Parochial Ministry Licence (‘EPML’), which he needed to be able to take up a post as Chaplain in an NHS Trust. The Claimant brought ET proceedings, complaining of unlawful direct discrimination because of sexual orientation and/or marital status and of unlawful harassment related to sexual orientation, his claims being brought under section 53 Equality Act 2010 (‘EqA’) which applies to qualifications bodies, as defined by section 54(2) EqA. The Respondent denied he was a qualifications body but, in the alternative, contended that any relevant qualifications (defined by section 54(3)) were for the purposes of employment for the purposes of an organised religion, falling within the exemption allowed by schedule 9 paragraph 2 of the EqA and he had applied the requirement that the Claimant not be in a same sex marriage because that was incompatible with the doctrine of the Church of England in relation to marriage (‘the compliance principle’). The claim of harassment was further denied on its facts.
The ET found the Respondent’s refusal to grant the EPML did fall under section 53 EqA and was a ‘relevant qualification’ within the meaning of section 54. That was not the case, however, in respect of the revocation of the Claimant’s PTO. The ET further held, however, that the EPML qualification was for the purposes of employment for the purposes of an organised religion and the compliance principle was engaged; thus the Respondent was exempt from liability by reason of paragraph 2 of schedule 9 of the EqA. As for the harassment claim, although the Claimant was caused distress by the Respondent’s conduct, which he found humiliating and degrading, this did not amount to harassment. Context was everything. The Claimant would not have experienced that (admittedly, unwanted) conduct if he had not defied the doctrine of the Church. Moreover, the Respondent had acted lawfully pursuant to schedule 9; it would be an affront to justice if his conduct was found to constitute harassment.
Upon the Claimant’s appeal and the Respondent’s cross-appeal.
Held: dismissing both the appeal and cross-appeal
The ET had correctly held that the EPML was a relevant qualification (and the Respondent thus a qualifications body) for the purposes of sections 53 and 54 EqA; the Respondent’s cross-appeal against this finding was dismissed. Equally, however, the ET had been entitled to find that the PTO was not a relevant qualification: it would not have ‘facilitated’ the grant of the EPML on the facts of this case; it was the Claimant’s lack of ‘good standing’ within the Church of England that underpinned the Respondent’s decision in respect of both.
The ET had further reached a permissible conclusion that the qualification was for the purposes of employment for the purposes of an organised religion, notwithstanding that the employer would have been the NHS Trust and not the Church. The Trust required its Chaplain to have an EPML for the purpose of carrying out the ministry of the Church of England; that was the purpose of the qualification and the employment. As for the doctrines of the Church, this referred to the teachings and beliefs of the religion and the ET had been entitled to find these were as stated by Canon B30 (‘ marriage is . . a union . . of one man with one woman . .’), evidenced, in particular, by the House of Bishops’ Pastoral Guidance on Same Sex Marriage. The Respondent had applied a requirement that the Claimant not be in a same sex marriage so as to comply with the doctrines of the Church; it was not fatal to the ET’s conclusion in that regard that a different Bishop might not have done the same.
As for the harassment claim, the ET had permissibly found that the particular context of this case was highly significant and meant that it was not reasonable for the Respondent’s conduct to have the effect required to meet the definition of harassment under section 26 EqA. The Claimant had been aware that his marriage would mean that he would not be seen as in ‘good standing’ within the Church of England. The Respondent’s decision was exempt from liability by reason of schedule 9 and there were no aggravating features arising from his decision or its communication. These were relevant factors to which the ET was entitled to have regard.

Eady QC HHJ
[2016] UKEAT 0072 – 16 – 0712
Bailii
Equality Act 2010
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572025

EAT (Unlawful Deduction From Wages) The Claimant’s appeal against the Employment Judge’s decision to dismiss his claim for unlawful deductions was allowed, based on the finding that his entitlement to arrears of pay crystallised on termination of the employment. Delaney v Staples and HMRC v Stringer (both House of Lords) considered. The Respondents’ cross-appeal against that finding was dismissed.

Peter Clark HHJ
[2016] UKEAT 0122 – 16 – 0311
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572023

EAT (Victimisation Discrimination : Protected Disclosure) VICTIMISATION DISCRIMINATION – Detriment
VICTIMISATION DISCRIMINATION – Dismissal
The Employment Tribunal erred in failing to identify any legal obligation, as opposed to guidance, of which the Claimant believed the Respondent to be in breach. Accordingly the finding that the Claimant had made a qualifying disclosure within the meaning of the Employment Rights Act 1996 (‘ERA’) section 43B(1) and therefore a protected disclosure was set aside. The finding that the Claimant was subject to a detriment for making a protected disclosure is set aside. The Employment Tribunal also erred in applying the wrong test in considering the claim under ERA section 103A. They applied the test appropriate to a section 47B claim and not that for unfair dismissal. Claims remitted to a differently constituted Employment Tribunal for rehearing.

Slade DBE J
[2016] UKEAT 0149 – 16 – 0212
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572024

(Practice and Procedure : Case Management)
Certain case management directions were erroneous and have been overturned.
Certain other directions were correct and have been upheld.

Wilkie J
[2016] UKEAT 0159 – 16 – 1110
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572020

(Disability Discrimination: Compensation) In a case where the Employment Tribunal found that the Claimant’s suspension was not an unlawful act but was the most proximate cause of her depression and triggered that depression, the Respondent appealed against an award for personal injury on the basis that the Employment Tribunal was wrong to make such an award in the absence of expert medical evidence, which was necessary to establish both causation and quantum of this claim which are difficult issues to disentangle. The Respondent argued that in a low-value case, cost and proportionality issues may drive parties and tribunals to deal with such issues without medical evidence but in all other cases medical evidence must be obtained before such an award can be made. A similar point was argued in relation to pecuniary loss awards for unfair dismissal.
The Respondent also contended that the Employment Tribunal’s starting point for the personal injury award was inflated and erroneously characterised the psychiatric injury as ‘moderately severe’ (with a bracket of andpound;15,000-andpound;44,000) within the terms of the Judicial College Guidelines, 12th edition, rather than as ‘moderate’ (with a bracket of andpound;4,700-andpound;15,400). This led to an award that overlapped with the injury to feelings award and was manifestly excessive.
These arguments were not accepted. Although it is advisable for claimants to obtain medical evidence (especially in cases involving psychiatric injury which can give rise to difficult questions of causation and quantification) and failure to produce medical evidence risks a lower award than might otherwise be made, or no award being made at all, the Employment Appeal Tribunal rejected the argument that a personal injury award cannot be made in the absence of expert medical evidence in every case bar those of low-value. There is no such principle of law. The same is true of pecuniary loss awards in unfair dismissal cases.
In this case in any event, although the Employment Tribunal found that suspension which was not unlawful triggered the depression, it also found that the suspension meeting was itself an act of unlawful discrimination because of the manner in which the suspension was communicated. These two events are inextricably linked. Had the meeting been handled lawfully, it may well be that the suspension itself would not have triggered the injury. In those circumstances, and given that the Respondent did not advance any argument that the depression was divisible as between lawful and non-lawful causes, or contend for an apportionment or a percentage reduction on that basis, the Employment Tribunal was entitled to find that the serious instances of unlawful action over a considerable period of time had a serious long-lasting impact on the Claimant and, in other words, caused or materially contributed to her depression so that the Respondent was liable for the full extent of it. There was ample evidence to support that conclusion in the Occupational Health reports and the evidence of the Claimant and her witness.
The Employment Appeal Tribunal could detect no error of principle or perversity in either award, and the appeal accordingly failed.

Simler DBE P J
[2016] UKEAT 0013 – 16 – 1310
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572018

(Judgment) Appeal – Civil Service – Temporary staff – Renewal of contract – Limiting the contract renewal time – Rights of the defense

ECLI:EU:T:2016:671, [2016] EUECJ T-328/15
Bailii
European

Employment

Updated: 26 January 2022; Ref: scu.571863

EAT Unfair Dismissal : Constructive Dismissal – Contributory fault
UNFAIR DISMISSAL – Polkey deduction
The Employment Appeal Tribunal (‘the EAT’) dismissed the Appellant employer’s appeal against a Decision of the Employment Tribunal (by a majority) (‘the ET’) that the Clamant was constructively dismissed. The EAT held that the ET had not misdirected itself and was entitled to reach the conclusion which it did.
The EAT allowed the Claimant’s cross-appeal against the ET’s Polkey deduction and deduction for contribution. The EAT remitted the case to the ET for it to re-consider those issues in the light of the EAT’s Judgment.

Elisabeth Laing J
[2016] UKEAT 0108 – 16 – 2211
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.571779

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal – fairness of decision to dismiss – section 98(4) Employment Rights Act 1996
The Claimant was a long-serving Healthcare Assistant who had been the subject of allegations by a patient, relating to a particular night-shift, when it was said she – and at least one of the nurses on duty – had acted in an uncaring and cruel way and had, individually, been abusive and had effectively assaulted the patient. The Respondent – after a disciplinary and appeal process – determined that the Claimant should be dismissed summarily due to this gross misconduct. The ET considered that various procedural failings in the disciplinary process had been made good at the appeal stage and, ultimately, the dismissal had been fair. The Claimant appealed.
Held: allowing the appeal
Given the seriousness of the allegations for the Claimant, it was accepted this was a case where – applying the band of reasonable responses test – more would be required of the Respondent’s investigation and process (see ILEA v Gravett [1988] IRLR 497 EAT, A v B [2003] IRLR 405 EAT and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA). Although the ET had considered various failings by the Respondent – in particular, to obtain/provide statements from the nurses on duty and to investigate new allegations made by the patient at the appeal stage – it had done so in a way limited to the question of individual allegation of abuse made against the Claimant. The reasoning did not show it had considered whether those failings impacted upon the fairness of the investigation and process in terms of credibility more broadly (those matters might, in turn, have impacted upon whether the Respondent had reasonably accepted the truth of the more specific allegation made against the Claimant alone). The ET’s conclusion on the Claimant’s unfair dismissal complaint was rendered unsafe and its decision would be set aside and the matter remitted to the same ET for further consideration.

Eady QC HHJ
[2016] UKEAT 0081 – 16 – 1710
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.571778

Practice and Procedure – JURISDICTIONAL POINTS Claim in time ; extension of time : reasonable practicability
The claimant’s solicitors lodged a first claim timeously but their accompanying fee remission application was rejected and a notice sent requiring payment or an appeal against the rejection by a certain date. An attempt to send, by facsimile transmission, an appeal form against refusal of remission was, unknown to the agents, never received by the Tribunal. The claim was rejected in terms of Rule 11(3) of the 2013 Rules. In receiving intimation of that the agents promptly lodged a second claim.
The Tribunal had decided to dismiss both claims for want of jurisdiction.
On appeal, four matters were argued which were resolved as follows;
1) The Employment Judge had erred in characterising rejection under Rule 11(3) as an administrative function. It was a judicial act carried out with the support of the administration. However, the Tribunal’s conclusion that the first claim had been competently rejected was the correct one, so nothing turned on the error.
2) Following Cranwell v Cullen UKEATPS/0046/14, [2015] UKEAT 0046 – 14 – 2003 it could be regarded as illogical to invoke rule 6 to allow the Tribunal to waive its own mandatory Rule and the Tribunal had not erred in reaching that conclusion.
3) The Tribunal had erred in failing to address the question of the balance of prejudice in deciding not to exercise the discretion available through Rule 5 to allow an extension of time in relation to fee payment. The facts of the case illustrated that the prejudice was all one way.
4) The Tribunal had erred by approaching the circumstances of the first and second claims as one for the purpose of deciding whether it had been reasonably practicable to lodge the second claim timeously. Following Adams v British Telecommunications plc UKEAT/0342/15, [2016] UKEAT 0342 – 15 – 0803 the real issue to be addressed was whether the claimant’s mistaken belief that the appeal against the rejection of fee remission form had been received was reasonable.
Appeal allowed and first claim remitted to the Tribunal to proceed.

Lady Wise
[2016] UKEAT 0002 – 16 – 1207
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.571777

(Cook Islands) Appeal brought by seven appellants against a decision of the Cook Islands’ Court of Appeal (Williams P, Barker and Paterson JJA), reversing the first instance decision of Weston CJ, who held that the superannuation scheme set up by the Cook Islands’ National Superannuation Act 2000 (‘the 2000 Act’) was unconstitutional and therefore invalid.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson
[2016] UKPC 32
Bailii
Commonwealth

Employment

Updated: 26 January 2022; Ref: scu.571750