Category: Employment

Wilsons and Clyde Coal Co Ltd v English: HL 19 Jul 1937

The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all reasonable care in entrusting the job to a competent employee, nor could it have been held liable vicariously since common employment would have been a defence.
Held: The desire to escape the consequences of the doctrine of common employment might justify the courts imposing a non-delegable duty of care. The employer was liable for breach of a personal duty to see that care was taken by the person whom it appointed to organise the system of work. The employer’s failure to provide a safe system of work was held to constitute a failure by it to discharge the personal non-delegable duty to provide a safe system. Fundamental obligations of a contract of employment, such as the duty to take reasonable care for the safety of an employee, constitute rights under a contract of employment and not merely rights in connection with it.
Lord Wright said that the obligation owed by an employer to his employee was not discharged by entrusting its fulfilment to employees, even though selected with due care and skill. The (non-delegable) obligation was threefold: ‘the provision of a competent staff of men, adequate material and a proper system and effective supervision’, and: ‘What the Court of Appeal have said amounts to reducing the three heads of duty to one only – that is, to engage competent employees of the higher grades and then everything else may be left to them. If that is done, the employers, it seems, will be free from further responsibility. Those whom they have engaged, if chosen with due care and skill, may appoint any other employee, may deal with the provision of paint and material, may determine the system of work. However negligently they may act and however dangerous the results of what they do may be to the workpeople, the employers on this view will be free from liability. The employee will have no remedy against the employer. His only remedy will be against his fellow-employee, which will be difficult to establish and in all probability worthless.’
The character of the duty was personal to the defendant and therefore non-delegable. Lord Macmillan said: ‘[The defendant] cannot divest himself of this duty, though he may – and, if it involves technical management and he is not himself technically qualified, must – perform it through the agency of an employee. It remains the owner’s obligation, and the agent whom the owner appoints to perform it performs it on the owner’s behalf. The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by merely proving that he has appointed a competent agent. If the owner’s duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible.’

Lord Atkin, Lord Thankerton, Lord Macmillan, Lord Wright, and Lord Maugham
[1938] AC 57, [1937] UKHL 2, [1937] 3 All ER 628
Bailii
England and Wales
Citing:
Cited – Bartonshill Coal Co v Reid HL 1858
A workman had been killed through the overturning of the miners’ cage, the engineman having failed to stop the ascending cage at the platform and having allowed it to be sent with great force up against the scaffolding. An allegation was made that . .
Cited – Lochgelly Iron and Coal Co v McMullan HL 10-Jul-1933
Lord Wright coined the term ‘statutory negligence’. He affirmed the need for ‘damage’ as an essential element of actionable negligence, saying: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission . .

Cited by:
Cited – Sutherland v Hatton; Barber v Somerset County Council and similar CA 5-Feb-2002
Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are . .
Cited – A v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
Cited – Fytche v Wincanton Logistics Plc HL 1-Jul-2004
The claimant was employed as a milk truck driver. He was issued with a pair of boots capped to protect his feet from impact. In a snowstorm, and against company advice, he sough to dig himself out. The boots leaked and he suffered frostbite. He . .
Explained – Kondis v State Transport Authority 16-Oct-1984
(High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to . .
Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Cited – British Telecommunications Plc v Royal Mail Group Ltd QBD 7-Jan-2010
The court considered the liability of the claimant for injury claims by former members of the Post Office at the date of the transfer.
Held: The obligations had been transferred: ‘section 10(2) of the Act, if read according to both its natural . .
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

Lists of cited by and citing cases may be incomplete.

Employment, Negligence, Personal Injury, Vicarious Liability, Health and Safety

Updated: 26 January 2022; Ref: scu.181796

Barkey v A G Moore and Co: HL 23 Jul 1923

Two miners while engaged in clearing gas from a pit were killed by an explosion. In an arbitration at the instance of the representatives of one of the men the arbitrator found that the explosion was due to an attempt to re-light a Glennie lamp in breach of the Coal Mines Act 1911 and refused compensation. There was no evidence that the deceased opened the lamp, which as a matter of fact belonged to the other man, or that he attempted to re-light it, nor was it proved that he was in possession of matches. Held ( aff. the judgment of the Second Division) that as the deceased was doing his work when the accident took place he was prima facie within the statute; that the onus of showing that he had contributed to the contravention, or had acted outside the scope of his employment, lay on his employers; that in the circumstances they had failed to discharge it, and that accordingly compensation fell to be awarded.

Viscount Haldane, Lord Atkinson, Lord Shaw, and Lord Parmoor
[1923] UKHL 633, 60 SLR 633
Bailii
Scotland

Employment, Personal Injury

Updated: 26 January 2022; Ref: scu.633263

3 William Dixon, Ltd v Madden: HL 14 Jun 1923

A miner who had been injured by an accident was awarded compensation in respect of partial incapacity, and thereafter obtained light work at a reduced wage. His right to compensation was with his consent subsequently terminated in consequence of a general rise in the level of wages, which brought the amount he was able to earn above the pre-accident level. The light work on which he was employed having ceased owing to the pit being flooded as the sequel of a strike, and no other employment being available for him, he applied for a renewal of compensation. Held ( aff. the judgment of the Second Division) that as the workman’s incapacity due to the accident still continued, his right to compensation was not terminated by the supervening of a period of unemployment, and that accordingly he was entitled to compensation.
2. John Watson, Limited v. Quinn.
3. William Dixon, Limited v. Madden.
A miner who had been injured by an accident was awarded compensation in respect of partial incapacity and thereafter obtained light work at the surface. His right to compensation was subsequently terminated in consequence of a general rise in the level of wages, which brought the amount he was able to earn above the pre-accident level. On wages falling again below that level in consequence of economic causes he applied for a renewal of compensation. His physical condition remained the same as it was at the date of the original award. But for the accident he would have been able during this period to earn as a miner a wage substantially the same as his average weekly earnings prior to the accident. Held ( aff. the judgment of the Second Division) that as the workman’s inability to earn his former wage was due to the incapacity caused by the accident and not to economic causes, he was entitled to an award of compensation.

Earl of Birkenhead, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
[1923] UKHL 615, 60 SLR 615
Bailii
Scotland

Employment, Personal Injury

Updated: 26 January 2022; Ref: scu.633261

Singh v Singh (The Guru Nanak Gurdwara West Bromwich): EAT 4 Oct 2016

EAT Practice and Procedure: Striking-Out/Dismissal – Unless Order – application for relief from sanction – ET Rules 2013 Rule 38(1) and (2)
On the Claimant’s appeal against the ET’s decision to refuse him relief from the sanction of the earlier dismissal of his claim for non-compliance with an Unless order.
Dismissing the appeal:
The ET had demonstrably carried out the requisite balancing exercise and had adequately explained why it had reached the conclusion it had.

Eady QC HHJ
[2016] UKEAT 0158 – 16 – 0410
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.571427

Scott v EC Maritime PCC Ltd (Debarred): EAT 10 Oct 2016

EAT Unfair Dismissal: Reasonableness of Dismissal – Unfair dismissal – fairness of dismissal – Employment Rights Act 1996, section 98(4) – The Claimant, a maritime security officer, was dismissed for some other substantial reason, namely pressure for his removal for working for a specific client. The ET did not consider the Respondent – a protected cell company under Guernsey law – had acted unfairly in the circumstances and did not consider its failure to look for alternative work for the Claimant within other cells rendered the dismissal unfair given that there was no evidence of other employment opportunities and the Respondent would not generally look for alternatives in different cells. The Claimant appealed: (1) against the ET’s failure to find the lack of investigation of alternative employment in other cells of the Respondent unfair; alternatively, (2) against the ET’s approach to the question of fairness more generally. Having failed to enter a Respondent’s Answer or to respond to the EAT’s correspondence, the Respondent was debarred from participating in the appeal.
Held: allowing the appeal and remitting the case for hearing afresh by a different ET.
The ET’s conclusion on alternative employment was not dependent upon the Respondent’s argument as to the inability to look at other cells within the company but was founded upon its finding that there was no evidence of alternative work available at the time. That was a permissible finding and the appeal would not, therefore, be allowed on the issue of alternative employment.
As for the approach to the question of fairness more generally, however, whilst it was entitled to allow that the range of reasonable responses might have included a decision not to investigate further (either with the client or the Appellant himself), the ET needed to make a finding that this was, indeed, what the Respondent had determined, not what the ET itself considered to be the case (and see per Lord Bridge in Polkey v A E Dayton Services Ltd [1988] ICR 142). Given that the Respondent had in fact told the Appellant that it would investigate matters further, it was hard to see how the ET could have come to the conclusion that it did. In the circumstances, the decision was unsafe; the appeal would be allowed and the matter remitted to a freshly constituted ET for re-hearing.

Eady QC HHJ
[2016] UKEAT 0032 – 16 – 1010
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.571426

Thomas v BNP Paribas Real Estate Advisory and Property Management UK Ltd: EAT 3 Oct 2016

EAT Unfair Dismissal: Reasonableness of Dismissal – AGE DISCRIMINATION – The Employment Tribunal failed to understand or to apply its finding of fact that consultation was perfunctory and insensitive when it, nonetheless, concluded that consultation was reasonable and dismissal fair.
The Employment Tribunal adequately explained its conclusion that the Respondent discharged the burden on it to show that the dismissal was not tainted by age discrimination.

Wilkie J
[2016] UKEAT 0134 – 16 – 0310
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.571428

Osborne and 29 Others v Capita Business Services Ltd and 3 Others: EAT 17 Jun 2016

EAT Transfer of Undertakings – Economic technical or organizational reason
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Barnet outsourced many of its services to Capita so as to achieve economies. This was a service provision change, to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (before the introduction of Regulation 7(3A)) applied. In the case of nine lead Claimants, representing 30 others, the Employment Tribunal found that the functions they had fulfilled whilst in the service of Barnet prior to the transfer were (save in two cases) split between different locations or people. In each case there had been a dismissal by Capita. The Employment Tribunal decided that the reasons for the dismissals were the splitting of the job functions and the relocation of the place of performance of those functions to various towns and cities. These were ‘economic technical or organisational reasons’ which entailed ‘changes in the workforce’.
The Claimants appealed on the basis that they had been assured that they could relocate to one of the other places of work if they wished, and would not be put out of a job with Capita if they did so, but that the Judge had not made any significant reference to this although it was a primary submission of theirs; and that the Employment Tribunal had ignored the evidence of one of Capita’s witnesses who had said that the reason for the dismissals was ‘relocation’, which they argued did not (on authority) amount to an economic, technical or organisational (‘ETO’) reason.
It was held that the reason for dismissal was sufficiently clear. It was a finding of fact, and was not perverse: the Employment Tribunal did not have to deal specifically with the submission since it dealt clearly with the facts. The witness had apparently not said clearly that relocation of the existing job was all that had occurred, and in any event the Employment Tribunal found that the job functions had been split. This was therefore capable of being an ETO reason which entailed changes in the workforce since it entailed changes in the job functions of the workforce.
As a third ground, a Claimant complained that the Employment Tribunal had clearly found that she had not had a material change of function, but had been dismissed primarily because the location of the work had changed and she would not accept it. The logic by which the Employment Tribunal concluded that nonetheless she was dismissed for an ETO reason entailing changes in the workforce could not be supported, and in the light of the Judge’s clear finding that she was dismissed because of the new location of her work the Appeal Tribunal substituted a finding that she had been automatically unfairly dismissed.

Langstaff J
[2016] UKEAT 0048 – 16 – 1706
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570975

Lambert v The Secretary of State for The Home Department: EAT 28 Sep 2016

EAT Victimisation Discrimination – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Whether the Employment Tribunal failed to recognise that in a complaint of victimisation the employer may act with mixed motives, protected act and ‘innocent’ motivation. Answer: no. The Employment Tribunal clearly found that the sole reason for disciplinary proceedings brought against the Claimant was her perceived wilful unmanageability

Peter Clark HHJ
[2016] UKEAT 0074 – 16 – 2809
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570976

Brito-Babapulle v Isle of Wight NHS Trust: EAT 10 Jun 2016

EAT Victimisation Discrimination: Detriment
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Protected disclosure – detriments – burden of proof – section 48 Employment Rights Act 1996 – adequacy of Employment Tribunal reasons
On the Claimant’s complaint of detriment due to having made protected disclosures, the ET accepted that she had been subjected to detriment in the failure to pay her for (un-worked) on-call hours and in the Respondent’s failure to afford her any process or hearing under its disciplinary or dismissal procedures. The ET did not find, however, that either detriment had been on the ground of the Claimant’s protected disclosures. The Claimant appealed.
Held: allowing the appeal
On the failure to pay the on-call sums, the ET had found this was an unauthorised deduction from the Claimant’s wages as she was contractually entitled to the payments in question but did not consider this was on the ground of the Claimant’s protected disclosure because the non-payment had been on the basis of erroneous HR advice. The ET stated, however, that it could not understand the basis of the HR advice. That gave rise to the question whether it might have been materially influenced by the Claimant’s protected disclosures. On the reasons provided, there was not a complete answer to that question and it was unclear whether the ET had failed to adopt the correct approach when looking at the Respondent’s explanation or whether it had failed to provide adequate reasons. In either event, the conclusion was rendered unsafe.
As for the failure to afford the Claimant any process, the ET was faced with a case where the decision had already been made and the Claimant – who had less than two years’ service – had no contractual right (as a locum Consultant) to a disciplinary process. That said, the ET’s finding that the decision not to go through any process was simply due to the Claimant’s lack of requisite service failed to explain the evidential basis for its conclusion; there was no explanation as to how the ET had found that the Respondent had met the burden upon it in this regard. The reasoning provided was inadequate to the ET’s task.
The appeal would therefore be upheld.
On disposal, contrary to the Claimant’s arguments, the upholding of these grounds of appeal did not then undermine the decision rejecting her claim of automatic unfair dismissal, not least as different decision makers were involved. The appropriate course was to remit the case to the same ET for reconsideration of these two detriments in the light of the EAT’s Judgment.

Eady QH HHJ
[2016] UKEAT 0090 – 16 – 1006
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570970

Department for Work and Pensions v Mughal: EAT 15 Jun 2016

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Reinstatement/re-engagement
The central issue for the Employment Tribunal in circumstances where serious misconduct was admitted and the disciplinary process was reasonable and fair was whether dismissal was a reasonable sanction in the particular case.
On that question the Employment Judge relied on a matter that was unsupported by any evidence and not true as a matter of fact; and on factors that were not relied on as relevant by either party and were not explored in evidence or submissions. These features were material to the decision that dismissal was outside the range of reasonable responses, and the Employment Appeal Tribunal had no sufficient confidence that the outcome would have been the same had they been properly addressed. The appeal was therefore allowed.
Separately, the reinstatement order was flawed for similar reasons. Factors relied on by the Employment Judge to conclude that reinstatement was practical and just notwithstanding the finding of significant contributory conduct (assessed at 75 per cent) were not raised by the Employment Judge and/or were not a permissible option on the evidence.

Simler DBE P J
[2016] UKEAT 0343 – 15 – 1406, [2016] UKEAT 0343 – 15 – 1506
Bailii, Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570972

Pugh v RT Electrics Ltd: EAT 6 Sep 2016

EAT Practice and Procedure : Estoppel or Abuse of Process
PRACTICE AND PROCEDURE – Review
The Claimant had brought a number of claims against his employer, the Respondent. A Preliminary Hearing had been fixed to determine all issues of time bar raised by the Respondent. An Employment Tribunal decided that one of the claims (Claim 4) had been brought after the expiry of the three month period in the Equality Act 2010, but that it would be just and equitable under section 123 of that Act to allow it to proceed.
After a final hearing before a second, separate Tribunal and on the basis that the evidcne supported only a single incident in the early part of the period covered by Claim 4, that claim was dismissed on the basis that it was out of time and the Tribunal accordingly had no jurisdiction to uphold it. The claim would have been established but for the time limit issue.
Held: allowing the appeal –
The second Tribunal had erred in a number of ways in its approach to the time bar issue. No consideration had been given to the principles of res judicata or issue estoppel in relation to the first Tribunal’s decision on the time bar point. In the absence of an appeal, that decision was binding on the subsequent Tribunal. Further, the decision of the second Tribunal to interfere with the Preliminary Hearing Judge’s decision could not be characterised as a reconsideration. Reconsideration of Judgments is not a concept developed at common law and is available only using the mandatory procedure prescribed in the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. None of the relevant Rules applicable to reconsideration had been followed by the Tribunal. The procedure had been unfair, depriving the Claimant of the right to be heard on the issue.
In any event, reconsideration would not have been required in the interests of justice. The proper outcome following the final hearing was that the Claimant had succeeded in a limited part of his claim.
Appeal allowed and Order in Claimant’s favour substituted.

Lady Wise
[2016] UKEAT 0177 – 16 – 0609
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570978

Lee v HSBC Bank Plc: EAT 21 Sep 2016

EAT Disability Discrimination : Disability – PRACTICE AND PROCEDURE – Review – PRACTICE AND PROCEDURE – New evidence on appeal
Initial finding that the Appellant was not disabled confirmed by the Employment Judge at the Reconsideration Hearing after admitting fresh evidence (GP surgery notes not produced to the Appellant before the initial Employment Tribunal hearing). Appeal against the Reconsideration Decision dismissed; GP certificates that the Appellant was unfit for work are not determinative of the substantial effect question. Decision not perverse.
Application to admit (further) fresh evidence on appeal refused. That material could have been adduced below. Ladd v Marshall test applied.

Peter Calrk HHJ
[2016] UKEAT 0119 – 16 – 2109
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570977

Mechkarov v Citibank Na: EAT 9 Feb 2016

The claimant, being dismissed, had signed a detailed settlement agreement, confirming a range of matters said to have been included. He now appealed agaist rejection of his claims including breach of contract, unfair dismissal, a Wages Act claim and various others including personal injury and unlawful race discrimination. The employers successfylly resisted relying upon the settlement and on limitation.
Held: Appealing against the dismissal of post employment allegations as having no reasonable prospect of success.

Simler DBE P J
[2016] UKEAT 0678 – 15 – 0902
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570968

Fairlead Maritime Ltd v Parsoya: EAT 30 Oct 2016

EAT Race Discrimination: Indirect – JURISDICTIONAL POINTS – Extension of time: just and equitable
Indirect race discrimination – claim in time – continuing act – section 123(3) Equality Act 2010 – just and equitable extension of time
The Respondent had operated an indirectly discriminatory policy of under-paying those with ’employability issues’ – effectively where it considered immigration issues might arise given an employee’s visa status. The ET had found this put those sharing the Claimant’s protected characteristic (he was an Indian national) at a disadvantage and also put him at a disadvantage. The Respondent did not challenge those findings but submitted that the Claimant was no longer disadvantaged by the policy after June 2013, when his pay was increased to the correct level after he had been granted a longer-term visa; the Claimant’s ET claim, lodged in September 2014 was therefore out of time. The ET disagreed, finding the Respondent had adjusted its policy when it told the Claimant – in January 2012 – that, once his ’employability’ was resolved, the earlier shortfall in pay would be made good. Its failure to make good on that promise meant there was a continuing act of indirect discrimination until the termination of the Claimant’s employment. The claim was therefore brought in time, alternatively it would have been just and equitable to extend time. The Respondent appealed.
Held: dismissing the appeal
The ET’s Reasons – as amplified under the Burns/Barke procedure – made clear that it had found that there was a continuing discriminatory policy. The Respondent’s policy, as amended in January 2012, continued to mean that the Claimant suffered from the underpayment in his salary because the Respondent failed to make good the short-fall and that was because of the initial (indirectly discriminatory) ’employability issues’. That thus remained the discriminatory application of the Respondent’s policy, of which the Claimant had complained. As it continued until the termination of the Claimant’s employment, his claim was presented in time.
In the alternative, the ET’s finding in this regard was relevant to its consideration as to what was just and equitable in terms of any extension of time. It had found that the Respondent had strung the Claimant along such that he had reasonably believed that it would make good the past short-fall in his pay but it had continued to fail to do so. This was a permissible finding on the ET’s part and a permissible exercise of its judicial discretion.

Eady QC HHJ
[2016] UKEAT 0275 – 15 – 3010
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570980

Tesco Stores Ltd v Kayani: EAT 8 Sep 2016

Jurisdictional Points : Extension of Time: Reasonably Practicable
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Claimant had lodged various claims of unfair dismissal and sex (pregnancy related) discrimination, all outwith the relevant three month time limits.
During the statutory three month period the Claimant had instructed solicitors and instructed them to raise proceedings should there be no response from the Respondent to a seven day letter. The Employment Tribunal found that the Claimant was without funds to have those proceedings initiated around the time of the expiry of the time limit. However, standing that she had been in receipt of legal representation and the finding that she had not been advised in relation to fee remission, the Tribunal had erred in failing to address the issue of the adequacy of the legal advice she had received. The failure to grapple with the question of whether the solicitors had been at fault was directly analogous to the situation that had arisen in eBay (UK) Ltd v Buzzeo UKEAT/0159/13. The Tribunal in this case had focused only on the Claimant’s pregnancy and the imminent birth of her son in considering the reasonable practicability test, when the role of the solicitors was an equally important factor. There was also confusion in the Judgment about the two separate periods – that prior to the expiry of the three month period and thereafter – in the analysis of the evidence.
In approaching the second limb of the test in section 111 Employment Rights Act 1996, the Tribunal had regarded the requirement to state the early conciliation number on a claim form as ‘technical’ when the authorities made clear that it was an essential requirement.
So far as the approach to the just and equitable test in section 123 Equality Act 2010, the approach of the Tribunal was flawed for similar reasons to those found in the application of the reasonable practicability test.
The appeal was allowed.

Lady Wise
[2016] UKEAT 0128 – 16 – 0809
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570979

Henderson v The General Municipal and Boilermakers Union: CA 11 Oct 2016

The claimant appealed against rejection of his claims for unfair dismissal and otherwise. The union appealed against a finding in favour of the claim for discrimination (and otherwise) on account of his religion or belief, namely ‘left wing democratic socialism’. At the EAT all claims were dismissed.

Underhill, Briggs LJJ
[2016] EWCA Civ 1049
Bailii
Equality Act 2010 13(1)
England and Wales
Citing:
Appeal from – General Municipal and Boilermakers Union v Henderson EAT 13-Mar-2015
EAT Unfair Dismissal – RELIGION OR BELIEF DISCRIMINATION – HARASSMENT
1. The Employment Tribunal found that the Claimant was fairly dismissed for gross misconduct but also found that he had suffered . .
Cited – Warby v Wunda Group Plc EAT 27-Jan-2012
EAT HARASSMENT
SEX DISCRIMINATION
Direct
Pregnancy and discrimination
In the course of a heated discussion between the Claimant and her manager about pay, each accused the other of lying. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570869

Birmingham City Council v Bagshaw and Others (: EAT 25 Oct 2016

EAT Practice and Procedure: Disclosure – An experienced Employment Judge ordered disclosure by a third party of Judgments and interlocutory Orders relating to cases of a similar type to those being litigated by the Claimants.
It was argued that he had failed to apply the test of relevance and necessity before making the Order and that he had focused only on a concern about the inequality of arms between the parties to the litigation. It was also contended that he should have first examined the documents and ought to have understood that only Judgments, not interlocutory Orders were in the public domain.
The Judge had been addressed on the test and it could easily be inferred from his Reasons, taken as a whole, that he had applied it. The circumstances, unusually, justified the Order for disclosure at an early stage in the proceedings, the Claimants having been unable to comply fully with an Order for particularisation without it. In the absence of confidentiality objections, it had been competent and appropriate for the Judge to order disclosure without first examining the documents for reasons adequately explained by him. Any distinction between Judgments and interlocutory Orders, only the former being strictly in the public domain, had been dealt with by redaction and limitation of the type of Judgments covered by the Order. The Judge’s focus on the overriding objective in exercising his power to order disclosure of documents was in the circumstances entirely appropriate and the outcome a fair one. The appeal was dismissed.

Lady Wise
[2016] UKEAT 0107 – 16 – 2510
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570397

Broecker v Metroline Travel Ltd: EAT 14 Oct 2016

EAT Unfair Dismissal – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Reasonableness of dismissal
VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Protected disclosure
VICTIMISATION DISCRIMINATION – Dismissal
PRACTICE AND PROCEDURE – Disposal of appeal including remission
The Employment Tribunal (‘the ET’) held that the Appellant was dismissed for four instances of misconduct, two of which were protected disclosures and that the Appellant’s dismissal was not unfair.
In deciding whether the reason for the Appellant’s dismissal was that he had made protected disclosures, the ET asked, not what the reason or principal reason for the dismissal was, but whether the dismissal was ‘grossly’ or ‘blatantly’ unfair. The Employment Appeal Tribunal (‘the EAT’) held that the ET had misdirected itself.
In deciding whether or not the dismissal was unfair the ET decided that the Respondent would have been entitled to dismiss the Appellant for the two incidents of misconduct which were not protected disclosures. The EAT held that the ET had misdirected itself, as the Respondent had dismissed the Appellant not for two incidents of misconduct, but for four, two of which were protected disclosures, on the basis of the decision of the House of Lords in Smith v Glasgow City District Council [1987] ICR 796. The ET should therefore have held that the Appellant’s dismissal was unfair.
The EAT would have remitted the case to the ET on this question, had it not also held that the ET misdirected itself on the question whether the dismissal was unfair.

Elisabeth Laing DBE J
[2016] UKEAT 0124 – 16 – 1410
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570398

C T Plus (Yorkshire) CIC v Black and Others: EAT 3 Aug 2016

EAT Transfer of Undertakings: Service Provision Change
The Appellant ran a ‘park-and-ride’ service under a contract with the local council by virtue of which it received a substantial subsidy. The Second Respondent, having grown impatient with a tendering process, decided to run a commercial service on the same route, using its own staff and buses, without a subsidy from the Council. As a result the Council terminated its contract with the Appellant.
The Appellant’s case was that the Second Respondent was a subsequent contractor carrying out the same activities ‘on the client’s behalf’, the local council being the client. The Employment Judge rejected this argument, holding that the Second Respondent was not carrying out the activities on the local council’s behalf, but as a commercial venture on its own behalf.
Held: the Employment Judge did not err in law. The Employment Judge’s approach focussed upon the ordinary meaning of the service provision change provisions within the Transfer of Undertakings (Protection of Employment) Regulations 2006 and applied those provisions in a commonsense and pragmatic way. Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] IRLR 700 EAT and Hunter v McCarrick [2013] IRLR 26 CA applied.

David Richardson HHJ
[2016] UKEAT 0035 – 16 – 0308
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570385

Hasan v Tesco Stores Ltd: EAT 22 Jun 2016

EAT Practice and Procedure : Striking-Out/Dismissal
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Claimant made a number of claims against his former employer. An Employment Judge decided to hold a Preliminary Hearing to consider a number of matters, including (at the Tribunal’s own initiative) consideration of striking out some of the claims.
At the Preliminary Hearing the Employment Judge decided to consider whether to strike out all of the claims, not just those that parties had been given notice would be considered for striking out. His decision was that none of the claims had any reasonable prospect of success and he struck them all out.
On appeal it was decided that, insofar as the Claimant, who was unrepresented and whose first language was not English, had no prior notice at all that two of the claims would be considered for striking out at hearing, the striking out of those was so tainted by procedural unfairness that the Judge’s ruling on those could not stand. Even had there not been such unfairness, the Judge’s decision so far as the discrimination claim was concerned was premature given that discrimination claims should not normally be struck out without enquiry.
Further, all of the striking out decisions had been made following consideration only of whether the test in Rule 37(1)(a) of the 2013 Regulations had been met. There had been a complete failure to address the necessary second stage of the exercise of discretion, identified as necessary in the case of HM Prison Service v Dolby [2003] IRLR 694 EAT. That failure amounted to a clear error of law. Appeal allowed.

Lady Wise
[2016] UKEAT 0098 – 16 – 2206
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570379

Unite The Union v Nailard: EAT 27 Sep 2016

EAT Jurisdictional Points : Worker, Employee or Neither
HARASSMENT
SEX DISCRIMINATION – Direct
TRADE UNION RIGHTS
The appeal concerned sexual harassment by elected officers of the Respondent trade union against a paid (employed) officer.
1. The ET held that the elected officers were employees of the Respondent under the extended definition in section 83(2) of the Equality Act 2010. Appeal allowed on this ground. The elected officers were not employees under the extended definition. Allonby v Accrington and Rossendale College [2004] IRLR 224, Jivraj v Hashwani [2011] IRLR 827 and Halawi v WDFG UK Ltd [2015] IRLR 50 considered and applied
2. The ET held that the Respondent was responsible for the harassment of the elected officers by virtue of section 109(2). Appeal dismissed on this ground. Kemeh v Ministry of Defence [2014] IRLR 377 and Heatons Transport v Transport and General Workers’ Union [1972] ICR 308 considered and applied.
3. The ET held that the paid officers themselves harassed the Claimant by failing to take action against the elected officers to prevent harassment and by deciding to transfer her elsewhere. Appeal allowed on this ground, but matter remitted to ET for reconsideration. The ET had applied the wrong legal test; the question was whether the conduct of the elected officer in question was ‘related to sex’; it was not ‘related to sex’ merely because it was concerned with earlier harassment by the elected officers which was related to sex. Conteh v Parking Partners Ltd [2011] ICR 341, Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] ICR 1234 and Sheffield City Council v Norouzi [2011] IRLR 897 considered.
4. The ET held that, if it had not found that the paid officers harassed the Claimant, it would have found that they had discriminated against her because of sex – direct discrimination. The finding in this respect would also be remitted. The ET was required to focus on the mental processes of each paid officer and ask whether that officer’s conduct was because of sex. CFLIS (UK) Ltd v Reynolds [2015] IRLR 562 applied.
5. Section 64(2)(f) of the Trade Union and Labour Relations (Consolidation) Act 1992 is not concerned with decisions relating to the employment of a paid officer employee of the Respondent (who may or may not be a member of the Respondent union).

David Richardson HHJ
[2016] UKEAT 0300 – 15 – 2709
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570396

Greco v General Physics UK Ltd: EAT 2 Aug 2016

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity
JURISDICTIONAL POINTS
The Claimant complained that the Employment Tribunal (1) failed to determine some issues of sex discrimination which she put forward; (2) misapplied section 123(3) of the Equality Act 2010 by failing to find that the Respondent had been responsible for conduct extending over a period; (3) misapplied section 123(1)(b) by failing to extend time on the just and equitable basis; (4) failed to make proper and sufficient findings concerning a meeting on 9 July and in particular to address section 111A of the Employment Rights Act 1996; (5) demonstrated apparent bias.
Appeal dismissed. None of the grounds were made out. Although the Employment Tribunal had not given specific attention to section 111A of the Employment Rights Act 1996, the Claimant’s case required it to consider what took place at the meeting on 9 July in order to see whether the Respondent’s conduct was improper, and the Employment Tribunal had not offended against the provisions of section 111A.

David Richardson HHJ
[2016] UKEAT 0114 – 16 – 0208
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570387

The Salvation Army Trustee Company v Bahi and Others: EAT 1 Sep 2016

EAT Transfer of Undertakings: Service Provision Change – definition of activities – whether activities ‘fundamentally the same’ – The Employment Judge did not err in law in his definition of ‘activities’ for the purpose of Regulation 3(1)(b) of TUPE (service provision change); and he applied the correct legal test when deciding for the purpose of Regulation 3(2A) that the activities in question remained fundamentally the same before and after the transfer.

Richardson HHJ
[2016] UKEAT 0120 – 16 – 0109
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570394

Rowe v London Underground Ltd: EAT 17 Oct 2016

EAT Time Off – HEALTH and SAFETY
The right to paid time off for safety representatives – remedy for denial of the right – Regulation 11(3) of the Safety Representatives and Safety Committees Regulations 1977
Having found that the Respondent had acted in breach of the Regulations by denying the Claimant (an appointed safety representative) paid time off work for a prescribed purpose, the ET made a declaration to that effect but concluded that no award of compensation should be made under Regulation 11(3) of the 1977 Regulations. Whilst allowing that an injury to feelings award was permissible under the Regulations, the ET did not find that the Claimant had established any such injury in fact in this case. Considering the possibility of an award for what was just and equitable having regard to the employer’s default and the loss sustained by the Claimant, more generally, the ET equally concluded that no award should be made.
The Claimant appealed, arguing that the ET had erred in its approach, alternatively had reached a perverse conclusion.
The Respondent resisted the appeal, relying on the ET’s reasoning but also seeking to argue for the first time that no award for injury to feelings was permissible under Regulation 11(3).
Held: dismissing the appeal
There were no exceptional reasons to permit the Respondent to take a point for the first time on appeal but, obiter, injury to feelings awards related to claims of discrimination (applying London Borough of Hackney v Adams [2003] IRLR 402 EAT and Santos Gomes v Higher Level Care Ltd UKEAT/0017/16/RN) and not to the non-discriminatory breach of a right for the purposes of Regulation 11(3).
The ET had approached its task correctly, whether viewed as considering compensation for injury to feelings or in respect of what was just and equitable more generally (following Skiggs v South West Trains Ltd [2005] IRLR 459 EAT). Its reasoning could not be read as limited to one paragraph; it had taken into account relevant factors and had reached a permissible conclusion on the material before it.

Eady QC HHJ
[2016] UKEAT 0125 – 16 – 1710
Bailii
Safety Representatives and Safety Committees Regulations 1977 11(3)
England and Wales

Employment, Health and Safety

Updated: 24 January 2022; Ref: scu.570399

Hussain v Nottinghamshire Healthcare NHS Trust: EAT 24 Aug 2016

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity
– Costs
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Appearance of bias – Cost Hearing – adequacy of reasons for costs award
During the course of the Liability Hearing of the Claimant’s claims (the ET being concerned with four separate claims, consolidated for hearing), the ET had given a costs warning, urging the Claimant to focus on ‘whether certain of his claims now had any prospect of success’ and whether his claim was ‘so very weak having come apart in cross examination and by reference to the contemporaneous documentation and also his answers’ (paragraph 16). These comments had been made in the context of a history of difficulties relating to the understanding of the Claimant’s case in the ET proceedings and concerns as to whether he had properly appreciated what he had to establish.
The ET hearing had then gone part-heard and, during the period of the adjournment, the Claimant lodged a complaint about the ET (specifically, the Employment Judge), contending it was biased and complaining of the manner in which he had been warned of the risk of costs. His complaint was investigated but rejected by the Regional Employment Judge, who found that the costs warning had not been given in the manner alleged and the ET had not evidenced bias. The Claimant was further advised as to his right to apply to the ET to recuse itself if he considered it was biased and/or to appeal to the EAT.
After the resumed hearing of the claims, the ET (by its Reserved Judgment) dismissed the Claimant’s various claims. His subsequent appeal against that Liability Judgment – which included allegations of bias – was then rejected on the papers as being totally without merit.
The matter then returned to the ET to determine a costs application made by the Respondent, for a total sum of andpound;94,156.96, on the basis that the Claimant had acted unreasonably in the bringing of the proceedings and/or their pursuit; alternatively, the claims were misconceived.
At the outset of the Costs Hearing, the ET drew the parties’ attention to the case Oni v NHS Leicester City [2013] ICR 91 EAT, and provided both with an opportunity to make representations. The Claimant did not – then or at any other time – submit that this was a case akin to Oni and/or that the ET ought to recuse itself from determining the costs application. Having found that the Claimant had behaved ‘otherwise unreasonably’, certainly in pursuing the proceedings ‘at latest from the first costs warning’ made by the Respondent in correspondence, and in respect of all but his complaint of unfair dismissal, the ET concluded it was appropriate to make a costs award. After summarily assessing the Claimant’s means, the ET considered the award should be for 85% of the total sum expended by the Respondent, the 15% reduction relating to the costs the ET considered would have been incurred in hearing the unfair dismissal claim.
The Claimant appealed on two bases: (1) whether the ET ought to have recused itself from hearing the application given its earlier costs warning to him during the Liability Hearing, and (2) whether the ET adequately explained its assessment of an award of 85% of the Respondent’s total costs, in particular given: (i) its view of the potentially reasonably arguable unfair dismissal claim, and (ii) its finding that the unreasonable conduct dated from the Respondent’s first costs warning.
Held: allowing the appeal in part.
The bias or Oni point:
In standing in the shoes of the impartial, informed observer (Porter v Magill [2001] UKHL 67), the fact that the Claimant had previously made complaints of bias (in his complaint to the Regional Employment Judge and in his appeal against the Liability Judgment) provided no basis for concluding that the ET could not continue to consider the subsequent costs application (Ansar v Lloyds TSB Bank plc [2007] IRLR 211 CA and Oni at paragraph 38). Further, in establishing the relevant facts, it was not irrelevant to consider how the Claimant saw the position at the time: as reflected in his complaint, he understood the ET to have given a costs warning, not to have expressed a concluded view on any such future application. Whether or not his subsequent failure to apply for the ET to recuse itself amounted to a waiver of his right to complain of apparent bias (Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 CA), it assisted in establishing he had understood what had been said at the original Liability Hearing.
Having due regard to the full context, this is not a case where the ET impermissibly stepped over the line. An ET must be able to give guidance to parties as to how their case or conduct might be viewed and the risks they might be taking if they continue down a particular path. In certain circumstances, not to do so could itself be considered a failure to try to ensure a level playing field. At the same time, the ET must be careful not to reach a conclusion as to whether the case or conduct should be viewed in a particular way before it had heard from both sides on the point.
The ET in this case had suggested that the Claimant might focus on whether certain of his claims now had any prospect of success; that was not the statement of a concluded view that they did not, but an urging that – given the evidence – the Claimant reflect on his position. The ET did no more than properly warn the Claimant of that which was apparent from the ET Rules; there is a risk of costs in certain circumstances in ET proceedings and the ET was ensuring that the Claimant was aware of the position and asking him to reflect upon it. This would not cause the informed and impartial observer to consider that there was a possibility of bias.
The adequacy of reasons point:
The ET clearly considered the Respondent’s costs warnings to the Claimant were relevant in determining whether its costs jurisdiction was engaged. Although the ET made various other criticisms of the Claimant’s conduct in pursuing the claims thereafter, it explained its finding on unreasonable behaviour as relating ‘at latest from the first costs warning’ (referring to the Respondent’s first warning to the Claimant in correspondence). And whilst the Claimant was aware that the Respondent’s application had been made on broader grounds, he was entitled to understand the basis for the award actually made. The focus of the ET’s decision was on the reasonableness of his conduct in pursuing his claims after the Respondent’s first costs warning.
When the ET came to assess the level of the award, it reduced the total sum claimed by 15% in respect of the unfair dismissal hearing. Although that was a broad brush assessment, the ET was best placed to determine how to proportion the relevant costs between the claims and to assess how much should be attributed to the unfair dismissal case. The appeal in that respect must fail.
On the other hand, it was not possible to see any allowance made for the period prior to the first costs’ warning, although there was no statement that the ET had found its costs jurisdiction was engaged in respect of costs incurred prior to that time. Whilst it may only have said that the Clamant behaved otherwise unreasonably at latest from that warning, the Claimant was entitled to expect the ET’s findings on costs to be set out clearly; there was no clear finding that the ET had found he had behaved unreasonably prior to that date. The appeal would therefore be allowed on this point and remitted to the same ET to reconsider whether its award of 85% of the total costs expended was meant to apply to costs post-dating the first costs warning sent by the Respondent or to all costs and, if the latter, on what basis was that award made?

Eady QC HHJ
[2016] UKEAT 0080 – 16 – 2408
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570388

Appiah v Compass Group UK and Ireland Ltd: EAT 8 Sep 2016

EAT Unfair Dismissal: Reasonableness of Dismissal – Procedural fairness/automatically unfair dismissal
The Respondent’s decision to dismiss the Claimant took into account a final written warning to which she was subject. At the appeal against her dismissal the Claimant complained about the final written warning. The Employment Judge found that the Respondent’s appeal officer had investigated and considered the final written warning. The Claimant argued that this finding was perverse; the Respondent argued that the finding was not perverse, and in any event that the issue of internal appeal had not been raised by the Claimant in her ET1 claim form, so that it was not permissible for the Employment Judge to consider it.
Held. (1) The Employment Judge had been correct in law to consider the issue: it is part of an Employment Judge’s task under section 98(4) to consider the substance of what happened throughout the dismissal process including the internal appeal, and to consider whether the process overall was fair by the standards of section 98(4): West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192 HL and Taylor v OCS Group Ltd [2006] ICR 1602 CA applied. This is so well established, and such a core feature of unfair dismissal law, that an Employment Judge will be expected to adopt this approach as a matter of course: Langston v Cranfield University [1998] IRLR 172 EAT applied. (2) The Employment Judge’s finding was not perverse: it was a permissible inference from the primary facts. Appeal dismissed.

David Richardson HHJ
[2016] UKEAT 0129 – 16 – 0809
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570391

Buchanan v The Commissioner of Police of The Metropolis: EAT 30 Sep 2016

EAT Disability Discrimination: Disability Related Discrimination – Justification
The Claimant, a serving police officer who had a disability by virtue of a serious motor cycle accident, was made subject to the ‘Unsatisfactory Performance Procedure’ laid down in the Police (Performance) Regulations 2012. He complained to the Employment Tribunal that a series of steps taken at the first and second stages of that procedure amounted to discrimination arising from disability. The Employment Tribunal unanimously held that the steps amounted to unfavourable treatment because of something arising from the Claimant’s disability. The majority held that it was the procedure, rather than its application to the Claimant, which had to be justified; and found for the Respondent on this question.
Appeal allowed. The procedure laid down in the Regulations and the policies which the Respondent developed to apply it allowed for individual assessment in each case at each stage. The steps held by the Employment Tribunal to amount to unfavourable treatment were not mandated by the procedure or by any policy of the Respondent. Section 15(1)(b) of the Equality Act 2010 required the Employment Tribunal to consider whether the treatment was justified; and in such a case as this it was not sufficient to ask whether the underlying procedure was justified. Seldon v Clarkson Wright and Jakes [2012] ICR 716 SC and Crime Reduction Initiatives v Lawrence UKEAT/0319/13 considered.

David Richardson HHJ
[2016] UKEAT 0112 – 16 – 3009
Bailii
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570392

Isteed v London Borough of Redbridge: EAT 21 Jul 2016

Practice and Procedure: Costs – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
On appeal against a wasted costs order made against the opposing party’s solicitor, the appeal was allowed.
It was common ground that the Employment Judge made no positive findings on causation and gave no reasons for considering such an order ‘right’. The jurisdiction to make a wasted costs order extends only to impugned conduct that has caused a waste of costs and only to the extent of such wasted costs, demonstration of a causal link being essential. These findings were not implicit in the particular circumstances. The Employment Judge erred in failing adequately to deal with causation and the justice of such an order.
Separately, there was procedural unfairness. Given the fluid and changing nature of the application, the paying solicitors did not have proper or adequate notice of its basis that would enable them to respond. By the time of the final hearing of the application (which had taken four days separately listed), the comments and conduct of the Employment Judge led to the appearance of bias, and the Employment Judge should have recused himself.

Simler DBE P J
[2016] UKEAT 0442 – 14 – 2107
Bailii
England and Wales

Employment, Costs, Legal Professions

Updated: 24 January 2022; Ref: scu.570383

Alno (UK) Ltd v Turner and Another: EAT 2 Sep 2016

EAT Transfer of Undertakings: Transfer
The Employment Judge erred in law in finding that a transfer had taken place following the termination of a franchise by the franchisee. The parties had initially intended that the franchisor would take over the showroom concerned and employ the Claimant. The Employment Judge found, essentially because of this intention, that there was a TUPE transfer when the franchise terminated. However she did not apply the correct, multi-factorial, approach to the question whether a transfer had actually taken place. Reasoning in P Bork International A/S v Foreningen af Arbejdsledere I Danmark [1989] IRLR 41 and Cheesman v R Brewer Contracts Ltd [2001] IRLR 144 applied; Wood v Caledon Social Club Ltd UKEAT/0528/09 considered.

David Richardson HHJ
[2016] UKEAT 0349 – 15 – 0209
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570390

Glasgow City Council v Dahhan: EAT 11 May 2016

EAT Practice and Procedure : Preliminary Issues
On appeal against the decision of the Employment Tribunal that it had jurisdiction to set aside a settlement agreement on the ground that the claimant lacked capacity to contract, it was argued that the position as set out by Silber J in Industrious Ltd v Horizon Recruitment Ltd (in liquidation) and Vincent did not extend to agreements where the alleged invalidity was due to capacity.
A distinction between agreements induced through error or misrepresentation and those purportedly entered into by a party who lacked capacity is artificial and unsound. The relevant legislation requires the Employment Tribunal to consider the validity of any purported settlement agreement. Only if it is valid both in form and in substance will the Tribunal’s jurisdiction to determine the claim be ousted.

Lady Wise
[2016] UKEAT 0024 – 15 – 1105
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570378

Sheredes School v Davies: EAT 13 Sep 2016

EAT Jurisdictional Points: Extension of Time: Reasonably Practicable – The Claimant instructed solicitors in relation to an unfair dismissal claim. Time for presenting the claim was to expire on 25/10/15. On 08/10/15 the solicitors advised him to seek new solicitors in relation to the claim but gave no advice about the need to present a claim by 25/10/15. On 14/10/15 there was a Solicitors’ Regulatory Authority (‘SRA’) intervention which prevented the solicitors from taking any action or communicating with clients thereafter. The Claimant saw other solicitors on 05/11/15 and, with the assistance of his wife but without having obtained the file, presented his claim on 10/11/15.
The Employment Judge extended time for presenting the claim under section 111(2)(b) Employment Rights Act 1996 on the basis that the SRA intervention was a special reason preventing the presentation of the claim in time. She failed to consider (as invited by the Respondent) whether the solicitors should have advised on 08/10/15 that the claim needed to be presented urgently and what the result would have been if such advice had been given.
That was an error of law and the appeal would be allowed. Further, since it was clear that the solicitors should have advised of the urgent need to present a claim and that, if they had done so, a claim would have been presented in time, the Employment Appeal Tribunal substituted a decision that the claim was out of time and the Employment Tribunal had no jurisdiction to consider it.

Shanks HHJ
[2016] UKEAT 0196 – 16 – 1309
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570395

Dutton v The Governing Body of Woodslee Primary School and Another (: EAT 8 Apr 2016

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke
SEX DISCRIMINATION – Indirect
The Claimant – a teacher, employed to work with children who had special educational needs and needed stability and continuity – requested to work on a reduced basis after her maternity leave (a four- rather than five-day week). The Respondents refused. On the Claimant’s claim of indirect sex discrimination, it was accepted that the PCP of working a full, five-day, week placed her and others sharing her protected characteristic at a disadvantage. It was also accepted that the Respondents had demonstrated a legitimate aim, the need for stability and continuity for the children the Claimant was employed to teach. What was in issue was whether the PCP was a proportionate means of achieving that legitimate aim. That was a matter for assessment by the ET; the test was an objective one, not limited to assessing the reasonableness of the Respondent’s response at the time but engaged in a broader exercise of assessment and scrutiny of the means adopted with a view to achieving a legitimate aim, balanced against the discriminatory impact demonstrated. In explaining its conclusion, whilst the ET was entitled to expect its reasoning to be read as a whole, the parties were entitled to see how the ET had arrived at the conclusion it did. Specifically, having acknowledged that a difficult balancing exercise arose in this case, the ET’s reasoning needed to demonstrate acknowledgement of, and engagement with, the balance required as between the need identified by the Respondents and the discriminatory impact.
Having recorded the issue before it and summarised the (largely undisputed) factual background, the ET had identified the specific questions arising from an application of the law to the facts in this case. Having observed that the points were not easy to resolve, the ET then gave a one-line answer, stating its conclusion that the PCP had been proportionate.
On the Claimant’s appeal, held: allowing the appeal
From the limited reasoning provided, it was impossible to see the ET’s engagement with the issues before it, specifically the balance required between the Respondents’ aim and the disparate impact. In some instances the answer might be obvious but the ET had acknowledged that was not the case here; yet it was impossible, from the reasons given, to see it had carried out the required assessment let alone had done so with the appropriate degree of scrutiny.
In the circumstances, the decision could not stand. Consideration was given to the possibility of a Burns/Barke Order but it was apparent that the Employment Judge had since retired and this was not an appropriate course, not least as the hearing had been in June 2014.
The appeal would be allowed and the matter remitted to be considered afresh by a new ET.

Eady QC HHJ
[2016] UKEAT 0305 – 15 – 0804
Bailii
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570377

Trye v UKME (UK Mission Enterprise Ltd): EAT 12 Jul 2016

Unfair Dismissal: Reasonableness of Dismissal
The appellant was given a final written warning.
She was dismissed for misconduct while that warning was current. Her appeal against the decision of the Employment Tribunal (‘the ET’) that her dismissal was not unfair was dismissed. The Employment Appeal Tribunal held that the ET had not erred in law in reaching that decision.

Elisabeth Laing DBE J
[2016] UKEAT 0066 – 16 – 1207
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570384

Hughes v The Coupers Partnership Ltd: EAT 18 Jul 2016

EAT Jurisdictional Points : Fraud and Illegality
PRACTICE AND PROCEDURE – Perversity
The key issue before the Employment Tribunal related to an oral agreement varying of the Claimant’s contract of employment concerning the provision of a car. The Employment Tribunal rejected the Claimant’s evidence on that question and said, further, that if the agreement had been in the terms for which the Claimant contended it would have been tainted by illegality and unenforceable.
Held: The Employment Tribunal was not perverse in rejecting the Claimant’s evidence on the question of variation. Moreover it committed no error of law in concluding that if the agreement had been in the terms for which the Claimant contended it would have been tainted by illegality. Hall v Woolston Hall Leisure Ltd [2001] ICR 99 applied. On these and on subsidiary grounds the appeal was dismissed.

David Richardson HHJ
[2016] UKEAT 0078 – 16 – 1807
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570382

British Gas Trading Ltd v Lock and Another: CA 7 Oct 2016

Appeal by British Gas against an order of the EAT dismissing British Gas’s appeal against a judgment of the Employment Tribunal. The sole issue before the tribunals was one of statutory interpretation. The practical question that is raised is whether the holiday pay of an employee with statutorily defined ‘normal working hours’, whose remuneration does not vary with the amount of work done during such hours, should (i) be calculated solely by reference to his basic pay; or (ii) include an element referable to the amount of the results-based commission he normally earned.

Sir Terence Etherton MR,m Gloster LJ, Sir Colin Rimer
[2016] EWCA Civ 983
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570108

Vino C-161/11: ECJ 22 Jun 2011

ECJ Articles 53(2) and 99 of the Rules of Procedure of the Court – Social policy – Principle of equal treatment – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4 – Fixed-term employment contracts in the public sector – Determination of length of service – Difference in treatment between civil servants and contractual staff – Taking into account previous periods of employment completed in the administration – Clear lack of jurisdiction of the Court
Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – Question raised in the context of a dispute concerning national law and not EU law – Clear lack of jurisdiction of the Court (Art. 267 TFEU)

ECLI:EU:C:2011:420, [2011] EUECJ C-161/11
Bailii
European

Employment

Updated: 23 January 2022; Ref: scu.569575

Vino v Poste Italiane: ECJ 11 Nov 2010

ECJ (Order) Article 104(3) of the Rules of Procedure – Social policy – Directive 1999/70/EC – Clauses 3 and 8 of the framework agreement on fixed-term work – Fixed-term employment contracts in the public sector – First or single use of a contract – Obligation to state the objective reasons – Elimination – Reduction in the general level of protection of employees – Principle of non-discrimination – Articles 82 EC and 86 EC
1. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Reduction of the general level of protection of workers in the field of that agreement prohibited (Council Directive 1999/70, Annex, Clause 8(3)) (see para. 48)
2. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Scope – Differences in treatment of certain categories of fixed-term workers – Not included (Council Directive 1999/70, Annex, clause 4) (see paras 55-57)
3. Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Purpose – Fixing general principles and minimum rules for certain limited aspects of fixed-term contracts – No harmonisation of all national rules relating to fixed-term contracts (Art. 267 TFEU) (see paras 50, 54, 63-65)
4. Questions referred for a preliminary ruling – Admissibility – Need to provide the Court with sufficient information on the factual and legislative context – Extent of the obligation in the sphere of competition (Art. 267 TFEU) (see paras 76-77, 79)

ECLI:EU:C:2010:677, [2010] EUECJ C-20/10
Bailii
European

Employment

Updated: 23 January 2022; Ref: scu.569525

De Diego Porras: ECJ 14 Sep 2016

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Directive 1999/70/EC – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Clause 4 – Principle of non-discrimination – Concept of ’employment conditions’ – Compensation for termination of a contract of employment – Compensation not provided for by the national legislation for temporary employment contracts – Difference of treatment as compared with permanent workers

ECLI:EU:C:2016:683, [2016] EUECJ C-596/14
Bailii
Directive 1999/70/EC
European

Employment

Updated: 23 January 2022; Ref: scu.569355

Commission v Kakol: ECFI 13 Sep 2016

ECJ (Judgment) Appeal – Public service – Officials – Open competition – Non-admission of a candidate – Non-recognition of a diploma -Admission in a previous competition – Conditions similar competition – Obligation to state reasons

ECLI:EU:T:2016:466, [2016] EUECJ T-152/15
Bailii
European

Employment

Updated: 23 January 2022; Ref: scu.569353

Medialdea v Ayuntamiento de Huetor Vega: ECJ 11 Dec 2014

ECJ (Order) Preliminary ruling – Social policy – Directive 1999/70 / EC – Framework agreement ETUC, UNICE and CEEP on fixed-term work – Contracts of successive fixed-term in the public sector – Clause 3, point 1 – Concept of ‘ fixed-term worker ‘- Clause 5, point 1 – measures to prevent abuse of contracts or employment relationships successive fixed-term – Sanctions – Reclassification of fixed-term employment relationship by working on permanent contracts not Standing – the right to compensation

C-86/14, [2014] EUECJ C-86/14 – CO, ECLI:EU:C:2014:2447
Bailii

European, Employment

Updated: 23 January 2022; Ref: scu.569152

Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1): ECJ 5 Oct 2004

ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in ambulances in the framework of an emergency service run by the German Red Cross – Definition of ‘road transport’ – Maximum weekly working time – Principle – Direct effect – Derogation – Conditions
A National Court, when applying domestic law and in particular legislative provisions specifically adopted for the purposes of implementing the requirements of a Directive, is bound to interpret national law, as far as possible, in the light of the wording and the purpose of the Directive concerned in order to achieve the result sought by the Directive. It is the responsibility of the National Court to ensure that the rules of Community law are fully effective.
Europa Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in ambulances in the framework of an emergency service run by the German Red Cross – Definition of – road transport – Maximum weekly working time – Principle – Direct effect – Derogation – Conditions.

C-399/01, [2004] EUECJ C-399/01, C-401/01, [2004] EUECJ C-401/01, [2004] EUECJ C-403/01, C-397/01, C-398/01, C-402/01, C-403/01, C-400/01, [2005] IRLR 137, [2004] ECR 8835, [2005] ICR 1307, [2004] ECR I-8835
Bailii, Bailii, Bailii
Directive 93/104/EC
European
Citing:
Approved – Landeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .
See Also – Pfeiffer etc v Deutsches Rotes Kreuz, Kreisverband Waldshut eV 4 ECJ 5-Oct-2004
ECJ Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in ambulances in the framework of an emergency service run by the German Red . .

Cited by:
Cited – Greenalls Management Ltd v Customs and Excise HL 12-May-2005
Volumes of vodka were transferred from a secure warehouse to a carrier for export. They were diverted, and not exported and the Customs sought the unpaid duty from the warehouse. The Directive provided that duty was payable on the ‘release for . .
Cited – Attridge Law (A Firm of Solicitors) v Coleman and Law EAT 20-Dec-2006
The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could . .
Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Cited – British Airways Plc v Williams and Others SC 24-Mar-2010
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other . .
Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
Cited – British Airways Plc v Williams and Others SC 17-Oct-2012
The claimants, airline pilots, and the company disputed the application of the 1998 Regulations to their employment. They sought pay for their annual leave made up of three elements: a proportionate part of the fixed annual sum paid for their . .
Cited – R and S Pilling (T/A Phoenix Engineering) v UK Insurance Ltd SC 27-Mar-2019
The driver’s car failed its MOT., He took it to private premises to repair. In those repairs, inflammable materials ignited and the fire spread those premises and adjoining third party premises. The premise’ insurers paid the owners of both and . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Transport, Employment, Health and Safety

Leading Case

Updated: 23 January 2022; Ref: scu.215895

Piepenbrock v London School of Economics and Political Science (Practice and Procedure, Sex Discrimination): EAT 21 Dec 2021

The Appellant brought ET claims against his former employer in January 2015. In December 2015 he brought High Court proceedings covering similar ground and the employment tribunal proceedings were stayed from January 2016 to November 2019.
In April 2020 the Appellant made a substantial application to amend his claim, raising, among other things, new claims of sex discrimination and harassment which themselves related back to November 2012. Most of the application (including that part related to those new claims) was refused by the EJ.
The EAT found that the EJ had wrongly considered that these new claims added little or nothing to the existing claims but found that, even if this error had not been made by the EJ, he would properly have reached the same result and refused permission for the required amendments, given his findings that the new claims could and should have been brought at the outset and that allowing the amendments would involve significant hardship to the employer.

HH Judge Shanks
[2021] UKEAT 2020-000732
Bailii
England and Wales

Employment

Updated: 23 January 2022; Ref: scu.670766

Urena De Poznanski v Commission: ECJ 2 Aug 2016

ECJ (Order) Public service – Officials – Pensions – Article 11, paragraph 2 of Annex VIII thereto – Transfer to the EU pension scheme of pension rights acquired under other pension schemes – Decision recognition bonus annuities applying the new CEO on Articles 11 and 12 of Annex VIII thereto – Article 81 of the Rules of procedure – Appeal manifestly inadmissible and in part manifestly unfounded

F-102/13, [2016] EUECJ F-102/13 – CO, ECLI:EU:F:2016:197
Bailii
European

Employment

Updated: 22 January 2022; Ref: scu.569021

Mommer v Commission F-74/13: ECJ 2 Aug 2016

(Order) Public service – Officials – Pensions – Article 11, paragraph 2 of Annex VIII of the relative status of the transfer of pension rights – Transfer to the EU pension scheme of pension rights acquired under other schemes pension – Decision recognition bonus annuity applying the new CEO on Articles 11 and 12 of Annex VIII thereto – Article 81 of the Rules of procedure – Appeal manifestly inadmissible and in part manifestly unfounded

[2016] EUECJ F-74/13 – CO, ECLI:EU:F:2016:196
Bailii
European

Employment

Updated: 22 January 2022; Ref: scu.569015

Autorita per l’energia elettrica e il gas v Bertazzi (Order): ECJ 7 Mar 2013

ECJ Article 99 of the Rules of Procedure of the Court – Social policy – Directive 1999/70 / EC – Framework Agreement ETUC, UNICE and CEEP on fixed-term work – Clause 4 – term employment contracts in the public sector – stabilization procedure – Recruitment workers employed for a fixed term as statutory public servants without competition – Determination of seniority – Total lack of consideration of periods of service under fixed-term employment contracts – Principle no discrimination

C-393/11, [2013] EUECJ C-393/11 – CO, ECLI:EU:C:2013:143
Bailii
Cited by:
Order – Autorita per l’energia elettrica e il gas v Bertazzi (Order 2) ECJ 7-Mar-2013
1. Social policy – Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Directive 1999/70 – Workers doing the same work – ‘Same work’ – Definition – Workers in a similar situation – Criteria for assessment – Nature of the work, . .

Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 22 January 2022; Ref: scu.569022

Mommer v Commission F-146/12: ECJ 2 Aug 2016

ECJ (Order) Public service – Officials – Pensions – Transfer to the Union’s pension scheme pension rights acquired under other pension schemes – annuity bonus proposal – Measure not having an adverse effect – Manifest inadmissibility of the appeal

ECLI:EU:F:2016:195, [2016] EUECJ F-146/12 – CO
Bailii
European

Employment

Updated: 22 January 2022; Ref: scu.569014

Polizzi v Commission: ECJ 2 Aug 2016

(Order) Public service – Contract staff – Pensions – Article 11, paragraph 2 of Annex VIII thereto – Transfer to the EU pension scheme of pension rights acquired under other schemes – Decision recognition bonus annuities applying the new CEO on Articles 11 and 12 of Annex VIII thereto – Article 81 of the Rules of procedure – Appeal manifestly inadmissible and in part manifestly unfounded

F-70/15, [2016] EUECJ F-70/15 – CO, ECLI: EU: F: 2016: 198
Bailii
European

Employment

Updated: 22 January 2022; Ref: scu.569016

Cocchi and Falcione v Commission: ECJ 2 Aug 2016

ECJ (Order) Public service – Duty to provide assistance – Article 24 of the Statute – Rejection of the request for assistance – Pensions – Article 11, paragraph 2 of Annex VIII of the Staff Regulations – Request for Transfer of pension rights – Waiver request transfer of pension rights during the proceedings – No need to rule on the rejection of the request for assistance

F-134/11, [2016] EUECJ F-134/11 – CO, ECLI:EU:F:2016:194
Bailii
European

Employment

Updated: 22 January 2022; Ref: scu.569013

Stolt Offshore Ltd v Fraser: EAT 26 Feb 2003

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

The Honourable Lord Johnston
EATS/0041/02, [2003] UKEAT 0041 – 02 – 2602
Bailii, EAT
Scotland
Citing:
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 January 2022; Ref: scu.180056

Aziz v Republic of Yemen: CA 17 Jun 2005

The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of the 1978 Act does not have the effect that only a submission by the head of mission would suffice to waive immunity. The court set out the following principles: ‘(a) When state immunity is claimed in appellate proceedings, the court may consider evidence called to substantiate such claim because, if substantiated, the court below had no jurisdiction to hear the case. (b) In a case where the other party claims that there has been a waiver of immunity, the court should scrutinise the available evidence. (c) Whether the issue is as to the status of the entity claimed to be an emanation of the state or as to a claimed waiver of immunity, the evidence of the Ambassador, as representative of the state, is important but not necessarily conclusive evidence of the relevant matters.’
The EAT should have remitted the matter to the ET to consider whether immunityhad been waived.

Pill LJ, Sedley LJ, Gage J
[2005] EWCA Civ 745, Times 22-Jun-2005, [2005] ICR 1391
Bailii
State Immunity Act 1978 2(7)
England and Wales
Citing:
Cited – Arab Republic of Egypt v Gamal-Eldin and Another EAT 14-Oct-1994
The appellant appealed a finding against it in the Employment tribunal, saying it had state immunity.
Held: ‘If the industrial tribunal fails to give effect to an immunity in fact enjoyed by the Arab Republic of Egypt as a result of not having . .
Cited – Ahmed v Government of the Kingdom of Saudi Arabia CA 1996
Where a defence had been filed to an action without a claim for state immunity having been made, it would have to be shown that the head of mission had submitted to the jurisdiction. . .
Cited – Arab Republic of Egypt Embassy v Gamal-Eldin and Another EAT 2-Mar-1995
. .
Cited – The Schooner Exchange v McFaddon 1812
(United States Supreme Court) The court considered the rationale of the jurisdictional immunity given to sovereign states: ‘This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of . .
Cited – The Jassy 1906
The plaintiff took process by way of arrest in a damages action in rem against a vessel which was the property of a foreign state.
Held: The action was dismissed. No waiver of the state’s privilege could be assumed even though agents of the . .
Cited – In re Republic of Bolivia Exploration Syndicate Ltd 1914
‘Even if it were conceivable that a diplomatic agent can waive his privilege, which is really the privilege of his sovereign, he can only do so intentionally, with full knowledge of his rights, and with the sanction of his sovereign or legation.’ . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Al-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
Cited – Baccus SRL v Servicio Nacional Del Trigo CA 1956
The defendant organisation carried on business from Spain and was sued in England for damages for breach of a commercial contract. An appearance was entered by their solicitors in London and a consent order made for security for the organisation’s . .
Cited – The Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
Cited – De Haber v The Queen of Portugal 1851
Orse In the Matter of Wadsworth and R of Spain In the Matter of De Haber and R of Portugal
Property in England, belonging to a foreign sovereign prince in his public capacity, cannot be seized under process in a suit instituted against him in . .
Cited – Jones v Governing Body of Burdett Coutts School CA 2-Apr-1998
The Employment Appeal Tribunal must give reasons for its decision, if it chooses to allow the amendment of appeal the papers in order to hear a point of law which had been conceded in the industrial tribunal. Citing Liverpool Corporation v Wilson, . .
Cited – Regina v Madan CCA 1961
The defendant, a clerk on the staff of the High Commissioner for India, was entitled to diplomatic immunity. He purported to waive his immunity when charged with attempting to obtain a sum of money by false pretences. He was convicted at the County . .

Lists of cited by and citing cases may be incomplete.

Employment, Jurisdiction

Updated: 22 January 2022; Ref: scu.226829

John Brown and Co Ltd v Baird: HL 4 Dec 1923

An injured workmen was paid compensation by his employers at the full statutory rate of pounds 1 per week plus the corresponding war addition of 15s. per week from 15th April 1920, the date of the accident, until 21st August 1920, when they ceased payment, maintaining that he had fully recovered. The workman contended that he was still incapacitated, but eventually signed a discharge of all his claims under the Workmen’s Compensation Act and the War Additions Acts for pounds 35. The recording of the memorandum of the agreement having been objected to by an approved society, of which the workman was a member, on the ground that the sum was inadequate, the matter was referred to the Sheriff-Substitute as arbitrator. Before anything more had been done the workman raised arbitration proceedings, to which his employers replied by founding on the discharge. The arbiter having found that the agreement was void in respect that it amounted to contracting out of the Act, the employers appealed by way of Stated Case. Eventually the present appeal was taken.
Held ( rev. judgment of the First Division, Lord Skerrington diss.) that the workman was not barred by the discharge from applying for an award of compensation; that the discharge amounted to an agreement to contract out of the Act in breach of section 3, sub-section 1; and that accordingly it fell to be set aside.

61 SLR 43
[1923] UKHL 43, 61 SLR 43
Bailii
Workmen’s Compensation Act 1906
England and Wales

Employment, Personal Injury

Updated: 22 January 2022; Ref: scu.633270

Barroso Truta and Others v Court of Justice of The European Union (Judgment) French Text: ECFI 18 Sep 2018

Appeal – Civil service – Contract staff – Pensions – Transfer to the Union pension scheme of pension rights previously acquired under national schemes – Damage resulting from the allegedly insufficient information provided to the applicants by the AHCC when the transmission of the proposals for bonuses relating to them – Dismissal of the action for compensation at first instance – Article 77, fourth paragraph, of the Staff Regulations – Pecuniary damage

T-702/16, [2018] EUECJ T-702/16P
Bailii
European

Employment

Updated: 22 January 2022; Ref: scu.622551

G4S Cash Solutions (UK) Ltd v Powell: EAT 26 Aug 2016

EAT Contract of Employment: Implied Term/Variation/Construction of Term – DISABILITY DISCRIMINATION – Reasonable adjustments
After the Claimant became disabled through a back injury the Respondent gave him work in a new role (‘key runner’) at his existing rate of pay and led him to believe that the role was long-term. The following year, however, it said that it was only prepared to employ him in this role at a reduced rate of pay; and when the Claimant refused to accept these terms he was dismissed.
It was argued by the Claimant that there was a variation of his contract entitling him to work as a key runner at his existing rate of pay. The Employment Tribunal found that there was no such variation. The Claimant cross-appealed on this point. The Employment Tribunal had rejected his case, at least in part, because it considered that an employer was entitled to impose an adjustment on an employee without the employee’s consent. This was an error of law.
However the Employment Tribunal went on to find that the Respondent was required, as a reasonable adjustment, to employ the Claimant as a ‘key runner’ at his existing rate of pay. The Respondent appealed on this question. The Employment Tribunal had been entitled to reach this conclusion. Appeal dismissed. O’Hanlon v Commissioners for HM Revenue and Customs [2007] ICR 1359 CA and Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley UKEAT/0417/11 considered.

David Richardson HHJ
[2016] UKEAT 0243 – 15 – 2608
Bailii
England and Wales

Employment

Updated: 22 January 2022; Ref: scu.568718

Itulu v London Fire and Emergency Planning Authority: EAT 11 Jul 2016

EAT Practice and Procedure: Costs – The Claimant and her representative absented themselves from the ET hearing during day two. The ET continued with the hearing on days two and three and gave Judgment with Reasons rejecting her claims. At a subsequent Costs Hearing the ET found that the Claimant had behaved unreasonably in absenting herself on day two; it made no findings adverse to her prior to that point. It awarded costs against her in respect of the refreshers of the Respondent’s counsel for the second and third days.
HELD: the ET was entitled to conclude that the costs of the Respondent incurred after the Claimant left on the second day were caused by the Claimant’s unreasonable behaviour – it had given proper reasons. However, counsel’s fee for the second day was incurred prior to the Claimant absenting herself, and the ET had not justified awarding an item of costs incurred prior to the commencement of the unreasonable conduct. Appeal allowed in part.

David Richardson HHJ
[2016] UKEAT 0055 – 16 – 1107
Bailii
England and Wales

Employment

Updated: 22 January 2022; Ref: scu.568588

Meer v London Borough of Tower Hamlets: CA 26 May 1988

The Court discussed the nature of ‘a requirement or condition’ for the purposes of the 1976 Act.
Held: Dillon LJ said: ‘The case of Perera decided that there can only be a requirement or condition within s.1(1)(b) of the Race Relations Act 1976 if the requirement or condition, or whatever other word may be used to describe it, is mandatory and an absolute bar to selection.’
Balcombe LJ, who delivered the leading judgment, said that ‘a requirement or condition under (the section) is a must – something which has to be complied with’.

Dillon, Balcombe, Staunton LJJ
[1988] EWCA Civ 10, [1988] IRLR 399
Bailii
Race Relations Act 1976 1(1)(b)
England and Wales
Citing:
Explained – Perera v Civil Service Commission (No 2) EAT 1982
The tribunal considered the method of selection of the pool on a claim for indirect discrimination. In this case the claimant alleged that an age test applied on his application would effectively limit the proportion of coloured who would meet the . .

Cited by:
Cited – Meikle v Nottingham City Council EAT 14-Apr-1994
The appellant challenged dismissal of her claim for indirect racial discrimination based on two grounds. First, that the Tribunal’s decision was perverse; in other words that it was a decision which, on the evidence before it, no reasonable tribunal . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 January 2022; Ref: scu.262641

Evening Standard Co Ltd v Henderson: CA 7 Nov 1986

The plaintiffs sought to restrain their production manager from taking up employment with another company in breach of a one year notice provision. The other company was a rival of the plaintiffs. The plaintiffs undertook to continue paying the defendant’s salary, and were ready and willing for him to continue working for them.
Held: The injunction was granted.
Lawton LJ said: ‘the injunction must not force the defendant to work for the Plaintiffs and it must not reduce him, certainly, to a condition of starvation or to a condition of idleness, whatever that may mean on the authorities on this topic. But all that, in my judgement, is overcome by the fact that the Plaintiffs have made the offer they have. The Defendant can go back to work for them. If he elects not to go back (and it will be a matter entirely for his election: there will be nothing in the judgment which forces an election on him) he can receive his salary and full contractual benefits under his contract until such time as his notice would have expired had it been for the proper period.’

Lawton LJ
[1986] EWCA Civ 9, [1987] IRLR 64, [1987] ICR 588
Bailii
England and Wales
Cited by:
Cited – Dass Solicitors v Southcott ChD 2-Apr-2009
The claimant solicitors said that the defendant employed solicitor had sought to leave without giving the required three months’ notice and had sought to persuade clients of the firm to go to his new practice. Application was made on a without . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 January 2022; Ref: scu.262653

Inner London Education Authority v Gravit: EAT 1988

The standard of reasonableness of an inquiry into an employee’s misconduct can depend upon the state of the case against him or her. Wood J said: ‘in one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end so the amount of inquiry and investigation, including questioning of the employee which may be required, is likely to increase.’

Wood J
[1988] IRLR 497
England and Wales
Cited by:
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 January 2022; Ref: scu.268061

Dairy Crest Ltd v Piggott: CA 1989

When considering restrictive covenants in employment cases, courts must not seek to uphold a clause as reasonable only because the same clause was upheld in a different case. It is an error of law. There is no ‘tariff’ of what is reasonable. In this case the post-employment non-solicitation restriction extended to two years, but was upheld.

[1989] ICR 92
England and Wales
Citing:
Cited – Stenhouse Australia Ltd v Phillips PC 2-Oct-1973
(Australia) An employer’s claim for protection from competition by a former employee under a restrictive covenant must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as, in a . .

Cited by:
Cited – Allan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
Cited – Associated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 January 2022; Ref: scu.240031

Nelson v British Broadcasting Corporation: CA 1977

Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he might be required.
Held: The closure of the BBC service in the Caribbean did not involve a redundancy since he was expressly not employed to perform his services there.
Roskill LJ said: ‘The corporation’s case before the industrial tribunal was simplicity itself: ‘This man was employed for the purpose of the Caribbean Service. The Caribbean Service was being shut down as a result of Treasury demands for economy. Therefore we could no longer keep him there; his services were not required; and therefore he became redundant; and because he became redundant he cannot claim to have been unfairly dismissed.’ The industrial tribunal, as I said at the beginning of this judgment, accepted that argument and rejected the claim. They went into the matter with very great care. They held that Mr Nelson had become redundant. They reached that conclusion because of an argument that was apparently put forward that it was a term of Mr Nelson’s employment that he should be employed for, and for all practical purposes only for, programmes for the Caribbean. That emerges very clearly from the industrial tribunal’s reasons. It was said that, notwithstanding the very wide words of clause 8 of the agreement none the less: ‘We think it was a term of Mr Nelson’s contract of employment, arising by necessary implication or inference from the primary facts, that he was employed for the purposes of broadcasts to the Caribbean.’ With great respect to the tribunal, that seems to me to be an impossible conclusion as a matter of law, for this reason: it is a basic principle of contract law that if a contract makes express provision (as clause 8 did) in almost unrestricted language, it is impossible in the same breath to imply into that contract a restriction of the kind that the industrial tribunal sought to do.’ The employers were not allowed to amend their pleadings to allege dismissal for some other reason, and they had failed to establish a potentially fair reason for dismissal, so that the employee was entitled to succeed.

Roskill LJ, bUxton LJ
[1977] IRLR 148
England and Wales
Cited by:
Cited – Murray and Another v Foyle Meats Ltd (Northern Ireland) HL 8-Jul-1999
The company decided to make redundancies. The applicants, all selected, had worked in more than one section of the plant. All employees worked under the same contract, but employees were chosen only from the one section. The complainants said that . .
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – Nelson v British Broadcasting Corporation (No 2 ) CA 1980
Mr Nelson was employed as a producer but had in fact been engaged in the Caribbean Service of the BBC in terms of the work which he had actually been doing. The contract of employment expressly provided that he should serve wherever and however he . .
See Also – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Victoria and Albert Museum v Durrant EAT 5-Jan-2011
EAT UNFAIR DISMISSAL
Reason for dismissal including some other substantial reason
The correct interpretation of section 106 of Employment Rights Act 1996 (‘the Act’) was considered.
The . .

Lists of cited by and citing cases may be incomplete.

Employment, Contract

Updated: 22 January 2022; Ref: scu.182825

Hollister v National Farmers Union (NFU): CA 1979

The correct approach for the Industrial Tribunal looking at a company re-organisation is to make a finding as to the advantages to the employers of a proposed re-organisation and whether it was reasonable for them to implement it by terminating existing contracts and offering employees new ones. If there is a sound good business reason for the particular reorganisation the unreasonableness or reasonableness of the employer’s conduct has to be looked at in the context of that re-organisation.
It is not right to go through the reasoning of Tribunals with a toothcomb to see if some error can be found. The findings of a Tribunal should be looked at by the EAT ‘broadly’. If it appeared that they had applied the right test and that their conclusion was broadly reasonable it should not be interfered with.
Lord Denning MR said: ‘The question which is being discussed in this case is whether the reorganisation of the business, which the National Farmers’ Union felt they had to undertake in 1976, coupled with Mr Hollister’s refusal to accept the new agreement, was a substantial reason of such a kind as to justify the dismissal of the employee. Upon that there have only been one or two cases. One we were particu larly referred to was the case of Ellis v Brighton Co operative Society Ltd [1976] IRLR 419, where it was recognised by the Court that reorganisation of business may on occasion be a sufficient reason justifying the dismissal of an employee. They went on to say: ‘Where there has been a properly consulted-upon reorganisation which, if it is not done, is going to bring the whole business to a standstill, a failure to go along with the new arrange ments may well -it is not bound to but it may well constitute ‘some other substantial reason’.’ Certainly, I think, everyone would agree with that. But in the present case Mr Justice Arnold expanded it a little so as not to limit it to where it came absolutely to a standstill but to where there was some sound, good business reason for the reorganisation. I must say I see no reason to differ from Mr Justice Arnold’s view on that It must depend in all the circumstances whether the reorganisation was such that the only sensible thing to do was to terminate the emp loyee’s contract unless he would agree to a new arrangement. It seems to me that that paragraph may well be satisfied, and indeed was satisfied, in this case, having regard to the commercial necessity of rearrangements being made and the termination of the relationship with the Cornish Mutual, and the setting up of a new relation ship via the National Farmers’ Union Mutual Insurance Limited.’

Lord Denning MR
[1979] IRLR 238, [1979] ICR 542
England and Wales
Cited by:
Cited – Kenneth Cobley v Forward Technology Industries Plc CA 14-May-2003
The claimant had been chief executive and a director of the respondent for many years, but was dismissed upon it being taken over. His contract of employment as chief executive provided that it was to be coterminous with his appointment as director. . .
Cited – Abadeh v British Telecommunications Plc EAT 19-Oct-2000
EAT The claimant appealed dismissal of his claim under the 1995 Act. He was a telephone operator injured after a sudden shriek in his ear. They had found him not to be disabled within the 1995 Act.
Held: . .
Cited – St John of God (Care Services) Ltd v Brooks and others EAT 8-Apr-1992
The appellant had suffered a reduction in its income. It made an offer to staff, on the point of dismissing for refusal to sign, of less favourable terms, including reduced pay and holiday entitlement and the abolition of overtime rates for weekend . .
Cited – Northgate HR Ltd v Mercy CA 13-Dec-2007
The claimant alleged that his selection for redundancy was unfair, the company having failed properly to consult its own employee consultation council and in having failed to disclose its scoring system. The company said that any such complaint . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 January 2022; Ref: scu.182399

Stiopu v Loughran (Practice and Procedure- Application/Claims): EAT 20 Jul 2021

The employment judge erred in rejecting the claim on the basis that ‘the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation certificate relates’ (rule 12(1)(f) of schedule 1 to the 2013 Regulations), as she failed to consider whether the claimant had ‘made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim’ (rule 12(2A)).
Rule 12(2A) is a ‘rescue provision’, designed to prevent claims from being rejected for technical failures to use the correct name of the respondent in the early conciliation certificate and the ET1. In every case where rule 12(1)(f) may apply, the employment judge should ask him or herself the question as to whether there is a ‘minor error’ in relation to a name or address and whether it would or would not ‘be in the interests of justice to reject the claim.
In the instant case, there was material available to the employment tribunal to suggest, or indicate, that a ‘minor error’ could have been made.

Clive Sheldon QC (Deputy Judge of the High Court)
[2021] UKEAT 2020-000752
Bailii
England and Wales

Employment

Updated: 22 January 2022; Ref: scu.670762