EAT PRACTICE and PROCEDURECompromiseSection 203(1) of the Employment Rights Act 1996 (‘ERA’) deems as void provisions, which preclude a party from bringing proceedings before an Employment Tribunal, save in respect of agreements which satisfy certain specific requirements, which are set out in section 203(3) of ERA. Does that Employment Tribunal have jurisdiction to determine whether … Continue reading Industrious Ltd v Horizon Recruitment Ltd and Another: EAT 11 Dec 2009

EAT Whether, and, if so, in what circumstances, a director and controlling shareholder of an insolvent company may recover from the Secretary of State for Trade and Industry payments in respect of debts falling within section 184 of the Employment Rights Act. Citations: [1997] UKEAT 516 – 97 – 1201, [1998] IRLR 120, [1998] ICR … Continue reading Secretary of State for Trade and Industry v Bottrill: EAT 12 Jan 1997

The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times when she had no work. Held: Given the authorities there was ample reason to find a … Continue reading Cornwall County Council v Prater: CA 24 Feb 2006

A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.Sir Christopher Slade summarised as follows: ‘Principles governing appeals from an industrial tribunal At first impression … Continue reading Clark v Oxfordshire Health Authority: CA 18 Dec 1997

Uber drivers are workers The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers. Held: The appeal failed (Underhill LJ dissenting) The drivers accepted the control of tee Uber app: ‘Even if drivers are not obliged … Continue reading Uber Bv and Others v Aslam and Others: CA 19 Dec 2018

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularityUNFAIR DISMISSAL: Reasonableness of dismissalAppeal allowed. The Tribunal erred in law in its approach to the questions to be determined for the purposes of section 98(4) of the Employment Rights Act 1996, effectively substituting its own views. The Tribunal did not, however, evince apparent bias. Citations: [2009] … Continue reading Royal Bank of Scotland Group Plc v Wilson: EAT 24 Jun 2009

EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicableClaimant dismissed for misconduct – Internal appeal panel decision announced orally without reasons two days before expiry of three-month limit under s. 111 (2) of Employment Rights Act 1996 – On basis of oral decision, Claimant believes ‘hopeless’ to bring unfair dismissal claim – On receipt of … Continue reading Cambridge and Peterborough Foundation NHS Trust v Crouchman: EAT 8 May 2009

EAT UNFAIR DISMISSAL: Reasonableness of dismissalJURISDICTIONAL POINTS: 2002 Act and pre-action requiments The Employment Tribunal conflated the requirements placed on employers under Part 1 of Schedule 2 of the Employment Act 2002 with the duty to conduct a fair and proper disciplinary process. The statute placed minimum requirements only on employers; the sanction for failure … Continue reading Johns v ISS Mediclean Ltd: EAT 27 Jan 2009

EAT UNFAIR DISMISSAL: Constructive dismissal The Employment Tribunal did not approach the question of constructive unfair dismissal in a last straw case by reference to the steps in Omilaju. To take an analytic approach and ask of each event whether the Claimant had proved a breach or fundamental breach of contract was an error. Appeal … Continue reading Muschett v Parkwood Healthcare: EAT 16 Mar 2009

EAT UNFAIR DISMISSAL: Compensation/Mitigation of loss The employee was unfairly constructively dismissed. She was entitled to a 6 month notice period that was not paid by the employees in that period, during some of which she received payments for temporary work from a different employer. The ET, applying Norton Tool and Burlo, did not give … Continue reading Stuart Peters Limited v Bell: EAT 22 Oct 2008

EAT UNFAIR DISMISSAL: Dismissal/ambiguous resignation 1. The claimant handed in a letter of resignation to the respondents and he was then given a period of about 30 minutes to reconsider his decision. 2. He confirmed that he wished to resign but he later sought to change his mind. 3. The claimant claimed that he had … Continue reading Ali v Birmingham City Council: EAT 27 Oct 2008

EAT UNFAIR DISMISSAL: Automatically unfair reasons PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke The employee claimed that she had been dismissed for making protected disclosures and that her dismissal was unfair under s98A(1) and 98(4) of the Employment Rights Act 1996 (ERA). She failed on protected disclosure; the dismissal was unfair under s98A(1) but if a proper … Continue reading Muchesa v Central and Cecil Housing Care Support: EAT 22 Aug 2008

EAT UNFAIR DISMISSAL: Reasonableness of dismissal JURISDICTIONAL POINTS: 2002 Act and pre-action requirements The majority judgment of the Employment Tribunal that the Respondent dismissed the Claimant unfairly in breach of the EADR 2004, Steps 1 and 2(ii)(b), and if necessary, Employment Rights Act 1996 s98(4), was set aside. It was made without explanation as to … Continue reading London United Busways Ltd v Salim: EAT 30 May 2008

The appellant had employed the three claimants in his medical surgery, but they claimed automatic unfair dismissal when the practice closed on his suspension from practice and the statutory procedures were followed but not to the procedural standard, alleging unreasonable delay in the appeals. Held: The employer’s appeal succeeded. The employees’ appeals failed. There was … Continue reading Selvarajan v Wilmot and others: CA 23 Jul 2008

Unfair dismissal – reasonableness of dismissal – section 98(4) Employment Rights Act 1996 The Claimant was a teacher employed by the Respondent who had an unblemished career until it was alleged that he had acted inappropriately by grabbing a pupil (pupil A), pushing him against a wall and putting his fingers to the pupil’s throat. … Continue reading Hargreaves v Manchester Grammar School: EAT 11 Jun 2018

An industrial tribunal hearing conducted behind the locked doors of the chairman’s office was not held in public, even if, in fact, no member of the public was prevented from attending. The obligation to sit in public was fundamental, and the tribunal had no jurisdiction to conduct itself in this way. The industrial tribunal system … Continue reading Storer v British Gas plc: CA 25 Feb 2000

EAT UNFAIR DISMISSAL: Reasonableness of dismissal / Mitigation of lossSTATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES – Whether infringedAn Employment Tribunal had correctly held that the failure of an employer to provide adequate details of the complaints against an employee vitiated the disciplinary proceedings so that the dismissal was automatically unfair by virtue of Section 98A Employment … Continue reading Sandsfield Gravel Co Ltd v Loving: EAT 28 Apr 2009

UNFAIR DISMISSAL – Exclusions including worker/jurisdiction UNFAIR DISMISSAL – Reason for dismissal including substantial other reason UNFAIR DISMISSAL – Reasonableness of dismissal UNFAIR DISMISSAL – Polkey deduction The Claimant was a Reservist in the Marines. He was dismissed without warning for some other substantial reason in that he had committed to undertake a seven-week training … Continue reading Hawkes v Ausin Group (UK) Ltd: EAT 14 Jun 2018

The employer had applied to strike out their employee’s claim for unfair dismissal, and also sought a deposit from the claimant. The claim had been re-instated by the EAT. Held: A claim should not be struck out where, as here, there were facts in dispute between the parties which might affect the decision. It was … Continue reading Ezsias v North Glamorgan NHS Trust: CA 7 Mar 2007

The claimant said his dismissal had been automatically unfair under section 106(a) which protected him as a whistleblower. The court was asked whether any disclosure had to relate to an actual criminal offence, or otherwise what would be sufficient. The claimant had reported a failure by the college to act on reports that another lecturer … Continue reading Babula v Waltham Forest College: CA 7 Mar 2007

EAT Unfair dismissal – Automatically unfair reasonsA procedure will only have been completed within the meaning of section 98A(1)(b) of the Employment Rights Act 1996 if it has been completed in accordance with the requirements of Schedule 2 to the Employment Act 2002. Citations: [2006] UKEAT 0368 – 06 – 2012 Links: Bailii Citing: Cited … Continue reading Patel v Leicester City Council: EAT 20 Dec 2006

EAT Unfair dismissal – Automatically unfair reasonsA procedure will only have been completed within the meaning of section 98A(1)(b) of the Employment Rights Act 1996 if it has been completed in accordance with the requirements of Schedule 2 to the Employment Act 2002. Judges: The Honourable Mr Justice Keith Citations: [2006] UKEAT 0368 – 06 … Continue reading Patel v Leicester City Council: EAT 20 Nov 2006

EAT Unfair dismissal – Reasonableness of dismissal; Procedural Fairness/automatically unfair dismissal Practice and Procedure – Amendment Employment Tribunal’s conclusion of unfairness could not be criticised and was correct, especially as unappealed findings would make the dismissal unfair in any event by reason of the manager’s closed mind and failure to conduct proper investigations. Claimant wished … Continue reading Masterfoods (A Division of Mars UK Ltd) v Wilson: EAT 7 Aug 2006

EAT The claimant was dismissed and presented a claim for unfair dismissal. In his ET1, he asserted a belief that he had been dismissed because of his assertion of a statutory right. The form referred to the respondents having tried to have the claimant work in excess of 48 hours per week. At the time … Continue reading Mclean and v Rainbow Homeloans Ltd: EAT 15 Sep 2006

The appellant school ICT teacher had hacked into the school’s computer system, in order, he said, to demonstrate its weakness. He appealed against rejection of his assertion that his dismissal was unfair for being caused by his protected disclosure. The EAT had found his dismissal not to have been from the protected disclosure, but from … Continue reading Bolton School v Evans: CA 15 Nov 2006

EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He appealed but the appeal was heard after the date when the contract would have expired by effluxion of time. The appeal … Continue reading Prakash v Wolverhampton City Council: EAT 1 Sep 2006

The claimant had been employed as an IT teacher. He was disciplined for testing the school’s computer system and revealing that it was open to abuse by hackers. He complained that this had been a qualifying protected disclosure under the 1996 Act. The claimant now sought leave to appeal. Held: Leave was granted. The single … Continue reading Bolton School v Evans: CA 9 May 2006

The claimant had been dismissed shortly after becoming unable to work. She sought payment of her normal salary during the period of notice saying this was established good practice. Held: ‘We are put in the invidious position of being bound by a Court of Appeal decision which seems to the majority to conflict with a … Continue reading Langley and Another v Burso: EAT 3 Mar 2006

EAT The claimant had worked as an adviser for the respondent identifying investment opportunities. He said he had been unfairly dismissed after disclosing that the company had overpaid for an investment. He now appealed against a finding that any disclosures were not made in good faith and were not qualifying disclosures. Though his dismissal had … Continue reading Bachnak v Emerging Markets Partnership (Europe) Ltd: EAT 27 Jan 2006

EAT Unfair Dismissal: Reasonableness of Dismissal and CompensationEmployment Tribunal correctly applied the objective test of the band of reasonable responses to the facts it found. Appeal against liability dismissed.On the basic award of compensation, it did not err when it did not reduce the award by 50% as it had for contributory fault in respect … Continue reading Compass Group UK and Another v Baldwin: EAT 5 Jan 2006

The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user. Held: The end-user company’s appeal failed. The ET was entitled to hold that Mr Muscat had been an … Continue reading Cable and Wireless Plc v Muscat: CA 9 Mar 2006

The applicant was employed as director-general, with his contract stating that his retirement age would be 70. Nobody else had a similar occupation within the organisation, and he said this therefore constituted his ‘normal age’ for retirement, entitling hiim to claim unfair dismissal. Held: The fact that only one employee was in the applicant’s class, … Continue reading Wall v The British Compressed Air Society: CA 10 Dec 2003

The parties had been in negotiations, attempting to settle a proposed action for unfair dismissal. They agreed to fix the effective date of determination at a certain date, but this was after the date fixed by the statute. The action was begun within three months of the agreed date, but not the statutory date. Held: … Continue reading Fitzgerald v University of Kent at Canterbury: CA 17 Feb 2004

EAT Unfair Dismissal When an employee is dismissed and then reinstated on an internal appeal it is open to the parties to agree reinstatement as a matter of contract and such an arrangement albeit made after the gap in the continuity of employment, fills in the gap for the purposes of section 212 of the … Continue reading London Probation Board v Kirkpatrick: EAT 7 Jan 2005

The applicant was employed by the respondent who had a collective agreement with a trade union. Held: Not all elements of the collective agreement need be intended to be legally enforceable. She complained that the collective agreement would have protected her from compulsory redundancy. Keene LJ said: ‘the words relied on by the respondent . … Continue reading Kaur v MG Rover Group Ltd: CA 17 Nov 2004

The tribunal set out the test for whether a dismissal was for redundancy: ‘Free of authority, we understand the statutory framework . . involve a three-stage process: (1) was the employee dismissed: If so, (2) had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished, … Continue reading Safeway Stores Plc v Burrell: EAT 24 Jan 1997

The claimant was employed, receiving a basic pay together with commission on sales. After termination of his employment he complained that he should have been paid holiday pay based upon the average total pay rather than the basic pay. Held: The right to holiday pay arose under the Regulations, but the pay was calculated under … Continue reading Evans v Malley Organisation Ltd (t/a First Business Support): CA 27 Nov 2002

The claimant appealed against a decision that she had not been unfairly dismissed. She had been dismissed after complaints by a colleague, but had not been given the opportunity to examine him during the process. Held: An employer was not duty bound to allow an employee subject to a disciplinary hearing to cross examine those … Continue reading Santamera v Express Cargo Forwarding (T/A IEC Ltd): EAT 26 Nov 2002

In a protected disclosure case, time runs from the occurrence of the alleged detriment and not from the alleged disclosure.Lord Nimmo Smith said: ‘It would appear to us to be consistent with the main purpose of the 1998 Act to approach the matter in this way, as to construe it in the manner suggested by … Continue reading Stolt Offshore Ltd v Miklaszewicz: SCS 21 Dec 2001

EAT Practice and Procedure – Employment Tribunal made adverse findings against Respondent when the point had not been put to its 3 witnesses in XX. Remit to new Employment Tribunal. Judges: McMullen QC J Citations: [2004] UKEAT 0109 – 03 – 2807, EATS/0109/03 Links: Bailii, EAT Statutes: Employment Rights Act 1996 99 Jurisdiction: England and … Continue reading Eildon Ltd v Sharkey: EAT 28 Jul 2004

The claimant alleged that she had been dismissed for making qualifying disclosures about her employers. The employer said that her actions had not been in good faith. The claimant answered that her motive was irrelevant. The claimant appealed dismissal of her claim. Held: The minimum requirement of the Act was that the disclosures were made … Continue reading Street v Derbyshire Unemployed Workers’ Centre: CA 21 Jul 2004

The employee had been dismissed. He began a claim for unfair dismissal, but also appealed within his employers’ procedure, accepting a demotion. The tribunal then found that he had not been dismissed. Held: There had been no dismissal. Had he not been re-instated, his dismissal would have ben unfair, but the appeal decision did not … Continue reading Roberts v West Coast Trains Ltd: CA 16 Jun 2004

The claimant had been employed by the respondents, partners in a former firm of solicitors. On the retirement of one partner, the practice was continued by the sole remaining partner, who claimed that the dissolution broke the continuity of the employment so as to defeat her application for unfair dismissal. Held: The dissolution of the … Continue reading Bower v Stevens and Another: CA 6 Apr 2004

A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity. Held: The regulations did not require that in order to be governed by the regulations, a business transferred had to be a discrete entity. Judges: Lord Justice May Lord Justice Mummery … Continue reading Fairhurst Ward Abbotts Limited v Botes Building Limited and others: CA 13 Feb 2004

The applicant had been a head teacher. She claimed unfair dismissal. The respondents claimed that they were not her employers. The school was a community school. Held: The governors should have been the correct respondents. They held the powers consistent with the power to dismiss. A constructive dismissal claim should not be treated differently on … Continue reading Kent County Council v Green: CA 23 Jan 2004