EAT UNFAIR DISMISSAL – Reasonableness of dismissalEmployment Tribunal entitled to conclude that notwithstanding procedural defects the employer’s decision to dismiss was reasonable in all the circumstances of the case. Appeal dismissed. Judges: Peter Clark J Citations: [2013] UKEAT 0317 – 12 – 0702 Links: Bailii Jurisdiction: England and Wales Employment Updated: 14 November 2022; Ref: … Continue reading Buzolli v Food Partners Ltd: EAT 7 Feb 2013

EAT UNFAIR DISMISSAL Constructive dismissal Polkey deduction Having concluded in its first Judgment that the Appellants had been unfairly dismissed, the Employment Tribunal erred in its law in failing to have regard to its reasons for reaching that conclusion when deciding, in its second Judgment, that the likelihood of the Appellants being made redundant if … Continue reading Budge (Was Known As Baker) and Another v McGinley Support Services Ltd and Another: EAT 15 Nov 2012

EAT VICTIMISATION DISCRIMINATION – Protected disclosureWhether Claimant may rely on post-termination protected disclosure in ‘whistleblowing’ claim under s.47B Employment Rights Act 1996. He can. Appeal allowed against Employment Tribunal Judgment to the contrary. Judges: Peter Clark J Citations: [2013] UKEAT 0407 – 12 – 2501 Links: Bailii Statutes: Employment Rights Act 1996 47B Jurisdiction: England … Continue reading Onyango v Berkeley (T/A Berkeley Solicitors): EAT 25 Jan 2013

EAT UNFAIR DISMISSAL – CompensationPRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularityAppeal allowed on the ground that the Employment Tribunal did not consider a submission of constructive dismissal at a remedies hearing or its application to the facts of the case. Case remitted to same ET. Judges: Birtles J Citations: [2012] UKEAT 0134 – … Continue reading Pybus v Geoquip Ltd: EAT 20 Nov 2012

EAT UNFAIR DISMISSAL – Constructive dismissalEmployment Tribunal finding breach of implied term of mutual trust and confidence leading to constructive dismissal. No error of law shown. Appeal dismissed. Judges: Peter Clark J Citations: [2012] UKEAT 0345 – 12 – 0712 Links: Bailii Jurisdiction: England and Wales Employment Updated: 14 November 2022; Ref: scu.471290

EAT UNFAIR DISMISSAL – Reasonableness of dismissal The Employment Tribunal regarded the fact that the Claimant had been given a final warning as determinative of the question whether his dismissal for subsequent conduct was fair. Without the previous warning the dismissal would have been held unfair. Held: if the Employment Tribunal has cause on the … Continue reading Simmonds v Milford Club: EAT 6 Dec 2012

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularityThe Employment Tribunal failed to make the appropriate findings of fact and explain its reasoning as to why it found the Respondent had failed to process the medical assessment – delayed it – to enable her return to work: Meek v Birmingham City Council [1987] IRLR … Continue reading Mohammed (T/A Mohammed and Co Solicitors) v Jackson: EAT 18 Dec 2012

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity UNFAIR DISMISSAL – Compensation Appeal against a finding of race discrimination by an employer on the grounds of prevention of cross-examination dismissed on the grounds that (a) there was only limited intervention by the Employment Tribunal and (b) such intervention was justified as the questioning … Continue reading Contract Security Services v Adebayo: EAT 11 Dec 2012

EAT UNFAIR DISMISSAL – Reasonableness of DismissalThe Employment Tribunal held that dismissals following a redundancy selection exercise had been unfair principally because employees’ capabilities had been assessed entirely on the basis of a series of exercises designed for use in a recruitment context and had taken no account whatever of their past performance; the results … Continue reading Mental Health Care (UK) Ltd v Biluan and Another: EAT 28 Feb 2013

EAT UNFAIR DISMISSAL – Reasonableness of dismissalThe Employment Tribunal erred in holding that the Respondent had taken all steps to seek to mitigate the injustice caused to the Claimant by his removal from the workplace at the behest of a third party without considering whether the Respondent had taken reasonable steps to inform themselves of … Continue reading Bancroft v Interserve (Facilities Management) Ltd: EAT 13 Dec 2012

The council appealed a finding that the claimant had been unfairly dismissed. He worked in the Cleansing Department, but took on additional private work in refuge disposal in breach of his contract. A co-worker who had done the same was not dismissed because of his exemplary record. Held: The appeal succeeded. The tribunal, when considering … Continue reading London Borough of Harrow v Cunningham: EAT 2 Nov 1995

The employers had sought to appeal from a decision of the employment tribunal. The EAT had refused it as out of time. Held: The rules required the appellant to file within 42 days of receiving the decision, the notice of appeal together with a copy of the tribunal’s written reasons. ‘Sent’ meant the date on … Continue reading Gdynia American Shipping Lines (London) Ltd v Chelminski: CA 8 Jul 2004

EAT PRACTICE AND PROCEDURE – Striking-out/dismissalEmployment Tribunal proceedings withdrawn; High Court proceedings intimated. Application to dismiss under ET R25(4) rejected by Employment Judge. Respondent’s appeal dismissed. New proceedings did not amount to an abuse. Verdin considered. Judges: Peter Clark J Citations: [2013] UKEAT 0353 – 12 – 1601 Links: Bailii Jurisdiction: England and Wales Citing: … Continue reading Thomas Cook Airline Services Ltd v Wolstenholme: EAT 16 Jan 2013

EAT REDUNDANCY PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity The Claimant worked as an Accountant in the Respondent’s Children and Families Directorate. The Employment Tribunal was correct to find that a redundancy situation was created when the Respondent reorganised the Directorate and introduced requirement for skills the Claimant was not considered to have. … Continue reading Barot v London Borough of Brent: EAT 17 Jan 2013

EAT Practice and Procedure : Striking-Out or Dismissal – Exceptional case in which, after some 16 days of hearings, the Employment Tribunal was entitled to strike out claim by reason of the Claimant’s conduct of the proceedings rendering a fair trial impossible. Judges: Peter Clark J Citations: [2013] UKEAT 0571 – 12 – 2901 Links: … Continue reading Jakpa v London Underground Ltd and Others: EAT 29 Jan 2013

The court considered an appeal against a refusal of a late application for an adjournment by an employment tribunal. Held: The appeal was allowed. There had been no error of law in the decisions of the ET to refuse adjournments either in its approach in principle to the exercise of the ET’s discretion or in … Continue reading Transport for London v O’Cathail: CA 29 Jan 2013

EAT Unfair Dismissal : Dismissal or Ambiguous Resignation – Whether sanction short of dismissal on internal appeal expunged earlier dismissal. Employment Tribunal held: yes. On analysis, the contractual provision required the Claimant’s agreement to the lower sanction. Absent that agreement his dismissal stood – Roberts v West Coast Trains considered. Claimant’s appeal allowed. Judges: Peter … Continue reading Piper v Maidstone and Tunbridge Wells NHS Trust: EAT 18 Dec 2012

EAT Practice and Procedure : AmendmentET1 alleged unfair dismissal (unfair selection for redundancy), and direct discrimination (because of disability) arising out of the employer including two periods of absence caused by the disability when scoring sickness absence in the selection process. The Claimant later applied to add claims of direct and indirect discrimination, discrimination arising … Continue reading Charles v Kuehne and Nagel Ltd: EAT 17 Oct 2012

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – The Employment Tribunal was entitled to conclude that the reason it found for dismissal (redundancy) was the principal reason, even though some evidence pointed to other reasons (capability, conduct) and that the employer might have acted to disguise those reasons by alleging redundancy. Nor, … Continue reading Fish v Glen Golf Club: EAT 23 Oct 2012

EAT Unfair Dismissal : Reasonableness of Dismissal – The Employment Tribunal misunderstood or misapplied the evidence. A different tribunal must consider the case afresh. Judges: Wilkie J Citations: [2012] UKEAT 0052 – 12 – 2711 Links: Bailii Jurisdiction: England and Wales Employment Updated: 12 November 2022; Ref: scu.468956

EAT Unfair Dismissal : Polkey Deduction – Reinstatement/re-engagement – The Employment Tribunal found that an employee bus driver, dismissed procedurally unfairly for capability reasons (the effects of an accident), would have been 60% likely to have been fairly dismissed given time and proper procedures. The employee having fully recovered as at the date of hearing, … Continue reading Arriva London Ltd v Eleftheriou: EAT 20 Nov 2012

EAT Procedural Issues – Employment Tribunal. Judges: His Hon Judge Clark Citations: EAT/345/00 Links: EAT Jurisdiction: England and Wales Employment Updated: 12 November 2022; Ref: scu.255322

Practice and Procedure 1. The Claimant, who had been assisted by her daughter at earlier hearings, required emergency dental treatment on the day and at the time fixed for the hearing of the Respondents’ application for an order striking out her claims on the basis that a fair hearing was no longer possible. 2. The … Continue reading Mukoro Independent Workers Union of Great Britain (Practice and Procedure): EAT 24 Mar 2021

EAT PRACTICE AND PROCEDURE – AmendmentThe Employment Tribunal held that the Appellant company, the transferee following a service provision change, needed permission to amend its ET3 in order to challenge whether Claimant was an employee (as opposed to being self-employed) prior to the transfer, and refused permission – Held that no such permission was required … Continue reading Big City Leisure Ltd v McCarthy: EAT 31 Oct 2012

EAT Jurisdictional Points : Claim In Time and Effective Date of TerminationContract workers banned – they claimed for discriminatory reasons – from working again for the principal. Claim brought some 6 months after this. Question was whether the ban was an act extending over a period, so as to confer jurisdiction, or whether Employment Tribunal … Continue reading Okoro and Another v Taylor Woodrow Construction Ltd and Others: EAT 26 May 2011

EAT UNFAIR DISMISSALThe Claimant, a staff nurse of long experience, was dismissed by the Respondent after she had delegated the administration of a drug to a care assistant in the Respondent’s care home; the care assistant gave the drug to the wrong patient. In breach of the Nursing and Midwifery Council’s guidelines, the Claimant neither … Continue reading Bryant v Saga Care Homes Ltd: EAT 11 Dec 2012

This was an appeal against the decision at a remedies hearing, following the conclusion that the employee had suffered discrimination on grounds of disability. The employee contended she had suffered a serious psychiatric injury as a result of the unlawful discrimination which prevented her from working for the foreseeable future and which required round the … Continue reading Royal Bank of Scotland Plc v AB: EAT 27 Feb 2020

PRACTICE AND PROCEDURE – Postponement or stay In considering an application for a stay, the Employment Tribunal ought to have considered the particular difficulty faced by a Claimant who contended that documents disclosed in related criminal proceedings were relevant to his employment claim, but also was prevented from demonstrating their relevance by the undertaking which … Continue reading Wollenberg v Global Gaming Ventures (Leeds) Ltd and Others (Practice and Procedure – Postponement or Stay): EAT 31 Jan 2019

EAT UNFAIR DISMISSALReason for dismissal including substantial other reasonReasonableness of dismissalThe Employment Tribunal erred in deciding that the unfair procedure did not matter because it related to matters, which the ET concluded, by a process of itself defining the reason for dismissal as opposed to considering the Respondent’s reason, were not a significant part of … Continue reading O’Hanlon v Post Office Ltd: EAT 15 Oct 2012

EAT PRACTICE AND PROCEDURE Case management Postponement or stay The Employment Tribunal refused to postpone a multi-day hearing in circumstances where the Claimant’s medical evidence indicated that he was genuinely unwell and unfit to attend. There was a history of delay and previous adjournments. Cases relating to decisions on adjournment applications and to the need … Continue reading Beardshall v Rotherham Metropolitan Borough Council and Others: EAT 26 Oct 2012

EAT Unfair Dismissal : Reasonableness of Dismissal – Contributory fault The majority of the Employment Tribunal, the Employment Judge dissenting, found the Respondent liable for the unfair dismissal for misconduct of the Claimant, but reduced his compensation by 55%. The EAT would not intervene once a correct self direction was given and the facts found, … Continue reading Circle Anglia Ltd v Simons: EAT 16 Oct 2012

EAT Transfer of Undertakings : Dismissal or Automatically Unfair Dismissal Pensions and other terms On a service provision change to which TUPE applied, the Employment Tribunal found, following a correct self direction on the law, the reason for the dismissal of the transferor’s staff was redundancy and the transferee was liable. This finding of fact … Continue reading British Telecommunications Plc v Adamson and Others: EAT 27 Sep 2012

EAT UNLAWFUL DEDUCTION FROM WAGES At the hearing of the Claimant’s claim of unauthorised deductions, taken from his payments when he was made redundant in order to repay his car loan, the Employment Tribunal raised with the employer’s counsel the provisions of the Consumer Credit Act 1974. It then ruled upon it without giving counsel … Continue reading Guildprime Specialists Contractors Ltd v Knight: EAT 24 Sep 2012

EAT Practice and procedure. Whether competent for Employment Tribunal to call its own witnesses despite opposition from both parties. Tribunal’s decision to do so set aside on appeal. Appeal against witness order upheld. Judges: Lady Smith Citations: [2012] UKEAT 0011 – 12 – 2205, [2012] ICR D36 Links: Bailii Jurisdiction: England and Wales Employment Updated: … Continue reading Arnold Clark Automobiles Ltd v Middleton: EAT 22 May 2012

EAT UNLAWFUL DEDUCTION FROM WAGESThe Claimants claimed that the Respondent had wrongly evaluated their jobs under the applicable job evaluation scheme. They contended that properly evaluated they would have been awarded higher scores entitling them to a higher Grade, (Grade 7 or 8). They brought claims for deduction from wages under the Employment Rights Act … Continue reading Kingston Upon Hull City Council v Schofield and Others: EAT 6 Nov 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissalThe Employment Tribunal did not err in finding the Respondent unfairly dismissed the Claimant for misconduct in failing to observe trackside safety rules. The EAT would not interfere with its findings: Fuller v London Borough of Brent [2011] IRLR 414, Bowater v Northwest London Hospitals NHS Trust [2001] IRLR … Continue reading Network Rail Infrastructure Ltd v Mockler: EAT 11 Jul 2012

EAT PRACTICE AND PROCEDURECompromiseDisposal of appeal including remissionThe Claimants made a compromise agreement with Reliance, one of three Respondents in a TUPE claim. The claim was against the Respondents jointly and severally for breach of the consultation provisions and against the transferee for unfair dismissal and wrongful dismissal. The Employment Tribunal wrongly construed the agreement … Continue reading Tamang and Another v Act Security Ltd and Another: EAT 31 Aug 2012

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal. Drama teachers dismissed in relation to permitting GCSE students to stage a performance depicting sexual abuse including rape, sexual intercourse, sexual assault, oral sex, masturbation, and group sex. Tribunal’s finding of unfair dismissal held to be perverse; the Tribunal had, in finding that employers should … Continue reading X County Council and Another v D and Another: EAT 23 Oct 2012

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularityUNFAIR DISMISSAL – CompensationObservations on the withdrawal of allegations of judicial bias.One point on unfair dismissal compensation and arithmetic merits a full hearing. A pure construction point on the Redeployment Scheme and its relationship to sick pay was dismissed, although not dealt with by the Employment … Continue reading Whyte v The London Borough of Lewisham: EAT 22 Aug 2012

Appeal against dismissal of claim of unauthorised deduction from wages. Judges: Sir Igor Judge P, Moore-Bick LJ, Sir Peter Gibson Citations: [2007] EWCA Civ 714 Links: Bailii Statutes: Employment Rights Act 1996 13 Jurisdiction: England and Wales Citing: Appeal from – Camden Primary Care Trust v Atchoe EAT 22-Aug-2006 EAT Unlawful Deduction from Wages – … Continue reading Camden Primary Care Trust v Atchoe: CA 9 May 2007

EAT Unfair Dismissal – A Tribunal does not necessarily err in law if it proceeds with a hearing and makes findings of fact adverse to a respondent where a claimant does not attend and is not available for cross examination. Rules 14 and 27 of the Employment Tribunal Rules of Procedure considered. Judges: Richardson J … Continue reading Duffy v George: EAT 19 Oct 2012

EAT Practice and Procedure : Imposition of Deposit – Employment Tribunal ordered that Claimant pay a deposit of andpound;250 as a condition of being permitted to continue to take part in proceedings relating to his claim that he was unfairly dismissed and discriminated against on grounds of age.Appeal dismissed.(1) Rule 18(2) of Schedule 1 to … Continue reading Spring v First Capital East Ltd: EAT 20 Jul 2012

EW EAT Victimisation Discrimination : Protected Disclosure – Employment Tribunal, by a majority decision, found that the First Respondent had committed an act of racial victimisation against the Claimant and awarded the Claimant compensation including interest in the sum of andpound;4,021.67 for injury to feelings. Appeal allowed on basis findings of fact made by majority … Continue reading Riverside Echg v Ubredi: EAT 18 Jul 2012

EAT TRANSFER OF UNDERTAKINGS – Service provision change – The Claimant solicitor worked in-house for a facilities management company which ran into financial difficulties. In consequence she was engaged in disposing of service contracts to third parties. Administrators were appointed, who had previously engaged the Appellant as solicitors to act for them in the administration. … Continue reading SNR Denton U Llp v Kirwan and Others: EAT 10 Jul 2012

EAT UNFAIR DISMISSAL Reinstatement/re-engagement Polkey deduction Where the parties are requested or permitted to make written submissions to the Employment Tribunal following a remedies hearing, the assessment of practicability of re-engagement is to be judged on the basis that an order would take effect after such submissions have been made. Accordingly, applying and adapting the … Continue reading Rembiszewski v Atkins Ltd: EAT 10 Oct 2012

EAT Practice and Procedure : Time for Appealing – The Claimant failed to include the Employment Tribunal judgment and reasons in his last minute Notice of Appeal and gave no explanation at a hearing for this failure. Discretionary extension was refused as this was not an exceptional case. Judges: McMulen QC Citations: [2012] UKEAT 1928 … Continue reading Johnson v Ruck SSC Ltd: EAT 16 Aug 2012

EAT UNFAIR DISMISSAL Reasonableness of dismissal Contributory fault Hospitality manager summarily dismissed for gross misconduct. Single incident of failure to check a booking sheet leading to a complaint from a customer about service provided at the booked event. Both the dismissing manager and an appeals officer rely on that incident, and no other prior matter, … Continue reading Nejjary v Aramark Ltd: EAT 31 May 2012

EAT Practice and Procedure : New evidence on appealReviewThe Respondent appealed against a decision refusing its application for adjournment in a case where Claimant had alleged victimisation. Respondent wished to call witnesses but the Employment Tribunal held that there was no proper explanation as to why the Respondent had not arranged to call them earlier. … Continue reading North Bristol Nhs Trust v Harrold: EAT 19 Sep 2012

EAT PRACTICE AND PROCEDURE – Time for appealingJURISDICTIONAL POINTS – Excluded employmentsThe Claimant, a former soldier, resigned and claimed constructive unfair dismissal and breach of contract in the Employment Tribunal. It declined jurisdiction: Employment Rights Act 1996 ss191-2 disapply the Act to the armed forces. The Claimant received clear legal advice to that effect but … Continue reading Booley v British Army Mod: EAT 19 Jul 2012

EAT Practice and Procedure : Admissibility of Evidence – CONTRACT OF EMPLOYMENT – Notice and pay in lieuDisability related discriminationDirect disability discriminationReasonable adjustmentsWithout prejudice negotiations, not leading to a compromise agreement, revealed in evidence through questioning by an Employment Tribunal lay member. Subsequently, unfair dismissal compensation reduced by 50 per cent for the chance that … Continue reading Gallop v Newport City Council: EAT 19 Jul 2012

EAT Jurisdictional Points : Worker, Employee or Neither – The Claimant was a taxi driver working with the Respondent company under written terms. The Employment Tribunal decided he was not an employee. The EAT upheld the decision because the written terms did not require any minimum or reasonable amount of work from him; he was … Continue reading Knight v Fairway and Kenwood Car Service: EAT 10 Jul 2012

EAT UNFAIR DISMISSALAutomatically unfair reasonsReinstatement/re-engagementTRANSFER OF UNDERTAKINGS – Economic technical or organizational reasonSix months after a TUPE transfer the Respondent began a process of cost savings which included a request for voluntary redundancies and wage cuts. The Claimants were told during this that their jobs were safe. They would not sign new contracts with up … Continue reading The Manchester College v Hazel and Another: EAT 9 Jul 2012

EAT Unfair Dismissal : Constructive Dismissal – The Claimant resigned in response to a grievance decision which she found unsatisfactory. The grievance had involved a number of matters, including alleged bullying (which the Employment Tribunal found was a figment of her imagination) and a failure to pay contractual sick pay (which the Employment Tribunal had … Continue reading Logan v Celyn House Ltd: EAT 19 Jul 2012

EAT Practice and Procedure : Postponement or Stay – The Employment Tribunal fixed a hearing for 23/4/12 to 1/5/12. On the eve of the hearing the parties were notified it was cancelled because no judge was available. On 1/5/12 the ET sent out new dates, 28/8/12 to 5/9/12; the parties had not been asked for … Continue reading University of East Anglia v Amaikwu: EAT 25 Jul 2012

EAT UNFAIR DISMISSAL – Constructive dismissal Employment Tribunal entitled to conclude, on their findings of fact, that Claimant had resigned from the employment in circumstances which did not amount to constructive dismissal and had not been dismissed by his employer. Citations: [2010] UKEAT 0069 – 10 – 2406 Links: Bailii Jurisdiction: England and Wales Employment … Continue reading Hussey v Photogenic Ltd: EAT 24 Jun 2010

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-BarkeInadequate Employment Tribunal reasons. Burns-Barke order made. Appeal adjourned. Judges: Peter Clark J Citations: [2012] UKEAT 0072 – 12 – 2806 Links: Bailii Jurisdiction: England and Wales Employment Updated: 04 November 2022; Ref: scu.463763

EAT PRACTICE AND PROCEDURE – AmendmentAn application to amend was made which the Employment Tribunal Judge had refused purely on the basis that it involved new claims; that was clearly wrong. She should have followed the procedure in Selkent v More [1996] ICR 836 at 842, this being an application which involved an amendment which … Continue reading Edwards v London Borough of Sutton: EAT 12 Jul 2012

EAT PRACTICE AND PROCEDURE – ReviewJURISDICTIONAL POINTS – Extension of time: reasonably practicableThe Claimant’s solicitor faxed an ET1 claiming unfair dismissal to the Tribunal more than 3 months after the effective date of termination. He said that he had sent an ET1 by post earlier, but the Tribunal had not received it. He did not … Continue reading Clark v H2O Water Services Ltd: EAT 20 Aug 2012

EAT UNFAIR DISMISSAL – Constructive dismissalA settled communicated intention to pay half rather than full pay was a fundamental breach of contract. The conclusion of the Employment Tribunal that the established breach was not fundamental because of an honest though mistaken view of the meaning of the relevant contractual term erroneously relied upon the judgment … Continue reading Roberts v Whitecross School: EAT 19 Jun 2012

EAT UNFAIR DISMISSAL – Reasonableness of dismissalDismissal of prison officer for gross misconduct, namely that he was ‘negligent in [his] duty in failing to take appropriate action when an incident occurred’, the ‘charge’ of which he was given notice being in the same terms and the incident being that another officer assaulted an inmate at … Continue reading Leonard v Scottish Prison Service: EAT 18 Jul 2012