EAT UNFAIR DISMISSAL Procedural fairness/automatically unfair dismissalS.98A(2) ERA Polkey deduction The employee was told at a meeting that he or his post would be made redundant at a meeting; but he was not then made redundant; further meetings followed before he was given notice of dismissal. The Employment Tribunal found (1) that the dismissal was … Continue reading Smith Knight Fay Ltd v McCoy: EAT 5 Mar 2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive TRANSFER OF UNDERTAKINGS: Varying terms of employment As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to pay ‘in accordance with collective agreements negotiated from time to time by [the NJC]’ is protected on a TUPE transfer to the private sector so as … Continue reading Alemo-Herron v Parkwood Leisure Ltd: EAT 12 Jan 2009
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately explained. The court could look to parliamentary reports to identify the mischief sought to be rectified, … Continue reading Dunnachie v Kingston Upon Hull City Council: CA 11 Feb 2004
EAT Sex Discrimination – Inferring DiscriminationThe claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay. Held: The new provisions included reference to the Code of Practice issued by the Equal Opportunities Commission, which provided that the employer should provide a transparent system for setting pay … Continue reading Barton v Investec Henderson Crosthwaite Securities Ltd: EAT 6 Mar 2003
EAT Unfair dismissal on account of selection for redundancy without application of any criteria. Tribunal refused to deduct the extent to which the claimant’s redundancy payment exceeded the basic award that would have been payable had the claimant not been made redundant. On appeal, Employment Appeal Tribunal held that Tribunal had erred. It had no … Continue reading Inventec (Scotland) Corporation Ltd v Duffy: EAT 4 Oct 2007
The appellant had been employed to conduct driving tests. He had refused to conduct these where there was a driver’s airbag, but no headrest. He was convinced this was unsafe. After warnings as to his dismissal, he indicated that he would if specific re-assurance was obtained as to the safety of such an arrangement. He … Continue reading Sloan v Driving Standards Agency: EAT 26 May 2000
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
Practice and Procedure – Unfair Dismissal – Redundancy – Held (allowing the appeal in part) 1. The Employment Tribunal erred by not considering the issues of whether the employer had carried out a reasonable consultation, adopted a fair basis on which to select for redundancy or taken reasonable steps to seek alternative employment for employees … Continue reading Osinuga v BPP University Ltd Legal Team: EAT 21 Jun 2022
The Respondent, a provider of hospitals with specialist treatment programmes for patients detained under the Mental Health Act, appealed against the Decision of the ET which upheld the Claimant employee’s claim of public interest disclosure detriment pursuant to section 47B Employment Rights Act 1996. The appeal was on the grounds that the ET had: (1) … Continue reading Elysium Healthcare No2 Ltd v Ogunlami: EAT 12 Feb 2019
EAT JURISDICTIONAL POINTS: Claim in time and effective date of termination A contract of employment provided for notice in writing. The Employment Judge did not err when he found the effective date of termination for Employment Rights Act 1996 s 111 was on the day oral communication of dismissal was given and received. Statement of … Continue reading Abbey v Associated Foreign Exchange Ltd and Another: EAT 13 Mar 2009
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion. Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an employee. ‘The religious beliefs of a community may be such that their manifestation does not … Continue reading The New Testament Church of God v Reverend Stewart: CA 19 Oct 2007
EAT Unfair Dismissal – Constructive dismissalMaternity Rights and Parental Leave – Sex discriminationThe Claimant was employed as a Magistrates’ Clerk and she brought successful claims to the Employment Tribunal that:(a) Ms Slee (‘the Claimant’) had been constructively unfairly dismissed by The Department for Constitutional Affairs (‘the Respondent’);(b) The Respondent had failed to offer to the … Continue reading Secretary of State for Justice v Slee: EAT 19 Jul 2007
EAT Contract of Employment – definition of employeeInsolvencyThe Appellants were a husband and wife who entered into contracts of employment with a company which they managed and which they between them owned 99.99% of the shares (the wife having just 51.99% and the husband 48%). When the company became insolvent they claimed against the Secretary … Continue reading Nesbitt v Secretary of State for Trade and Industry: EAT 10 Aug 2007
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services. Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to introduce it.Sir Thomas Bingham MR said: ‘The court may not interfere with the exercise of an administrative discretion on substantive … Continue reading Regina v Ministry of Defence ex parte Smith; ex parte Grady: CA 3 Nov 1995
EAT Unlawful Deduction from Wages – Ready, Willing and Able to Work As the Employment Tribunal had found that the Respondent had the right to take the Claimant off stand-by duties on health and safety grounds, the consequent reduction in pay was not an unauthorised deduction. He was then paid what was properly payable under … Continue reading Camden Primary Care Trust v Atchoe: EAT 22 Aug 2006
EAT Practice and Procedure – 2002 Act and Pre-action Requirements Unfair Dismissal – Constructive Dismissal On 14 October 2004 the Claimant claimed constructive unfair dismissal arising out of four acts of the Respondent. No grievance pursuant to the 2004 Regulations had been presented. The Employment Tribunal allowed the case to proceed at a pre-hearing review … Continue reading Cyprus Airways Ltd v Lambrou: EAT 1 May 2007
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as unlawful the respondent’s, at first unpublished, policy introduced in 2006, that by default, those awaiting deportation should be … Continue reading Lumba (WL) v Secretary of State for The Home Department: SC 23 Mar 2011
The claimant had been employed by the respondent, but after taking maternity leave had been made redundant. The employer claimed her continuous employment had been broken. Held: The section intended to protect continuous employment despite what might otherwise be breaks in employment. Nevertheless, the parties had to agree that employment would continue. That required both … Continue reading Curr v Marks and Spencer Plc: CA 13 Dec 2002
The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy. Held: A great deal depended upon the method of selection of the pool of workers, should … Continue reading Rutherford and Another v Secretary of State for Trade and Industry: CA 3 Sep 2004
VICTIMISATION DISCRIMINATION – Detriment UNFAIR DISMISSAL – Reinstatement/re-engagement UNFAIR DISMISSAL – Compensation The ET did not err in law in – (1) concluding that in one respect the Respondent had committed an act of victimisation and public interest disclosure detriment (2) declining to order re-instatement or re-engagement for unfair dismissal (3) its approach to the … Continue reading Phoenix House Ltd v Stockman: EAT 5 Jul 2019
EAT Preliminary issues The EAT concludes that in construing the statutory definition of ‘worker’ for the purposes of the provisions providing protection for protected disclosures under Part IV A of the Employment Rights Act 1996, it is appropriate to adopt a purposive approach. Accordingly, where an individual supplies his services to an employment agency through … Continue reading Croke v Hydro Aluminium Worcester Ltd: EAT 4 Apr 2007
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
EAT Unfair Dismissal – Reasonableness of dismissalPractice and Procedure – 2002 Act and pre-action requirementsThe Respondent dismissed the Claimant for three reasons. On appeal, two of the most serious fell away but the reason for dismissal remained the same. At the Employment Tribunal it was held that the procedure was unfair, but was rescued by … Continue reading McCall v Northern Rail Ltd: EAT 25 Jan 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
Citations: [2019] UKEAT 0016 – 18 – 2106 Links: Bailii Statutes: Employment Rights Act 1996 Jurisdiction: England and Wales Employment Updated: 10 July 2022; Ref: scu.639220
EAT A employed R as a support worker. R made a number of protected disclosures relating to a fellow worker’s conduct towards a client. The ET held various detriments were suffered by R on the ground of the disclosures. On appeal A asserted (1) the ET did not give adequate reasons, (2) the findings were … Continue reading Cumbria County Council v Carlisle-Morgan: EAT 29 Jan 2007
EAT Transfer of Undertakings – Acquired rights directiveThe appellant was employed to manage a particular estate under a contract which stipulated that his contractual retirement age was 60. The part of the business in which he was employed was transferred. He was in a unique position; no-one else was transferred. He agreed with the respondent … Continue reading Power v Regent Security Services Ltd: EAT 29 Jan 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 Practice and Procedure – 2002 Act and Pre-action requirements There is no free-standing right to complain of a breach of the statutory procedures in the absence of a valid claim of unfair dismissal (here by a person with less than one year’s service). The right to a statement of particulars of contractual terms under … Continue reading Scott-Davies v Redgate Medical Services: EAT 11 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 claimant had been employed by the defendants as a nanny. She threatened to leave, but then was injured in a car acident and given a sick note. The employer immediately engaged someone else. She was found to have been unfairly dismissed. The employer complained that she should only have been awarded SSP. The EAT … Continue reading Burlo v Langley and Carter: CA 21 Dec 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
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were provided on an assurance of confidentiality. Held: Disclosure rules are different in judicial review proceedings since such … Continue reading Tweed v Parades Commission for Northern Ireland: HL 13 Dec 2006
The claimant brought a claim for detriment suffered after he had made a protected disclosure. The employer replied that he was out of the three month time limit. He had been off sick after being assaulted, and said that his employers had treated him as a troublemaker after he complained and disclosed that he had … Continue reading Arthur v London Eastern Railway Ltd (T/A One Stansted Express): CA 25 Oct 2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice manager that she should do so, but the Tribunal found that she did not raise this with any of the doctors.The … Continue reading Kelly-Madden v Manor Surgery: EAT 19 Oct 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
EAT The Claimant, a director of the Respondent, was dismissed for gross misconduct. There were grounds upon which the Respondent could reasonably have treated his conduct as justifying immediate dismissal for a fair reason within the meaning of section 98 of the Employment Rights Act 1996. However the ET found that the true reason for … Continue reading East Lancashire Coachbuilders v Hilton: EAT 24 Aug 2006
EAT Employment Tribunal struck out unfair dismissal claims stating they were bound to fail. The employers had made two applications, one for a deposit to be ordered pursuant to rule 20 of the Employment Tribunal rules, and the second for a strike-out pursuant to rule 18(7)(b) on the grounds that the appeal had no reasonable … Continue reading Ezsias v North Glamorgan NHS Trust: EAT 25 Jul 2006
EAT Practice and Procedure – Striking-out/dismissalUnfair Dismissal – Automatically unfair reasonsEmployment Tribunal failed to properly analyse the relevant questions which it had to ask itself in order to decide whether or not there was an automatically unfair dismissal under s.104 Employment Rights Act 1996. In particular it failed to ask itself (a) whether Appellant was … Continue reading Danlardy v Southwark Race Equalities Council: EAT 19 May 2006
EAT The claimant appealed against a finding that she had not been unfairly dismissed after she had refused what the employer said was an appropriate alternative position. Judges: Lindsay J P Citations: [2001] UKEAT 1508 – 00 – 1505 Links: Bailii Statutes: Employment Rights Act 1996 98 Jurisdiction: Scotland Employment Updated: 07 July 2022; Ref: … Continue reading Marenghi v The Western Baths Club: EAT 15 May 2001
Unfair Dismissal, Practice and Procedure – The EAT considered the meaning of s. 124(5) of the Employment Rights Act 1996 and concluded that payments to account should be deducted from the overall award before the applying the statutory cap even if that meant that the employer did not get any benefit from payments to account. … Continue reading Dafiaghor-Olomu v Community Integrated Care: EAT 1 Jun 2022
EAT Practice and Procedure: No case to Answer and Public Interest Disclosure:The Employment Tribunal erred in acceding to a half-time submission of no case made in a whistle-blowing claim. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04) and it should normally be heard in full: Logan v The Commissioners of Customs … Continue reading Boulding v Land Securities Trillium (Media Services) Ltd: EAT 3 May 2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been a transfer over time, so as to diminish their periods of continuous employment. The matter … Continue reading North Wales Training and Enterprise Council Ltd v Astley and others: HL 21 Jun 2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior staff member’s emails. During the disciplinary hearing, he had been assisted by an interpreter for part … Continue reading Taylor v OCS Group Ltd: CA 31 May 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 sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not. Held: The appeal was dismised. There were very few people affected by the provisions, and provisions were on their face non-dicriminatory. Was … Continue reading Secretary of State for Trade and Industry v Rutherford and others: HL 3 May 2006
EAT Unfair Dismissal: Procedural Fairness/Automatically Unfair Dismissal; Compensation The reversal of Polkey . . 1987) IRLR 503 effected by Employment Rights Act 1996 s98A(2) applies to dismissals occurring on or after 1 October 2004. It applies to a failure to follow a procedure or policy covering dismissal, whether in writing or existing by custom and … Continue reading Mason v Ward End Primary School: EAT 12 Apr 2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady. Held: It was highly arguable that a finding that disciplinary proceedings had been commenced … Continue reading Associated Society of Locomotive Engineers and Firemen v Brady: EAT 31 Mar 2006
EAT Unfair Dismissal: Procedural Fairness/Automatically Unfair Dismissal The failure to disclose new witness statements obtained during the adjournment of an internal appeal against dismissal was a breach of the employer’s written procedure, and fell outside the band of reasonable responses. Strouthos v London Underground Ltd [2004] IRLR 636 CA applied. The Employment Tribunal Judgment was … Continue reading Pudney v Network Rail Infrastructure Ltd: EAT 22 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 claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ. Held: The residence test as applied was not in contravention of EU law. ‘[T]he proper interpretation … Continue reading Collins v Secretary of State for Work and Pensions: CA 4 Apr 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
EAT Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of section 98 of the Employment Rights Act 1996. Whether on the facts it substituted its own view of the occurrence and quality of misconduct for that … Continue reading Mars UK Ltd T/A Masterfoods v K Parker: EAT 24 Oct 2005
Judges: Burton J P Citations: [2003] EAT 1115 – 02 – 2701, [2003] UKEAT 1115 – 02 – 2701 Links: Bailii, Bailii Statutes: Employment Rights Act 1996 50 51 Jurisdiction: England and Wales Citing: See Also – Edwards v Marconi Corporation Plc EAT 2-Nov-2001 Ex Parte application to determine whether or not there is an … Continue reading Edwards v Marconi Corporation Plc: EAT 27 Jan 2003
The court was asked as to about the right of an employee to take time off without pay to perform duties as a magistrate. Judges: His Hon Judge Mcmullen QC Citations: [2003] EAT 811 – 02 – 2905, [2003] UKEAT 811 – 02 – 2905, EAT811/02 Links: Bailii, Bailii, EAT Statutes: Employment Rights Act 1996 … Continue reading Riley-Williams v Argos Ltd: EAT 29 May 2003
The employees appealed the loss of their case for unfair dismissal. They asserted that the investigation made before the decision to dismiss was made, was inadequate. The EAT was concerned at the apparent weakness of the employer’s investigation, but the real problem was that the tribunal had failed properly to address in its decision the … Continue reading Donnelly, McHarg, Murray v Charnos Plc: EAT 27 Sep 2001
The claimants were dependants of Iraqi nationals killed in Iraq. Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The question amounted to whether the officers acted under State Agent Authority within the convention … Continue reading Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence: CA 21 Dec 2005
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
VICTIMISATION DISCRIMINATION – Protected disclosure The Claimant was employed by the Respondent as an Information Management and Technology Manager between December 2005 and February 2016 when he resigned. By his claim presented in August 2015 and subsequently amended, he made complaints of race discrimination, unfair dismissal and whistleblowing. The latter comprised claims of detriments suffered … Continue reading Arjomand-Sissan v East Sussex Healthcare NHS Trust: EAT 17 Apr 2019
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary because of the upset and disturbance his continued employment would create with Asian co-workers and passengers. … Continue reading A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service: EAT 27 Jul 2005
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
Judges: Gross, Lewison , Singh LJJ Citations: [2019] EWCA Civ 803, [2019] WLR(D) 269 Links: Bailii, WLRD Statutes: Employment Rights Act 1996 47B(1A) Jurisdiction: England and Wales Employment Updated: 03 July 2022; Ref: scu.637320
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays. Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, so far as working hours are concerned, an employer is entitled to keep … Continue reading Copsey v WWB Devon Clays Ltd: CA 25 Jul 2005
EAT Unfair Dismissal – Compensation Judges: Rimer J Citations: UKEAT/0422/04, [2004] UKEAT 0422 – 04 – 1711 Links: Bailii Statutes: Employment Rights Act 1996 98 Employment Updated: 01 July 2022; Ref: scu.228663
Dismissal for ‘some other substantial reason’ – employees refusal to sign new contracts. Judges: The Honourable Mr Justice Rimer Citations: UKEAT/0677/04, [2004] UKEAT 0677 – 04 – 1312, [2006] ICR 70 Links: Bailii, EAT Statutes: Employment Rights Act 1996 98(1)(b) Cited by: Cited – Willow Oak Developments Ltd. (T/A Windsor Recruitment) v Silverwood and others … Continue reading Forshaw v Archcraft Ltd: EAT 13 Dec 2004
EAT Race Discrimination – Victimisation. Appeal in respect of victimisation based on incorrect application of Barton; and of unfair dismissal under both Section 99 and Section 98 of the Employment Rights Act 1996 – we found Employment Tribunal had applied itself correctly on all matters and appeal dismissed. EAT Race Discrimination – Victimisation. Judges: His … Continue reading Uzowuru v London Borough of Tower Hamlets: EAT 2 Mar 2005
The court accepted a late filing of an employment tribunal claim after the claimant had received poor legal advice. Citations: [2005] EWCA Civ 470, [2005] IRLR 562 Links: Bailii Statutes: Employment Rights Act 1996 111(2) Jurisdiction: England and Wales Citing: Appeal from – Marks and Spencer Plc v S Williams Ryan EAT 17-Aug-2004 EAT Time … Continue reading Marks and Spencer Plc v Williams-Ryan: CA 19 Apr 2005
The employee had been permitted to work additional hours for another employer. She continued that work during a period of extended sickness, and was dismissed for misconduct. The tribunal held that the involvement of the auditor both in the investigation, and in the decision making process was a breach of natural justice, and the dismissal … Continue reading Perth and Kinross Council v Ann Howard: EAT 4 Sep 2001
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 Tribunal had given credit for the full amount of incapacity benefit which the employee had received during the notice period. He appealed on the grounds that it ought not to have done so. There was a conflict of authority on the point in the Tribunal. Judges: The Honourable Mr Justice Burton Citations: [2005] UKEAT … Continue reading Morgans v Alpha Plus Security Ltd: EAT 17 Jan 2005
CONTRACT OF EMPLOYMENT, UNFAIR DISMISSAL The Tribunal found as a fact that the claimant before the Tribunal, an HGV driver, was wholly to blame for a road traffic accident that wrote off the respondent’s HGV. That accident (together with the claimant’s accident history) also resulted in the respondent’s insurer’s refusal to continue to provide cover … Continue reading SM Trucking Ltd v Dixon: EAT 26 Oct 2021
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 claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The evidence established that cauda equina syndrome was a random and inherent risk of the surgery, … Continue reading Chester v Afshar: HL 14 Oct 2004
The court was asked whether a claim for equal pay which has not been determined when the employer becomes insolvent can constitute ‘arrears of pay’ payable by the Secretary of State under Part XII of the Employment Rights Act 1996. Citations: [2019] EWCA Civ 725 Links: Bailii Jurisdiction: England and Wales Discrimination, Insolvency Updated: 23 … Continue reading Graysons Restaurants Ltd v Jones and Others: CA 17 Apr 2019
The applicant questioned the compatibility of s185 of the 1996 Act with Human Rights law. The family sought emergency housing. The child of the family, found to be in priority housing need, was subject also to immigration control. Though the matter had been settled the court was invited to pursue the decision. Held: The Act … Continue reading Morris, Regina (on the Application of) v Westminster City Council and Another: Admn 7 Oct 2004
To be protected, a disclosure had to be causative in the sense of being the real reason or core reason, the motive for the treatment complained of. Judges: His Hon Judge J R Reid QC Citations: EAT/891/01, [2002] UKEAT 891 – 01 – 2507 Links: Bailii, EAT Jurisdiction: England and Wales Citing: See Also – … Continue reading Aspinall v MI Mech Forge Ltd: EAT 5 Jul 2002
The EAT considered the effect of the receipt of benefits during a period of sickness when calculating loss of earnings, and whether a hearing was properly conducted without the presence of the parties. Held: There is no procedural irregularity in the Tribunal members holding a meeting in the absence of the parties for the purposes … Continue reading Puglia v C James and Sons: EAT 24 Oct 1995
Judges: Peter Clark HHJ Citations: [1997] UKEAT 1213 – 97 – 1012 Links: Bailii Statutes: Employment Rights Act 1996 100(1)(a) Cited by: See Also – Bewry v Cumbria County Council EAT 10-Apr-2002 Appeal against rejection of complaint of unfair dismissal. Held: The appeal failed raising no arguable point of law. . .See Also – Bewry … Continue reading Bewry v Cumbria County Council: EAT 10 Dec 1997
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 sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a detailed comparison of the regimes for protection under the Employment Rights Act … Continue reading Alabaster v Barclays Bank Plc and Another: CA 3 May 2005
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed. Held: The appeal failed (Lord Carnworth dissenting). That the exact situation might not have … Continue reading The United States of America v Nolan: SC 21 Oct 2015
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 danger referred to in section 100(1)(e) need not refer to the workplace as such; threats posed by fellow employees will also be covered. Citations: [1999] UKEAT 488 – 99 – 0707, [1999] IRLR 778 Links: Bailii Statutes: Employment Rights Act 1996 100(1)(e) Employment Updated: 14 June 2022; Ref: scu.205452
Whether the claimant was a ‘worker’. Judges: Maurice KayJ Citations: [2001] UKEAT 1456 – 00 – 1212 Links: Bailii Statutes: Employment Rights Act 1996 230(3) Jurisdiction: England and Wales Employment Updated: 14 June 2022; Ref: scu.204676
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
The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector. Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was no procedure to make his objection known, the failure to do so might … Continue reading Khan v Royal Air Force Summary Appeal Court: Admn 7 Oct 2004
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
Failure to give proper reference. ECJ judgment giving right to make complaint only if cause was result of complaint over health and safety matters. Held: The appeal failed. The section did not protect former workers: ‘section 44 does not, on its proper construction, apply in the circumstances relied upon by Mr Fadipe. The section is … Continue reading Fadipe v Reed Nursing Personell: CA 4 Dec 2001
The defendant appealed against the strike out of parts of its defence. The claimant was employed as the mosque director and imam. He had brought an action in the Industrial Tribunal alleging wrongful dismissal, but notifying the defendants that any excess above what the tribunal could order would be sought in the current action. That … Continue reading Sajid v Sussex Muslim Society: CA 2 Oct 2001
The claimant had ‘neither pleaded nor shown any damage to him during the course of his employment which resulted from his employer’s conduct. The only damage which is demonstrated is that which followed from his dismissal and, arguably, the manner of his dismissal. That damage if it exists has been held in Johnson to be … Continue reading Boardman v Copeland Borough Council: CA 13 Jun 2001
The respondent resisted a claim of unfair dismissal and race discrimination on the basis that the employment contract was illegal since the claimant was an immigrant and unable to work without a work permit. Held: The Court of Appeal upheld a defence of illegality to a teacher’s complaint against a school of unlawful discrimination by … Continue reading V v Addey and Stanhope School: CA 30 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 claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused. Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, include any element for a non-financial loss, such as injury to feelings arising from … Continue reading Dunnachie v Kingston-upon-Hull City Council: HL 15 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
The employee had been dismissed. Her contractual notice period was longer than the statutory period. Held: The statutory notice period prevailed in calculating the date of dismissal. The contractual period could not be used to extend the total period of employment to allow a claim for loss of the right to claim unfair dismissal. Had … Continue reading Sally Harper v Virgin Net Limited: CA 10 Mar 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