Swallow Security Services Ltd v Millicent: EAT 19 Mar 2009

EAT UNFAIR DISMISSAL: Contributory fault
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to apologise. The Tribunal found that she had been unfairly dismissed, of its own volition raised Polkey but did not raise or consider contributory fault which the employers, who were unrepresented, did not raise themselves.
Held on appeal
1) The Employment Tribunal, having found that there was conduct on the part of the employee that was or could be regarded as blameworthy, were bound by s123 of the Employment Rights Act 1996 (ERA) to consider contributory fault.
2) Were that not so, the employers would not be permitted, following the principles in Rance, to raise the issue for the first time on appeal.
Appeal allowed; remitted to same Tribunal for consideration of contributory fault.

Burke QC
[2009] UKEAT 0297 – 08 – 1903
Bailii
Employment Rights Act 1996 123
England and Wales
Citing:
CitedDavies v Swan Motor Co (Swansea) Ltd CA 1949
A plaintiff brought an action for damages for personal injury against the drivers of two cars.
Held: There are two aspects to apportioning responsibility between a plaintiff and defendant in an action for negligence, the respective causative . .
CitedVenniri v Autodex Ltd EAT 13-Nov-2007
EAT Unfair dismissal: Procedural fairness/automatically unfair dismissal
The Tribunal erred in law in failing to address s98A(1) of the Employment Rights Act 1996. Section 98A(1) is at present part of the . .
CitedSecretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
CitedRobert Whiting Designs Ltd v Lamb EAT 1978
Alleged contributory conduct towards his dismissal on the part of an employee may be considered by a Tribunal even if the employer had put up a bogus reason for the dismissal.
Kilnour-Brown J said: ‘In our view the proper approach is to decide . .
CitedNelson v Emmanual Parochial Church Council and Another EAT 23-Feb-2007
EAT Practice and Procedure
Tribunal added a party to the proceedings as part of its determination of a preliminary issue, which it proceeded to determine against that party without having heard from that . .
CitedUnison v Leicestershire County Council CA 29-Jun-2006
The council had dismissed all workers within a group of employees, and invited them to re-apply for their jobs. The council now appealed a protective award made on the basis that there had been inadequate consultation with the union.
Held: The . .
CitedNelson 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 . .
CitedPolkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
CitedMensah v East Hertfordshire NHS Trust CA 10-Jun-1998
An industrial tribunal should be helpful to litigants to help establish clearly whether issues which had been raised on the papers were not being pursued. An employee claiming racial discrimination but not pursuing it at the tribunal was not allowed . .
CitedRed Bank Manufacturing Co Ltd v Meadows EAT 1992
A party wishing to complain about a member of the employment tribunal should make his complaint to that tribunal rather than at the EAT. The Polkey principle must be considered by the Tribunal in assessing compensation for unfair dismissal even . .
CitedLangston v Cranfield University EAT 12-Jan-1998
In a redundancy unfair dismissal claim, the Employment Tribunal are obliged to consider the issue whether there has been adequate consultation even though that issue has not been raised. . .

Cited by:
AppliedCarmelli Bakeries Ltd v Benali (Unfair Dismissal : Reason for Dismissal Including Substantial Other) EAT 31-Jul-2013
EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Compensation
DISABILITY DISCRIMINATION – Disability related discrimination
The decision of the Employment . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 31 October 2021; Ref: scu.323716