Application for an injunction.
David Grant HHJ
[2009] EWHC 3753 (Ch)
England and Wales
Updated: 27 September 2022; Ref: scu.416192
(West Indies)
[1960] UKPC 18
Commonwealth
Updated: 20 September 2022; Ref: scu.445356
EAT Jurisdictional Points : 2002 Act and Pre-Action Requirements – Working outside the jurisdiction – A claim for breach of contract under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 is within the scope of Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 as the Order is listed in Schedule 3 to the Employment Act 2002. The Employment Tribunal (‘ET’) erred in holding that a breach of contract claim did not fall within Regulation 15. The Claimant had set out a written grievance complaining of breach of contract within three months of the effective date of termination of his employment. Time for presentation of the breach of contract complaint is to be extended for a further three months by application of Regulation 15. Claim remitted for hearing.
The ET did not err in holding that on the facts a written grievance about conduct said to constitute constructive dismissal was a grievance that the employer was contemplating dismissing the Claimant. The ET did not err in holding that the time for presentation of the Claimant’s claim for unfair dismissal was not extended by Regulation 15 since Regulation 6(5) applied. South Kent College v Hall UKEAT/0087/07 considered.
Observations on the obiter finding that the ET would have had territorial jurisdiction to hear the unfair dismissal claim had it not been held to have been presented out of time. Lawson v Serco [2006] IRLR 289 and Ministry of Defence v Wallis and another [2010] UKEAT 0546/08/3007 considered.
Slade J
[2011] UKEAT 0110 – 10 – 2511
Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, Employment Act 2002 (Dispute Resolution) Regulations 2004 15, Employment Act 2002
England and Wales
Updated: 20 September 2022; Ref: scu.444948
ECJ (Staff Regulations) Public service – Staff of the ECB – Pension Plan – Pension Plan – Annual increase in pensions – Harmonized indices of consumer prices – Notice of the actuary of the pension plan – Consultation of Staff Committee – Consultation of the SC – The right to collective bargaining
121/10, [2011] EUECJ 121/10
England and Wales
Updated: 20 September 2022; Ref: scu.444926
ECJ (Staff Regulations) – Civil service – Staff of the ECB – Annual salary and bonus review – 2008 review – Annual assessment – Criteria for assessment – Staff Committee consultation – Taking account of periods of sick leave – Setting of objectives.
98/09, [2011] EUECJ 98/09
European
Updated: 20 September 2022; Ref: scu.444728
ECJ (Staff Regulations) Public service – Officials – Appointment – Article 5, paragraph 2 of Annex XIII to the Staff – Internal competitions for change of category issued before 1 May 2004 – candidates on the reserve lists before 1 May 2006 – Ranking grade – Application of a multiplication factor less than 1 – Loss of promotion points
29/06, [2011] EUECJ 29/06
European
Updated: 20 September 2022; Ref: scu.444678
ECJ (Staff Regulations) Public service – Officials – Appointment – Article 5, paragraph 2 of Annex XIII to the Staff – Internal competitions for change of category issued before 1 May 2004 – candidates on the reserve lists before 1 May 2006 – Ranking grade – Maintenance of multiplication factor – Loss of promotion points
23/06, [2011] EUECJ 23/06
European
Updated: 20 September 2022; Ref: scu.444677
ECJ (Staff Regulations) French Text – Civil Service – Temporary staff – Article 8 of the CEOS – Clause terminating the contract if the agent is not on the reserve list of competition – Open competition OHIM/AST/02/07 – Act adversely affecting
7/10, [2011] EUECJ 7/10
European
Updated: 19 September 2022; Ref: scu.444378
Renewed application for extension of time and leave to appeal.
Rimer LJ
[2011] EWCA Civ 897
England and Wales
Updated: 17 September 2022; Ref: scu.442419
(Staff Regulations)
116/10, [2011] EUECJ 116/10
European
Updated: 17 September 2022; Ref: scu.442293
Where a receiver of a company dismissed the employees and then transferred the business to a purchaser, that amounted to an unfair dismissal because it was a TUPE transfer, even though the manufacturing base also moved. The company was liable to the employees. Neither whether there was an economic technical or organisational reason nor the unfairness of the dismissal arose.
EAT Transfer of Undertakings – Transfer
The Honourable Mr Justice Morison (President)
Gazette 03-Feb-2000, [2000] IRLR 10, EAT/1379/97, [1999] UKEAT 1379 – 97 – 1110, EAT/939/98, [2000] ICR 556
Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Trade Union and Labour Relations (Consolidation) Act 1992 188
England and Wales
Cited – Heald Nickinson Solicitors v Summers and others EAT 21-May-2002
The firm of solicitors appealed an order in which they had been substituted as defendants to a claim for unfair dismissal. They said they had been given no opportunity to object. They had taken over part of a firm which had got into difficulties and . .
Cited – Alamo Group (Europe) Ltd v Tucker and Another EAT 24-Feb-2003
The tribunal was asked whether Regulation 5 of the 1981 Regulations have the effect of transferring to the transferee the duties and liabilities imposed on the employer under Regulations 10 and 11? The Respondent (Alamo) appeals from the decision . .
Not Followed – Transport and General Workers Union v James Mckinnon, J R (Haulage) Ltd, John Maitland and Sons, Bibby Distribution Services EAT 29-May-2001
EAT Transfer of Undertakings – Transfer. . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 September 2022; Ref: scu.171701
Sir Raymond Jack
[2011] EWHC 2009 (QB)
England and Wales
Updated: 16 September 2022; Ref: scu.442242
The claimant had been dismissed as a teacher by the respondent Roman Catholic school after she became pregnant by a priest. She had been found to have been unfairly dismissed, but the tribunal had rejected her claim of discrimination for pregnancy.
Mummery J P
[1996] IRLR 372, [1997] ICR 33, [1996] UKEAT 1180 – 94 – 2405
See Also – O’Neill v Governors of St Thomas More RC School EAT 12-Oct-1995
The claimant had lodged an appeal against a rejection of her claim of sex discrimination, and against the amount of damages awarded on the success of her claim of unfair dismissal. After rejection of her request for a review, her counsel had lodged . .
Cited – Habermann-Beltermann v Arbeiterwohlfahrt ECJ 5-May-1994
ECJ Article 2(1) and (3), read in conjunction with Articles 3(1) and 5(1) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to . .
Cited – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
Cited – Nagarajan v Agnew EAT 21-Jul-1993
Mr Nagarajan, of Indian birth, had brought several complaints to the Tribunal based on race. A settlement was reached on or about 1st November 1989 in full and final settlement of all his claims arising out of his employment with London Underground . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Dekker v Stichting Vormingscentrum Voor Jong Volwassenen ECJ 8-Nov-1990
An employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 September 2022; Ref: scu.442202
ECFI (Staff Regulations) Appeal – Public service – Officials – Cross-appeal – Bullying – Article 12a of the Staff – Communication on the policy of harassment to the Commission – Duty to provide assistance to the incumbent administration – Article 24 of the Statute – Scope – Request for assistance – Provisional removal – Duty of care – Disclaimer – Claim – Full Court – Conditions of implementation – Report of career – Action for annulment – Interest in bringing.
T-80/09, [2011] EUECJ T-80/09
European
Updated: 16 September 2022; Ref: scu.441775
[1998] UKEAT 116 – 98 – 0209
England and Wales
See Also – Aniagwu v London Borough of Hackney and Another EAT 11-Feb-1998
Appeal from refusal of jurisdiction . .
See Also – Aniagwu v London Borough of Hackney EAT 21-Jul-2000
. .
See Also – Aniagwu v London Borough of Hackney EAT 18-Jul-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Appeal by A from a decision of an Employment Tribunal that he had been unfairly dismissed by the London Borough of Hackney from . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 September 2022; Ref: scu.206662
[1995] UKEAT 483 – 95 – 1310
England and Wales
See Also – Ayobiojo v London and Quadrant Housing Trust EAT 25-Jul-1997
. .
Lists of cited by and citing cases may be incomplete.
Updated: 16 September 2022; Ref: scu.209327
Appeal from refusal of jurisdiction
Morison P J
[1998] UKEAT 116 – 98 – 1102
Race Relations Act 1976, Trade Union and Labour Relation (Consolidation) Act 1992
England and Wales
See Also – Aniagwu v London Borough of Hackney and Another EAT 2-Sep-1998
. .
See Also – Aniagwu v London Borough of Hackney EAT 18-Jul-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Appeal by A from a decision of an Employment Tribunal that he had been unfairly dismissed by the London Borough of Hackney from . .
See Also – Aniagwu v London Borough of Hackney EAT 21-Jul-2000
. .
Lists of cited by and citing cases may be incomplete.
Updated: 16 September 2022; Ref: scu.206087
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: The appeal was allowed: ‘the question whether the exception in article 31(1)(c) would have applied to Mr Al-Malki had he still been in post does not strictly speaking arise. If he had still been in post, I would have held that he was immune, because the employment and treatment of Ms Reyes did not amount to carrying on or participating in carrying on a professional or commercial activity. Her employment, although it continued for about two months, was plainly not an alternative occupation of Mr Al-Malki’s. Nothing that was done by him or his wife was done by way of business. A person who supplies goods or services by way of business might be said to exercise a commercial activity. But Mr and Mrs Al-Malki are not said to have done that. They are merely said to have used Ms Reyes’ services in a harsh and in some respects unlawful way. There is no sense which can reasonably be given to article 31(1)(c) which would make the consumption of goods and services the exercise a commercial activity.’
Lord Sumption (with Neuberger L) said: ‘ the employment of a domestic servant to provide purely personal services is not a ‘professional or commercial activity exercised by the diplomatic agent’. It is therefore not within the only relevant exception to the immunities. The fact that the employment of Ms Reyes may have come about as a result of human trafficking makes no difference to this. But the appeal should be allowed on a different and narrower ground. On 29 August 2014, Mr Al-Malki’s posting in London came to an end and he left the United Kingdom. Article 31 confers immunity only while he is in post. A diplomatic agent who is no longer in post and who has left the country is entitled to immunity only on the narrower basis authorised by article 39(2). That immunity applies only so far as the relevant acts were performed while he was in post in the exercise of his diplomatic functions. The employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki in the exercise of his diplomatic functions.’
Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption
[2018] 1 All ER 629, [2017] UKSC 61, [2017] ICR 1417, [2018] IRLR 267, [2017] 3 WLR 923, [2017] WLR(D) 692, [2019] AC 735, UKSC 2016/0023
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC Video 20170515 am, SC Video 20170515 pm, SC Video 20170516 am, SC Video 20170516 pm, SC Video 20170517 am, SC Video 20170517 pm
Vienna Convention on Diplomatic Relations 1961
England and Wales
At EAT – Al-Malki and Another v Reyes and Another (Jurisdictional Points) EAT 4-Oct-2013
EAT JURISDICTIONAL POINTS
Two domestic workers, employed one after the other by the First Respondent, a diplomat, and Second Respondent, his wife, (the appellants in this appeal) asserted they had been . .
At CA – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – Democratic Republic of the Congo v Belgium – Arrest Warrant of 11 April 2000 ICJ 14-Feb-2002
(French Text) Diplomatic immunity is not an immunity from liability. It is a procedural immunity from the jurisdiction of the courts of the receiving state. The receiving state cannot at one and the same time receive a diplomatic agent of a foreign . .
Cited – Zoernsch v Waldock CA 1964
A claim was lodged against a former president as well as the current secretary of the European Commission of Human Rights. The former president, Sir Humphrey Waldock, was under the 1960 Order entitled to ‘the like immunity from legal process as is . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – Wokuri v Kassam ChD 30-Jan-2012
. .
Cited – Abusabib and Another v Taddese EAT 20-Dec-2012
EAT Jurisdictional Points : State Immunity – Diplomatic Immunity
The First Respondent, who had been found liable together with the Second Respondent for acts of discrimination against the Claimant in a . .
Cited – Regina v Central Criminal Court Ex Parte Propend Finance Pty Ltd and Others QBD 17-Mar-1994
A Home Secretary requesting warrants must be specific on the type he required. It was his duty, and not that of the police to state the method of seizure of documents for use in a foreign jurisdiction. A judge making an order should give reasons for . .
Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
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 – Tabion v Mufti 1996
(4th Circuit – United States) The appellant worked for two years as a domestic servant in the home of the respondent diplomats. The appellant brought proceedings claiming damages for breach of the terms of her contract of employment. In response to . .
Cited – CA Empson v Smith CA 1965
Proceedings were begun against Mr Smith, a member of the administrative staff of the Canadian High Commission in London, claiming damages under a private tenancy agreement. As the proceedings were commenced, he enjoyed the same immunity under the . .
Cited – Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) ICJ 21-Jun-1971
The International Court of Justice referred to the maintenance of an apartheid regime as being a flagrant violation of the purposes and principles of the UN Charter,
Article 22(1) of the Covenant of the League of Nations provided for the grant . .
Cited – Shaw v Shaw 1979
The wife filed a petition for a dissolution of her marriage to a diplomat attached to the United States embassy. At the time, he was immune, but the petition was allowed to proceed once the husband’s posting came to an end and he left the United . .
Cited – Islamic Republic of Iran v United States of America – Oil Platforms – Judgment of 6 November 2003 ICJ 6-Nov-2003
. .
Cited – Downes Manor Properties Ltd v Bank of Namibia and An CA 18-Mar-1999
The choice of a lawyer outside the UK to provide services as part of litigation did not excuse the failure to comply with an unless order made by the court. Such orders are intended to be punitive. The use of lawyers outside the UK was not . .
Cited – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 September 2022; Ref: scu.597260
Appeal from Upper Tribunal decision as to removal of SB from the Children’s Barred List.
Maurice Kay VP CA, Etheron LJJ, Sir Scott Baker
[2012] EWCA Civ 977, [2013] AACR 24, [2012] WLR (D) 215, [2013] 1 WLR 308
England and Wales
Updated: 15 September 2022; Ref: scu.462948
Renewed application for permission to appeal.
Rimer LJ
[2011] EWCA Civ 619
England and Wales
Updated: 13 September 2022; Ref: scu.440219
The court was asked as to whether a post-employment non-solicitation restrictive covenant was reasonable.
Held: The covenant was upheld. It extended for a period of twelve months to customers within the last six months with whom the employee had dealt at any time as an employee.
Lord Justice Waite said: ‘given the brevity of the restraint period and the limitation of this restraint to customers within the previous six months, I find nothing illogical in the absence of a backward temporal limit on the employee ‘s dealings with such customers.’
Waite LJ
[1997] EWCA Civ 1610, [1997] IRLR 636
England and Wales
Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2022; Ref: scu.142006
[2002] UKEAT 0012 – 02 – 1811
England and Wales
Updated: 12 September 2022; Ref: scu.439863
One way of deciding whether a person is self employed is to ask whether he can be said to be running a business of his own. Different tests may have to be combined to produce an overall answer.
Cooke J said: ‘The fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ‘yes’, then, the contract is a contract for service. If the answer is ‘no’, then, the contract is a contract of service. No exhaustive list has been compiled and, perhaps, no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.’
Cooke J
[1969] 2 QB 173, [1969] 2 WLR 1, [1968] 3 All ER 732
England and Wales
Cited – Professional Contractors’ Group and Others v Commissioners of Inland Revenue CA 21-Dec-2001
Legislation had been enacted to tax under Schedule E, people employed through one man service companies and similar. Representatives of such taxpayers sought review of the legislation as incompatible with European law being a hindrance to the . .
Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Cited – Yuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
Applied – Young and Woods Ltd v West CA 11-Feb-1980
The applicant had complained of unfair dismissal.The employment contract had been dressed as a self employed service provider’s contract to privide him with tax, and was unlawfully so. The employer appealed, saying that as an unlawful contract, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.180510
The employee complained of her dismissal having made protected disclosures. The company said that the dismissal was for reasons of inadequate work.
Held: The company’s appeal succeeded. Subject to possible qualifications said to be irrelevant to the present case, a tribunal required to determine ‘the reason (or, if more than one, the principal reason) for the dismissal’ under section 103A of the Act, and for that matter under section 98(1)(a), was ‘obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss’
Jackson, Underhill, Moylan LJJ
[2017] EWCA Civ 1632, [2017] WLR(D) 697, [2018] ICR 982, [2018] IRLR 251
Employment Rights Act 1996 103A
England and Wales
At EAT (1) – Royal Mail Group Ltd v Jhuti EAT 19-May-2016
EAT Victimisation Discrimination: Dismissal – Whether the Employment Tribunal’s determination that dismissal was not automatically unfair under section 103A Employment Rights Act 1996 because the person who . .
Appeal from – Jhuti v Royal Mail Group Ltd and Others EAT 31-Jul-2017
EAT (Practice and Procedure) 1. While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order . .
At CA – Royal Mail Group Ltd v Jhuti EAT 19-Mar-2018
Practice and Procedure
The appeal and cross-appeal challenge
(i) whether the detriment claims are in time in circumstances where the grievance detriment claim failed; and
(ii) whether the grievance detriment claim was wrongly . .
At CA – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.597441
EAT (Practice and Procedure) 1. While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong.
2. The decision in Johnson v. Edwardian International Hotels Ltd [2008] UKEAT/0588/07 was not followed.
3. The appeal was accordingly allowed.
Simler DBE J P
[2017] UKEAT 0062 – 17 – 3107, [2017] WLR(D) 613, [2018] ICR 1077
England and Wales
See Also – Royal Mail Group Ltd v Jhuti EAT 19-May-2016
EAT Victimisation Discrimination: Dismissal – Whether the Employment Tribunal’s determination that dismissal was not automatically unfair under section 103A Employment Rights Act 1996 because the person who . .
Appeal from – Royal Mail Ltd v Jhuti CA 20-Oct-2017
The employee complained of her dismissal having made protected disclosures. The company said that the dismissal was for reasons of inadequate work.
Held: The company’s appeal succeeded. Subject to possible qualifications said to be irrelevant . .
At EAT (2) – Royal Mail Group Ltd v Jhuti EAT 19-Mar-2018
Practice and Procedure
The appeal and cross-appeal challenge
(i) whether the detriment claims are in time in circumstances where the grievance detriment claim failed; and
(ii) whether the grievance detriment claim was wrongly . .
At EAT (2) – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.592678
Pill, Rix, Lloyd LJJ
[2011] EWCA Civ 494
England and Wales
Updated: 08 September 2022; Ref: scu.434838
EAT The issues were (i) whether the employment tribunal misdirected itself in concluding that the dismissal was unfair on merely procedural grounds, (ii) whether it misdirected itself in concluding that, had a fair procedure been adopted, the appellant would have been fairly dismissed anyway, and (iii) whether it misdirected itself in concluding that the appellant caused or contributed to her dismissal to the extent of 100%.
The Honourable Mr Justice Rimer
[2004] UKEAT 0737 – 04 – 1312, UKEAT/0737/04
England and Wales
Updated: 07 September 2022; Ref: scu.228680
[2011] EWCA Civ 438
Transfer of Undertakings (Protection of Employment) Regulations 2006
England and Wales
Updated: 06 September 2022; Ref: scu.432814
Renewed application for permission to appeal.
Rimer LJ
[2011] EWCA Civ 402
England and Wales
Updated: 06 September 2022; Ref: scu.432723
The appellant sought to challenge an award of damages for unfair dismissal and victimisation discrimination.
[2011] EWCA Civ 427
England and Wales
Updated: 06 September 2022; Ref: scu.432728
Actions re occupational pension schemes.
Rimer J
[1999] EWHC 848 (Ch), [2000] PLR 15, [2000] OPLR 1, [2000] Pens LR 15
England and Wales
Updated: 06 September 2022; Ref: scu.431952
Appeal on points of law from the decision of Deputy Pensions Ombudsman rejecting his complaint that his former employer had been guilty of maladministration in reaching a decision not to award him an ill-health retirement pension on the termination of his employment.
Briggs J
[2011] EWHC 900 (Ch)
England and Wales
Updated: 06 September 2022; Ref: scu.431897
[2002] UKEAT 1313 – 00 – 2801
England and Wales
See Also – Billany v Knutsford Conservative Club EAT 30-Apr-2002
EAT Contract of Employment – Definition of employee. . .
See Also – Billany v Knutsford Conservative Club EAT 8-Jul-2003
EAT Contract of Employment – Definition of employee . .
See Also – Billany v Knutsford Conservative Club EAT 8-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.202403
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and breach of the 1998 Regulations, saying that the statutory exemption of the Embassies from liability infringed their human rights in Convention and EU law. The Foreign Secretary, on behalf of the embassies now appealed a finding that the provision was an infringement of the workers’ human rights.
Held: The appeals failed.
Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption
[2017] UKSC 62, [2017] 3 WLR 957, [2017] WLR(D) 691, UKSC 2015/0063
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary video, SC Video * Jun 17 pm, SC Vid 6/6/17 pm, SC Vid 7/6/17 am, SC Vid 7/6/17 pm, SC Vid 8/6/17 am
State Immunity Act 1978, European Union Charter of Fundamental Rights, European Convention on Human Rights, Working Time Regulations 1998
England and Wales
At EAT – Benkharbouche v Embassy of The Republic of Sudan (Jurisdictional Points : State Immunity) EAT 4-Oct-2013
EAT STATE IMMUNITY
A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, . .
At CA – Benkharbouche and Another v Embassy of The Republic of Sudan CA 5-Feb-2015
The claimant had been an employee of a foreign diplomatic mission. He said that he was not debarred by the 1978 Act from bringing claims for unfair dismissal and breach of working time regulations, saying that any exemption would infringe his human . .
Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Cited – The Owners of The Ship Philippine Admiral (Philippine Flag) v Wellem Shipping (Hong Kong) Limited and Another PC 5-Nov-1975
(Hong Kong) Sovereign immunity was denied to state trading ships, restricting the extent of state immunity. . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
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 – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Markovic and Others v Italy ECHR 14-Dec-2006
The applicants were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
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 – Waite and Kennedy v Germany ECHR 18-Feb-1999
The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Sabeh El Leil v France ECHR 29-Jun-2011
Grand Chamber – The applicant alleged that he had been deprived of his right of access to a court as a result of the immunity from jurisdiction upheld by the domestic courts.
This was a claim for unfair dismissal, brought before the French . .
Cited – Cudak v Lithuania ECHR 23-Mar-2010
Grand Chamber – The applicant alleged that there had been a violation of her right of access to a court, as guaranteed by Article 6-1 of the Convention.
The applicant was a secretary and switchboard operator employed in the Polish embassy in . .
Cited – Wallishauser v Austria (No 2) ECHR 20-Jun-2013
. .
Cited – Radunovic And Others v Montenegro ECHR 25-Oct-2016
. .
Cited – Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) ICJ 1986
The prohibition on the use of force in article 2(4) of the United Nations Charter was accepted as jus cogens, a universally recognised principle of international law. . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.597258
ECJ Civil service – Session auxiliaries of the European Parliament – Admissibility – Pre-litigation procedure – Article 283 EC – Article 78 of the Conditions of Employment – Plea of illegality – Equal treatment – Stable employment – Directive 1999/70 – Fixed-term contracts – Possibility of relying on certain provisions
65/07, [2009] EUECJ 65/07
European
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families SC 29-Mar-2011
The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.431633
ECJ Article 43 EC – Freedom of establishment – Article 49 EC – Freedom to provide services – Restrictions – Court experts who are professional translators – Exercise of official authority – National legislation reserving appointment as a court expert for persons enrolled in registers established by the national judicial authorities – Justification – Proportionality – Directive 2005/36/EC – Concept of ‘regulated profession’.
C-373/09, [2011] EUECJ C-373/09
European
Updated: 04 September 2022; Ref: scu.430722
ECJ Public service contracts – Directive 2004/18/EC – Article 47(2) – Direct effect – Whether applicable to the services referred to in Annex II B to that directive.
C-95/10, [2011] EUECJ C-95/10
European
Updated: 04 September 2022; Ref: scu.430726
ECJ Article 43 EC – Freedom of establishment – Article 49 EC – Freedom to provide services – Restrictions – Court experts who are professional translators – Exercise of official authority – National legislation reserving appointment as a court expert for persons enrolled in registers established by the national judicial authorities – Justification – Proportionality – Directive 2005/36/EC – Concept of ‘regulated profession’.
C-372/09, [2011] EUECJ C-372/09
European
Updated: 04 September 2022; Ref: scu.430721
EAT CONTRACT OF EMPLOYMENT – Disciplinary and grievance procedure
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
(1) An employee who has been dismissed because of the breakdown of working relationships between himself and his colleagues (irrespective of whether he had been responsible for, or had contributed to, that breakdown) had not had action taken against him because of his conduct. Accordingly, it had been open to the Employment Tribunal to rule that such disciplinary procedures as applied when allegations of misconduct were made did not have to be invoked in his case.
(2) The other issues to which the appeal related did not raise any questions of principle.
Keith J
[2011] UKEAT 0399 – 09 – 1803, [2007] ICR 1126, [2007] 4 All ER 940, (2011) 121 BMLR 84, [2011] IRLR 550, [2011] Med LR 251
Employment Rights Act 1996 103A
England and Wales
See Also – Ezsias v North Glamorgan NHS Trust EAT 25-Jul-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 . .
See Also – Ezsias v North Glamorgan NHS Trust CA 7-Mar-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 . .
Cited – Street v Derbyshire Unemployed Workers’ Centre CA 21-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 . .
Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Cited – Perkin v St Georges Healthcare NHS Trust CA 12-Oct-2005
A senior employee had been dismissed because his manner and management style had led to a breakdown in his relationships with other members of the senior executive team. The employment tribunal had considered whether his dismissal for that reason . .
Cited – D’Sa v University Hospital Coventry and Warwickshire NHS Trust CA 18-Jun-2001
An inquiry panel had concluded that the surgeon had been guilty of professional misconduct, but had recommended that the appropriate disciplinary sanction was that the surgeon should be warned about his behaviour. The court was now asked whether at . .
Cited – Buxton v Swansea NHS Trust 27-Apr-2007
Mercantile Court, Birmingham – The surgeon appellant had been dismissed by the NHS Trust which employed him. The reason for his dismissal was described as ‘a breakdown in relations between yourself and your Consultant colleagues that is both mutual . .
Cited – Lockey v East North East Homes Leeds EAT 14-Jun-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Striking out – unfair dismissal and wrongful dismissal.
As to unfair dismissal, since (as the Employment Judge recognised) it was arguable that an . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.430683
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by the Respondent he submitted an ET1 alleging he had been laid off.
By a judgment of Employment Judge Salter (‘the first judgment’), it was held that the Claimant was not entitled to redundancy pay. The Claimant was dismissed because of retirement with effect from 31 July 2009.
He then submitted a new ET1 claiming, among other things, four different types of unfair dismissal, notice pay in breach of contract and a guarantee payment.
The Respondent applies to have the claims struck out as being res judicata by reason of the first judgment on alternatively as an abuse in the Henderson v Henderson sense. The application was granted save in respect of the guarantee payment. The Claimant appealed and the Respondent cross-appealed in respect of the guarantee payment.
Held –
1. Appeal allowed as:
(a) Res judicata did not apply as although the first Tribunal held that the Claimant was not dismissed by reason of redundancy, this did not create an estoppel as (i) this finding was not necessary for the decision as the claim was layoff (Arnold v National Westminster Bank [1991] 2 AC 93, 105 applied; and (ii) In any event, the first Tribunal did not have jurisdiction to deal with a redundancy as it was premature (Watts v Rubery Owen [1997] 2 All ER 1, applied);
(b) This was not a case of abuse as there was no oppressive conduct and this was not a case of the Claimant abusing the court process (Johnson v Gore-Wood [2002] 2 AC 1, 31 applied).
The cross-appeal was dismissed as the Employment Judge was entitled to conclude that it was not an abuse in the Henderson v Henderson sense to pursue this claim in the second action.
Silber J
[2011] UKEAT 0382 – 10 – 1703
England and Wales
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Still Good Law – Watts v Rubery Owen Conveyancer Limited EAT 1977
The claimant sought a redundancy payment. The employer said that his employment had not yet finished.
Held: Kilner Brown J said: ‘The effect of these cases is that where an application is made to an Industrial Tribunal before the act of . .
Mentioned – Pritchard-Rhodes Limited v Boon and Milton EAT 1979
An application to the Industrial Tribunal for a redundancy payment was not effective because it failed to comply with the statutory requirements which, on their true construction, provided that an application could not be effectively made to an . .
Cited – O’Laoire v Jackel International Limited (No 2) CA 1991
On taking up employment the plaintiff was told he would later be appointed managing director. His employment was terminated, and he sought damages.
Held: The defendant was estopped from denying it would appoint him managing director, since . .
Cited – Arnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
Cited – Danyluk v Ainsworth Technologies Inc 12-Jul-2001
Canlii (Supreme Court of Canada) Administrative law – Issue estoppel – Employee filing complaint against employer under Employment Standards Act seeking unpaid wages and commissions – Employee subsequently . .
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited – Chapman v Simon CA 1994
The court considered the approach where a party sought to raise on appeal a complaint not made in the case presented to the tribunal.
Held: An Employment Tribunal must decide the issues which are put before it and should not decide issues . .
Cited – South Durham Health Authority v Unison EAT 6-Feb-1995
Mummery J P said: ‘Similarly in the case of entitlement to redundancy payments discussed in the authorities relied on by [counsel] there is no right of action, no entitlement to the payments before the date of termination has arrived. An originating . .
Cited – Williams, Regina v CACD 2-Nov-2010
The offence of causing death by driving while unlicensed, disqualified or uninsured, is committed if the driver is unlicensed, disqualified or uninsured and if the driving is a cause of death in the sense that it was ‘more than negligible or de . .
Cited – Watt (Formerly Carter) v Ahsan HL 21-Nov-2007
The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .
Cited – Manson v Vooght and Others CA 3-Nov-1998
The claimant was the former managing director of a company, which had been placed into administrative receivership. The claims were for breach of contract and conversion (in relation to antique furniture) and they were brought against the . .
Cited – HM Prison Service v Barua EAT 15-Nov-2006
EAT Time Limits
Practice and Procedure – 2002 Act and pre-action requirements
Unfair Dismissal – Constructive dismissal
For the purpose of the extension of the time afforded by reg. 15 of the . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Morris v Wentworth-Stanley CA 4-Sep-1998
Two actions had been brought by a contractor against the partners in a farming partnership. Those actions were consolidated. One of the partners died and when the plaintiff found that out he discontinued his claims against the deceased partner and . .
Cited – Bradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA 11-Mar-1999
There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.430660
The claimant had issued proceedings for unfair dismissal, but his appeal against refusal of permission to amend his claim to allow a claim for disability discrimination had succeeded at the EAT. At the time when the claim had been made, the law allowing claims for associative disability had not been recognised (Attridge).
Held: The employer’s appeal succeeded. The amended claim had no prospect of success and should not be allowed to proceed.
[2010] EWCA Civ 1604
England and Wales
Cited – S. Coleman v Attridge Law, Steve Law ECJ 17-Jul-2008
ECJ Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment related to . .
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.430486
The appellants appealed against refusal by the EAT of an extension of time for them to appeal.
Held: The court could take some account of the prospects of success in deciding whether to extend time.
Pill, Rimer, Black LLJ
[2010] EWCA Civ 1246
England and Wales
Cited – Aziz v Bethnal Green City Challenge Company Limited CA 25-May-1999
The notice of appeal was served three days late. The Registrar and Morison J refused to extend time, the judge concluding that the explanation for the delay was honest and full, but not acceptable.
Held: Permission to appeal was refused. Sir . .
Cited – Tamina v NHS Professionals EAT 18-Nov-2010
EAT PRACTICE AND PROCEDURE – Time for appealing
The Appellant was one and 16 days late in lodging a Notice of Appeal against two interim case management orders. He was articulate and assiduous in legal . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.430477
ECJ (Social Policy) References for a preliminary ruling – Social policy – Directive 98/59/EC – Collective redundancies – Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person – No consultation of employees’ representatives – Equivalence of employer and liquidator.
C-238/10, [2011] EUECJ C-238/10
European
Updated: 03 September 2022; Ref: scu.430333
Appeal against order restraining defendant trades unions from pursuing industrial action.
Mummery, Etherton, Elias LJJ
[2011] EWCA Civ 226
England and Wales
Updated: 03 September 2022; Ref: scu.430316
ECJ References for a preliminary ruling – Social policy – Directive 98/59/EC – Collective redundancies – Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person – No consultation of employees’ representatives – Equivalence of employer and liquidator
C-237/10, [2011] EUECJ C-237/10
European
Updated: 03 September 2022; Ref: scu.430332
ECJ (Social Policy) References for a preliminary ruling – Social policy – Directive 98/59/EC – Collective redundancies – Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person – No consultation of employees’ representatives – Equivalence of employer and liquidator.
[2011] EUECJ C-239/10
European
Updated: 03 September 2022; Ref: scu.430334
ECJ References for a preliminary ruling – Social policy – Directive 98/59/EC – Collective redundancies – Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person – No consultation of employees’ representatives – Equivalence of employer and liquidator
[2011] EUECJ C-235/10
European
Updated: 03 September 2022; Ref: scu.430330
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimants were dismissed for gross misconduct in restraining an elderly dementia patient. The Employment Tribunal found that the employer had insufficient evidence based on an inadequate investigation to ground its belief that the patient was tied to a chair and no effort was made to release him. The EAT allowed an appeal based on a substitution mindset by the ET. London Ambulance Service NHS Trust v Small [2009] IRLR 563 applied. Case remitted to a fresh ET for a re-hearing because of insufficient clarity as to what the outcome would be.
[2011] UKEAT 0338 – 10 – 0303
England and Wales
Appeal from – Crawford and Another v Suffolk Mental Health Partnership NHS Trust CA 17-Feb-2012
The claimant nurses appealed against the reversal of the finding that they had been unfairly dismissed. They had been accused of manhandling an aggressive dementia patient. . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2022; Ref: scu.430309
(Barbuda) Where the amount of a pension was to be calculated by reference to the length of service and the greater of the pay at the time of retirement, or the average over the last three years, that pay was calculated as the total amount of pay or earnings of all kinds relating to the pensionable employment.
Ind Summary 22-Mar-1993, [1993] UKPC 6
Commonwealth
Updated: 02 September 2022; Ref: scu.429751
Maurice Kay VP, Hooper, Tomlinson LJJ
[2011] EWCA Civ 131, [2010] IRLR 648
England and Wales
Updated: 02 September 2022; Ref: scu.429664
EAT PRACTICE AND PROCEDURE
Case management
Postponement or stay
The Employment Judge erred in deciding not to stay Employment Tribunal proceedings, and to allow them to run concurrently over similar territory with High Court proceedings. By consent, the decision would be made by the EAT and not remitted.
[2010] UKEAT 0225 – 10 – 0712
Updated: 01 September 2022; Ref: scu.428724
The court considered the liability of a local education authority for the unfair dismissal of a head teacher by a school which had since closed.
Held: The Employment Tribunal’s Order should be restored so that the proceedings will continue against the governing body in the name of the Education Authority and against the Education Authority directly.
Carnwath, Elias, Pitchford LJJ
[2011] EWCA Civ 92, [2011] ICR 1415
England and Wales
Updated: 01 September 2022; Ref: scu.428532
Renewed application for permission to appeal.
[2011] EWCA Civ 36
England and Wales
Updated: 01 September 2022; Ref: scu.428363
[2011] EWHC 7 (QB)
England and Wales
Updated: 31 August 2022; Ref: scu.428048
The claimant challenged the amendments brought in by the 2010 Regulations.
Kenneth Parker J
[2010] EWHC 3442 (Admin)
National Minimum Wage Regulations 1999, Minimum Wage (Amendment) (No. 2) Regulations 2010
England and Wales
Updated: 31 August 2022; Ref: scu.427944
ECJ Social Policy – Directive 1999/70/EC – Clause 4 of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP – Principle of non-discrimination – Application of the framework agreement to the interim staff of an Autonomous Community – National rules establishing different treatment in respect of the award of a length-of-service increment on the basis of the temporary nature of the employment relationship – Obligation to recognise, with retrospective effect, the right to the length-of-service increment.
C-444/09, [2010] EUECJ C-444/09
European
Updated: 31 August 2022; Ref: scu.427698
The claimant doctor appealed against the refusal of compensatory damages awarded on a finding that she had been unfairly selected for redundancy.
Maurice Kay VP CA, Smith, Leveson LLJ
[2010] EWCA Civ 1481
England and Wales
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Appeal from – Arhin v Enfield Primary Care Trust EAT 26-Jan-2010
EAT PRACTICE AND PROCEDURE: Appellate Jurisdiction/Reasons/Burns-Barke
REDUNDANCY
UNFAIR DISMISSAL
RACE DISCRIMINATION
The employer was found not to have acted by reason of race when . .
Cited – Balfour Beatty Power Networks Ltd and Another v Wilcox and others CA 20-Jul-2006
Rule 30(6) of the 2004 Rules, which requires sufficient reasons, is intended to be a guide and not a straitjacket so that if it can be reasonably spelled out from a determination that what the rule requires has been provided by the Tribunal, then no . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 August 2022; Ref: scu.427363
ECFI (Staff Regulations) Appeal – Cross-appeal – Civil service – Officials – Recruitment – Vacancy – Rejection of candidature – Appointment to the post of Head of Unit – Action for annulment – Admissibility – Interest in bringing proceedings – Action for damages – Non-pecuniary damage.
T-526/08, [2010] EUECJ T-526/08
European
Updated: 31 August 2022; Ref: scu.427316
The court was asked whether the Employment Tribunal had jurisdiction to construe contractual terms and conditions contained or referred to in a written statement or particulars.
Maurice Kay VP, Stanley Burnton, Jackson LJJ
[2010] EWCA Civ 1442, [2011] IRLR 247, [2011] ICR 285
England and Wales
Updated: 31 August 2022; Ref: scu.427271
Jack J
[2010] EWHC 3241 (QB)
England and Wales
Updated: 31 August 2022; Ref: scu.427295
Rimer, Black LJJ
[2010] EWCA Civ 1402
England and Wales
Updated: 29 August 2022; Ref: scu.427209
Laws, Hooper, Rimer LJJ
[2010] EWCA Civ 1416
England and Wales
At EAT – United States of America v Nolan EAT 15-May-2009
EAT REDUNDANCY: Collective consultation and information / Protective award
An Employment Tribunal held that the USA was in breach of Section 188 of the Trade Union and Labour Relations (Consolidation) Act . .
See Also – United States of America v Nolan CA 9-Nov-2010
The claimant had sought a protective award under the 1992. She had been a civilian employee at a base operated by the appellant which it closed. She sought to sue as an employee representative, saying that the appellant had failed to consult its . .
At ECJ – United States of America v Nolan ECJ 18-Oct-2012
Reference for a preliminary ruling – Directive 98/59/EC – Protection of workers – Collective redundancies – Scope – Closure of an American military base – Information and consultation of workers – Time at which the consultation obligation arises – . .
At CA – The United States of America v Nolan SC 21-Oct-2015
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.
Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2022; Ref: scu.427206
Laws, Etherton, Gross LJJ
[2010] EWCA Civ 1368
England and Wales
Updated: 29 August 2022; Ref: scu.427210
Pill, Longmore, Lloyd LLJ
[2010] EWCA Civ 1378
England and Wales
Updated: 28 August 2022; Ref: scu.426902
Claim for employment bonus, when employee dismissed a few days before the bonus became due.
Pill, Arden, Jackson LLJ
[2010] EWCA Civ 1350
England and Wales
Updated: 28 August 2022; Ref: scu.426900
EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Whether the statutory grievance procedure applies to a claim of post-termination victimisation. It does.
A claim alleging victimisation in consequence of evidence contained in witness statements served in proceedings in the employment tribunal failed for immunity.
Peter Clark HHJ
[2010] UKEAT 0022 – 10 – 0511, [2011] IRLR 641, [2011] ICR D1
Employment Act 2002 32, Race Relations Act 1976
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2022; Ref: scu.426920
Statutory maternity pay – date employment ceased – did employment cease before qualifying week – on facts employment continued into qualifying week. Appeal allowed.
[2010] UKFTT 390 (TC)
England and Wales
Updated: 27 August 2022; Ref: scu.426551
EAT Practice and Procedure – Appearance/Response; 2002 Act and Pre-action Requirements; Chairman alone
CPR part 2.8 provides a clear illustration of the rule on counting the 28 days which must elapse between a grievance and a claim. The earliest date following a grievance on a Monday is the Tuesday, four weeks later, leaving 28 clear days when neither a grievance nor a claim is made.
A Chairman may sit alone on an unfair dismissal claim when it is ‘not resisted’ and this includes when a Respondent is ordered to play no part in the proceedings because it did not submit a response. Even if the putative Respondent seeks to defend the case, it is not allowed to resist and the Chairman may sit alone.
His Honour Judge McMullen QC
UKEAT/0375/06 and UKEAT/0376/06
England and Wales
Updated: 27 August 2022; Ref: scu.258098
EAT Practice and Procedure
Employment Tribunal Chairman, after a Case Management and Directions Hearing to delineate issues and set timetable for May hearing, delayed for three months before delivering Decision, and then imposed timetable retrospective to the Case Management Hearing: and then refused joint application by the parties for adjournment of the trial date of case remitted by the Employment Appeal Tribunal inter alia because of failure of earlier case management. Appeal allowed and May date adjourned to September/October date convenient to the parties.
The Honourable Mr Justice Burton
UKEAT/0168/05, [2005] UKEAT 0168 – 05 – 1204
England and Wales
See Also – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
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 . .
See Also – Sinclair Roche and Temperley (A Firm ) v Heard, Fellows EAT 21-Nov-2005
EAT Practice and Procedure: Disclosure, Costs and Disposal of Appeal
Appeal against interlocutory orders by ET Chairman debarring reliance on some disclosed documents and ordering costs against the . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 August 2022; Ref: scu.225216
[1998] UKEAT 450 – 98 – 0110
England and Wales
See Also – Sivanandan v London Borough of Enfield EAT 1-May-1998
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Feb-1999
. .
See Also – Sivanandan v Enfield and others EAT 25-Apr-2001
. .
See Also – Sivanandan v Enfield and Another EAT 11-Jul-2001
. .
See Also – Sivanandan v Enfield and others EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and Another EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 23-Jul-2002
EAT Procedural Issues – Employment Tribunal . .
See Also – Sivanandan v London Borough of Enfield and others CA 7-Oct-2002
. .
See Also – London Borough of Enfield v Sivanandan QBD 5-Apr-2004
. .
See Also – London Borough of Enfield v Sivanandan CA 20-Jan-2005
The employee first issued a claim in the employment tribunal, and then in the High Court. The defendant company argued that the tribunal proceedings were not concluded before the High Court proceedings were issued, but only later when they were . .
See Also – London Borough of Enfield v Sivanandan EAT 12-Sep-2005
EAT Practice and Procedure – Striking-out/dismissal.
EAT Practice and Procedure – Striking-out/dismissal. . .
See Also – London Borough of Enfield v Sivanandan CA 29-Jun-2006
Application for civil restraint order. . .
See Also – Sivanandan v London Borough of Enfield EAT 19-Oct-2006
EAT Practice and Procedure – Estoppel or Abuse of Process. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 August 2022; Ref: scu.206826
[1998] UKEAT 450 – 98 – 0105
England and Wales
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Oct-1998
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 1-Feb-1999
. .
See Also – Sivanandan v Enfield and others EAT 25-Apr-2001
. .
See Also – Sivanandan v Enfield and Another EAT 11-Jul-2001
. .
See Also – Sivanandan v Enfield and others EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and Another EAT 26-Jul-2001
. .
See Also – Sivanandan v London Borough of Enfield and others EAT 23-Jul-2002
EAT Procedural Issues – Employment Tribunal . .
See Also – Sivanandan v London Borough of Enfield and others CA 7-Oct-2002
. .
See Also – London Borough of Enfield v Sivanandan QBD 5-Apr-2004
. .
See Also – London Borough of Enfield v Sivanandan CA 20-Jan-2005
The employee first issued a claim in the employment tribunal, and then in the High Court. The defendant company argued that the tribunal proceedings were not concluded before the High Court proceedings were issued, but only later when they were . .
See Also – London Borough of Enfield v Sivanandan EAT 12-Sep-2005
EAT Practice and Procedure – Striking-out/dismissal.
EAT Practice and Procedure – Striking-out/dismissal. . .
See Also – London Borough of Enfield v Sivanandan CA 29-Jun-2006
Application for civil restraint order. . .
See Also – Sivanandan v London Borough of Enfield EAT 19-Oct-2006
EAT Practice and Procedure – Estoppel or Abuse of Process. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 August 2022; Ref: scu.206416
[1999] UKEAT 165 – 99 – 1705
England and Wales
Updated: 27 August 2022; Ref: scu.205158
EAT Redundancy – Protective award
His Honour Judge J Burke QC
EAT/0128/02, [2003] EAT 0128 – 02 – 0906, [2003] UKEAT 0128 – 02 – 0906
England and Wales
See Also – Larder, Miles v Warwickshire County Council EAT 19-Dec-2003
EAT Redundancy – Protective award. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 August 2022; Ref: scu.191654
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as ‘the wog’. She said that this was sufficient to mean that she suffered a detriment. The employer replied that the word detriment shouldbe looked at not by the effect on the employee, but by the objective difference in treatment by the employer.
Held: The claim failed. May LJ said ‘Apart from the actual decisions in these cases I think that this necessarily follows upon a proper construction of section 4 and in particular Section 4(2)(c) of the Act. Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress; before the employee can be said to have been subjected to some ‘other detriment’ the Court or Tribunal must find that by reason of the acts or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.’
May LJ
[1985] EWCA Civ 13, [1986] IRLR 103, [1986] ICR 514
England and Wales
Cited – BL Cars Ltd v Brown EAT 1983
A black employee of the defendant had been arrested and granted bail. The defendant feared that he would attempt to re-enter the plant under a false name. The Chief Security Officer issued instructions to the gates, to include a thorough check on . .
Cited – Porcelli v Strathclyde Regional Council EAT 1985
A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer.
Held: The real question was whether the sexual harassment was to the detriment of the applicant . .
See Also – De Souza v Automobile Association EAT 31-Jan-1997
. .
Cited – HM Land Registry v Grant EAT 15-Apr-2010
hmlr_grantEAT10
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction /Reasons /Burns-Barke
An Employment Tribunal accepted that 6 out of 12 . .
Cited – Olasehinde v Panther Securities Plc EAT 10-Jun-2008
EAT RACE DISCRIMINATION
Detriment
CONTRACT OF EMPLOYMENT
Wrongful dismissal
Appellant wrongly and unreasonably accused by employers of sexual harassment. Employers accept his denial but instruct him not . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 August 2022; Ref: scu.262666
EAT Whether or not claim settled. Employment Tribunal held to have erred in holding that no binding settlement reached where found as fact that employers’ agent had offered to settle the claim at andpound;1,000 and that offer had been accepted by the claimant’s solicitor. The belief of the ACAS officer involved to the effect that the settlement was not binding because he had not spoken directly to both parties was irrelevant, as was the finding that a COT3 settlement would ‘normally’ contain other provisions as well, as were the findings in fact about what passed between the Claimant’s solicitor and the employers’ agent subsequently, after the Claimant had changed his mind as to the acceptability of the offer. Appeal upheld and claim dismissed.
[2010] UKEAT 0060 – 09 – 1205
Updated: 25 August 2022; Ref: scu.424998
Reason for dismissal must be assessed in context of the date notice given.
Times 09-Jan-1997
England and Wales
See Also – Parkinson v March Consulting Ltd EAT 3-Oct-1994
. .
Appeal from – Parkinson v March Consulting Ltd EAT 24-Jul-1995
. .
Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2022; Ref: scu.84583
(New Zealand)
[1905] UKPC 70, [1906] AC 122
England and Wales
Cited – Neary and Neary v Dean of Westminster 9-Jun-1999
Financial wrong-doing short of dishonesty can be a basis for summary dismissal. Gross misconduct sufficient to justify dismissal must in the particular circumstances so undermine the trust and confidence of an employer that he should no longer be . .
Mentioned – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2022; Ref: scu.419715
EAT Statutory grievance procedures
Need for grievance to identify that complaint is one of racial discrimination – application to claims against employees as well as to claims against their employers.
[2007] UKEAT 0016 – 06 – 0602, UKEAT/0016/06
England and Wales
Cited – Prakash v Wolverhampton City Council EAT 1-Sep-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 . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Cited – Royal Mail Letters and others v Muhammad EAT 20-Dec-2007
EAT Practice and Procedure
Whether Claimant complied with requirements of Section 32 of the Employment Act 2002 and paragraph 6, Schedule 2 of the Employment Act (Dispute Regulations) 2004. . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2022; Ref: scu.248455
(Victoria)
[1883] UKPC 9, (1882-83) LR 8 App Cas 329
Commonwealth
Updated: 19 August 2022; Ref: scu.418229
Waller, Dyson, Lloyd LJJ
[2009] EWCA Civ 1582
England and Wales
Updated: 18 August 2022; Ref: scu.415058
Pill, Longmore LJJ
[2008] EWCA Civ 171
England and Wales
Updated: 17 August 2022; Ref: scu.408797
ECJ Social policy – Framework agreements on part-time work and on fixed-term work – Disadvantageous provisions provided for by national legislation for contractual public servants working part-time, on a casual basis, or under a fixed term contract – Principle of equal treatment.
C-486/08, [2010] EUECJ C-486/08
European
Updated: 17 August 2022; Ref: scu.408767
ECJ (Social Policy) Directive 1999/70/EC Clause 8 of the Framework Agreement on fixed’term work – Reduction of the general level of protection afforded to workers – First or single contract – Details to be included in a fixed’term contract for replacement purposes – Consequences of the incorrect transposition of a directive -Interpretation in conformity with European Union law.
C-98/09, [2010] EUECJ C-98/09 – O
European
Updated: 17 August 2022; Ref: scu.408764
Reasons for discharge of an injunction restraining a former employee working for a competitor.
[2010] EWHC 846 (QB), [2010] IRLR 594
England and Wales
Updated: 17 August 2022; Ref: scu.408603
EAT SEX DISCRIMINATION: Continuing Act
PRACTICE AND PROCEDURE: Preliminary Issues
Pre-hearing review concerning whether sex discrimination claim was in time. Whether a post termination review process could be a continuing act
[2010] UKEAT 0096 – 10 – 1103
Updated: 17 August 2022; Ref: scu.408522
Shoreditch County Court – claim brought by an employee against her employer arising from non-payment of part of her salary. Normally such a claim would be made under the statutory jurisdiction of an Employment Tribunal. But it is agreed that access to that Tribunal is not available in this case because the factor which triggered the deduction by the employer was the taking of industrial action by the employee.
Held: The claim failed and was dismissed. The fact that the employer has not locked-out the employee by barring them from the workplace nor prevented him or her from doing other work, does not itself amount to acceptance by the employer of the work that the employee in fact undertakes as sufficient performance of the contract.
Recorder Luba QC
[2007] EW Misc 4 (EWCC), [2007] IRLR 744
Cited – Miles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
Cited – Wiluszynski v Tower Hamlets LBC 1989
Where a contract expressly provides for fixed remuneration on specified events, the court cannot award any other remuneration on those events, nor can it awarded any remuneration if they do not occur. . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2022; Ref: scu.406757
Appeal against finding that claim time barred.
[2010] EWCA Civ 304
England and Wales
Updated: 16 August 2022; Ref: scu.406408
[1998] UKEAT 1053 – 98 – 1211
England and Wales
Updated: 16 August 2022; Ref: scu.206902
[1998] UKEAT 993 – 98 – 0111
England and Wales
Updated: 16 August 2022; Ref: scu.206870
[1998] UKEAT 174 – 98 – 0511
England and Wales
See Also – Humphreys v Rowlands and Another EAT 24-Apr-1998
. .
Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2022; Ref: scu.206901
