Citations:

[2018] UKEAT 0063 – 17 – 1101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605638

Citations:

[2018] UKEAT 0268 – 16 – 0119

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605632

Citations:

[2018] UKEAT 0071 – 17 – 2901

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605635

Citations:

[2018] UKEAT 0129 – 17 – 3001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605633

Citations:

[2018] UKEAT 0116 – 17 – 2901

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605634

Judges:

Paten, Hickinbottom, Singh LJJ

Citations:

[2018] EWCA Civ 280

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605627

Appeal from a decision of the EAT which allowed the Claimant’s appeal from the decision of an employment tribunal dismissing his claims of (constructive) unfair dismissal and disability discrimination.

Citations:

[2018] EWCA Civ 323

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605630

Citations:

[2018] UKEAT 0100 – 17 – 1701

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605636

Citations:

[2017] UKEAT 0135 – 17 – 0112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605631

TRANSFER OF UNDERTAKINGS – Transfer
TRANSFER OF UNDERTAKINGS – Dismissal/automatically unfair dismissal
TRANSFER OF UNDERTAKINGS – Objection to transfer
The Tribunal did not err in finding that the reason for the Claimant’s dismissal was the transfer notwithstanding the fact there were ongoing relationship difficulties between her and a colleague.

Judges:

Choudhury J

Citations:

[2017] UKEAT 0131 – 17 – 1710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605323

Application by the Claimant for an injunction to restrain the Defendant from unlawfully calling strike action in locations across the UK.

Judges:

upperstone J

Citations:

[2017] EWHC 2548 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.598449

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/ reasons/ Burns-Barke
The Employment Tribunal gave sufficient reasons for its decision on the Polkey issue.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0217 – 16 – 0906

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.590425

The employee appealed against rejection of his claim for automatic unfair dismissal, saying it had been because he had made protected disclosures, that he was a whistleblower.

Judges:

Black, Beatson, Underhill LJJ

Citations:

[2017] EWCA Civ 979

Links:

Bailii

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.588988

The defendant appealed against refusal of a stay in respect of an allegation under the 1992 Act of failure to give notice of redundancies.

Judges:

Treacy LJ, Foskett J

Citations:

[2017] EWHC 1152 (QB), [2017] WLR(D) 344

Links:

Bailii, WLRD

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 194

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.584204

ECJ Staff Regulations of Officials and Conditions of Employment of Other Servants Staff Regulations of Officials and Conditions of Employment of Other Servants – Judgment

Citations:

T-639/16, [2018] EUECJ T-639/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 04 April 2022; Ref: scu.604680

Staff Regulations of Officials and Conditions of Employment of Other Servants – Judgment

Citations:

T-561/16, [2018] EUECJ T-561/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 04 April 2022; Ref: scu.604681

EAT WORKING TIME REGULATIONS
The Claimant/Appellant was a railway signalman working on single manned boxes on eight-hour shifts. He had no rostered breaks but was expected to take breaks when there were naturally occurring breaks in work whilst remaining ‘on call’. Although none of the individual breaks lasted 20 minutes, in aggregate they lasted substantially more than 20 minutes.
He claimed that he was entitled to a 20 minute ‘rest break’ under regulation 12 of the Working Time Regulations 1998 or ‘compensatory rest’ under regulation 24(a). The Employment Tribunal found that regulation 12 did not apply and that the arrangements were compliant with regulation 24(a).
He appealed on the basis that ‘an equivalent period of compensatory rest’ must comprise one period lasting at least 20 minutes. The appeal succeeded in the light of Hughes v The Corps of Commissionaires Management Ltd [2011] EWCA Civ 1061 (in particular the judgment of Elias LJ at paragraph 54).

Citations:

[2017] UKEAT 0316 – 16 – 0811

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603715

UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Comparison
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Tribunal erred in treating the decision to instigate disciplinary procedures as a one-off act when that decision created an ongoing state of affairs to which the Claimant was subject. That part of the claim was therefore in time. The Tribunal did not err in concluding that there had been no discrimination in relation to the dismissal or in finding that the dismissal was not unfair.

Judges:

Choudhury J

Citations:

[2017] UKEAT 0342 – 16 – 0812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603720

JURISDICTIONAL POINTS – Worker, employee or neither

The Tribunal erred in concluding that there was no intention to create legal relations in circumstances where there was clearly a contract of some description between the Claimant and First Respondent.

Citations:

[2017] UKEAT 0134 – 17 – 0512

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603718

UNFAIR DISMISSAL – Constructive dismissal
The Appellant was dismissed with notice on the ground of capability arising from long-term medical absence. His claim for unfair dismissal was dismissed by the Employment Tribunal after a Full Hearing in 2014. The Employment Appeal Tribunal in 2016 concluded that, in its consideration of the reasonableness of the decision to dismiss (Employment Rights Act 1996 section 98(4)), the Employment Tribunal had not taken account of evidence relating to his medical condition received between the date of the dismissal and the date of termination of employment. That issue was remitted to the same Employment Tribunal. By its further decision upon the remittal the Employment Tribunal again concluded that the dismissal was fair. The Employment Appeal Tribunal accepted the Appellant’s submission that the Employment Tribunal had not expressly or implicitly addressed the specifically remitted issue concerning the intervening medical evidence. The claim of unfair dismissal was remitted to a new Employment Tribunal for the whole claim to be considered afresh.

Judges:

Soole J

Citations:

[2017] UKEAT 0247 – 16 – 2011)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603716

EAT PRACTICE AND PROCEDURE – Disclosure
An Employment Judge erred in law in ordering general disclosure of all documentation which passed between a Union and its member (the Claimant) in connection with disciplinary issues giving rise to Employment Tribunal proceedings.
Given the confidential nature of such correspondence, albeit not privileged, a Tribunal ought ordinarily to carry out an inspection of the documents said potentially to be disclosable and should test each against the principles set out in Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740, itself derived from Nasse v Science Research Council [1979] IRLR 465, namely whether a document is not only relevant but also necessary for fairly disposing of the proceedings.
No such inspection should be carried out until a list of issues said to be in dispute in the proceedings is put before the Judge.

Citations:

[2017] UKEAT 0294 – 17 – 1312

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603719

EAT Jurisdictional Points – Worker, Employee or Neither – JURISDICTIONAL POINTS – Continuity of employment
The Appellant claimed unfair dismissal. The Respondents served ET3 responses which denied that he was an employee, but thereafter took no part. Following a Preliminary Hearing on the issue of his employment status the ET held that he had been self-employed at all times. The EAT accepted that the ET had asked itself the right questions but that in answering them there had been errors of approach (see paragraph 25). The issue was remitted to the ET for fresh consideration in the light of the Judgment.
The ET also held that the Appellant did not have two years’ continuous employment, so that it had no jurisdiction to entertain the claim in any event. The EAT held that this was not an issue in the Preliminary Hearing; that it had not been raised by the Respondents; and that in any event the point did not go to jurisdiction.

Judges:

Soole J

Citations:

[2017] UKEAT 0154 – 17 – 0412

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603721

Citations:

[2017] UKEAT 0092 – 16 – 0501

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – BMC Software Ltd v Shaikh (Second Judgment) EAT 9-Aug-2017
Equal Pay Act – Material Factor Defence . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 03 April 2022; Ref: scu.603708

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Employment Tribunal rejected claims by the Claimant of discrimination, harassment and victimisation based on race.
Certain sections of the Judgment were taken verbatim from the Respondent’s Word submissions.
Although unfortunate that the Employment Tribunal had ‘copied and pasted’ in this way, on analysis the EAT was satisfied that the Employment Tribunal engaged sufficiently with the Claimant’s case and that he lost the case ‘on the facts’ and had suffered no injustice which required the appeal to be allowed. Crinion and Anor v IG Markets Ltd [2013] EWCA Civ 587 applied.

Citations:

[2017] UKEAT 0088 – 17 – 2410

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603714

Unfair Dismissal – Constructive dismissal 1. The Employment Tribunal erred in concluding that the Claimant’s suspension was a knee jerk reaction and unjustified. Suspension followed a full investigation into IT misuse by the Claimant that concluded there was a case to answer. Further, the findings that led the Employment Tribunal to conclude that suspension was unjustified were unsupported by the evidence, and the Employment Tribunal’s analysis was flawed. 2. In the circumstances, the Employment Tribunal’s conclusion that there was a breach of the implied term of trust and confidence on this basis (that entitled the Claimant to resign claiming constructive dismissal) could not stand and was remitted to a fresh Tribunal.

Citations:

[2017] UKEAT 0257 – 16 – 1807

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603711

JURISDICTIONAL POINTS – Claim in time and effective date of termination
Although the parties had proceeded on the basis that the effective date of termination of the Claimant’s employment had been 23 October 2015 (and, thus, that her claim of unfair dismissal had been presented to the ET in time), the ET found that the Respondent had told the Claimant that her contract had been brought to an end at an earlier date, on 1 September 2015. Notwithstanding this finding, the ET had gone on to hold that the effective date of termination of the Claimant’s employment was still 23 October and, therefore, that her claim had been presented in time. The Respondent appealed.<>Held: allowing the appeal
The effective date of termination was a statutory concept. Here the ET had found that the Claimant had been told that her contract of employment was at an end on 1 September 2015. That was effective to bring about the Claimant’s summary dismissal (Hogg v Dover College [1990] ICR 39 EAT applied). In the circumstances, the ET had erred by then going on to hold that the dismissal was not effective until 23 October 2015. The appeal would be allowed and the matter remitted to the ET to determine whether it had been reasonably practicable for the Claimant to lodge her claim in time or, if not, whether she had lodged it within such period as was reasonable thereafter.

Citations:

[2017] UKEAT 0049 – 17 – 2706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.603710

Judges:

Zacaroli J

Citations:

[2018] EWHC 69 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 03 April 2022; Ref: scu.602669

Judgment – Civil service – Officials – Remuneration – Family allowances – School allowance – Article 15 of Annex X to the Staff Regulations – Conditions for granting – Article 3 (1) of Annex VII to the Staff Regulations – Regular and full-time attendance of a paying educational institution – Article 85 of the Staff Regulations – Repetition of undue payment – Obligation to state reasons – Right to be heard

Citations:

T-611/16, [2017] EUECJ T-611/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 02 April 2022; Ref: scu.602116

Judgment – Civil service – Officials – Promotion – Promotion exercise 2015 – Decision not to promote the applicant to grade AD 10, with effect from 1 July 2015 – Interinstitutional transfer – Prorate temporis system – Comparative examination of merits – Article 45 of the Staff Regulations – Liability

Citations:

[2017] EUECJ T-21/17

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 02 April 2022; Ref: scu.602106

CONSTRUCTIVE DISMISSAL
HARASSMENT
Having made relevant findings about the events of a mishandled office reorganisation and its consequences for the disabled Appellant, the Employment Tribunal failed in error of law to consider and address these findings when dealing with the Appellant’s claims for constructive dismissal and unlawful harassment. The case was remitted to the Employment Tribunal accordingly.

Citations:

[2017] UKEAT 0093 – 17 – 0911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601914

Citations:

[2017] UKEAT 0118 – 17 – 0311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601922

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
SEX DISCRIMINATION – Direct
The Employment Tribunal did not err in law in its findings concerning the date of termination of the Claimant’s employment, nor in its findings concerning the effective date of termination. Kirklees Metropolitan Council v Radecki [2009] IRLR 555 distinguished.
The Employment Tribunal did not err in its findings concerning contribution and Polkey.
The Employment Tribunal’s findings of sex discrimination would, however, be remitted for reconsideration. The Employment Tribunal did not sufficiently address the explanation given for the withholding of pay which it found to be direct sex discrimination.

Citations:

[2017] UKEAT 0201 – 16 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601926

UNFAIR DISMISSAL – Constructive dismissal
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
The Employer Appellant closed a lorry depot and asked the Employee Claimant lorry driver to move to another depot. He refused and took out a grievance. The employer found a new place for him to keep his lorry which was closer to home and generally acceptable to him but also said that as a ‘quid pro quo’ he should sign a new standard contract of employment. He indicated he would not sign the new contract and the employer said he could carry on working (from the new place) on the old contract for three months while the new terms were discussed; he agreed to that proposal. A month later he resigned saying that the terms and conditions associated with the new place were unsuitable. The Employment Judge expressly found that he was prepared to work from the new place.
The Employment Judge found that (a) the requirement to move workplace may not be a fundamental breach of the employment contract but that with the new contractual terms it amounted to a fundamental breach of contract, (b) the Claimant had resigned in response to the breach making it clear that he could not accept the new terms, (c) there was accordingly a constructive dismissal, and (d) the dismissal was by reason of redundancy (i.e. because the employer had ceased to carry on business at the closed depot) and fair, so that (e) the Claimant was entitled to a redundancy payment.
In reaching conclusions (a) and (b) the Employment Judge had not taken into consideration the fact that the Claimant had agreed to work for three months while discussing the new terms: this fact may have led to a conclusion that there was no outstanding breach of contract in relation to the new terms at the time of the resignation and/or impacted on the finding that he resigned in response to any breach. In reaching conclusion (d) she had failed to consider whether the main reason for the constructive dismissal she had found was the requirement to work under new terms rather than the closure of the depot (which was arguably merely the occasion giving rise to the attempt to impose that requirement) and had simply elided the two issues.
Appeal allowed and the whole claim remitted to a new Employment Tribunal. It was recognised that this might result in a worse outcome for the employer, who may be found to have constructively dismissed the Claimant ‘for some other substantial reason’ but unfairly.

Citations:

[2017] UKEAT 0150 – 17 – 0911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601919

EAT PRACTICE AND PROCEDURE – Case management
PRACTICE AND PROCEDURE – Amendment
PRACTICE AND PROCEDURE – Time limits
Neither the procedural common law doctrine of ‘relation back’ (now defunct – see Beecham Group plc v Norton Healthcare Ltd [1997] FSR 81, Liff v Peasley [1980] 1 WLR 781 and Ketteman v Hansel Properties Ltd [1987] AC 189) nor section 35(1) of the Limitation Act 1980 apply directly to amendments to pleadings in the ET, which introduce new claims or causes of action. These take effect for the purposes of limitation at the time permission to amend is given and do not ‘relate back’ to the time when the original proceedings were commenced and in so far as the reasoning in the cases of Rawson v Doncaster NHS Primary Care Trust UKEAT/0022/08, Newsquest (Herald and Times) Ltd v Keeping UKEATS/ 0051/09 and Amey Services Ltd and Another v Aldridge and Others UKEATS/0007/16 is based on the ‘relation back’ doctrine, this is inconsistent with statements in Potter and Others v North Cumbria Acute Hospitals NHS Trust and Others (No 2) UKEAT/0385/08, [2009] IRLR 900 and Prest v Mouchel Business Services Ltd UKEAT/0604/10, [2011] ICR 1345. Alternatively, Rawson, Newsquest and Amey Services were wrongly decided (on that point). On either basis they would not be followed (see Lock and Another v British Gas Trading Ltd (No 2) UKEAT/0189/15, [2016] IRLR 316).
The refusal of permission to amend in the instant case turned on the doctrine of ‘relation back’ and this was a critical error of law and not simply one of a number of factors considered in ‘the generous ambit within which reasonable disagreement is possible’ (Gayle v Sandwell and West Birmingham Hospitals NHS Trust [2011] IRLR 810, Kuznetsov v Royal Bank of Scotland [2017] EWCA Civ 43, Broughton v Kop Football (Cayman) Ltd and Others [2012] EWCA Civ 1743, HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd and Another [2014] UKSC 64, [2014] 1 WLR 4495, Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 and CICB v Beck [2009] EWCA Civ 619, [2009] IRLR 740 considered).
The guidance given by Mummery J in Selkent Bus Co Ltd v Moore [1996] ICR 836 and his use of the word ‘essential’ should not be taken in an absolutely literal sense and applied in a rigid and inflexible way so as to create an invariable and mandatory rule that all out of time issues must be decided before permission to amend can be considered. The judgments in both Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07 and Abercrombie v AGA Rangemaster Ltd [2014] ICR 209 emphasised that the discretion to permit amendment was not constrained necessarily by limitation.
The Opinion of the Inner House of the Court of Session in City of Edinburgh Council v Kaur [2013] CSIH 32 should not be confined to granting an extension of time in ‘continuing act’ but should be applied as well to cases involving consideration of whether it would be ‘just and equitable’ to grant an extension of time. Whilst in some cases it may be possible without hearing evidence to conclude that no ‘prima facie’ case of a ‘continuing act’ or for an extension on ‘just and equitable’ grounds can arise from the pleadings, in many cases, often, but not necessarily confined to, discrimination cases, it will not be possible to reach such a conclusion without an evidential investigation and, as indicated in the Opinion in Kaur, sometimes it may be necessary to hear a significant amount of evidence and sometimes it may not be possible or sensible to deal with the matter at a Preliminary Hearing and decisions may need to be postponed until all the evidence has been heard.
In the instant case EJ Foxwell had refused permission to amend without hearing any evidence. His evaluation of the likelihood of any subsequent extension of time on the grounds that it was ‘just and equitable’ and the lack of resolution of the issue as to whether or not there was a ‘continuing act’ both amounted to errors of law and the case was remitted for re-consideration in the light of the above decision.

Citations:

[2017] UKEAT 0207 – 16 – 2211

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601916

EAT PRACTICE AND PROCEDURE – Admissibility of evidence
The Tribunal erred in excluding evidence pursuant to section 111A of the 1996 Act in circumstances where the date of termination was itself in dispute.

Citations:

[2017] UKEAT 0090 – 17 – 1912

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601924

EAT PRACTICE AND PROCEDURE – Case management
CONTRACT OF EMPLOYMENT
Where, for the purposes of his contractual claims, a Claimant contends that the proper law of a contract has the same result as would be the case under the law of England and Wales and the Respondent contends that it has a different result, it is for the Respondent both to plead and establish the result for which it contends in relation to each affected claim.
The Employment Tribunal erred in ordering that the Claimant pay half the cost of providing evidence of the position under Dubai law, alternatively that a firm of the Tribunal’s choosing be instructed on a joint basis. The matter is remitted to the same Employment Tribunal for further directions in accordance with this Judgment.

Citations:

[2017] UKEAT 0130 – 17 – 1110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601912

EAT CONTRACT OF EMPLOYMENT – Notice and pay in lieu
Notice and pay in lieu – breach of the implied term of trust and confidence – application of the Johnson exclusion zone
The Respondent had determined to dismiss the Claimant due to concerns regarding his performance. To ‘soften the blow’ for the Claimant, who the Respondent wanted to work through his three month notice period to ensure a smooth handover of work, the Respondent did not tell him the real reason for its decision but told him there was to be a re-organisation of his work, which would be carried out by an external service provider. The Claimant thought this was a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) and that the Respondent had acted in breach of its information and consultation obligations. He duly resigned, claiming (relevantly) he had been constructively dismissed. In rejecting the Claimant’s claim for damages for his notice period, the ET found the Respondent had not breached the implied obligation not to act in such a way as would be likely to destroy or seriously damage the relationship of trust and confidence (‘the implied term’); it further considered that the Claimant’s complaint really related to the manner of his dismissal. The Claimant appealed.

Held: allowing the appeal
In considering whether there had been a breach of the implied term, the ET had erred in approaching this by only considering the absence of a duty to tell an employee of the reason for dismissal and/or to dismiss in good faith in general terms. It had failed to consider the position where, as here, the Respondent had chosen to give a reason for the dismissal to the Claimant. That had – pursuant to the implied term – given rise to an obligation not to mislead the Claimant. Moreover, it was incorrect to characterise the Claimant’s complaint as relating to the manner of his dismissal. Although an employee could not claim common law damages allegedly suffered as a result of the manner of a dismissal (see Johnson v Unisys Ltd [2001] IRLR 279 HL), this was a case where the complaint was in respect of financial loss suffered as a result of the Respondent’s breach of the implied term that preceded and stood apart from the dismissal; indeed, it arose at a time when the employment relationship was intended to continue (Eastwood and Anor v Magnox Electric plc, McCabe v Cornwall County Council [2004] IRLR 733 HL applied).
In the circumstances, the ET’s dismissal of the Claimant’s notice pay complaint would be set aside and a decision substituted that this claim was to be upheld. If the parties were unable to agree remedy, that question would need to be remitted to the ET.

Citations:

[2017] UKEAT 0142 – 17 – 2111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601921

EAT PRACTICE AND PROCEDURE – Postponement or stay
Postponement or stay
The two Claimants (both serving police officers) were pursuing separate claims before the Employment Tribunal, which had not been consolidated. Claimant X’s first claim – of detriment due to making protected disclosures – was lodged in January 2015 and he had subsequently lodged three further claims, also of whistleblowing detriments. Claimant M was pursuing a claim of race discrimination. A reference to the IPCC had been made in relation to matters raised in Claimant X’s first ET claim, which also overlapped with some part of his second claim. Due to the on-going IPCC investigation and the possibility that there might be disciplinary proceedings as a result of any IPCC report, the Respondent had stated she was unable to plead to the ET claims and had sought a stay of the ET proceedings. That application had initially been heard by the ET in September 2015 and by its Order of October 2015 it had stayed those proceedings. Since then, however, there had been significant delays in the IPCC investigation and the Claimants had sought a lifting of the ET stay, an application that was heard by the ET in July 2017 but refused. The Claimants appealed.

Held: allowing the appeal and remitting the application to the ET to be heard afresh
Although the ET was exercising its case management discretion in determining whether or not the stay should be lifted, there was a presumption that a complainant was entitled to have their case litigated and determined without delay unless the Respondent to the claim could establish a good reason to displace what would otherwise be the normal course of litigation (AKJ and Ors v Commissioner of Police of the Metropolis and Ors [2014] 1 WLR 285 CA at paragraph 51 applied). In the present case there was no indication that the ET had adopted this starting point; indeed, its reasoning suggested that it had seen the burden of proof as neutral between the parties or even as being on the Claimants. Although many of the Claimants’ complaints regarding the ET’s assessment of the degree of overlap between the IPCC and the ET proceedings (which went to comparative prejudice) were not made good, the inability to be confident that the ET had started from the right place in its assessment meant its conclusion (which it acknowledged was ‘finely balanced’) was rendered unsafe. That concern as to the ET’s approach to its task was further underpinned by its apparent failure to consider the two cases (that of Claimant X on the one hand and that of Claimant M on the other) separately (although that may not have been the focus of the Claimants’ submissions below, the two cases had not been consolidated and the ET needed to consider its Order in respect of each) and also by its suggestion that there was no medical evidence to support the assertion of prejudice suffered by Claimant X when his witness statement had referred to medical advice to refrain from working etc, which had not previously been disputed by his employer.
This was not a perversity challenge and both sides acknowledged that it could not be said that only one outcome was possible. In the circumstances the appropriate course (there being no agreed position that the EAT should itself determine the issue) was to remit the question whether the stay should be continued to the ET to be determined afresh (Jafri v Lincoln College [2014] EWCA Civ 449 applied).

Citations:

[2017] UKEAT 0186 – 17 – 2010)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601913

EAT Section 145B of the 1992 Act
1. The two appeals raise three essential issues:
(i) what is the proper interpretation and reach of s.145B of the 1992 Act;
(ii) if the Employment Tribunal erred in law in its construction of the ‘prohibited result’, whether the Employment Tribunal erred in law in finding that the Respondent’s sole or main purpose in making the offers was to achieve the prohibited result;
(iii) in relation to remedy, whether on a proper construction of the Respondent’s conduct and/or the legislation the Tribunal was wrong to make two awards of pounds 3,800 each as opposed to a single award of pounds 3,800 to the affected Claimants in this case.
2. The appeals were dismissed. The prohibited result occurs where offers, if accepted, result in new terms agreed directly and not through collective negotiations, whatever else is agreed through collective bargaining. There is no warrant for reading in a requirement that the terms will not in the future or will no longer in the future be determined collectively.
3. The Employment Tribunal made no error of law in interpreting the prohibited result and accordingly, no error in determining the Respondent’s sole or main purpose in making the offers.
4. Nor was there any error of law by the Employment Tribunal in making two awards of pounds 3,800 each to those Claimants who received two unlawful offers.

Judges:

Simler DBE J

Citations:

[2017] UKEAT 0108 – 17 – 1312

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601927

EAT TRANSFER OF UNDERTAKINGS – Transfer
An appeal against the Employment Tribunal’s decision that there was a TUPE transfer under regulation 3(1)(a).
The appeal was dismissed because: (1) the grounds of appeal for which leave had been granted were not pursued; and (2) the submissions actually advanced did not disclose any error of law on the part of the Tribunal.

Citations:

[2017] UKEAT 0265 – 16 – 2111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601918

EAT TRANSFER OF UNDERTAKINGS – Continuity of employment
CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Transfer of undertaking – TUPE 2006 – continuity of employment / correct identity of Respondent – variation of agreement -adequacy of the Employment Tribunal’s reasons
There had been a relevant transfer for the purposes of TUPE 2006 on 1 July 2015, by which employees of Excel transferred to the Respondent, although at the time neither party appreciated that this applied to the Claimant’s employment. There were separate discussions between the Claimant and the Respondent’s Managing Director as to the terms that would apply to the Claimant’s employment by the Respondent but those broke down and the Respondent contended it was then agreed that the Claimant would revert to employment by Excel. After the Claimant subsequently sought to pursue claims against the Respondent, a Preliminary Hearing took place to determine the identity of his employer. The ET found that, although (contrary to the parties’ understanding at the time) the Claimant’s employment had transferred to the Respondent on 1 July 2015, there had subsequently been an agreement, reached between the Claimant and the Managing Director of the Respondent on 31 July 2015, by which his contract of employment with the Respondent terminated and he returned to Excel’s employment. The Claimant appealed against this finding on two bases: (1) his evidence as to the meeting of 31 July 2015 had not been challenged and there was no proper evidential basis for the ET to find an agreement had been reached that day; (2) the ET had also failed to address the Claimant’s argument under the non-oral variation clause of his service agreement. Although accepting that the ET had erred in both these respects, the Respondent contended this made no material difference to its conclusion.

Held: allowing the appeal.
The ET’s finding as to the events of 31 July 2015 was not supported by the evidence and was apparently based on a misunderstanding of the Respondent’s case below. Although that did not mean that there had not been an agreement between the parties in the terms found by the ET, the erroneous finding that it had been entered into at a specific meeting meant that the ET’s finding in this regard was open to question. In addition, while the non-oral variation clause of the Claimant’s service agreement did not mean that the parties could not have orally agreed to vary or terminate the contract (Globe Motors Inc v TRW Lucas Varity Electric Steering Ltd [2016] EWCA Civ 396 (20 April 2016, unreported) and MWB Business Exchange Ltd v Rock Advertising Ltd [2016] 3 WLR 1519 CA applied), it was a relevant evidential consideration and the ET’s failure to engage with this issue, taken together with its misunderstanding as to the events of 31 July 2015, rendered the conclusion reached unsafe.

Citations:

[2017] UKEAT 0347 – 16 – 0611

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601915

EAT UNFAIR DISMISSAL – CONSTRUCTIVE DISMISSAL
The claimant had been employed by the respondent’s predecessor for some 47 years but was TUPE transferred to employment by the respondent in 2015. The terms and conditions of his employment stated clearly that he would be entitled to full pay when absent from work due to sickness or injury. The respondent refused to acknowledge that entitlement and, when he was absent through illness, wrote to him stating that he would be paid only Statutory Sick pay. The claimant resigned and claimed constructive unfair dismissal. The respondent appealed.
Held : Appeal dismissed because
(1) There was no force in the respondent’s first ground of appeal, that the tribunal misunderstood or misapplied the UK Supreme Court decision in Autoclenz Ltd v Belcher and Others [2011] UKSC 41. The respondent had failed to articulate a proper basis on which the clearly expressed contractual term had come to differ from the parties’ understanding. The tribunal had not focused merely on a ‘sham’ situation but also on the absence of any argument of error or variation, in finding that the contractual terms prevailed.
(2) The second ground of appeal was misconceived. The Tribunal had not failed to carry out an objective assessment of all of the circumstances before deciding whether the respondent was in fundamental breach and had followed correctly the approach required by the case of Eminence Property Developments Limited v Heeney [2010] EWCA Civ 1168. It had been entitled to find that the respondent’s actings illustrated an intention not be bound by a fundamental term of the contact in relation to pay.
A cross appeal in relation to arithmetical error was well founded and was allowed.

Citations:

[2017] UKEAT 0014 – 16 – 0808

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601892

EAT PRACTICE AND PROCEDURE – Estoppel or abuse of process
PRACTICE AND PROCEDURE – Review
PRACTICE AND PROCEDURE – Restriction of proceedings order/vexatious litigant
The Claimant appealed against a Decision of the Employment Tribunal (‘the ET’) refusing his application, out of time, for a reconsideration, pursuant to Rules 71 to 72, of a Decision made in 2011, on the basis of ‘fresh evidence’. The Employment Appeal Tribunal held that the appeal was an abuse of process, because the ‘fresh evidence’ was the same ‘fresh evidence’ as the Clamant had relied on in unsuccessful applications in 2014, for reconsideration of the 2011 Decision, and for permission to appeal to the Employment Appeal Tribunal. The Employment Appeal Tribunal also held that the ET had not erred in (1) refusing to extend time for the making of that application, (2) the procedure it adopted for deciding that application, or (3) its approach to the merits of that application. The Employment Appeal Tribunal asked for written submissions from the parties on the question whether the appeal was totally without merit.

Citations:

[2017] UKEAT 0059 – 17 – 1910

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601899

EAT UNLAWFUL DEDUCTION FROM WAGES
The Employment Tribunal erred in finding that the Claimant had a contractual entitlement to a bonus of 30% of her salary, and to be paid her bonus while serving out a notice period. There was no express term to either effect. To imply a contractual right to bonus (based on custom and practice) was inconsistent with the express terms of the Claimant’s contract of employment which were not properly considered or addressed. This was an insuperable hurdle for the Claimant.

Citations:

[2017] UKEAT 0077 – 17 – 0610

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601902

Citations:

[2017] UKEAT 0009 – 16 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601890

EAT Unfair Dismissal

Citations:

[2017] UKEAT 0001 – 17 – 2509

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601894

EAT TRADE UNION RIGHTS
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Trade Union Rights – refusal of employment because of trade union membership – section 137(1)(a) Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’)
Approach to determining the reason for refusal and adequacy of the Employment Tribunal’s reasons
The Claimant was a pilot who had previously been employed by the Respondent, when he was also a member of the pilots’ trade union, BALPA. On 3 July 2009, the Claimant had spoken with the Respondent’s Executive Chairman, Mr Meeson, advocating that BALPA might have a role in representing the interests of pilots within the workplace. Mr Meeson had resisted that suggestion, following up on the conversation the next day with a heated expression of his views in that regard. BALPA had subsequently obtained a declaration of recognition from the Central Arbitration Committee in 2010 but problems continued in its relationship with the Respondent over the following years. In the meantime, in 2011, the Claimant had left the Respondent’s employment to take up another opportunity. In 2014, however, he wanted to return and duly applied to be employed as a pilot by the Respondent once again. The Claimant’s initial application was unsuccessful but he re-applied only to find out, in 2015, that he had been refused. On the Claimant’s subsequent application to the Employment Tribunal (‘the ET’), under section 137(1)(a) TULRCA (which renders it unlawful to refuse employment to a person because he is a trade union member), it was found that the decision had been that of Mr Meeson and his sole reason for refusing to agree to the Claimant’s employment was because of the Claimant’s activities for BALPA, which were related to his trade union membership; the ET thus finding that the Respondent had acted in breach of section 137(1)(a). The Respondent appealed, contending the ET had (1) erroneously adopted too broad an approach to trade union membership for these purposes, either as a matter of statutory construction or on the facts; alternatively (2) failed to conduct the required exercise for determining the reason for the refusal, or had failed to provide adequate reasons for its conclusion.

Held: dismissing the appeal
(1) ‘Membership’ for the purposes of section 137(1)(a) TULRCA was not to be construed narrowly as meaning mere membership (the carrying of the union card) – the provision was concerned with status and it would leave a gap in the statutory protection, contrary to the legislative intent, if an ET was unable to conclude that an objection to trade union activities that were incidental to membership was not an objection to membership itself (Harrison v Kent County Council [1995] ICR 434 EAT applied). Although a narrower view of membership had been expressed, obiter, by a majority of the House of Lords in Wilson v Associated Newspapers Ltd and Palmer v Associated British Ports [1995] ICR 406, that related to a different statutory provision (the predecessor to section 142 TULRCA), which allowed for a separate protection for trade union activities. In any event, it was now necessary to construe the statute compatibly with the European Convention on Human Rights and a narrow approach to section 137(1)(a) would fail to respect the Claimant’s article 11 right of freedom of association (and see Wilson and Palmer v UK [2002] IRLR 568 ECtHR).
Thus adopting a broad, purposive approach to section 137(1)(a), the ET had found that Mr Meeson’s refusal to employ the Claimant was because of his earlier activities as an advocate for BALPA’s representational role in the workplace and it had been open to the ET to find that such activities were incidental to the Claimant’s trade union membership and thus that the refusal was in breach of the statutory protection.
(2) As for the ET’s approach to determining the reason for the refusal to employ the Claimant, it had rejected various iterations of the Respondent’s positive case and had then gone on to consider whether the reason was contrary to section 137(1)(a). In carrying out its task in this respect, it had engaged in a reasoned adjudication of the relevant evidence and had adequately explained its conclusions. Moreover, having found that Mr Meeson was the sole decision taker, the ET was entitled to focus on that which it had concluded was in his mind when making the decision.

Citations:

[2017] UKEAT 0070 – 17 – 2510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601905

EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Burden of proof
Direct race discrimination – burden of proof – section 136 Equality Act 2010 – whether the Employment Tribunal had wrongly imported the first stage test into its scrutiny of the Respondent’s explanation at the second stage – whether it had, in any event, subjected the Respondent’s explanation to the correct level of scrutiny – whether it had adequately explained its reasoning
The Claimant had applied for a position with the Respondent but had failed at the second interview stage. He did not consider the explanation for his non-appointment could be true as he contended it did not reflect what had been discussed at the interview. Pursing a claim of direct race discrimination before the ET, he argued that the ET should infer that he had not been appointed because of his race. The ET disagreed. With the agreement of the parties, it approached this question as if the first stage of the shifting burden of proof (section 136(2) Equality Act 2010) had been met and it therefore turned to the Respondent’s explanation. Doing so, the ET first made findings of fact as to what had been discussed at the second interview and found, contrary to the Claimant’s case, this had provided the basis for the decision not to appoint, as had been explained to him. Testing the Respondent’s evidence and explanation, the ET considered various points raised by the Claimant (including the racial diversity within the workplace; the lack of up-to-date equal opportunities training; the Respondent’s failure to answer pre-action questions) but did not consider it should draw any inference from these matters. It dismissed the Claimant’s claim. The Claimant appealed.

Held: dismissing the appeal
The ET had not lost sight of the test it was to apply and had not imported the first stage of section 136(2) into its determination whether the Respondent had met the burden upon it for the purposes of section 136(3). It had been required to make findings as to what had been discussed at the second interview as this was material to the explanation given to the Claimant and relied on by the Respondent before the ET. The ET further tested the Respondent’s explanation against the various matters relied on by the Claimant but did not consider it should draw any inferences from these factors and, in any event, was satisfied that the evidence of the relevant decision taker discharged the burden of proving that the decision not to appoint the Claimant was in no sense tainted by race. Carrying out this exercise, the ET had subjected the Respondent’s case to the appropriate level of scrutiny and had provided adequate explanation for its conclusions.
EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Burden of proof
Direct race discrimination – burden of proof – section 136 Equality Act 2010 – whether the Employment Tribunal had wrongly imported the first stage test into its scrutiny of the Respondent’s explanation at the second stage – whether it had, in any event, subjected the Respondent’s explanation to the correct level of scrutiny – whether it had adequately explained its reasoning
The Claimant had applied for a position with the Respondent but had failed at the second interview stage. He did not consider the explanation for his non-appointment could be true as he contended it did not reflect what had been discussed at the interview. Pursing a claim of direct race discrimination before the ET, he argued that the ET should infer that he had not been appointed because of his race. The ET disagreed. With the agreement of the parties, it approached this question as if the first stage of the shifting burden of proof (section 136(2) Equality Act 2010) had been met and it therefore turned to the Respondent’s explanation. Doing so, the ET first made findings of fact as to what had been discussed at the second interview and found, contrary to the Claimant’s case, this had provided the basis for the decision not to appoint, as had been explained to him. Testing the Respondent’s evidence and explanation, the ET considered various points raised by the Claimant (including the racial diversity within the workplace; the lack of up-to-date equal opportunities training; the Respondent’s failure to answer pre-action questions) but did not consider it should draw any inference from these matters. It dismissed the Claimant’s claim. The Claimant appealed.

Held: dismissing the appeal
The ET had not lost sight of the test it was to apply and had not imported the first stage of section 136(2) into its determination whether the Respondent had met the burden upon it for the purposes of section 136(3). It had been required to make findings as to what had been discussed at the second interview as this was material to the explanation given to the Claimant and relied on by the Respondent before the ET. The ET further tested the Respondent’s explanation against the various matters relied on by the Claimant but did not consider it should draw any inferences from these factors and, in any event, was satisfied that the evidence of the relevant decision taker discharged the burden of proving that the decision not to appoint the Claimant was in no sense tainted by race. Carrying out this exercise, the ET had subjected the Respondent’s case to the appropriate level of scrutiny and had provided adequate explanation for its conclusions.

Citations:

[2017] UKEAT 0117 – 17 – 0809

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601896

EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Withdrawal
The Employment Judge erred in holding that the employer was correct to consider that it was obliged by section 15 of the Immigration, Asylum and Nationality Act 2006 to hold that it was unlawful to employ someone who, although he had the right to work and reside in the UK, did not provide the employer with documents other than a passport to prove that right. Section 15 did not apply to the Claimant as he was not subject to immigration control within the meaning of section 25. In any event, the reference in section 15(3) to seeking documents from an employee provides the employer excusal from a penalty. It does not impose an obligation on the employer to obtain these documents.
The decision that the employer had established that the dismissal of the Claimant for failing to provide such documentation fell within Employment Rights Act 1996 section 98(2)(d) was set aside. Bouchaala v Trusthouse Forte Hotels Ltd [1980] ICR 721 applied. The Employment Tribunal did not err in holding that dismissal because of a genuine but mistaken belief that employment of the Claimant was illegal fell with Employment Rights Act section 98(1)(b). Hounslow London Borough Council v Klusova [2008] ICR 396 applied. The decision that the dismissal was fair was set aside. The Employment Judge erred in dismissing the claim for deduction from wages. The dismissal of a claim following a withdrawal is a two-stage process. A party withdraws a claim under ET Rule 51. A judicial decision is required under Rule 52 to dismiss a withdrawn claim. Refusal to do so will be rare but where, as here, the only basis for withholding pay was obviously erroneous and irrational, an Employment Judge, properly directing themselves in law, would have held that applying Rule 52(b) it was not in the interests of justice to dismiss the withdrawn claim. Campbell v OCS Group UK Ltd UKEAT/0188/16 applied. The issues of fairness of the dismissal and the deduction from wages claim were remitted to a differently constituted Employment Tribunal.

Citations:

[2017] UKEAT 0250 – 16 – 0510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601898

EAT PRACTICE AND PROCEDURE – Amendment
Although the Claimant had apparently considered he might have been subjected to detriment and subsequently dismissed for making protected disclosures, when he lodged his ET claim he did not include such a claim but made complaints of unfair dismissal (under section 98 Employment Rights Act 1996) and unlawful race discrimination (under the Equality Act 2010). The claim referred to the Data Protection Act but this was in respect of an alleged violation falling outside the jurisdiction of the ET and was struck out at the first Preliminary Hearing. At that hearing the Claimant raised the possibility of protected disclosure claims of detriment and dismissal and it was directed that any application to amend should be considered at a further Preliminary Hearing. That first took place before EJ Stewart, when the application was refused. That decision was set aside on appeal and the matter remitted for fresh consideration. At the remitted hearing, before EJ Lewzey, the application was again refused, the ET identifying that the amendment raised new causes of action and new issues, specifically as to whether the Claimant had made any protected disclosures, whether any disclosures were in the public interest and whether he had reasonably believed there was a breach of a legal obligation. These questions would require the Respondent to adduce significant further evidence and the ET concluded the balance of prejudice meant it should refuse the application. The Claimant appealed.

Held: dismissing the appeal. The ET had permissibly considered the application to amend was to include a new cause of action. It had then gone on to determine whether the application should be allowed, having regard to the guidance laid down in Selkent Bus Co Ltd v Moore [1996] IRLR 661. Doing so, the ET had regard to that which was relevant and not to any irrelevant matter. It had concluded that the balance of prejudice meant the application should be refused. The Claimant had not met the high test to show that was a perverse conclusion.

Citations:

[2017] UKEAT 0178 – 17 – 1109

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601893

EAT UNFAIR DISMISSAL – Constructive dismissal
An Employment Tribunal failed to identify the reasons for its finding that the Appellant (the Claimant below) had affirmed his contract of employment in circumstances in which he was on sick leave, submitting sick notes and receiving sickness pay, and resigned six weeks after the date of the repudiatory breach. The matter had already been remitted to the Employment Tribunal by the Employment Appeal Tribunal following an earlier decision which had failed to give adequate reasons.

Citations:

[2017] UKEAT 0076 – 17 – 0510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601900

EAT SEX DISCRIMINATION – Marital status
The Employment Judge was wrong to conclude that this case did not engage the protected characteristic in section 8 of marriage. On a reasonable reading of the Claimant’s pleaded case, the facts give rise to an arguable case that it was his married status and his marital difficulties as a married man that led to his dismissal. That composite reason was, on his case, the reason for the Respondent’s treatment of him and that case should have been permitted to proceed.

Citations:

[2017] UKEAT 0115 – 17 – 0510

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601908

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Procedure – Rule 9 of the Tribunal Procedure Rules 2013 – Equal Pay Claims – Inclusion of Claims by Two or More Claimants On the Same Claim Form – Whether Irregular – Whether Discretion to Strike out – Whether Appropriate to Exercise Discretion to Strike Out Claims or Waive Any Irregularity
These five appeals concerned claims for equal pay. Three appeals concerned claims brought, largely, by female retail staff working in different jobs in supermarkets who claimed they were performing equal work with men working in distribution centres. Women doing different jobs included their claims in the same claim forms. Some men also included claims within the same claim form contending that, if the female Claimants were successful, then they did equal work with those successful female Claimants. Two of the appeals involved claims by women undertaking different jobs in local government who claimed that their work was equal work with men performing a variety of jobs. The Respondents contended that the Claimants’ claims were not based on the same set of facts within the meaning of Rule 9 of the Tribunal Procedure Rules 2013 and their claims should be struck out.
Rule 9 required a Tribunal to identify the complaints that the Claimants were making, then identify the set of facts upon which those complaints was based or founded and then to consider if the sets of facts were the same. In the context of a claim for equal pay, that is a claim contending breach of an equality clause included in a contract of employment by virtue of the Equality Act 2010, claims made by female Claimants doing different work, or jobs, were not based on the same set of facts as the claims involved a comparison of different jobs with the work of the male comparators. Similarly, claims made by male Claimants were not based on the same set of facts as they sought to compare their work with the work of female Claimants not with other male comparators. The Judgment sets out the appropriate approach to the discretion to strike out claims or waive the irregularity.

Citations:

[2017] UKEAT 0289 – 15 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601889

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant was a train operative employed by the Respondent. He was summarily dismissed following three serious safety breaches occurring on the same day. He had been suffering from severe symptoms of grief following two bereavements. An internal appeal succeeded to the extent that the sanction imposed was reduced to summary dismissal suspended for 52 weeks. The Claimant appealed and contended that the Tribunal had erred (1) in finding that the Respondent did not have actual or constructive knowledge of the Claimant’s disability and (2) in its treatment of the Claimant’s alternative argument on failure to make reasonable adjustments that the internal appeal should have been adjourned for an Occupational Health opinion. It was accepted that both arguments would be required to succeed before the appeal could be allowed.

Held:
(1) The question of actual or constructive knowledge of disability was one of fact for the Tribunal. The evidence before the Tribunal on this issue did not all point in the same direction. The finding made was accordingly open to the Tribunal and it could not be said that no reasonable Tribunal could reach the same conclusion. In any event,
(2) The alternative case on reasonable adjustment of adjourning the internal appeal had not been given prominence before the Tribunal. Insofar as it had been raised it had been addressed. An adjournment would have served no purpose as the Claimant’s medical condition was taken into account as mitigation leading to reduction of the penalty. The Tribunal was entitled to conclude that an adjustment of imposing no immediate sanction was not reasonable.
Appeal dismissed.

Citations:

[2017] UKEAT 0074 – 17 – 0509

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601897

PRACTICE AND PROCEDURE
There was no error of law by the Employment Tribunal in proceeding with the grossing up exercise for tax purposes, on the basis of the schedules provided by both parties, which set out the position under UK tax law only. The Respondents had only themselves to blame for failing to produce the necessary material that would have enabled the Employment Tribunal to determine the questions raised under the Double Tax Convention with the USA, and whether they made a difference to the calculation of the tax due.
There is a strong public interest in the finality of litigation, and this principle applies even in a case decided on a basis of law that may prove to be wrong.

Citations:

[2017] UKEAT 0229 – 16 – 2707

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601891

EAT PRACTICE AND PROCEDURE
The appeal concerns a challenge to a Preliminary Hearing Judgment holding that a number of discussions during meetings held on a without prejudice basis between the Appellant and the CEO of the Respondent prior to the termination of his employment were protected pursuant to section 111A(1) Employment Rights Act 1996 and/or under the common law without prejudice rule.
The Tribunal correctly applied the relevant legal principles to the facts found and was entitled to reach the conclusions reached in relation to the relevant meetings, save in relation to two points.
Although squarely raised before it, the Tribunal did not consider whether there was a waiver of privilege by reason of the Respondent’s conduct in relying on part of a conversation during a meeting on 12 August 2015 as a disciplinary allegation against the Appellant (ultimately leading to his dismissal) while at the same time contending that the meeting was covered by without prejudice privilege. The same point was not considered in the context of an argument that there was improper conduct by the Respondent within the meaning of section 111A(4) but the Tribunal could not be criticised in this respect because the argument was not advanced below. In circumstances where the same or very similar argument would be reconsidered by the Tribunal afresh in respect of the waiver point, the Appellant would exceptionally be permitted to raise this point as well.

Citations:

[2017] UKEAT 0212 – 17 – 1210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601903

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL – Reasonableness of dismissal
Fair hearing – whether ET findings made on basis of points not raised by Claimant
Unfair dismissal – fairness of dismissal – whether ET fell into substitution trap/reached perverse decision
The Claimant, an experienced prison officer, used physical force towards a prisoner. The prisoner’s account of the incident was contradicted in certain respects by CCTV footage but the recording was never put to him. After a disciplinary hearing, where the CCTV footage was viewed, it was concluded that the Claimant had assaulted the prisoner (she had not acted in self-defence) and should be summarily dismissed. The Claimant claimed this was unfair. The ET agreed, finding the failure to return to the prisoner with the CCTV evidence rendered the investigation unfair. Further, as it was unsafe to rely on the prisoner’s account of the incident and as the ET did not consider the CCTV footage supported the Respondent’s conclusions, the decision to dismiss had been unfair. The Respondent appealed.

Held: allowing the appeal and remitting the case to a different ET
To the extent there was a failing in the disciplinary investigation, it did not render the dismissal unfair because the decision had not been based upon the prisoner’s account but on what could be seen on the CCTV recording (this was not a case where the decision depended upon which account was preferred). The recording provided reasonable grounds for the decision notwithstanding it had not been put to the prisoner. It was, moreover, perverse to find the decision to dismiss was based upon the prisoner’s account. In assessing the Respondent’s finding that the Claimant had not acted in self-defence, the ET had fallen into the substitution trap, basing its conclusion on what it had itself taken from the CCTV recording rather than asking what the Respondent could reasonably have concluded (in particular, at the point in the footage when the alleged assault took place). Some of the points relied on by the ET had emerged during the evidence and had not been specifically raised in the pleadings; that did not necessarily render the hearing unfair but meant the ET may not have had the benefit of full representations from the parties on all the matters that had apparently weighed with it.

Citations:

[2017] UKEAT 0096 – 17 – 0210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601909

EAT VICTIMISATION DISCRIMINATION – Protected disclosure
VICTIMISATION DISCRIMINATION – Dismissal
Automatic unfair dismissal – protected disclosures
The Claimant, a qualified non-practising barrister, had been employed by the Respondent as its Legal and Compliance Officer, subject to a six-month probationary period. From early in her employment, the Claimant raised numerous concerns with the Respondent and the manager in the parent company to whom the Claimant reported. She was given training and support but those managing her became increasingly concerned as to the way in which the Claimant was raising matters, her inability to work with others and her rudeness. After attempting to reassure the Claimant and to remove some of the pressure, the Respondent was unable to see any improvement and decided she should be dismissed, essentially due to what was described as a ‘cultural misfit’. The Claimant brought ET proceedings, complaining that this amounted to an automatically unfair dismissal by reason of various protected disclosures she had made.
The ET dismissed the Claimant’s claim. Save in one respect, it did not accept the matters relied on by the Claimant amounted to protected disclosures; it was, in any event, satisfied that the dismissal was not for a prohibited reason. The Claimant appealed.

Held: dismissing the appeal.
(1) Qualifying Disclosures
The Claimant sought to challenge the ET’s rejection of certain matters as qualifying disclosures. On one disclosure, the Respondent accepted the ET had erred in its conclusion that this could not be a qualifying disclosure as it related to something of which the Respondent was already aware. In respect of three other matters, the Claimant contended that the ET had erred in failing to consider the disclosures cumulatively and had wrongly approached its task on the basis that a disclosure in self-interest could not also be in the public interest.
As was common ground, the ET had erred in respect of one disclosure. As for the other matters relied on, however, it was apparent that the ET had rejected the Claimant’s case on the facts and, on the findings made, there was nothing that could properly be found to amount to a qualifying disclosure. More particularly, the ET had found as a fact that the disclosures were solely made in the Claimant’s self-interest; it had not wrongly assumed that this could not also be a matter of public interest but had found, on the facts, that it was not.
(2) Reason for Dismissal
The Claimant argued the ET’s findings on reason were perverse given the chronology (the first discussion regarding her future employment taking place very shortly after one of the qualifying disclosures) but it was clear the ET had fully engaged with the apparent coincidence of timing but rejected the suggestion that gave rise to an inference that the disclosures were the reason for dismissal, not least as the Respondent had still given the Claimant a chance to improve before making its decision. In any event, the ET was clear that the reason was not the Claimant’s disclosures: the decision was made not because of the Claimant’s disclosure of information but because of her reaction thereafter – her inability to explain her concerns, her failure to listen to others and her rudeness. Given the evidence before the ET and its primary findings of fact, that was a permissible conclusion: this was a case where the matters relied on by the Respondent were genuinely separable from any protected disclosure by the Claimant.

Citations:

[2017] UKEAT 0111 – 17 – 1310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601906

EAT RACE DISCRIMINATION – Direct
The Claimant had been offered a posting in Italy, conditional upon his passing an assessment relating to his psychological resilience. In carrying out that assessment, the interviewer had pursued a number of questions relating to the Claimant’s ability – as someone of Asian origin – to cope with racism in Italy. Reporting that the Claimant did not demonstrate the required level of resilience, the risk that he might suffer stress due to discrimination was one of the factors cited. On the basis of this assessment – including the discrimination factor – the Respondent withdrew the offer of the posting. On the Claimant’s complaint, the ET found that both the assessment and the decision to withdraw the offer were inherently discriminatory – the Claimant’s race being the criterion for the treatment of which he was complaining. In the circumstances, it concluded that both the assessment and the withdrawal of the posting were acts of unlawful race discrimination. The Respondent appealed.

Held: dismissing the appeal
The ET had been entitled to find that the Claimant’s race was a reason (it did not need to be the only reason) for the less favourable treatment of which he complained. It had correctly analysed this as a criterion case: the relevant decisions (the assessment and then the decision to withdraw the offer of the posting in Italy) were explicitly based on a factor – the Claimant being of Asian origin – which was necessarily discriminatory (but for his race, there would have been no concern of his suffering discrimination); Amnesty International v Ahmed [2009] ICR 1450 EAT applied. In those circumstances, there was no reason to look further into the mental processes of the decision-takers: their decisions were explained by the Claimant’s race and thus tainted by discrimination. The fact that they might also have had other, non-discriminatory, reasons in mind did not detract from this conclusion: the Respondent had not been able to demonstrate that the decisions in question were in no sense informed by race.

Citations:

[2017] UKEAT 0067 – 17 – 2509

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601895

EAT UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
The Employment Tribunal held that the Claimant was unfairly dismissed by reason of misconduct and suffered an unlawful deduction from wages of pounds 750. Although the Employment Tribunal concluded that the Respondent had a genuine belief in the misconduct alleged and reasonable grounds for that belief, it held that the dismissal was procedurally unfair because there was no preliminary investigation and the dismissing manager was not impartial. The Employment Tribunal plainly thought that if somebody without an axe to grind had considered the situation during a preliminary investigation, the disciplinary allegations might never have got off the ground. The Employment Tribunal also held that the appeal stage did not cure earlier defects.
The appeal sought to challenge the finding that the investigation stage of the process was flawed; and the conclusion that the appeal did not remedy deficiencies in the earlier stage of the process. There was also a discreet ground challenging the holding that a repayment agreement signed by the Claimant authorising deductions from his wages was not valid so that the deductions were unlawful.

The appeal failed and was dismissed. The Employment Tribunal made findings of fact based on the evidence and correctly applied the law to the facts reaching conclusions that were open to it and not arguably in error in relation to the dismissal. In particular, the Employment Tribunal was entitled to conclude that the failure to conduct an investigation, coupled with the failure to have an impartial dismissing officer made the dismissal procedurally unfair. Further it was open to the Employment Tribunal to conclude on the facts that the appeal did not cure the earlier deficiencies in the process. As for the unlawful deduction finding, the Employment Tribunal’s conclusion was supported by reliance on section 13(6) Employment Rights Act 1996 in light of its findings, and was not in error of law on that basis.

Citations:

[2017] UKEAT 0313 – 16 – 2310

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601907

Contract of Employment

Citations:

[2017] UKEAT 0163 – 16 – 0501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601887

Reasonableness of Investigation : Procedural Unfairness Polkey Deduction

Citations:

[2017] UKEAT 0005 – 16 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601888

Citations:

[2017] EWCA Civ 2137

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601855

The claimant seeks damages for the alleged breach of contract in placing the claimant on garden leave and for wrongful dismissal.

Judges:

Moulder J

Citations:

[2017] EWHC 2995 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601120

Judges:

Yiip J

Citations:

[2017] EWHC 2734 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601117

Staff Regulations of Officials and Conditions of Employment of Other Servants : Judgment

Citations:

T-250/16, [2017] EUECJ T-250/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 02 April 2022; Ref: scu.601082

Staff Regulations of Officials and Conditions of Employment of Other Servants : Judgment – Civil service – Officials – Pensions – Transfer of national pension rights – Adjustment of capital between the date of the transfer application and the date of the actual transfer

Citations:

ECLI:EU:T:2017:865, [2017] EUECJ T-728/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 02 April 2022; Ref: scu.601083

Staff Regulations of Officials and Conditions of Employment of Other Servants : Judgment

Citations:

T-586/16, [2017] EUECJ T-586/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 01 April 2022; Ref: scu.599692

Citations:

T-668/16, [2017] EUECJ T-668/16, ECLI:EU:T:2017:802

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 01 April 2022; Ref: scu.599679

Judgment

Citations:

C-98/15, [2017] EUECJ C-98/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 01 April 2022; Ref: scu.599677

Judgment

Citations:

T-667/16, [2017] EUECJ T-667/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 01 April 2022; Ref: scu.599674

Citations:

[2017] EWHC 3014 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 April 2022; Ref: scu.599656

Citations:

[2017] EWCA Civ 1820

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 April 2022; Ref: scu.599585

Judges:

McFarlane, Bean, Moylan LJJ

Citations:

[2017] EWCA Civ 1629

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 March 2022; Ref: scu.597403

Procedure – Rule 9 of the Tribunal Procedure Rules 2013 – Equal Pay Claims – Inclusion of Claims by Two or More Claimants On the Same Claim Form – Whether Irregular – Whether Discretion to Strike out – Whether Appropriate to Exercise Discretion to Strike Out Claims or Waive Any Irregularity
These five appeals concerned claims for equal pay. Three appeals concerned claims brought, largely, by female retail staff working in different jobs in supermarkets who claimed they were performing equal work with men working in distribution centres. Women doing different jobs included their claims in the same claim forms. Some men also included claims within the same claim form contending that, if the female Claimants were successful, then they did equal work with those successful female Claimants. Two of the appeals involved claims by women undertaking different jobs in local government who claimed that their work was equal work with men performing a variety of jobs. The Respondents contended that the Claimants’ claims were not based on the same set of facts within the meaning of Rule 9 of the Tribunal Procedure Rules 2013 and their claims should be struck out.
Rule 9 required a Tribunal to identify the complaints that the Claimants were making, then identify the set of facts upon which those complaints was based or founded and then to consider if the sets of facts were the same. In the context of a claim for equal pay, that is a claim contending breach of an equality clause included in a contract of employment by virtue of the Equality Act 2010, claims made by female Claimants doing different work, or jobs, were not based on the same set of facts as the claims involved a comparison of different jobs with the work of the male comparators. Similarly, claims made by male Claimants were not based on the same set of facts as they sought to compare their work with the work of female Claimants not with other male comparators. The Judgment sets out the appropriate approach to the discretion to strike out claims or waive the irregularity.

Judges:

Lewis J

Citations:

[2017] UKEAT 0289 – 15 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 March 2022; Ref: scu.597420

Judges:

McFarlane, Underhill LJJ

Citations:

[2017] EWCA Civ 1392

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 March 2022; Ref: scu.595811

(Judgment) Civil service – Europol – Non-renewal of a contract – Refusal to grant an indefinite contract – Compensation – Annulment by the Civil Service Tribunal – Execution of judgments in Cases F-27/09 and F-104 / 12

Citations:

ECLI:EU:T:2017:664, [2017] EUECJ T-562/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 30 March 2022; Ref: scu.595436

(Judgment) Civil service – Europol – Non-renewal of a contract – Refusal to grant an indefinite contract – Compensation – Annulment by the Civil Service Tribunal – Execution of judgments in Cases F-44/09 and F-105 / 12

Citations:

ECLI:EU:T:2017:665, [2017] EUECJ T-563/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 30 March 2022; Ref: scu.595437

(Judgment) Appeal – Civil service – Officials – Working conditions – Overtime – Driver of AST grade 6 – Elimination of the right to flat-rate overtime allowance – Equal weapons – Obligation to state reasons – Errors of law – Distortion of the facts

Citations:

T-682/15, [2017] EUECJ T-682/15, ECLI:EU:T:2017:644

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 30 March 2022; Ref: scu.595422