Citations:

[2017] NIIT 02283 – 16IT

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 28 March 2022; Ref: scu.592712

Citations:

[2017] NIIT 01647 – 16IT

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 28 March 2022; Ref: scu.592689

Citations:

[2017] NIIT 01375 – 15IT

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 28 March 2022; Ref: scu.592694

Citations:

[2017] NIIT 01246 – 16IT

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 28 March 2022; Ref: scu.592691

Citations:

[2017] NIIT 00483 – 16IT

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 28 March 2022; Ref: scu.592693

EAT (Practice and Procedure : Time for Appealing) Appellant lodged Form EAT 1 in time, accompanied by all necessary documents but omitting page 8 of Form ET1. That was not served on the Appellant employer by the Employment Tribunal originally and never picked up until noticed by a member of the EAT staff.
In those circumstances exceptional case for time to be extended.
Appeal against Registrar’s Order upheld.

Judges:

Peter Clark HHJ

Citations:

[2009] UKEAT 0724 – 09 – 0611

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.592682

Citations:

[2017] NIIT 02117 – 16IT

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 28 March 2022; Ref: scu.592690

EAT Working Time Regulations – Holiday Pay
1. Payment for voluntary overtime that is normally worked is within the scope of Article 7 and therefore within the concept of ‘normal remuneration’ for the purposes of calculating Regulation 13 holiday pay.
2. It was open to the Employment Tribunal in this case to conclude that the payments in issue were part of normal remuneration for the Claimants, and no error of law was made out.
3. The appeal was accordingly dismissed.

Judges:

Simpler DBE P J

Citations:

[2017] UKEAT 0334 – 16 – 3107

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.592677

Citations:

[2017] NIIT 01213 – 16IT

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment

Updated: 28 March 2022; Ref: scu.592692

Judges:

Arden, Sharp LJJ

Citations:

[2017] EWCA Civ 1140

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591688

Chellenges to changes in pension scheme

Judges:

Arden DBE, McCombe LJJ, Sir Timothy Lloyd

Citations:

[2017] EWCA Civ 1212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591691

Judges:

Gloster , Lewison , Henderson LJJ

Citations:

[2017] EWCA Civ 1144, [2017] WLR(D) 532

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591672

EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
The Respondent instructed the deduction of certain on-call payments to the Claimant, an Obstetrician and Gynaecologist employed to undertake both clinical and academic work, for a period during which he had refused to undergo certain health screening checks required of those undertaking Exposure Prone Procedures (‘EPPs’). The Respondent had initially contended it was not the Claimant’s employer but had subsequently argued that it had been entitled to make the deductions as a matter of contract (express or implied) because of the refusal to provide validated screening documentation. The Tribunal had concluded that it had been an express term of the contract that the Claimant supply the screening information, which failing such a term could be implied on the ground of patient protection/health and safety.
On appeal the Claimant contended that the express and implied terms defence had not been pled. However, reasonable notice had been given of all of the arguments to be run by each side and the Claimant had shown in submissions that he understood all of the key points in dispute. There was no identifiable material prejudice as a result of the unsatisfactory procedural history of the case and the absence of formal amendment of the pleadings. In any event the Tribunal had been obliged to ascertain the relevant contractual terms before it could reach a decision on what had been ‘properly payable’ to the Claimant in terms of section 13 of the Employment Rights Act 1996. The decision in Agarwal v Cardiff University UKEAT/0210/16/RN would not have been followed had there been a challenge to the Tribunal’s jurisdiction to consider and construe the terms of the contract.
Further, the Tribunal had not erred in its approach to the identification of the express or implied terms. While there was evidence that could have led to a different conclusion on express terms, the decision reached was one that was open to the Tribunal on the evidence led. The Tribunal had given sufficient reasons for relying on a questionnaire as being ‘part and parcel’ of the contractual arrangements. The relevant Occupational Health Policy had not been overlooked; it was included within the various contractual documents. Even had the screening requirement not been sufficiently well incorporated to be an express term, it could be implied from the documentation that made clear that patient protection was an important priority where EPPs were undertaken.
There being no identifiable errors of law in the Judgment, the appeal was dismissed.

Judges:

Wise Lady

Citations:

[2017] UKEAT 0276 – 16 – 2007

Links:

Bailii

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591132

EAT Practice and Procedure – Bias, misconduct and procedural irregularity -postponement or stay
Fair hearing – postponement/adjournment of proceedings
The Claimant – a litigant in person suffering from mental health issues but not lacking capacity for the purposes of the Mental Capacity Act 2005 – had received medical advice that he was unfit to participate in the Full Merits Hearing of his ET claim. Although, at an earlier stage, the ET had itself proactively asked for the medical advice in this regard and had advised the Claimant of his right to seek a postponement of the hearing, he had not done so; at one stage expressing his concern that the on-going proceedings made his health worse. There had also been correspondence between the parties shortly before the Full Merits Hearing, in which the Respondents had set out the different options should the Claimant then seek a postponement of the hearing (including the potential applications to strike out and/or seek costs that might be made) and the issue was also canvassed in the Respondents’ opening submissions, which the Claimant had the opportunity to read on the first day of the hearing. At the outset of the Full Merits Hearing, the ET clarified with the Claimant that he wished to proceed and discussed with the parties the reasonable adjustments that would need to be put in place. The ET did not expressly remind the Claimant of his right to apply for a postponement or adjournment of the hearing but he was aware that it was open to him to do so and he decided not to make such an application. The hearing proceeded with appropriate adjustments being made to enable the Claimant’s participation but he broke down when being cross-examined and the Respondents applied to bring the questioning to an end, notwithstanding that the Claimant had said he was willing to continue. The ET agreed with the Respondents and the parties moved on to closing submissions, with the Claimant having a long weekend to consider the Respondents’ submissions and then to make his own points in reply. Having considered all the evidence and submissions, the ET dismissed the Claimant’s claims.
The Claimant appealed on the basis that he had been denied a fair hearing, specifically arising from (i) the ET’s failure to proactively adjourn the proceedings at the outset of the hearing, or at least raise the possibility of the Claimant making an application to this effect; and (ii) the decision to bring cross-examination to a halt rather than adjourning the hearing at that stage to permit the Claimant time to recover.
Held: dismissing the appeal
Allowing that the appellate Tribunal must itself determine whether a fair procedure was followed at first instance (R (Osborn) v Parole Board [2014] AC 1115 SC, Rackham v NHS Professionals Ltd UKEAT/0110/15/LA, and Galo v Bombardier Aerospace UK [2016] IRLR 703 NICA, applied), in this case the Claimant had not been denied a fair hearing. As he had acknowledged, he was aware of his right to seek a postponement or adjournment at the outset of the hearing but had determined not to do so. The ET had made all appropriate reasonable adjustments thereafter and the Claimant had been able to participate in the hearing and present his case until he broke down in cross-examination. At that stage, the ET adopted an appropriate course in acceding to the Respondents’ request to stop the evidence. In truth, it was a matter for the Respondents as to whether they challenged the Claimant’s evidence by cross-examination; the decision not to continue to do so gave rise to a risk for the Respondents, it did not deny any right of the Claimant. Moreover, the Claimant was still able to present his case and respond to the case against him: he had already cross-examined the Respondents’ witnesses, was able to rely on his own witness statement and had the opportunity to make closing submissions in response to the Respondents’ arguments. Viewed overall, the hearing had been fair.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0230 – 16 – 2507

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 March 2022; Ref: scu.591131

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity <
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
In the first appeal (UKEAT/0167/15/LA), the Appellant, the NHS Trust Development Authority (‘TDA’), complained that the Employment Tribunal (‘ET’) had reached conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that there must have been a telephone conversation between an employee of the TDA and an employee of the Third Respondent, IRG Advisors LLP t/a Odgers Berndtson (‘Odgers’), without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In the second appeal (UKEAT/0276/15/LA) the Appellant, North Cumbria University NHS Trust (‘the Trust’), complained in similar terms that the ET had arrived at conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that the Trust, through an agent, had victimised the Claimant without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In order for a serious procedural irregularity to amount to an error of law it must be established that it has led to an unjust or unfair result. There may be a variety of categories of serious procedural irregularity. In the context of this area of law cases such as Hereford and Worcester County Council v Neale [1986] IRLR 168 and Secretary of State for Justice v Lown [2016] IRLR 22 have been concerned with procedural irregularity and on at least one occasion that has been coupled with inadequacy of reasoning (see paragraphs 58 to 62 of the judgment of Underhill LJ in The Co-operative Group Ltd v Baddeley [2014] EWCA Civ 658). But the existence of an inflexible rule of practice, apparently recognised in other common law jurisdictions as the rule in Browne v Dunn (see the House of Lords judgment in Browne v Dunn [1893] 6 R 67), is both doubtful and undesirable (Markem Corporation v Zipher Ltd [2005] EWCA Civ 267, Allied Pastoral Holdings v Federal Commissioner of Taxation [1983] 44 ALR. 607, Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd [2002] EWCA Civ 1396 and paragraphs 12-12 and 12-35 in Chapter 12 of the 18th edition of Phipson on Evidence considered). Any such concept comprises not only a rule of practice but also a rule of evidence and a rule of professional etiquette. In order to amount to an error of law, however, the irregularity must be that of the Tribunal and the extent to which a procedural irregularity will be a serious procedural irregularity resulting in injustice and unfairness such as to amount to an error of law depends on the circumstances of each case and not on the existence of an overarching rule of practice.
Removing an applicant from further consideration during an appointment process (in this case from a preliminary interview stage) can amount to a detriment within the meaning of section 27(1) Equality Act 2010 (‘EqA’) (Shamoon v Chief Constable of the RUC [2003] UKHL 11, [2003] ICR 337 applied) and the Trust’s appeal could not succeed on that basis.
Section 111(7) EqA does not have the effect of excluding corporate bodies from the scope of section 111 and TDA’s appeal could not succeed on that basis. Both sections 111 and 112 EqA considered.
TDA’s appeal succeeded on the ground that the ET had erred in law by reaching a conclusion not supported by the evidence. The ET had reached an inferential conclusion that an employee of TDA had a conversation with an employee of Odgers but the findings of fact could not support the drawing of that inference. In the context of the case it was also a serious procedural irregularity for the ET to have reached that conclusion without indicating to the parties (and the witnesses) that was under consideration and giving an opportunity for the matter to be dealt with both evidentially and in submissions. Having considered paragraph 21 of the judgment of Laws LJ in Lincoln College v Jafri [2014] EWCA Civ 449, [2014] ICR 920 it was concluded that this was an exceptional case in which this Tribunal could conclude, because there was no primary evidence to support the inferential conclusion, that such an inference could never be drawn and therefore the matter was not remitted.
The Trust’s appeal succeeded on the grounds of both inadequacy of reasoning and, in the circumstances of the case, serious procedural irregularity. The appeal was disposed of by a remission to the ET for the evidence of a witness to be re-heard and the judgment reconsidered after that evidence had been given.
The cross-appeal related to the conclusion of the ET that, absent victimisation, the Claimant had a 50% chance of proceeding to the next stage of the appointment process but no chance of either being short listed or appointed. The Court of Appeal’s judgment in Chagger v Abbey National plc and another [2009] EWCA Civ 1202, [2010] IRLR 47 did not mean that as well as eliminating the victimisation from consideration, the prior discrimination constituting the protected act upon which the victimisation was based should also be eliminated from consideration. That would produce an artificial perspective. The cross-appeal was essentially an argument that the conclusion was perverse. It was not; on the contrary it was supported by the evidence and the cross-appeal must fail.

Judges:

Hand QC HHJ

Citations:

[2017] UKEAT 0167 – 15 – 1707

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590533

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
In the first appeal (UKEAT/0167/15/LA), the Appellant, the NHS Trust Development Authority (‘TDA’), complained that the Employment Tribunal (‘ET’) had reached conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that there must have been a telephone conversation between an employee of the TDA and an employee of the Third Respondent, IRG Advisors LLP t/a Odgers Berndtson (‘Odgers’), without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In the second appeal (UKEAT/0276/15/LA) the Appellant, North Cumbria University NHS Trust (‘the Trust’), complained in similar terms that the ET had arrived at conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that the Trust, through an agent, had victimised the Claimant without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In order for a serious procedural irregularity to amount to an error of law it must be established that it has led to an unjust or unfair result. There may be a variety of categories of serious procedural irregularity. In the context of this area of law cases such as Hereford and Worcester County Council v Neale [1986] IRLR 168 and Secretary of State for Justice v Lown [2016] IRLR 22 have been concerned with procedural irregularity and on at least one occasion that has been coupled with inadequacy of reasoning (see paragraphs 58 to 62 of the judgment of Underhill LJ in The Co-operative Group Ltd v Baddeley [2014] EWCA Civ 658). But the existence of an inflexible rule of practice, apparently recognised in other common law jurisdictions as the rule in Browne v Dunn (see the House of Lords judgment in Browne v Dunn [1893] 6 R 67), is both doubtful and undesirable (Markem Corporation v Zipher Ltd [2005] EWCA Civ 267, Allied Pastoral Holdings v Federal Commissioner of Taxation [1983] 44 ALR. 607, Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd [2002] EWCA Civ 1396 and paragraphs 12-12 and 12-35 in Chapter 12 of the 18th edition of Phipson on Evidence considered). Any such concept comprises not only a rule of practice but also a rule of evidence and a rule of professional etiquette. In order to amount to an error of law, however, the irregularity must be that of the Tribunal and the extent to which a procedural irregularity will be a serious procedural irregularity resulting in injustice and unfairness such as to amount to an error of law depends on the circumstances of each case and not on the existence of an overarching rule of practice.
Removing an applicant from further consideration during an appointment process (in this case from a preliminary interview stage) can amount to a detriment within the meaning of section 27(1) Equality Act 2010 (‘EqA’) (Shamoon v Chief Constable of the RUC [2003] UKHL 11, [2003] ICR 337 applied) and the Trust’s appeal could not succeed on that basis.
Section 111(7) EqA does not have the effect of excluding corporate bodies from the scope of section 111 and TDA’s appeal could not succeed on that basis. Both sections 111 and 112 EqA considered.
TDA’s appeal succeeded on the ground that the ET had erred in law by reaching a conclusion not supported by the evidence. The ET had reached an inferential conclusion that an employee of TDA had a conversation with an employee of Odgers but the findings of fact could not support the drawing of that inference. In the context of the case it was also a serious procedural irregularity for the ET to have reached that conclusion without indicating to the parties (and the witnesses) that was under consideration and giving an opportunity for the matter to be dealt with both evidentially and in submissions. Having considered paragraph 21 of the judgment of Laws LJ in Lincoln College v Jafri [2014] EWCA Civ 449, [2014] ICR 920 it was concluded that this was an exceptional case in which this Tribunal could conclude, because there was no primary evidence to support the inferential conclusion, that such an inference could never be drawn and therefore the matter was not remitted.
The Trust’s appeal succeeded on the grounds of both inadequacy of reasoning and, in the circumstances of the case, serious procedural irregularity. The appeal was disposed of by a remission to the ET for the evidence of a witness to be re-heard and the judgment reconsidered after that evidence had been given.
The cross-appeal related to the conclusion of the ET that, absent victimisation, the Claimant had a 50% chance of proceeding to the next stage of the appointment process but no chance of either being short listed or appointed. The Court of Appeal’s judgment in Chagger v Abbey National plc and another [2009] EWCA Civ 1202, [2010] IRLR 47 did not mean that as well as eliminating the victimisation from consideration, the prior discrimination constituting the protected act upon which the victimisation was based should also be eliminated from consideration. That would produce an artificial perspective. The cross-appeal was essentially an argument that the conclusion was perverse. It was not; on the contrary it was supported by the evidence and the cross-appeal must fail.

Judges:

Hand QC HHJ

Citations:

[2017] UKEAT 0276 – 15 – 1707

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590534

UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal – reasonableness of dismissal – section 98(4) Employment Rights Act 1996
The Claimant was dismissed for a reason relating to his conduct arising from an incident outside work, which had led to his arrest and in respect of which he then faced criminal charges. In pursuing his complaint of unfair dismissal, he raised concerns that information regarding his arrest had been passed to the Respondent by the police – part of a practice of information-sharing between law enforcement agencies – when this was (he contended) in breach of the Data Protection Act 1998. He also complained of the Respondent’s refusal to defer the internal disciplinary process pending the determination of the criminal proceedings notwithstanding the Claimant’s inability (on legal advice) to participate, given that information regarding the internal process would be forwarded to the police by the Respondent as part of the same information-sharing practice. The ET dismissed the claim, finding the Respondent had been entitled to conclude that no issue arose from the sharing of information with the police – the Respondent having investigated the point further to the extent reasonably required given how it had been raised by the Claimant and the evidence being that this was in accord with normal practice. It was also satisfied that the Respondent’s decision not to defer the internal process had fallen within the range of reasonable responses in the circumstances of the case. The Claimant appealed.
Held: allowing the appeal in part
Given the way in which the point had been raised with the Respondent and the steps it had then taken to investigate the Claimant’s concerns, the ET had permissibly concluded that the conduct of the investigation into the issues raised regarding the sharing of information with the police had fallen within the range of reasonable responses and was not unfair.
As for the decision to proceed with the internal disciplinary process, however, it was unclear whether the ET had regard to the point raised by the Claimant relating to the particular practice of information-sharing as between the Respondent and the police and as to how that might prejudice his ability to participate in the internal process when facing on-going criminal proceedings. This was a relevant factor and the ET’s apparent failure to engage with it rendered its conclusion on this point unsafe; it would need to be remitted for reconsideration

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0016 – 17 – 1606

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590531

(Judgment) Public service – EIB staff – Evaluation – Promotion – Evaluation and promotion exercise 2012 – Decision of the Appeals Committee – Scope of review – Staff representatives – Discrimination

Citations:

ECLI:EU:T:2017:525, [2017] EUECJ T-510/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590481

(Appeal – Civil Service – Members of The Temporary Staff : Judgment) Appeal – Civil service – Members of the temporary staff – Contract of indefinite duration – Disciplinary penalty – Reprimand – Termination of contract – Right to be heard – Non-material harm

Citations:

ECLI:EU:T:2017:528, [2017] EUECJ T-742/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590480

ECJ Judgment – Public service – EIB staff – Contractual nature of the employment relationship – Remuneration – Reform of the system of premiums – Legitimate expectation – Legal certainty – Manifest error of assessment – Proportionality – Duty to have regard for the welfare of employees – Article 11 (3) Rules of Procedure of the EIB – Equal treatment

Citations:

ECLI:EU:T:2017:469, [2017] EUECJ T-508/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590472

ECJ Judgment – Public service – EIB staff – Contractual nature of the employment relationship – Remuneration – Reform of the pay and salary progression system – Legitimate expectation – Legal certainty – Manifest error of assessment – Proportionality – Duty to have regard for the welfare of employees – Article 11 (3) of the EIB’s Rules of Procedure

Citations:

ECLI:EU:T:2017:468, [2017] EUECJ T-506/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590471

(Judgment) Appeal – Civil service – Officials – Surviving spouse – Pensions – Survivor’s pension – Article 20 of Annex VIII to the Staff Regulations – Conditions of eligibility – Error of law

Citations:

ECLI:EU:T:2017:520, [2017] EUECJ T-695/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.590478

EAT TRANSFER OF UNDERTAKINGS – Economic technical or organisational reason
PRACTICE AND PROCEDURE – Costs
UNFAIR DISMISSAL – Polkey deduction
The Respondent resisted claims for unfair dismissal following the loss of a ground handling contract at an airport. Grounds of resistance to ‘ordinary’ unfair dismissal claims were struck out. Economic technical or organisational (‘ETO’) and Polkey defences proceeded. A Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) assignment defence was conceded. There was no hearing of the ETO ground of resistance. The Respondent failed to establish a Polkey defence. At a Remedies Hearing the Employment Tribunal awarded compensation for future loss of the same period for six of the nine Claimants. Costs were awarded under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 Rule 76(1)(b) on the basis that the assignment, ETO and Polkey defences had no reasonable prospect of success. A ‘period’ award was made from receipt of the ET3 to the conclusion of the Polkey Hearing up to the maximum payable under Damages Based Agreements (‘DBA’) made in accordance with the Damages Based Agreements Regulations 2013 under which Claimants were obliged to pay 10% of compensation recovered for their solicitors’ services.
The Employment Tribunal did not err in holding that a ‘period’ costs award may be made when a party has entered into a DBA. CPR Rules and the indemnity principle apply. The Employment Tribunal did not err in holding that the assignment and ETO defences had no reasonable prospect of success within the meaning of ET Rule 76(1)(b). The Employment Tribunal erred in so holding in respect of Polkey. They failed to consider whether the Claimants would have continued in employment and if so on what terms (Software 2000 Ltd v Andrews [2007] IRLR 568). The Employment Tribunal erred in imposing a tariff for future loss. Remedy and application for costs remitted for rehearing.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0007 – 16 – 1306

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590428

EAT CONTRACT OF EMPLOYMENT – Implied term / variation / construction of term
UNFAIR DISMISSAL – Constructive dismissal
The Employment Tribunal erred in holding that it was necessary in order for a term to be implied into an employee’s contract of employment as a result of custom and practice that it must be widely known by other employees. The different bases advanced by the Respondent for upholding the decision on implied term were rejected. Further the Employment Tribunal erred in failing to consider or to give reasons for rejecting important matters advanced by the Claimant to support an allegation of breach of trust and confidence entitling him to resign and claim constructive dismissal. Appeal allowed. Claim remitted to an Employment Tribunal.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0310 – 16 – 0706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590426

EAT PRACTICE AND PROCEDURE – Application/claim
PRACTICE AND PROCEDURE – Amendment
The Employment Judge did not err in law in holding that the Claimant had not made a claim of public interest disclosure detriment in his ET1 claim form. The Employment Judge did not err in law in refusing permission to amend in order to introduce such a claim.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0119 – 17 – 1506

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590427

Citations:

[2017] UKEAT 0288 – 16 – 3103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590409

Citations:

[2016] UKEAT 0010 – 16 – 0912

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590407

Citations:

[2017] UKEAT 0299 – 16 – 1804

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590410

Citations:

[2016] UKEAT 0328 – 16 – 0706

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590406

Citations:

[2017] UKEAT 0301 – 16 – 2504

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.590411

Judges:

Gross, Underhill, Lindblom LJJ

Citations:

[2017] EWCA Civ 879

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.588744

Judges:

Lloyd Jones, Underhill LJJ

Citations:

[2017] EWCA Civ 882

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.588742

Judgment (Extracts) Appeal – Civil Service – Temporary staff – Fixed-term Contract involving a termination clause terminating the contract in the event that the name of the agent is not included on the reserve list the next open competition – termination of the contract under the termination clause – Reclassification of a fixed-term contract into permanent contracts – res judicata – clause 5, paragraph 1, of the framework agreement ETUC, UNICE, CEEP on fixed-term work – Duty to state reason

Citations:

ECLI:EU:T:2017:435, [2017] EUECJ T-233/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 March 2022; Ref: scu.588296

Judges:

Garnham J

Citations:

[2017] EWHC 1321 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 27 March 2022; Ref: scu.588188

Judges:

Peter Clarke J

Citations:

[2000] UKEAT 160 – 00 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.265252

ECJ Appeal – Civil service – Staff of the EIB – Review of the judgment of the General Court – Action at first instance dismissed as inadmissible – Pensions – Increase in the contribution to the pension scheme – Time-limit for bringing proceedings – Reasonable period

Citations:

[2013] EUECJ T-234/11

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Arango Jaramillo And Others v EIB ECFI 19-Jun-2012
ECFI Appeal – Civil service – Staff of the EIB – Pensions – Contribution to the pension scheme – Rejection of the appeal in the first instance as manifestly inadmissible – Limitation of Actions – Delay – . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 March 2022; Ref: scu.584358

Staff Regulations of Officials and Conditions of Employment of Other Servants : Judgment – Civil service – Officials – Pensions – Transfer of pension rights to the pension scheme of the Union – Proposal to increase annual installments – Article 11 (2) of Annex VIII to the Staff Regulations – New general implementing provisions – Equal treatment – Acquired rights – Legitimate expectations

Citations:

ECLI:EU:T:2017:343, [2017] EUECJ T-519/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 26 March 2022; Ref: scu.584338

ECJ Order – Reference for a preliminary ruling – Civil service – Officials – Release and retirement – Retirement age – Article 42c of the Staff Regulations – Application for suspension of operation – Fumus boni juris – Urgency – Balancing of interests

Citations:

T-170/17, [2017] EUECJ T-170/17 – CO, ECLI:EU:T:2017:351

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 26 March 2022; Ref: scu.584346

Citations:

[2017] UKEAT 0302 – 16 – 2803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.583994

Citations:

[2017] UKEAT 0231 – 16 – 1603

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.583995

Citations:

[2017] UKEAT 0097 – 16 – 3003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.583996

EAT Jurisdictional Points : Worker, Employee or Neither- Continuity of employment
Although the Employment Judge had referred himself to Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 and seems likely to have had in mind the judgment of the Supreme Court in Autoclenz Ltd v Belcher and Others [2011] UKSC 41, [2011] ICR 1157, in concluding that the agreements were not ‘shams’ and that the Appellant had changed his status from employee to that of a self employed director of an independent contractor, the Tribunal had misdirected itself as to law, reached conclusions not supported by the evidence, reached conclusions that were perverse and had not given adequate reasons, but that answer was not so clear as to enable this Tribunal to come a conclusion and the issue was remitted to a differently constituted Employment Tribunal for reconsideration.
The second issue of continuity depended upon the Appellant’s immigration status and his right to work. It being conceded that the Employment Tribunal had erred in law in concluding that the Appellant had no right to work and that discrimination claims should not have been struck out, the appeal was allowed and that issue was remitted to be considered by the same Employment Tribunal to which the first issue had been remitted.

Judges:

Hand QC HHJ

Citations:

[2017] UKEAT 0303 – 16 – 2704

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.583999

Citations:

[2017] UKEAT 0117 – 16 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.583997

Practice and Procedure : Withdrawal – Where a claimant withdraws a claim, it comes to an end and cannot be revived (Rule 51 of the 2013 Rules). A tribunal must issue a dismissal Judgment following withdrawal unless either of the exceptions in Rule 52 apply. Tribunals are not under a mandatory obligation to invite representations from the parties before dismissing a withdrawn claim but depending on the facts and circumstances of the particular case, may in exercise of their power to manage proceedings fairly, and in accordance with the overriding objective, do so. Whether or not to do so is a matter of judgment falling squarely within the margin of a tribunal’s discretion.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0188 – 16 – 1104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 26 March 2022; Ref: scu.584000

Claim for damages – enhanced redundancy payment.

Citations:

[2008] EWHC 1126 (QB), [2008] IRLR 629

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Jones v Associated Tunnelling Co Ltd EAT 16-Oct-1981
The tribunal had been asked as to the circumstances under which the acceptance of new employment terms can be inferred from an employee’s continuing to work.
Browne-Wilkinson P said: ‘The starting point must be that a contract of employment . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 26 March 2022; Ref: scu.267992

EAT Unfair Dismissal – Exclusions including worker
Unfair dismissal – compensation – omission by Tribunal to adjudicate properly on claim for loss of earnings

Judges:

Bean J

Citations:

EATS/0087/04, [2005] UKEAT 0087 – 04 – 2102

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment

Updated: 25 March 2022; Ref: scu.228650

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – Although the Employment Tribunal did not adopt the structured approach indicated by section 98(1) and (4) Employment Rights Act 1996, there was no error of law in its overall conclusion that dismissal was for some other substantial reason that justified dismissal of a nurse in the circumstances; and the dismissal fell within the band of reasonable responses in the circumstances of this case. The Employment Tribunal had sufficient regard to the balance of prejudice in coming to that conclusion. Absent any error of law or perversity, the Employment Appeal Tribunal cannot substitute its decision for that of the Employment Tribunal.

Judges:

Simpler DBE P J

Citations:

[2017] UKEAT 0133 – 16 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582065

Judges:

Longmore, Beatson, Underhill LJJ

Citations:

[2017] EWCA Civ 257

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582084

EAT National Minimum Wage – The appeals consider the proper approach to the question whether employees who sleep-in in order to carry out duties if required engage in ‘time work’ for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case.

Judges:

Simler DBE J P

Citations:

[2017] UKEAT 0143 – 16 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582070

EAT Unfair Dismissal: Reasonableness of Dismissal – Unfair dismissal – fairness of dismissal
The Appellant (the Claimant below) had been a Teaching Assistant for over 20 years, some 19.5 of which were at the First Respondent School – a state school for pupils with special needs – where he had an unblemished disciplinary record. On 12 March 2015, there had been an incident at the School involving a pupil, VB; initially the Appellant had intervened to pull VB away from a door into the School – conduct which the Respondents criticised but saw as warranting no more than a verbal warning – but as he walked away, VB attacked the Appellant from behind, causing the Appellant to suffer various injuries. As the Appellant responded to the attack, VB ended on the ground with what was described by others as ‘a thud’. After a disciplinary hearing, the Respondents determined this amounted to gross misconduct and the Appellant should be summarily dismissed. The ET rejected the Appellant’s complaint of unfair dismissal, holding he had been dismissed because of his ill-judged intervention with VB, contrary to the Respondents’ training (which encouraged de-escalation), which had caused VB to land on the ground; the Respondents had a reasonable belief in the misconduct and had carried out a reasonable investigation and process. Although the Appellant had asked to see various documents, he failed to respond to the Respondents’ request for better explanation as to what he was seeking, failed to ask to see the documentation made available at the disciplinary hearing and made no complaint about not seeing this in his subsequent appeal. The dismissal was for a reason relating to the Appellant’s conduct and was fair in all the circumstances.
Held: allowing the appeal in part
The ET’s reasoning had wrongly characterised the Appellant’s conduct as a physical ‘intervention’ both in the first part of the incident – his admitted intervention in pulling VB down the ramp – and at the end – when in fact the Appellant was responding to an attack from behind. That was not how the disciplinary panel had described the situation, allowing that the latter part of the incident had involved ‘physical action’ on the Appellant’s part, not a proactive intervention as such. Recognising the different nature of the Appellant’s conduct at the start of the incident and at the later stage was a relevant factor given that the Respondents had said he would not have been dismissed simply for the initial intervention – that was not the reason for his dismissal. In the circumstances, the ET had needed to assess whether it was fair to dismiss the Appellant for his physical action in responding to VB’s attack on him from behind. In assessing that question, an employer might reasonably consider that the context – including the Appellant’s earlier ill-judged intervention – was a relevant factor (although here the Respondents had taken the view that the earlier intervention itself would not have led to the dismissal) but the ET would also need to ask whether it was within the range of reasonable responses to consider this physical response an act of gross misconduct given that the employee was himself being attacked from behind at the time, which raised the issues of self-defence relied on by the Appellant. The appeal would be allowed on this basis.
As for the second basis of challenge, however, the ET had not lost sight of the issues raised in respect of the PHP but had expressly dismissed the point being made, both as a matter of substance and procedure. It had, moreover, noted that the Appellant had the opportunity to raise this as a matter on appeal but chose not to do so: if the Respondents had been at fault at the disciplinary hearing stage, the appeal allowed for this to be rectified but the Appellant did not pursue it as a point and the Respondents were reasonably entitled to take the view that it was not something that needed to be revisited. The second ground of appeal was dismissed.

Judges:

Ready QC J

Citations:

[2017] UKEAT 0160 – 16 – 1303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582069

EAT Unlawful Deduction From Wages – CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
For the purpose of resolving a dispute under Part II of the Employment Rights Act 1996 as to whether there has been an unlawful deduction from wages the ET is entitled to determine issues relating to the construction of the contract or the implication of any term of the contract. Delaney v Staples [1991] ICR 331 and Camden Primary Care Trust v Atchoe [2007] EWCA Civ 714 are binding authority to this effect. Agarwal v Cardiff University UKEAT/ 0210/16/RN (22 March 2017) not followed.

Citations:

[2017] UKEAT 0333 – 16 – 2504

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582075

EAT National Minimum Wage – The appeals consider the proper approach to the question whether employees who sleep-in in order to carry out duties if required engage in ‘time work’ for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0244 – 16 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582071

EAT Unfair Dismissal: Reasonableness of Dismissal – Contributory fault
Unfair dismissal – unfairness – section 98(4) Employment Rights Act 1996 (‘ERA’)
Unfair dismissal – contributory fault – section 123(6) ERA
The Claimant, who had worked in a team providing 24/7 care to the Respondent (a man in his mid-30s who has severe learning difficulties, physical disabilities and unpredictable epilepsy), was dismissed for some other substantial reason, namely an irretrievable breakdown in trust and confidence. The Respondent’s mother – a Court of Protection appointed Deputy for the Respondent, who manages his care – had received statements from other members of the care team raising concerns about the Claimant. The Claimant, however, contended these were fabricated and questioned whether the staff in question had colluded in making the statements. The Respondent’s mother obtained further, more detailed statements from two of the complainants but did not provide these to the Claimant. Considering the Claimant could no longer be trusted to work as part of the team providing the Respondent’s personal care, it was decided she should be dismissed on notice. Her subsequent appeal was dismissed.
The Claimant complained this was an unfair dismissal, and the ET agreed to the extent that the Respondent had failed to follow a fair procedure in not providing the supplemental statements to the Claimant for her response. That said, the Respondent had reasonable grounds for believing that trust and confidence had broken down and, had the statements been provided to the Claimant, her response would have made no difference to the Respondent’s view that she could not continue to work as part of the care team; addressing the unfairness of the procedure would have added an additional week to the process, and the Claimant’s compensatory award would therefore be limited to one week’s pay.
The Respondent appealed on two bases: (1) the ET should not have found the dismissal to have been unfair when the procedural failing it had identified would have made no difference to the decision, which was substantively fair; and (2) having found that the Claimant’s conduct – specifically in contending that other team members had colluded to fabricate statements against her – was potentially relevant to her dismissal, the ET ought to have considered reducing the compensatory award under section 123(6) ERA.
Held: allowing the appeal in part
The ET had not erred in finding that the flawed procedure had rendered the dismissal unfair; its approach was consistent with the House of Lords guidance in Polkey v A E Dayton Services Ltd [1998] 1 AC 344 HL and was not susceptible to challenge on appeal.
Having, however, found that the decision to dismiss the Claimant was founded upon the Respondent’s lack of trust in her – informed in part by her response to the statements from other members of staff – that potentially raised the question of contributory fault under section 123(6) ERA, and the ET was therefore obliged to consider this question, which it had failed to do (Swallow Security Services Ltd v Millicent UKEAT/0297/08 applied). This point would be remitted to the ET for reconsideration.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0324 – 16 – 1503

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582068

Transfer of Undertakings : Service Provision Change – Preliminary issues
Transfer of Undertakings (Protection of Employment) Regulations 2006 regulation 3(3)(a)(i) – service provision change – organised grouping of employees – principal purpose
Preliminary Issues
The Claimants had been employed by the Tees Esk and Wear Valleys NHS Foundation Trust – the Second Respondent before the ET (the Appellant) – as part of an organised grouping of employees put together to look after CE, an individual in the care of the Second Respondent. Over time, CE had improved such that his need for assistance had reduced from seven-to-one to largely one-to-one care. The team put together by the Second Respondent had, however, been retained and had maintained its identity, albeit that the staff concerned were required to undertake work for other service users, also under the Second Respondent’s care, in the same location. That remained the position up to 5 January 2015, when the contract to provide care for CE was taken over by the Danshell Healthcare Ltd – the First Respondent in the ET proceedings. The Second Respondent contended this was a relevant transfer (a service provision change) for TUPE purposes and that the employees assigned to the team organised to provide care for CE would therefore transfer into the First Respondent’s employment. The First Respondent disagreed – as did the employees concerned (who preferred to remain in NHS employment) – but reluctantly agreed to employ those who the Second Respondent was refusing to treat as still in its employment. A number of the employees thus affected brought claims in the ET.
A Preliminary Hearing was listed before the ET to determine (1) whether there was a transfer for TUPE purposes, and (2) whether any of the Claimants had been assigned to the relevant organised grouping of employees prior to the transfer. The ET concluded that there was a change in the provision of the service – care for CE – from the Second to the First Respondent. Furthermore, there was an organised grouping of employees, put together to provide that service, that maintained its identity up to 5 January 2015, and 11 employees had been assigned to that grouping, including the Claimants. Given that the employees concerned undertook other work, however, the ET considered the principal purpose of the grouping had been diluted such that, by 5 January 2015, it was no longer the provision of care to CE. There was, therefore, no service provision change for the purpose of regulation 3(3) TUPE. There being no transfer for TUPE purposes, the ET further declared that the Claimants were at all times employed by the Second Respondent and not at any time by the First Respondent. The Second Respondent appealed.
Held: Dismissing the appeal on the question of principal purpose but allowing the appeal against the ET’s declaration as to the identity of the Claimants’ employer
The determination of principal purpose (regulation 3(3)(a)(i) TUPE) required the ET to answer the question: what did the organised grouping have as its principal purpose immediately before the service provision change? The activities actually performed might be relevant to the determination of purpose, as might the intention behind the organisation of the grouping; neither was necessarily determinative. In the present case, allowing that purpose may change over time, the ET had properly focused on the period immediately prior to the service provision change. By that stage, allowing that the principal purpose need not be the sole purpose, the ET found that the dominant purpose of the organised grouping was the provision of care to other service users; by then, care for CE was merely a subsidiary purpose of the group. Given its primary findings of fact, that was a permissible conclusion for the ET in this case.
As for ET’s declaration as to the Claimant’s employment by the Second Respondent, this was not an issue before it at the Preliminary Hearing and the parties had not addressed the point. The declaration could not stand.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0173 – 16 – 0303

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582067

Sex Discrimination: Inferring Discrimination – The Claimant worked on an agency basis as an engineer at Sellafield Nuclear Power Plant; she was the only woman in a male dominated world. After only 12 weeks her contract was terminated and she was escorted from site.
She brought claims for sex discrimination and/or harassment based on 17 allegations, including the termination of her contract. The Employment Tribunal rejected all the claims on the basis either that she had not proved the allegation itself or not proved that any treatment or conduct involved was because of or related to her sex.
The Employment Tribunal did not approach its fact-finding task properly both in relation to finding ‘primary facts’ and in relation to the proper inferences to be drawn on discrimination. They failed to have regard to the overall picture presented by the evidence or the totality of the circumstances from which inferences could be drawn; they failed to make proper assessments of the parties and the witnesses; they failed to properly consider factors pointing towards discrimination; and they placed too ready a reliance on the burden of proof.
Overall, this was an error of law and the appeal had to be allowed and the whole matter remitted to a fresh Employment Tribunal for re-hearing.

Judges:

Shanks HHJ

Citations:

[2017] UKEAT 0283 – 16 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582066

EAT National Minimum Wage – The appeals consider the proper approach to the question whether employees who sleep-in in order to carry out duties if required engage in ‘time work’ for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
A multifactorial evaluation is required. No single factor is determinative and the relevance and weight of particular factors will vary with and depend on the context and circumstances of the particular case.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0290 – 16 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582073

Jurisdictional Points: Fraud and Illegality – The Claimants were engaged on sessional work in HMPS and their recruitment was not on merit on the basis of fair and open competition. The question that arose subsequently was whether contracts of employment found to have existed by the Employment Tribunal were ultra vires in the circumstances.
Held: The Employment Tribunal was wrong to draw a distinction between appointment and employment in the context of s.10(2) CRAGA 2010. The mandatory requirement for all appointments to the Civil Service extends to both and operates as a statutory limitation on selection for all appointments as civil servants. The contracts of employment are ultra vires, but the Claimants’ status as workers is unaffected. The appeal was therefore allowed.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0284 – 16 – 2004

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582074

EAT Transfer of undertaking – notification of employee liability information – regulation 11 TUPE
Born had taken over a contract from Spire in circumstances that amounted to a service provision change for TUPE purposes. In providing information to Born prior to the transfer, Spire had stated that a non-contractual Christmas bonus was in place. Born contended that this was wrong: in fact the bonus was contractual in nature and Spire had given incorrect employee liability information for the purposes of regulation 11 TUPE.
Determining Born’s complaint under regulation 12 TUPE, the ET concluded it had no reasonable prospect of success: even assuming the bonus was contractual, regulation 11 had required Spire to provide particulars as defined by section 1 Employment Rights Act 1996 (‘ERA’); that did not require it to state whether or not remuneration was contractual. EU law did not assist Born in this regard. Its complaint was dismissed.
On Born’s appeal.
Held: dismissing the appeal
The ET had correctly construed the obligation upon Spire: section 1 ERA set out the requirements upon an employer in respect of a statement of employment particulars; those particulars were not limited to contractual terms and conditions and there was no obligation to state whether the matters to be set out were contractual or not; specifically there was no such obligation in respect of remuneration (specifying the method by which it was to be calculated did not mean an employer had also to state whether any particular aspect of remuneration was contractual). The EU Directives relied on by Born did not assist: both Council Directive 91/533/EU and Council Directive 2001/23/EC were concerned with entitlements and rights and obligations, more broadly defined than simply those which were properly to be defined as contractual in nature.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0255 – 16 – 2803

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582056

EAT Certification Officer – The Certification Officer had not determined the true complaint made by the Appellant. The Certification Officer had wrongly focused on identifying the correct construction of a particular rule of the Respondent Trade Union, which the Union had misapplied in such a way as to repress unlawfully the Appellant’s attempts to become a candidate for the office of General Secretary and Treasurer of the Union.
The thrust of the Appellant’s complaint was not about what was the correct interpretation of the rule. That was common ground. It was that the Union had misapplied the rule and used its wrong interpretation of it as a vehicle for repressing the Appellant’s campaign and disciplining officials of his branch who proposed to support his nomination as a candidate. The Appellant was entitled to a finding that the Union had thereby acted in plain breach of section 47 of the Trade Union and Labour Relations (Consolidation) Act 1992.
An amendment to the grounds of complaint had not been necessary. If, however, the amendment were regarded as having been necessary, the Certification Officer had been wrong not to allow a late amendment that would have made the wording of the complaint reflect the true nature of the Appellant’s case. The amendment, though late, did not introduce any new facts or rely on any new cause of action of which the Union did not have prior notice.
The Certification Officer’s alternative reasoning and conclusion that the Appellant’s case was ‘disingenuous’ was perverse and could not stand. The Appellant was as much entitled to the protection of sections 47 and 108A of the 1992 Act as any other member of the Union and was not to be denied a remedy merely because he had failed to contact other branches before complaining to the Union about its rules; nor because he could be motivated by hostility to the Union’s leadership or a desire to cause difficulties for it. The Appellant’s application to the Certification Officer had not been an abuse of process.
The Appeal Tribunal would make a declaration of breach of section 47 and section 108A of the 1992 Act, but declined to order the election to be re-run, as the election results had been announced over 15 months before the hearing; the Appellant’s chances of becoming a candidate would have been slender even without the Union’s unlawful interference with his campaign.

Judges:

Kerr J

Citations:

[2017] UKEAT 0294 – 16 – 1403

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 47

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582060

Citations:

[2017] UKEAT 0053 – 16 – 1302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582053

Citations:

[2017] UKEAT 0189 – 16 – 0102

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582049

Citations:

[2017] UKEAT 0094 – 16 – 0902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582048

EAT Practice and Procedure : Costs
The Appellant brought claims in the Employment Tribunal for constructive unfair dismissal, racial discrimination and victimisation. The Employment Tribunal dismissed all the claims. The Respondent applied for its costs. The Employment Tribunal found that the unfair dismissal claim had not been one that had no reasonable prospect of success. However, it found that the other claims had had no reasonable prospect of success from the start. It proceeded to award the Respondent costs in the sum of 5,000 pounds.
Held, allowing the appeal:
(1) The Employment Tribunal erred in principle because it did not consider whether it should exercise a discretion to award costs at all under Rule 76(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Rather it had gone simply from finding that the claims had in part had no reasonable prospect of success to the conclusion that costs should be awarded and then proceeded to assess the quantum of those costs.
(2) The Employment Tribunal further erred in failing to give adequate reasons to explain how it had arrived at the figure of 5,000 pounds.
(3) It had also erred in taking into account the means of the Appellant’s wife without asking what, if any, impact those means had on the Appellant’s own ability to pay, which is what it had decided to take into account under Rule 84 of the ET Rules.

Judges:

Singh J

Citations:

[2017] UKEAT 0258 – 16 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582054

EAT Contract of Employment: Implied Term/Variation/Construction of Term -m UNLAWFUL DEDUCTION FROM WAGES
The decision of the Court of Appeal in Southern Cross Healthcare Co Ltd v Perkins [2011] ICR 285 that the Employment Tribunal has no jurisdiction to construe a Statement of Written Particulars in a claim under Employment Rights Act 1996 (‘ERA’) section 11 applies equally where it is necessary to construe a contract in order to determine a claim under ERA section 13 not to suffer an unauthorised deduction from wages. For these purposes a decision on whether terms are to be implied into the contract also falls within the Southern Cross prohibition on construction. Marks and Spencer v BNP Paribas Securities Services Trust [2016] AC 742 considered.
As it was necessary in determining the Claimant’s claim under section 13 for wages referable to clinical duties to decide on the construction of her contract of employment with the First Respondent for academic work for them and clinical work for the Second Respondent including whether it contained implied terms regarding her ability to perform such duties the Employment Judge did not err in deciding that the Employment Tribunal had no jurisdiction to determine her claim. Such a claim would have to be pursued in the Civil Courts.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0210 – 16 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582055

Citations:

[2017] UKEAT 0218 – 16 – 0802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582051

Citations:

[2017] UKEAT 0270 – 15 – 1402

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582052

EAT Unfair Dismissal: Reasonableness of Dismissal – Automatically unfair reasons
REDUNDANCY – Fairness
Automatic unfair dismissal – section 152 TULRCA 1992 – reason for dismissal – ET approach – adequacy of reasons
Unfair dismissal – section 98(4) ERA 1996 – fairness of dismissal by reason of redundancy – ET approach
The ET had dismissed the Claimant’s claims of automatic unfair dismissal and unfair dismissal for the purposes of section 98 ERA. The Claimant appealed.
Held: allowing the appeal in part
Although the ET had not made a clear finding as to the reason for the Claimant’s dismissal it could be implied that it accepted it was by reason of redundancy and it was apparent it had not found that it was related to her trade union activities; the appeal in this regard was dismissed.
When approaching the question of fairness, the ET had taken the view this was not a case in which it needed to follow the guidance laid down in Williams v Compair Maxam Ltd [1982] IRLR 83 EAT; those principles did not apply because the question was not why the Claimant had been selected for redundancy as much as why she had not been appointed to one of the remaining positions (see Morgan v Welsh Rugby Union [2011] IRLR 376 EAT). In adopting this approach, however, the ET had elevated Morgan to a proposition of law, which it expressly did not lay down. It had, further, adopted a blinkered approach to section 98(4) ERA and failed to demonstrate it had adopted a range of reasonable responses test, reviewing each stage of the Respondent’s decision making and process. That rendered the ET’s conclusions on unfair dismissal under section 98 ERA unsafe; the appeal would therefore be allowed.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0157 – 16 – 1003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582059

Citations:

[2017] UKEAT 0411 – 14 – 0802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582050

Citations:

[2017] UKEAT 0144 – 16 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582047

Citations:

[2017] UKEAT 0245 – 16 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582045

Citations:

[2017] UKEAT 0234 – 16 – 2701

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582043

Citations:

[2017] UKEAT 0211 – 16 – 2001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582044

Citations:

[2017] UKEAT 0154 – 16 – 2702

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582046

Citations:

[2017] UKEAT 0235 – 16 – 2001

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582042

Citations:

[2017] UKEAT 0236 – 16 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.582041