ECJ Civil service – auxiliary contract staff – Article 3b of the Conditions of employment – Succession of undertakings as an official – Fixed-term contracts – Decision not to renew – Misuse of powers – Request for assistance – Right to be heard – Non-contractual liability

Citations:

ECLI:EU:T:2017:282, [2017] EUECJ T-584/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 24 March 2022; Ref: scu.581771

ECJ Staff Regulations of Officials and Conditions of Employment of Other Servants – Judgment – Civil service – Sub-contracting employee – Article 24 of the Staff Regulations – Request for assistance – Article 12a of the Staff Regulations – Moral harassment – Article 90 (1) of the Staff Regulations – Statutory time-limit for a response of four months – Decision of the – Failure to take a position within the statutory time-limit for reply to the allegation of the alleged harassment – Definition of an implied decision rejecting the request for assistance – Non-existent measure – Inadmissibility

Citations:

ECLI:EU:T:2017:283, [2017] EUECJ T-570/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 24 March 2022; Ref: scu.581770

ECJ Social Policy – Judgment – Reference for a preliminary ruling – Social policy – Directive 2001/23/EC – Article 3 – Safeguarding of employees’ rights in the event of transfers of undertakings – Collective agreements applicable to the transferee and the transferor – Additional periods of notice granted to dismissed workers – Account to be taken of the length of service with the transferor

Citations:

ECLI:EU:C:2017:276, [2017] EUECJ C-336/15, [2017] WLR(D) 252

Links:

Bailii, WLRD

Jurisdiction:

European

Employment

Updated: 24 March 2022; Ref: scu.581785

Judges:

Norris J

Citations:

[2017] EWHC 766 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.581735

ECJ Interim measures – Public service – Commissioning leave and retirement – Application for suspension of operation – Lack of urgency

Citations:

ECLI:EU:T:2017:218, [2017] EUECJ T-167/17 – CO

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 24 March 2022; Ref: scu.581708

The parties, solicitors, disputed the nature of the relationship between them.

Judges:

Patten LJ, Proudman J, Sir Colin Rimer

Citations:

[2017] EWCA Civ 229

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.581432

The parties disputed the entitlement to annual increases in pensions.

Judges:

Gloster VP CA, Lewison, Henderson LJJ

Citations:

[2017] EWCA Civ 200

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 24 March 2022; Ref: scu.581296

Citations:

[2017] EWCA Civ 145

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 23 March 2022; Ref: scu.580895

ECJ (Judgment) Appeal – Civil service – Temporary staff – Recruitment – Temporary agents on permanent posts – Plea of ??illegality – Error in law

Citations:

ECLI:EU:T:2017:169, [2017] EUECJ T-455/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 23 March 2022; Ref: scu.580703

Citations:

[1986] EUECJ C-292/84

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Hartmut Scharf v Commission ECJ 13-Dec-1984
ECJ Application for interim measures – suspension of the operation of a measure – interim measures – conditions for granting (rules of procedure, art. 83 (2)). Suspension of operation and other interim measures . .

Cited by:

Cited – F Bolognese and others v H Scharf and Commission of the European Communities ECJ 22-Sep-1987
1. Procedure – third-party proceedings – conditions of admissibility – prejudice to the rights of the third party.
(statute of the court of justice of the EEC Art 39; rules of procedure, art 97 (1))
2. Officials – staff regulations – . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 March 2022; Ref: scu.580684

1. Procedure – third-party proceedings – conditions of admissibility – prejudice to the rights of the third party.
(statute of the court of justice of the EEC Art 39; rules of procedure, art 97 (1))
2. Officials – staff regulations – interpretation – grounds of a judgment annulling a promotion – effect of res judicata only as regards the parties.

Citations:

[1987] EUECJ C-292/84T

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Hartmut Scharf v Commission ECJ 13-Dec-1984
ECJ Application for interim measures – suspension of the operation of a measure – interim measures – conditions for granting (rules of procedure, art. 83 (2)). Suspension of operation and other interim measures . .
Cited – Hartmut Scharf v Commission ECJ 21-Oct-1986
. .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 March 2022; Ref: scu.580685

ECJ Reference for a preliminary ruling – Articles 56 TFEU and 57 TFEU – Directive 96/71/EC – Articles 3, 5 and 6 – Workers of a company with its seat in Member State A, posted to carry out works in Member State B – Minimum wage provided for by the collective agreements of Member State B – Locus standi of a trade union with its seat in Member State B – Legislation of Member State A prohibiting the assignment to a third party of claims relating to pay

Citations:

[2015] EUECJ C-396/13, ECLI:EU:C:2015:86, [2015] IRLR 407

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Sahkoalojen Ammattiliitto ry v Elektrobudowa Spolka Akcyjna ECJ 18-Sep-2014
ECJ Advocate General’s Opinion – Freedom of movement for workers – Posted workers – Pay claims deriving from an employment relationship – Regulation (EC) No 593/2008 (Rome I Regulation) – Choice of law – Article . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 23 March 2022; Ref: scu.580688

ECJ (Judgment) Appeal – Civil service – Officials – Promotion exercise 2013 – Decision not to promote the applicant – Comparison of the merits – Recognition of staff reports – Absence of an error of law

Citations:

T-698/15, [2017] EUECJ T-698/15, ECLI:EU:T:2017:131

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 09 February 2022; Ref: scu.579685

ECJ (Judgment) Appeal – Civil service – EASO staff – Member of the contract staff – Fixed-term contract – Probationary period – Dismissal decision – Action for annulment and for damages – Dismissal of the action as inadmissible at first instance – Rule of correspondence between the application and the complaint – Article 91(2) of the Staff Regulations

Citations:

ECLI:EU:T:2017:138, [2017] EUECJ T-730/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 09 February 2022; Ref: scu.579671

(Judgment) Appeal – Civil service – Officials – Promotion – Promotion exercise 2013 – Non-inclusion in the list of officials promoted – No mistake of law

Citations:

ECLI:EU:T:2017:132, [2017] EUECJ T-278/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 09 February 2022; Ref: scu.579673

ECJ (Order) Action for annulment – Civil service – Temporary staff – Departure allowance – Revision of the calculation – Authority of res judicata – Action in part inadmissible and in part clearly unfounded in law

Citations:

ECLI:EU:T:2017:110, [2017] EUECJ T-594/16 – CO

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 09 February 2022; Ref: scu.579666

ECJ (Judgment) Appeal – Civil service – Officials – Promotion – Promotion exercise 2013 – Non-inclusion in the list of officials promoted – No mistake of law

Citations:

ECLI:EU:T:2017:133, [2017] EUECJ T-472/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 09 February 2022; Ref: scu.579672

ECJ (Order) Application for interim measures – Civil service – Vacancy notice – Ombudsman of the Commission – Application for suspension of operation – Lack of urgency

Citations:

ECLI:EU:T:2017:107, [2017] EUECJ T-688/16 – CO

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 09 February 2022; Ref: scu.579655

Appeal Officials Transfer of pension rights – Professional activities prior to entering the service of the Communities – Calculation of the years of pensionable service Article 11(2) of Annex VIII to the Staff Regulations General implementing provisions Principle of non’discrimination Principle of equal treatment

Citations:

[2007] EUECJ C-227/04, [2007] ECR I-6767

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Lindorfer v Council (Staff Regulations) ECJ 30-Nov-2006
EU Appeal – Community official – Transfer of pension rights – Calculation of additional pensionable service – Equality of treatment. . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 09 February 2022; Ref: scu.579643

EAT On the true construction of the Master’s Terms and Conditions under which Captain Spencer worked, and on the findings of the Tribunal, Captain Spencer’s rostered hours over 12 hours were ‘hours of work’ not ‘short breaks’ or ‘hours of rest’.
Master’s Terms and Conditions construed in the light of Council Directive 1999/63/EC (Seafarers’ Working Time).
Appeal dismissed.

Judges:

Richardson HHJ

Citations:

[2005] UKEAT 0433 – 04 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 February 2022; Ref: scu.224704

Citations:

[2017] UKEAT 0063 – 16 – 1701

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577874

Citations:

[2017] UKEAT 0057 – 16 – 2202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577876

Citations:

[2017] UKEAT 0251 – 16 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577877

EAT PRACTICE AND PROCEDURE – Appearance/response
PRACTICE AND PROCEDURE – Case management
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, Rules 20 and 21 – Employment Tribunal refusing to allow the Respondent’s application for an extension of time to lodge its response to the ET claim – whether the ET failed to have regard to a relevant factor – adequacy of reasons
Subsequent refusal to permit the Respondent to participate at the remedy stage – whether an error of law – adequacy of reasons
The Respondent failed to lodge its response to the Claimant’s claims of unfair dismissal, unpaid holiday pay, unpaid wages, sex discrimination and breach of contract in time. It subsequently applied, under Rule 20 ET Rules 2013, for an extension of time in which to lodge its response. Its substantive defence to the claims was essentially two-fold: (1) the Claimant was not an employee, she had only ever been a Director of the Respondent; alternatively, (2) if she had been an employee, the Claimant’s employment had been terminated by reason of her conduct which was an answer to all her claims.
The ET concluded that the Respondent had been guilty of deliberate and intentional default in failing to lodge its response to the claim in time and its defence lacked merit. Whilst it would suffer greater prejudice than the Claimant if not permitted to lodge its response out of time, that was outweighed by other factors; its application for an extension of time was thus refused.
Subsequently – Judgment having been entered for the Claimant on liability – the Respondent sought to make representations on remedy. A different Employment Judge, having decided the issue of remedy could be determined on the papers, declined the Respondent’s request.
The Respondent appealed both decisions.
Held: Allowing the first appeal but dismissing the second.vHaving taken the view that the merit of the proposed defence was a relevant factor in its determination of the application for an extension of time (applying Kwik Save Stores Ltd v Swain and Ors [1997] ICR 49 EAT), the ET had considered the first way in which the Respondent was putting its case (the employment status argument) – finding this had no merit – but had failed to address the second, alternative, case (the repudiatory breach argument). On its face that disclosed an error as the ET had failed to consider a factor that it apparently saw to be relevant to the exercise of its discretion (the merit of the Respondent’s case); alternatively, the ET had failed to provide any reasons for rejecting this second aspect of the Respondent’s case. Although the appropriate course in these circumstances would have been to apply to the ET for a reconsideration of the decision (on the basis that it had failed to address a relevant point in its Reasons), or to ask the EAT to make a reference under the Burns/Barke procedure, the first appeal would be allowed and the matter remitted to the same ET to address the question of the merits of the Respondent’s alternative defence and its potential relevance to the determination of its application for an extension of time, such reconsideration to be on the basis of the material already before the ET.
As for the second decision under challenge, this related to an exercise of the ET’s broad case management discretion in determining the appropriate way forward in terms of deciding remedy. The Claimant having provided extensive further information, the Employment Judge took the view that remedy could be determined on the papers without need for any hearing. That being so, the possibility of the Respondent’s participation (as allowed under Rule 21(3)) did not arise. The Respondent had not raised any questions as to the information provided by the Claimant at any stage such as to suggest that the decision to determine remedy on the papers was other than a permissible exercise of discretion. The ET was not thereby depriving the Respondent of its right to a fair hearing; rather, the Respondent had failed to lodge a response to the ET claim in time and thus acted in breach of the Rules of the ET and thereby failed to avail itself of the right to participate in the proceedings. As for the reasons for declining the Respondent’s request to make representations on remedy, the ET was entitled to give reasons proportionate to the decision it was then making. Subject to the point raised by the first appeal, detailed reasons had already been provided as to why the Respondent had not been granted an extension of time to lodge its response; the ET was not obliged to re-visit those reasons at the remedy stage. Otherwise, there was nothing further the ET needed to explain, given its case management decision that the issue of remedy should be determined on the papers.

Judges:

Eady QC HHJ

Citations:

[2016] UKEAT 0183 – 16 – 2212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577870

Citations:

[2017] UKEAT 0181 – 16 – 2302

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577875

Citations:

[2017] UKEAT 0241 – 16 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577878

EAT FLEXIBLE WORKING
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The reasons given by the Tribunal for rejecting part of the Claimant’s claim, that refusal of her request for flexible working was based on incorrect facts, were adequate.

Citations:

[2016] UKEAT 0027 – 16 – 0612

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577871

Citations:

[2017] UKEAT 0199 – 16 – 1301

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577872

EAT UNFAIR DISMISSAL – Automatically unfair reasons
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
The Employment Judge erred in holding that dismissal for storing and sharing confidential information for trade union purposes enjoyed the protection of Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) section 152. Finding of ‘automatic’ unfair dismissal set aside.
The finding of ‘ordinary’ unfair dismissal under Employment Rights Act 1996 section 98 was based on the finding under TULRCA section 152 also set aside.
Claims remitted to an Employment Tribunal for rehearing.

Judges:

Slade DBE J

Citations:

[2016] UKEAT 0113 – 16 – 1512

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577869

Citations:

[2017] UKEAT 0093 – 16 – 1601

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577873

EAT Disability Discrimination: Disability Related Discrimination
– Direct disability discrimination
– Reasonable adjustments
– Justification
The Claimant brought four claims under the Equality Act 2010 before the Employment Tribunal: direct disability discrimination, indirect disability discrimination, failure to make reasonable adjustments and discrimination arising from disability. The only finding in the Judgment as distinct from the Reasons was of direct discrimination on the grounds of disability. The Tribunal failed to consider or make any findings of less favourable treatment, an essential ingredient of a claim under section 13. The Tribunal erred in failing to consider the different legal ingredients of each complaint, and make necessary findings of fact and conclusions. For example the Tribunal failed to specify what adjustments were reasonable to make and when. The Tribunal also misstated the effect of the medical reports as only precluding operating hazardous machinery and considering it relevant that the Respondent’s machine was not hazardous as it was guarded when the Consultant Neurologist and the Occupational Health report advised against operating or being near machinery.

Citations:

[2016] UKEAT 0011 – 16 – 0812

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577868

EAT (Jurisdictional Points: Agency Relationships) Principles on which compensation to be assessed to be paid by hirer in circumstances in which it has been held liable for infringement of Regulation 5(1) Agency Workers Regulations 2010.

Citations:

[2016] UKEAT 0187 – 16 – 1312

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577866

EAT (Unlawful Deduction From Wages) CONTRACT OF EMPLOYMENT – Damages for breach of contract
The Employment Judge’s findings of fact and conclusions on the reason for dismissal and its fairness were permissible in light of the evidence and disclose no error of law. They are adequately reasoned.
However, the Employment Judge misdirected himself in law in relation to the unlawful deductions / breach of contract claim. He referred to the approach to calculating a week’s pay for the purposes of the Employment Rights Act 1996 (‘ERA’) where an employee has no normal working hours. This is irrelevant. He referred to section 229 ERA and the concept of a just apportionment in cases where that is appropriate. This too is irrelevant. By contrast, he made no reference to the relevant provisions at issue, namely sections 13(3) and 27 ERA. He made no reference to the requirement to make findings of fact as to the Claimant’s contractual entitlement to pay or to payments that were properly payable by reference to her employment, in order to identify whether and to what extent there had been a shortfall. His conclusions at paragraph 56 demonstrate that he misapplied the law by reference to those irrelevant provisions in reaching his conclusion that there was no shortfall.
It being impossible to conclude that there is only one outcome of a proper analysis, this issue only is remitted to a fresh tribunal for re-hearing.

Judges:

Simler DBE P J

Citations:

[2016] UKEAT 0044 – 16 – 1110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577863

EAT (Unfair Dismissal) PRACTICE AND PROCEDURE – Amendment – Appellate jurisdiction/reasons/Burns-Barke
The Appellant succeeded on one ground of appeal at an earlier hearing before the EAT: that the ET had not considered her application to amend her claim to include allegations of indirect race discrimination (direct discrimination already being asserted). As a result, the remaining six grounds were adjourned pending a decision of the ET which might affect their resolution. The ET having rejected her application, the appeal resumed before the EAT. The Appellant sought at the outset to amend her Notice of Appeal. This was refused, applying the principles set out in Khudados v Leggate [2005] ICR 1013, and stressing the importance of finality.
The grounds of appeal were separately considered and rejected. However, the Court had raised at an earlier hearing whether the ET was wrong in law in concluding that the dismissal (which was for misconduct by claiming to be off sick, but working in another job at the time) was fair when it had concluded that the employer’s investigation into the allegations had been seriously flawed, on the basis that in the light of information which had come to light since the dismissal the flaws made no difference. This looked very like a misapplication of section 98(4) for the reasons given in Polkey (especially by Lord Bridge). However, despite this point being ventilated by the EAT at the earlier hearing (after which the case had been remitted to the ET) there had been no application to amend the Notice of Appeal, nor was any such application made at the resumed hearing of the appeals (despite there being an application to amend on other grounds), and the original Notice of Appeal could not sensibly be read so as to raise the point. Consistent with its approach to the application to amend which had been made and dismissed, recognising that there may have been forensic reasons for not pursuing the point and applying the principle that it is not for a court to make arguments for a party but to adjudicate on the dispute the parties wish to have resolved, rather than some other one, the EAT concluded it was not properly open to it to resolve the appeal on this basis. No ground to that effect was before it: no application to amend to include it had been made.
The appeal was dismissed.

Citations:

[2016] UKEAT 0333 – 14 – 0211

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577864

EAT (Religion or Belief Discrimination) While it was common ground (and accepted by the Employment Tribunal) that attendance at festivals in Sardinia could be a genuine manifestation of religion or religious belief, there was no error of principle or perversity in the Employment Tribunal’s conclusion that the Claimant was not genuine in asserting that he required a five week period over the summer off work, in order to attend religious festivals with his family, as a manifestation of his religion or belief.

Citations:

[2016] UKEAT 0086 – 16 – 1512

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577867

EAT (Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke) JURISDICTIONAL POINTS – Worker, employee or neither
The Claimant was an interpreter, who from 2007 provided services directly to Police and Courts. Then the authorities engaged interpreters through intermediaries – initially ALS, then Capita. The Claimant had no contract with the end-users of her services. She claimed holiday pay under the Working Time Regulations 1998 (‘WTR’) and for discrimination under the Equality Act 2010 (‘EqA’), but in each case had to show she was a relevant worker (WTR) or ’employee’ (EqA). An Employment Tribunal held that she was a professional, who provided services to Capita, and so was excluded from being a worker and could not claim under the EqA. She appealed on two bases which had not been advanced below – first that Capita was not a client of hers, and second that she could claim under section 55 EqA (which governed the actions of employment service providers). In both cases, the Employment Appeal Tribunal declined to exercise its discretion to allow her to appeal: but in each case also dismissed the appeals on their merits. As to the first ground, the issue was one of fact, and there was sufficient material to entitle the Employment Tribunal to decide that Capita (and before it ALS) were professional clients of the Claimant; as to the second, though acknowledging it was obiter, that section 55 did not on a proper construction appear to permit the claim as it had been advanced. Appeal dismissed.

Judges:

Langstaff P J

Citations:

[2015] UKEAT 0086 – 15 – 2407

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 February 2022; Ref: scu.577862

Citations:

[1999] UKEAT 1400 – 98 – 2701

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 February 2022; Ref: scu.204782

(Judgment) Appeal – Civil service – Officials – Promotion – Promotion exercise 2011 – Decision not to promote the applicant to grade AD 13 – Dismissal of the appeal at first instance, after being referred by the Court of First Instance, as being in part manifestly inadmissible and in part manifestly Unfounded – Perspective of being promoted

Citations:

ECLI:EU:T:2017:76, [2017] EUECJ T-688/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 31 January 2022; Ref: scu.575278

AT PRACTICE AND PROCEDURE – Appellate jurisdiction / reasons / Burns-Barke
The ET’s two-paragraph Judgment was clearly inadequate and failed to comply with the requirements of Meek and Rule 62(5). Appeal allowed, remitted to a freshly constituted ET.

Citations:

[2017] UKEAT 0143 – 17 – 2710

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 31 January 2022; Ref: scu.601904

PRACTICE AND PROCEDURE – Case management
PRACTICE AND PROCEDURE – Disclosure
Though this appeal was in form an appeal against a ruling by Employment Judge Crosfill on 13 December 2017, in substance the issue was a question of construction of a case management ruling by Employment Judge Sage on 21 April 2016, following a case management hearing on 19 April 2016. The central question was whether or not paragraph 2 of the Judge’s Order was an Order for standard disclosure, as the Appellant contended it was. The matter was complicated by the fact that, in subsequent correspondence, at different times, Employment Judge Sage had indicated both that she had not ordered standard disclosure, and that she had done so. Employment Judge Crosfill took the view that Employment Judge Sage had not ordered standard disclosure and also decided that, if he was wrong and she had done so, he would revoke it, on the basis that it was not necessary or proportionate as there was a pending strike-out action which might substantially reduce the scope of the Respondent’s disclosure obligations. In deciding to revisit and revoke the Disclosure Order (if, contrary to his primary view, there had been such an Order) Employment Judge Crosfill relied upon the judgment of the EAT in Serco v Wells [2016] ICR 768.
The Appellant filed an affidavit with the EAT in which he gave evidence that Employment Judge Sage had said orally that she was ordering standard disclosure at the hearing on 19 April 2016.
The appeal was dismissed. The EAT held that the nature and scope of any Orders made at a case management hearing must be identified from the written Order that is made following the hearing, rather than from anything that is said orally during the hearing. Moreover, the EAT held that it was not appropriate to admit affidavit evidence of what was said at the hearing to assist in the interpretation of the written Order. The EAT held that Employment Judge Crosfill had been right to find that, on its true interpretation, the case management Order of 21 April 2016 had not contained an Order for standard disclosure. However, the EAT said that if Employment Judge Sage had made an Order for standard disclosure in April 2016, the principles set out in Serco v Wells would not have permitted another Employment Judge subsequently to set it aside because the second Employment Judge disagreed with it.

Citations:

[2018] UKEAT 0022 – 18 – 2003

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 January 2022; Ref: scu.621083

The claimant sought payment of sums said to be due to him on termination of his employment. The defendant company alleged breaches of his employment contract.

Judges:

Jack J

Citations:

[2007] EWHC 1216 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 30 January 2022; Ref: scu.261900

Judges:

Sir James Munby P FD, Underhill, Sales LJJ

Citations:

[2017] EWCA Civ 66

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.574302

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Contributory fault
PRACTICE AND PROCEDURE – Review
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Unfair dismissal – fairness of dismissal (Employment Rights Act 1996 (‘ERA’) section 98(4)) and band of reasonable responses test – whether the ET was guilty of a substitution mindset.
Wrongful dismissal – whether the ET adopted the correct approach and reached a permissible conclusion, taking into account all relevant material.
Contributory fault – sections 122(2) and 123(6) ERA – whether the ET adopted the correct approach, taking into account all relevant material and/or whether it gave adequate reasons to explain its conclusion.
Reconsideration – whether the ET erred (1) in extending time for the reconsideration application; (2) in failing to reconsider its approach on the evidence before it (in particular given the Claimant’s admissions) and/or as to the adequacy of its reasons.
Adequacy of reasons
The Claimant was a long-serving senior Radiographer who, when preparing her defence to earlier disciplinary proceedings, had utilised confidential patient information. The Respondent considered this was conduct in breach of its policies albeit the disciplinary investigation acknowledged that those policies did not expressly address the position of employees facing disciplinary proceedings; the decision was taken that the Claimant should be summarily dismissed by reason of her gross misconduct; a decision upheld on appeal.
The ET found the decision that the Claimant should be dismissed had been made with a closed mind: the relevant manager had considered a breach of the policy in respect of confidential patient information justified summary dismissal and did not consider the Claimant had not acted wilfully and thus was not guilty of a repudiatory breach of contract such as to warrant summary dismissal. In any event, the Claimant had not been culpable so as to justify any reduction for contributory fault.
The Respondent applied for the ET to reconsider its Judgment out of time, for reasons set out in its application letter. Referring to that letter, the ET extended time for the application but did not consider any proper basis had been demonstrated for it to reconsider its earlier Judgment.
The Respondent appealed against both Judgments. The Claimant cross-appealed against the ET’s Decision to extend time for the reconsideration application.
Held: dismissing the appeal against the ET’s finding of liability for unfair dismissal but otherwise allowing the appeals and dismissing the cross-appeal.
Given the ET’s permissible findings of fact (against which there was no challenge) as to the way in which the Respondent had reached the decision to dismiss, it had been entitled to conclude that the Respondent had adopted an unreasonably constrained approach, which failed to allow for lesser sanctions and ignored mitigating factors identified as potentially relevant in the investigation report. The ET had not been guilty of falling into the substitution mindset but had properly carried out its task in applying the band of reasonable responses test. The appeal against the liability finding on the unfair dismissal claim was therefore dismissed.
The ET’s reasoning on the wrongful dismissal claim and on the question of contributory fault did not, however, demonstrate it had applied the correct approach, considering all the relevant material before it; alternatively failed to adequately explain how the ET had approached its task and reached its conclusions. The Reconsideration Judgment did not rectify these failings and was thus also defective. The Respondent’s appeals in these respects would be allowed.
Even if the cross-appeal raised a matter that the Claimant was entitled to take on appeal, the ET’s reasoning expressly referenced the Respondent’s detailed application for an extension of time and – adopting a proportionate approach (as the ET was entitled to do) – was adequate to the task. The cross-appeal was duly dismissed.

Citations:

[2017] UKEAT 0164 – 16 – 0501

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.574087

EAT CERTIFICATION OFFICER
HUMAN RIGHTS
The Certification Officer did not err in holding that Unite had failed to comply with Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) section 30(1) by not giving her access to accounting records showing ‘stand down’ payments to each trade union official of her branch which together totalled a substantial monthly amount. Under sections 28 and 29 the Union was obliged to keep available for inspection accounting records of its transactions necessary to give a true and fair view of the state of affairs of the trade union and to explain its transactions. On the facts the Certification Officer did not err in holding that the cumulative amounts in the accounts relating to ‘stand down’ payments which had been made available did not comply with this obligation. Previous decisions of the Certification Officer in Mortimer v Amicus (D/1/03) and Foster v Musicians Union (D/13-17/03) considered. Nor did the Certification Officer err in refusing to redact the names of the officials in receipt of such payments. Article 8 ECHR considered. Further, on the cross-appeal, the Certification Officer did not err in refusing the application by the union member for access to bank statements when she had been given access to the accounting records regarding sundries to which they relate.
Appeal and cross-appeal dismissed.

Citations:

[2017] UKEAT 0148 – 16 – 0902

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.574090

EAT Jurisdictional points and territorial scope. Working outside the jurisdiction. Unfair dismissal, discrimination, Working Time Regulations, and breach of contract.
The claimant was a mariner who worked off shore Nigeria. He lived in Germany. His employer was a limited company registered in Scotland and operating from Aberdeen. The Employment Tribunal (ET) did not err in law in deciding that there was no territorial reach in respect of claims under the Employment Rights Act 1996, the Equality Act 2010, and the Working Time Regulations. The appeal is refused and the case remitted to the ET to hear the claim for breach of contract.

Citations:

[2017] UKEAT 0019 – 13 – 3101

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.574089

ECJ (Judgment) Appeal – Civil service – Officials – Appraisal report – 2011/2012 appraisal period – Distortion of facts – Error of law – Breach of fiduciary duty – Legitimate expectations

Citations:

ECLI:EU:T:2017:65, [2017] EUECJ T-271/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 29 January 2022; Ref: scu.573935

Judges:

Elias, Lewison LJJ

Citations:

[2017] EWCA Civ 43

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573791

Judges:

Longmore, Elias, David Richards LJJ

Citations:

[2017] EWCA Civ 23

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573620

Appeal againast a finding that the appellant had been lawfully dismissed for gross misconduct. He was a very senior manager, but had undermined the company’s staff engagement policies.

Judges:

Longmore, Elias, David Richards LJJ

Citations:

[2017] EWCA Civ 22, [2017] WLR(D) 37

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573602

EAT Unfair Dismissal : Reasonableness of Dismissal – An expired warning can be taken into account as part of the overall circumstances under section 98(4) Employment Rights Act 1996 when the ET is considering whether a dismissal was fair or unfair. The facts of the previous misconduct, the fact that a warning was given and the fact that it had expired, were all relevant matters. See: Airbus UK Ltd v Webb [2008] IRLR 309.

Citations:

[2016] UKEAT 0116 – 16 – 3110

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573467

Unfair Dismissal : Reasonableness of Dismissal – The Employment Tribunal found the Respondent’s complaints of unfair dismissal and breach of contract to be well founded. The Appellant’s primary ground of appeal that the Employment Tribunal substituted its own view for that of the Appellant failed, as did the contention that the Employment Tribunal reached a perverse decision. The Employment Tribunal misapplied the decision in Ramphal v Department for Transport [2015] IRLR 985 and it is not clear from the Decision whether the Employment Tribunal accepted that physical violence amounted to gross misconduct for the purposes of the Appellant’s disciplinary procedure. The Employment Appeal Tribunal dismissed the unfair dismissal appeal: physical violence amounted to gross misconduct under the Appellant’s disciplinary procedures, but the Appellant failed to have regard to all the surrounding circumstances and the Claimant’s exemplary disciplinary record over 42 years. The appeal against the breach of contract claim was also dismissed.

Citations:

[2016] UKEAT 0170 – 16 – 1511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573468

EAT Practice and Procedure: Estoppel or Abuse of Process – DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Section 15
HARASSMENT
DISABILITY DISCRIMINATION – Exclusions/jurisdictions
UNFAIR DISMISSAL – Reasonableness of dismissal
Practice and procedure – estoppel; disability discrimination reasonable adjustments (sections 20 and 21 Equality Act 2010); discrimination arising from the consequences of disability (section 15 Equality Act); harassment (section 26 Equality Act); time limits (section 123 Equality Act); unfair dismissal (section 98(4) Employment Rights Act 1996)
The Claimant was a teacher who suffered from a disability sustained in the course of her employment. The Respondent had initially refused to recognise that the Claimant was entitled to be paid in full when on sick leave and this and other matters, including other allegations of disability discrimination, were the subject of earlier ET proceedings. The first ET proceedings were ultimately determined in the Claimant’s favour. Meanwhile, however, the Claimant had been subject to the Respondent’s capability procedures and was ultimately dismissed. The Claimant brought a further ET claim, pursuing various complaints of disability discrimination and unfair dismissal.
The ET held that all claims relating to matters prior to the lodgement of the first ET claim were an abuse of process (applying the principle laid down in Henderson v Henderson). Otherwise, it allowed that certain of the Claimant’s complaints of disability discrimination were made out and upheld her claim of unfair dismissal.
On the Respondent’s appeal and the Claimant’s cross-appeal.
Held: allowing the appeal in part and dismissing the cross-appeal.
The ET had failed to address the Respondent’s objection that the Henderson v Henderson principle applied to all matters that had taken place prior to the hearing of the first ET claim (not just the lodgement of the claim); either the ET had assumed that the principle only applied up to the date of the later claim (which would be wrong in law) or it had failed to address the point. Had it done so, it would have been bound to find that the matters that had occurred prior to the hearing of the first ET claim could and should also have been included within those proceedings. In the alternative, on the failure to pay the Claimant her full salary, this had been a matter raised in the first ET proceedings in any event and the Claimant was issue estopped from pursuing it in the second.
The ET had further erred in its approach to the tests to be applied under sections 15 (discrimination because of something arising from the consequences of disability) and 26 (harassment) of the Equality Act 2010. There was no indication that it had considered how the unfavourable treatment was ‘because of’ something arising from the consequences of the Claimant’s disability for the purposes of section 15 or as to how it had found that the unwanted conduct was ‘related to’ the relevant protected characteristic. Either it had failed to apply the correct test or it had failed to explain how it had done so.
The ET had also erred in its approach to time limits in respect of the reasonable adjustments claims, failing to treat the failure to make the adjustments in question as an omission and further failing to determine the date of that failure. Had it been necessary to determine the point, the ET’s conclusion on continuing act was also inadequately explained.
The ET had, however, reached a permissible view on the Claimant’s unfair dismissal claim and the appeal would be dismissed in this regard.

Citations:

[2016] UKEAT 0004 – 16 – 2212

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573477

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – UNFAIR DISMISSAL – Reasonableness of dismissal
REDUNDANCY – Definition
REDUNDANCY – Fairness
Reason for dismissal – unfair dismissal – statutory redundancy payment
Fairness of dismissal – unfair dismissal
Both Claimants were dismissed after the Respondent took the decision to close down the workplace in which they were both employed and sought to invoke a contractual mobility clause: the Claimants had refused to relocate in accordance with the Respondent’s instruction and it had taken the decision that they should be dismissed.
The Claimants pursued claims before the ET, relevantly claiming unfair dismissal and statutory redundancy payments. Their cases were heard separately but by the same Employment Judge, who ruled that they had been dismissed by reason of redundancy, the closure of the workplace constituting a redundancy for the purposes of section 139 Employment Rights Act 1996 (‘ERA’), and were therefore entitled to statutory redundancy payments. The ET also found the dismissals to have been unfair, whether by reason of redundancy or, as the Respondent had argued, for conduct or some other substantial reason (‘SOSR’).
The Respondent appealed.
Held: allowing the appeal against the ET’s decision on the statutory redundancy payment claims but dismissing the appeal against the decision on unfair dismissal
The ET had wrongly approached the question of the reason for the dismissals from the perspective of there having been a redundancy situation within the definition of section 139 ERA when it had found that the reason in the Respondent’s mind was related to the Claimants’ refusal to obey the instruction to relocate, issued in reliance on the mobility clause which featured in their contracts of employment. Whether or not there was a redundancy situation, the ET still had to approach the question of the reason for the dismissal applying the test laid down in Abernethy v Mott, Hay and Anderson [1974] ICR 323 CA. Doing so, it was apparent (on the ET’s findings) that the reason in the Respondent’s mind was one related to the Claimants’ conduct – the refusal to obey the instruction to relocate – and the Respondent had been entitled to rely on that reason notwithstanding the background of the workplace closure (Curling and Ors v Securicor Ltd [1992] IRLR 549 EAT and Home Office v Evans [2008] ICR 302 CA applied). The ET’s finding on the Claimants’ entitlement to statutory redundancy payments could not stand, and the appeal would be allowed in this regard.
That said, in both cases the ET had gone on to consider the question of fairness in the alternative. In so doing, it had applied the three stage test identified by the Respondent, asking (1) whether the instruction was lawful (whether the mobility clause relied on was contractual), (2) whether the Respondent had acted reasonably in giving that instruction, and (3) whether the Claimants had acted reasonably in refusing to comply with that instruction. It had concluded that the mobility clause was too wide and uncertain, had been unreasonably invoked by the Respondent and that the Claimants (both faced with an additional 20-30 hours’ commute each week, and given that Mr Fitton had brought a property near to his former workplace and did not have a car, and that Mr Ewer had worked near to his home town for the Respondent/its predecessor for 25 years, would soon be 64 and due to retire a year later) had reasonably refused to comply with the instruction. As the ET had applied the tests identified by the Respondent in its alternative, ‘conduct’ findings, had reached permissible conclusions on the material before it, and had provided adequate Reasons, there was no basis for overturning the decision on fairness, and the appeal in this regard was dismissed.

Citations:

[2016] UKEAT 0206 – 16 – 2111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573469

Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – UNFAIR DISMISSAL – Reasonableness of dismissal
REDUNDANCY – Definition
REDUNDANCY – Fairness
Reason for dismissal – unfair dismissal – statutory redundancy payment
Fairness of dismissal – unfair dismissal
Both Claimants were dismissed after the Respondent took the decision to close down the workplace in which they were both employed and sought to invoke a contractual mobility clause: the Claimants had refused to relocate in accordance with the Respondent’s instruction and it had taken the decision that they should be dismissed.
The Claimants pursued claims before the ET, relevantly claiming unfair dismissal and statutory redundancy payments. Their cases were heard separately but by the same Employment Judge, who ruled that they had been dismissed by reason of redundancy, the closure of the workplace constituting a redundancy for the purposes of section 139 Employment Rights Act 1996 (‘ERA’), and were therefore entitled to statutory redundancy payments. The ET also found the dismissals to have been unfair, whether by reason of redundancy or, as the Respondent had argued, for conduct or some other substantial reason (‘SOSR’).
The Respondent appealed.
Held: allowing the appeal against the ET’s decision on the statutory redundancy payment claims but dismissing the appeal against the decision on unfair dismissal
The ET had wrongly approached the question of the reason for the dismissals from the perspective of there having been a redundancy situation within the definition of section 139 ERA when it had found that the reason in the Respondent’s mind was related to the Claimants’ refusal to obey the instruction to relocate, issued in reliance on the mobility clause which featured in their contracts of employment. Whether or not there was a redundancy situation, the ET still had to approach the question of the reason for the dismissal applying the test laid down in Abernethy v Mott, Hay and Anderson [1974] ICR 323 CA. Doing so, it was apparent (on the ET’s findings) that the reason in the Respondent’s mind was one related to the Claimants’ conduct – the refusal to obey the instruction to relocate – and the Respondent had been entitled to rely on that reason notwithstanding the background of the workplace closure (Curling and Ors v Securicor Ltd [1992] IRLR 549 EAT and Home Office v Evans [2008] ICR 302 CA applied). The ET’s finding on the Claimants’ entitlement to statutory redundancy payments could not stand, and the appeal would be allowed in this regard.
That said, in both cases the ET had gone on to consider the question of fairness in the alternative. In so doing, it had applied the three stage test identified by the Respondent, asking (1) whether the instruction was lawful (whether the mobility clause relied on was contractual), (2) whether the Respondent had acted reasonably in giving that instruction, and (3) whether the Claimants had acted reasonably in refusing to comply with that instruction. It had concluded that the mobility clause was too wide and uncertain, had been unreasonably invoked by the Respondent and that the Claimants (both faced with an additional 20-30 hours’ commute each week, and given that Mr Fitton had brought a property near to his former workplace and did not have a car, and that Mr Ewer had worked near to his home town for the Respondent/its predecessor for 25 years, would soon be 64 and due to retire a year later) had reasonably refused to comply with the instruction. As the ET had applied the tests identified by the Respondent in its alternative, ‘conduct’ findings, had reached permissible conclusions on the material before it, and had provided adequate Reasons, there was no basis for overturning the decision on fairness, and the appeal in this regard was dismissed

Citations:

[2016] UKEAT 0205 – 16 – 2111

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573470

EAT (Disability Discrimination: Disability) The appeal was allowed and the case remitted for rehearing. The findings made by the Employment Judge were not supported by the medical evidence and the issue of whether the Appellant was suffering from a progressive condition, and therefore should be deemed under paragraph 8(2) of Schedule 1 to the Equality Act 2010 to be likely to result in a substantial adverse impairment on his ability to carry out day-to-day activities, should be re-considered in the light of further medical evidence.

Judges:

Hand QC

Citations:

[2016] UKEAT 0353 – 15 – 1612

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573478

EAT (Practice and Procedure: Amendment) An application to re-amend the grounds of appeal was made as result of the Employment Appeal Tribunal raising a query with the parties after the close of submissions as to whether part of the Judgment was sound in law. After considering competing submissions the further amendment was allowed because the prejudice to the Appellant in being subject to an award(s) of compensation that the Employment Tribunal might have no jurisdiction to make and a Judgment, which might be unlawful not being subject to challenge, outweighed the prejudice suffered by the Appellant as a result of further delay.

Citations:

[2017] UKEAT 0092 – 16 – 0411

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573479

EAT Practice and Procedure: Imposition of Deposit – 1. A deposit Order was wrongly imposed in circumstances where the Employment Judge recognised that the Claimant would find it difficult to comply with its terms.
2. In fact it was not practically possible for the Claimant to comply with the deposit Order, which was set at so high a level in context as to impede her access to justice because she could not comply with it.
3. The Order imposed was not therefore a proportionate and effective means of signalling to the Claimant the low prospects of success and warning her as to costs.

Judges:

Siler DBE P J

Citations:

[2016] UKEAT 0021 – 16 – 1011

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573475

Jurisdictional Points : Extension of Time: Just and Equitable – The Claimant appealed against a decision of the Employment Tribunal (‘the ET’) not to extend the time for bringing her discrimination claim. The Employment Appeal Tribunal held that the ET had not misdirected itself in law and that its decision was open to it on the facts. The appeal was dismissed.

Judges:

Laing DBE J

Citations:

[2016] UKEAT 0180 – 16 – 1511

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573473

EAT Practice and Procedure: Costs – Costs before the Employment Appeal Tribunal – Rules 34A(1) and 34A(2A) Employment Appeal Tribunal Rules 1993 (as amended)
Although the Appellant had been partly successful on its appeal, its conduct of the appeal had been such that no award would be made on its application under Rule 34A(2A) EAT Rules. Moreover, that conduct had been such as to unreasonably put the Respondent (Claimant) to unnecessary expense such that it was appropriate to make an award of costs against the Appellant under Rule 34A(1).

Judges:

Eady QC HHJ

Citations:

[2016] UKEAT 0025 – 16 – 2311

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573474

EAT Practice and Procedure: Compromise – The Appellant employer challenged a decision of the Employment Tribunal (‘the ET’) that the Respondent employee’s claim was not barred by a compromise agreement (‘the agreement’). The Employment Appeal Tribunal (‘the EAT’) held that the ET’s construction of the agreement was correct. The EAT dismissed the appeal.

Judges:

Laing DBE J

Citations:

[2016] UKEAT 0123 – 16 – 1711

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 29 January 2022; Ref: scu.573471

Judges:

McFarlane, Underhill, Briggs LJJ

Citations:

[2017] EWCA Civ 20, [2017] WLR(D) 27

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 January 2022; Ref: scu.573274

(Judgment) Appeal – Public service – Temporary staff – Fixed-term contract – Non-renewal decision – Implied decision rejecting – Decision rejecting the complaint – Obligation to state reasons – Duty of care

Citations:

ECLI:EU:T:2017:7, [2017] EUECJ T-719/15

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 28 January 2022; Ref: scu.573250

ECJ (Judgment) Appeal – Civil service – Officials – Pensions – Reform of the Staff Regulations – Increase of the retirement age – Decision refusing to upgrade the pension entitlement – Principe ne ultra petita – Error in law – Obligation to state reasons

Citations:

ECLI:EU:T:2017:15, [2017] EUECJ T-232/16

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 28 January 2022; Ref: scu.573245

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
UNFAIR DISMISSAL – Polkey deduction
The employer’s advocate did not raise a Polkey argument at the Employment Tribunal and the EAT refused to allow it to be raised on appeal: CELTEC applied. But in any event there were sufficient findings on unfair and wrongful dismissal, and lack of contributory fault, to defeat any such argument.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0307 – 10 – 1712

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 28 January 2022; Ref: scu.430641

EAT Unfair Dismissal: Constructive Dismissal – Reasonableness of dismissal – CONTRACT OF EMPLOYMENT – Written particulars

Slade J
[2016] UKEAT 0287 – 16 – 2012)
Bailii
England and Wales

Employment

Updated: 27 January 2022; Ref: scu.572675

EAT Unfair Dismissal: Constructive Dismissal – The Claimant resigned by letter which relied on numerous reasons for his resignation including one which the Employment Tribunal found to constitute a fundamental and subsisting breach of contract. The Respondent contended that the real reason for his resignation was to avoid disciplinary proceedings in relation to a different matter and was not in response to the fundamental breach that he had established. The Employment Tribunal agreed with that contention and found that in those circumstances he could not claim constructive dismissal.
In the light of the way the case was put by the Respondent and on a proper reading of the Reasons, it was clear that the Employment Tribunal were not, as the Claimant maintained on appeal, setting up a false dichotomy between two different reasons for resigning (i.e. avoiding the disciplinary action and the fundamental breach of contract) but were finding, permissibly, that the true reason was to avoid disciplinary action and that the fundamental breach in fact had nothing to do with the resignation.

Shanks HHJ
[2016] UKEAT 0156 – 16 – 0711
Bailii
England and Wales

Employment

Updated: 27 January 2022; Ref: scu.572669

EAT Unfair Dismissal : Contributory Fault – Unfair dismissal – compensatory award – reduction for conduct/contributory fault – ERA 1996 sections 122(2) (basic award) and 123(6) (compensatory award)
The ET had originally found that the Claimant (a bus driver who was asked to undertake remedial driving training and assessment) had been dismissed for a reason related to her conduct (her refusal to obey a reasonable instruction and insubordination). The EAT had set that decision aside and remitted for the case for consideration as to the reason for dismissal given the Respondent’s approach on the internal appeal. At the remitted hearing, the ET concluded that the fact that the Claimant was given a further opportunity to attend the training and assessment meant her conduct was no longer the principal reason for dismissal on appeal; in confirming the decision to dismiss, the appeal panel principally had in mind the Claimant’s inability to pass the driving assessment once she had attended the driving school; that was a reason related to capability, which had not been raised with the Claimant and this, together with the failure to allow a further attempt to pass the assessment (contrary to the Respondent’s policy) rendered the decision to dismiss unfair. There was no appeal from that finding.
At the subsequent remedies hearing, the ET considered both the basic and compensatory awards should be reduced by 75 per cent, given the Claimant’s earlier conduct in refusing to obey a reasonable instruction and insubordination. Allowing that any reduction in the compensatory award was dependent upon the Claimant’s conduct having caused or contributed to her dismissal, the ET was satisfied it had: the decision on her internal appeal was only made given the fact she had earlier behaved in such a way as to warrant dismissal. The Claimant appealed.
Held: dismissing the appeal
The ET had correctly distinguished the tests required by sections 122(2) and 123(6) Employment Rights Act 1996. It was entitled to find the Claimant had behaved in a blameworthy or culpable way prior to her dismissal such as to mean it was just and equitable to make a reduction in the basic award pursuant to section 122(2). Given the particular facts of the case, the ET was also entitled to find a causative link between the Claimant’s culpable conduct and the ultimate decision to dismiss (that being the decision on her internal appeal). The focus was on the Claimant’s conduct, notwithstanding that the principal reason for the dismissal at that stage was one related to her capability. This was not a case where there was no link between the earlier conduct and that which informed the final decision to dismiss (Nejjary v Aramark Ltd UKEAT/0054/12 distinguished). The ET had been entitled to view the appeal decision in context, which included the Claimant’s earlier misconduct.

Eady QC HHJ
[2016] UKEAT 0166 – 16 – 3110
Bailii
England and Wales

Employment

Updated: 27 January 2022; Ref: scu.572666

ECJ Judgment – Appeal – Civil service – Officials – Promotion – 2011 promotion exercise – Non-inclusion in the list of officials eligible for promotion – Dismissal of the application at first instance – Article 45 of the Staff Regulations – Clause 4 of the Framework Agreement ETUC, UNICE, CEEP On fixed-term work – Equal treatment – Obligation to state reasons – Burden of proof – Obligation of the court to hear the case – Plea of ??illegality – Rule of concordance between the complaint and the action brought before the Court of First Instance ‘Union’

T-366/15, [2016] EUECJ T-366/15
Bailii
European

Employment

Updated: 27 January 2022; Ref: scu.572619

Judgment – CB – ECB staff – Temporary workers – Limitation of the maximum duration of performance of the same temporary worker – Action for annulment – Contested act – Direct and individual assignment – Interest in bringing proceedings – Time-limit for bringing an action – Admissibility – Information and consultation with the applicant trade union organization – Non-contractual liability

ECLI:EU:T:2016:727, [2016] EUECJ T-713/14
Bailii
European

Employment

Updated: 27 January 2022; Ref: scu.572589

ECJ Order – Application for interim measures – Civil service – Contract staff – Termination of an indefinite contract – Application for suspension of operation – Lack of urgency

T-826/16, [2016] EUECJ T-826/16 – CO
Bailii
European

Employment

Updated: 27 January 2022; Ref: scu.572570

ECJ Judgment – Reference for a preliminary ruling – Directive 98/59 / EC – approximation of the laws of the Member States relating to collective redundancies – Article 49 TFEU – Freedom of establishment – Charter of Fundamental Rights of the European Union – Article 16 – Freedom of enterprise – National law conferring on an administrative authority the power to oppose collective redundancies after assessing the conditions of the labor market, the situation of the undertaking and the interests of the national economy – Acute economic crisis – Unemployment rate Particularly high

C-201/15, [2016] EUECJ C-201/15
Bailii
European

Employment

Updated: 27 January 2022; Ref: scu.572560

The claimant renewed his application for leave to appeal against a finding that his claim for unfair dismissal had not been presented within the necessary time limit. It had been outside the period by 88 seconds.
Held: There was an arguable case and the application should be referred to a full court.

Wall LJ
[2008] EWCA Civ 50
Bailii
Employment Rights Act 1996
England and Wales

Employment

Updated: 27 January 2022; Ref: scu.572361

EAT (Disability Discrimination : Exclusions/Jurisdictions) The first Employment Tribunal determined the Appellant was not a disabled person by reason of his hearing impairment. The second Employment Tribunal (following remission) determined the Appellant was a disabled person having regard to his left shoulder impairment, but that the cumulative effect of his hearing condition together with his shoulder impediment did not amount to a situation, independently from the disability arising from his shoulder condition, which involved a further physical impairment within the meaning of section 6 of the Equality Act 2010 at the material time. The Appellant appealed that decision. The Employment Appeal Tribunal determined that the second Employment Tribunal conducted the analysis in relation to the issue of combined effect that it was directed to do. Further it reached a permissible conclusion on the material before it, giving proper reasons for its conclusion. Appeal dismissed.

Supperstone J
[2016] UKEAT 0127 – 16 – 0610
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572019

EAT (Unfair Dismissal : Mitigation of Loss) The claimant was constructively unfairly dismissed by the respondent as a result of a breach of the implied term of trust and confidence during a management restructuring. The employment tribunal decided not to make any compensatory award on the baiss that the claimant had failed to mitigate his loss, having declined an offer of re-employment.
The employment tribunal’s judgement twice stated incorrectly the test for mitigation of loss and used the correct test interchangeably with those incorrect statements. The applicable test is not whether an employee’s conduct in refusing re-employment was reasonable, but whether the employer had shown that the employee’s conduct was unreasonable. A failure ot acknowledge that the onus if prrof was on the wrongdoer coupled with a focus on the employee’s actions without contemplating that more than one course could reasonably have been taken illustrated that the tribunal had failed to follow the principles enunciated in Wilding v British Telecommunications plc 2002 I079, recently re-affirmed in Cooper Contracting Limited v Lindsey UKEAT/0184/15.
It was counter intuitive to regard an employee who was constructively unfairly dismissed as unreasonable in refusing to allow the employer to make amends by re-employing him when the law does not allow such a wrongdoer to ‘ cure’ a repudiatory breach when the employee is deciding whether to affirm or go ( Bournemouth University v Buckland [2010] ICR 908). However, the present case did not require a decision in principle on whether such an outcome was perverse.
Appeal allowed and case remitted to a fresh tribunal on the issue of remedy.

Lady Wise H
[2016] UKEAT 0008 – 16 – 1210
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572021

EAT (Disability Discrimination: Disability Related Discrimination) The Claimant alleged discrimination arising from disability under section 15 Equality Act 2010. He raised six complaints.
In relation to five of them there was no issue as to their factual basis and the Employment Tribunal was satisfied that they amounted to unfavourable treatment. The issue for the Employment Tribunal was whether the treatment in each case was ‘because of something arising in consequence of [the Claimant’s] disability’.
The Employment Tribunal decided that causation was established in relation to the five complaints. However, they considered causation in relation to all five complaints together rather than looking at each of them separately; they did not ask themselves what the subjective reason for the Respondent’s treatment of the Claimant was; and they did not clearly distinguish and address the two elements in the causation test (‘because of something’ and ‘arising in consequence’). They did not therefore follow the proper approach outlined in Pnaiser v NHS England [2016] IRLR 170 and did not analyse the causation issues as they should have.
A proper approach may have led to a different conclusion as to causation. The appeal was therefore allowed and the five section 15 complaints remitted to a fresh Employment Tribunal.

Shanks HHJ
[2016] UKEAT 0194 – 16 – 2411
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572022

EAT (Sex Discrimination : Marital Status) SEXUAL ORIENTATION DISCRIMINATION HARASSMENT
Discrimination – marital status – sexual orientation
Qualifications bodies – relevant qualification – sections 53 and 54 Equality Act 2010
Exceptions from liability – religious requirements relating to marriage – schedule 9 paragraph 2 Equality Act 2010
Harassment – section 26 Equality Act 2010
The Claimant is a Church of England Priest who married his long-term partner. This was a marriage between two persons of the same sex, made permissible by virtue of the Marriage (Same Sex Couples) Act 2013, the enactment of which the Church of England had opposed. As a result of this marriage, the Respondent revoked the Claimant’s Permission to Officiate (‘PTO’) and refused to grant him an Extra Parochial Ministry Licence (‘EPML’), which he needed to be able to take up a post as Chaplain in an NHS Trust. The Claimant brought ET proceedings, complaining of unlawful direct discrimination because of sexual orientation and/or marital status and of unlawful harassment related to sexual orientation, his claims being brought under section 53 Equality Act 2010 (‘EqA’) which applies to qualifications bodies, as defined by section 54(2) EqA. The Respondent denied he was a qualifications body but, in the alternative, contended that any relevant qualifications (defined by section 54(3)) were for the purposes of employment for the purposes of an organised religion, falling within the exemption allowed by schedule 9 paragraph 2 of the EqA and he had applied the requirement that the Claimant not be in a same sex marriage because that was incompatible with the doctrine of the Church of England in relation to marriage (‘the compliance principle’). The claim of harassment was further denied on its facts.
The ET found the Respondent’s refusal to grant the EPML did fall under section 53 EqA and was a ‘relevant qualification’ within the meaning of section 54. That was not the case, however, in respect of the revocation of the Claimant’s PTO. The ET further held, however, that the EPML qualification was for the purposes of employment for the purposes of an organised religion and the compliance principle was engaged; thus the Respondent was exempt from liability by reason of paragraph 2 of schedule 9 of the EqA. As for the harassment claim, although the Claimant was caused distress by the Respondent’s conduct, which he found humiliating and degrading, this did not amount to harassment. Context was everything. The Claimant would not have experienced that (admittedly, unwanted) conduct if he had not defied the doctrine of the Church. Moreover, the Respondent had acted lawfully pursuant to schedule 9; it would be an affront to justice if his conduct was found to constitute harassment.
Upon the Claimant’s appeal and the Respondent’s cross-appeal.
Held: dismissing both the appeal and cross-appeal
The ET had correctly held that the EPML was a relevant qualification (and the Respondent thus a qualifications body) for the purposes of sections 53 and 54 EqA; the Respondent’s cross-appeal against this finding was dismissed. Equally, however, the ET had been entitled to find that the PTO was not a relevant qualification: it would not have ‘facilitated’ the grant of the EPML on the facts of this case; it was the Claimant’s lack of ‘good standing’ within the Church of England that underpinned the Respondent’s decision in respect of both.
The ET had further reached a permissible conclusion that the qualification was for the purposes of employment for the purposes of an organised religion, notwithstanding that the employer would have been the NHS Trust and not the Church. The Trust required its Chaplain to have an EPML for the purpose of carrying out the ministry of the Church of England; that was the purpose of the qualification and the employment. As for the doctrines of the Church, this referred to the teachings and beliefs of the religion and the ET had been entitled to find these were as stated by Canon B30 (‘ marriage is . . a union . . of one man with one woman . .’), evidenced, in particular, by the House of Bishops’ Pastoral Guidance on Same Sex Marriage. The Respondent had applied a requirement that the Claimant not be in a same sex marriage so as to comply with the doctrines of the Church; it was not fatal to the ET’s conclusion in that regard that a different Bishop might not have done the same.
As for the harassment claim, the ET had permissibly found that the particular context of this case was highly significant and meant that it was not reasonable for the Respondent’s conduct to have the effect required to meet the definition of harassment under section 26 EqA. The Claimant had been aware that his marriage would mean that he would not be seen as in ‘good standing’ within the Church of England. The Respondent’s decision was exempt from liability by reason of schedule 9 and there were no aggravating features arising from his decision or its communication. These were relevant factors to which the ET was entitled to have regard.

Eady QC HHJ
[2016] UKEAT 0072 – 16 – 0712
Bailii
Equality Act 2010
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572025

EAT (Unlawful Deduction From Wages) The Claimant’s appeal against the Employment Judge’s decision to dismiss his claim for unlawful deductions was allowed, based on the finding that his entitlement to arrears of pay crystallised on termination of the employment. Delaney v Staples and HMRC v Stringer (both House of Lords) considered. The Respondents’ cross-appeal against that finding was dismissed.

Peter Clark HHJ
[2016] UKEAT 0122 – 16 – 0311
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572023

EAT (Victimisation Discrimination : Protected Disclosure) VICTIMISATION DISCRIMINATION – Detriment
VICTIMISATION DISCRIMINATION – Dismissal
The Employment Tribunal erred in failing to identify any legal obligation, as opposed to guidance, of which the Claimant believed the Respondent to be in breach. Accordingly the finding that the Claimant had made a qualifying disclosure within the meaning of the Employment Rights Act 1996 (‘ERA’) section 43B(1) and therefore a protected disclosure was set aside. The finding that the Claimant was subject to a detriment for making a protected disclosure is set aside. The Employment Tribunal also erred in applying the wrong test in considering the claim under ERA section 103A. They applied the test appropriate to a section 47B claim and not that for unfair dismissal. Claims remitted to a differently constituted Employment Tribunal for rehearing.

Slade DBE J
[2016] UKEAT 0149 – 16 – 0212
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572024

(Practice and Procedure : Case Management)
Certain case management directions were erroneous and have been overturned.
Certain other directions were correct and have been upheld.

Wilkie J
[2016] UKEAT 0159 – 16 – 1110
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572020

(Disability Discrimination: Compensation) In a case where the Employment Tribunal found that the Claimant’s suspension was not an unlawful act but was the most proximate cause of her depression and triggered that depression, the Respondent appealed against an award for personal injury on the basis that the Employment Tribunal was wrong to make such an award in the absence of expert medical evidence, which was necessary to establish both causation and quantum of this claim which are difficult issues to disentangle. The Respondent argued that in a low-value case, cost and proportionality issues may drive parties and tribunals to deal with such issues without medical evidence but in all other cases medical evidence must be obtained before such an award can be made. A similar point was argued in relation to pecuniary loss awards for unfair dismissal.
The Respondent also contended that the Employment Tribunal’s starting point for the personal injury award was inflated and erroneously characterised the psychiatric injury as ‘moderately severe’ (with a bracket of andpound;15,000-andpound;44,000) within the terms of the Judicial College Guidelines, 12th edition, rather than as ‘moderate’ (with a bracket of andpound;4,700-andpound;15,400). This led to an award that overlapped with the injury to feelings award and was manifestly excessive.
These arguments were not accepted. Although it is advisable for claimants to obtain medical evidence (especially in cases involving psychiatric injury which can give rise to difficult questions of causation and quantification) and failure to produce medical evidence risks a lower award than might otherwise be made, or no award being made at all, the Employment Appeal Tribunal rejected the argument that a personal injury award cannot be made in the absence of expert medical evidence in every case bar those of low-value. There is no such principle of law. The same is true of pecuniary loss awards in unfair dismissal cases.
In this case in any event, although the Employment Tribunal found that suspension which was not unlawful triggered the depression, it also found that the suspension meeting was itself an act of unlawful discrimination because of the manner in which the suspension was communicated. These two events are inextricably linked. Had the meeting been handled lawfully, it may well be that the suspension itself would not have triggered the injury. In those circumstances, and given that the Respondent did not advance any argument that the depression was divisible as between lawful and non-lawful causes, or contend for an apportionment or a percentage reduction on that basis, the Employment Tribunal was entitled to find that the serious instances of unlawful action over a considerable period of time had a serious long-lasting impact on the Claimant and, in other words, caused or materially contributed to her depression so that the Respondent was liable for the full extent of it. There was ample evidence to support that conclusion in the Occupational Health reports and the evidence of the Claimant and her witness.
The Employment Appeal Tribunal could detect no error of principle or perversity in either award, and the appeal accordingly failed.

Simler DBE P J
[2016] UKEAT 0013 – 16 – 1310
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.572018

(Judgment) Appeal – Civil Service – Temporary staff – Renewal of contract – Limiting the contract renewal time – Rights of the defense

ECLI:EU:T:2016:671, [2016] EUECJ T-328/15
Bailii
European

Employment

Updated: 26 January 2022; Ref: scu.571863

EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal – fairness of decision to dismiss – section 98(4) Employment Rights Act 1996
The Claimant was a long-serving Healthcare Assistant who had been the subject of allegations by a patient, relating to a particular night-shift, when it was said she – and at least one of the nurses on duty – had acted in an uncaring and cruel way and had, individually, been abusive and had effectively assaulted the patient. The Respondent – after a disciplinary and appeal process – determined that the Claimant should be dismissed summarily due to this gross misconduct. The ET considered that various procedural failings in the disciplinary process had been made good at the appeal stage and, ultimately, the dismissal had been fair. The Claimant appealed.
Held: allowing the appeal
Given the seriousness of the allegations for the Claimant, it was accepted this was a case where – applying the band of reasonable responses test – more would be required of the Respondent’s investigation and process (see ILEA v Gravett [1988] IRLR 497 EAT, A v B [2003] IRLR 405 EAT and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA). Although the ET had considered various failings by the Respondent – in particular, to obtain/provide statements from the nurses on duty and to investigate new allegations made by the patient at the appeal stage – it had done so in a way limited to the question of individual allegation of abuse made against the Claimant. The reasoning did not show it had considered whether those failings impacted upon the fairness of the investigation and process in terms of credibility more broadly (those matters might, in turn, have impacted upon whether the Respondent had reasonably accepted the truth of the more specific allegation made against the Claimant alone). The ET’s conclusion on the Claimant’s unfair dismissal complaint was rendered unsafe and its decision would be set aside and the matter remitted to the same ET for further consideration.

Eady QC HHJ
[2016] UKEAT 0081 – 16 – 1710
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.571778

EAT Unfair Dismissal : Constructive Dismissal – Contributory fault
UNFAIR DISMISSAL – Polkey deduction
The Employment Appeal Tribunal (‘the EAT’) dismissed the Appellant employer’s appeal against a Decision of the Employment Tribunal (by a majority) (‘the ET’) that the Clamant was constructively dismissed. The EAT held that the ET had not misdirected itself and was entitled to reach the conclusion which it did.
The EAT allowed the Claimant’s cross-appeal against the ET’s Polkey deduction and deduction for contribution. The EAT remitted the case to the ET for it to re-consider those issues in the light of the EAT’s Judgment.

Elisabeth Laing J
[2016] UKEAT 0108 – 16 – 2211
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.571779