Practice and Procedure – JURISDICTIONAL POINTS Claim in time ; extension of time : reasonable practicability
The claimant’s solicitors lodged a first claim timeously but their accompanying fee remission application was rejected and a notice sent requiring payment or an appeal against the rejection by a certain date. An attempt to send, by facsimile transmission, an appeal form against refusal of remission was, unknown to the agents, never received by the Tribunal. The claim was rejected in terms of Rule 11(3) of the 2013 Rules. In receiving intimation of that the agents promptly lodged a second claim.
The Tribunal had decided to dismiss both claims for want of jurisdiction.
On appeal, four matters were argued which were resolved as follows;
1) The Employment Judge had erred in characterising rejection under Rule 11(3) as an administrative function. It was a judicial act carried out with the support of the administration. However, the Tribunal’s conclusion that the first claim had been competently rejected was the correct one, so nothing turned on the error.
2) Following Cranwell v Cullen UKEATPS/0046/14, [2015] UKEAT 0046 – 14 – 2003 it could be regarded as illogical to invoke rule 6 to allow the Tribunal to waive its own mandatory Rule and the Tribunal had not erred in reaching that conclusion.
3) The Tribunal had erred in failing to address the question of the balance of prejudice in deciding not to exercise the discretion available through Rule 5 to allow an extension of time in relation to fee payment. The facts of the case illustrated that the prejudice was all one way.
4) The Tribunal had erred by approaching the circumstances of the first and second claims as one for the purpose of deciding whether it had been reasonably practicable to lodge the second claim timeously. Following Adams v British Telecommunications plc UKEAT/0342/15, [2016] UKEAT 0342 – 15 – 0803 the real issue to be addressed was whether the claimant’s mistaken belief that the appeal against the rejection of fee remission form had been received was reasonable.
Appeal allowed and first claim remitted to the Tribunal to proceed.

Lady Wise
[2016] UKEAT 0002 – 16 – 1207
Bailii
England and Wales

Employment

Updated: 26 January 2022; Ref: scu.571777

(Cook Islands) Appeal brought by seven appellants against a decision of the Cook Islands’ Court of Appeal (Williams P, Barker and Paterson JJA), reversing the first instance decision of Weston CJ, who held that the superannuation scheme set up by the Cook Islands’ National Superannuation Act 2000 (‘the 2000 Act’) was unconstitutional and therefore invalid.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson
[2016] UKPC 32
Bailii
Commonwealth

Employment

Updated: 26 January 2022; Ref: scu.571750

EAT Unfair Dismissal: Reasonableness of Dismissal – AGE DISCRIMINATION – The Employment Tribunal failed to understand or to apply its finding of fact that consultation was perfunctory and insensitive when it, nonetheless, concluded that consultation was reasonable and dismissal fair.
The Employment Tribunal adequately explained its conclusion that the Respondent discharged the burden on it to show that the dismissal was not tainted by age discrimination.

Wilkie J
[2016] UKEAT 0134 – 16 – 0310
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.571428

The claimants, Uber taxi service contractors, claimed to be ‘workers’ with associated employment rights.
Held: They were such.

[2016] EW Misc B68 (ET)
Bailii, Reasons
Employment Rights Act 1996 230(3)(b), Working Time Regulations 1998 36(1), National Minimum Wage Act 1998
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.571017

EAT Transfer of Undertakings – Economic technical or organizational reason
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Barnet outsourced many of its services to Capita so as to achieve economies. This was a service provision change, to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (before the introduction of Regulation 7(3A)) applied. In the case of nine lead Claimants, representing 30 others, the Employment Tribunal found that the functions they had fulfilled whilst in the service of Barnet prior to the transfer were (save in two cases) split between different locations or people. In each case there had been a dismissal by Capita. The Employment Tribunal decided that the reasons for the dismissals were the splitting of the job functions and the relocation of the place of performance of those functions to various towns and cities. These were ‘economic technical or organisational reasons’ which entailed ‘changes in the workforce’.
The Claimants appealed on the basis that they had been assured that they could relocate to one of the other places of work if they wished, and would not be put out of a job with Capita if they did so, but that the Judge had not made any significant reference to this although it was a primary submission of theirs; and that the Employment Tribunal had ignored the evidence of one of Capita’s witnesses who had said that the reason for the dismissals was ‘relocation’, which they argued did not (on authority) amount to an economic, technical or organisational (‘ETO’) reason.
It was held that the reason for dismissal was sufficiently clear. It was a finding of fact, and was not perverse: the Employment Tribunal did not have to deal specifically with the submission since it dealt clearly with the facts. The witness had apparently not said clearly that relocation of the existing job was all that had occurred, and in any event the Employment Tribunal found that the job functions had been split. This was therefore capable of being an ETO reason which entailed changes in the workforce since it entailed changes in the job functions of the workforce.
As a third ground, a Claimant complained that the Employment Tribunal had clearly found that she had not had a material change of function, but had been dismissed primarily because the location of the work had changed and she would not accept it. The logic by which the Employment Tribunal concluded that nonetheless she was dismissed for an ETO reason entailing changes in the workforce could not be supported, and in the light of the Judge’s clear finding that she was dismissed because of the new location of her work the Appeal Tribunal substituted a finding that she had been automatically unfairly dismissed.

Langstaff J
[2016] UKEAT 0048 – 16 – 1706
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570975

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Reinstatement/re-engagement
The central issue for the Employment Tribunal in circumstances where serious misconduct was admitted and the disciplinary process was reasonable and fair was whether dismissal was a reasonable sanction in the particular case.
On that question the Employment Judge relied on a matter that was unsupported by any evidence and not true as a matter of fact; and on factors that were not relied on as relevant by either party and were not explored in evidence or submissions. These features were material to the decision that dismissal was outside the range of reasonable responses, and the Employment Appeal Tribunal had no sufficient confidence that the outcome would have been the same had they been properly addressed. The appeal was therefore allowed.
Separately, the reinstatement order was flawed for similar reasons. Factors relied on by the Employment Judge to conclude that reinstatement was practical and just notwithstanding the finding of significant contributory conduct (assessed at 75 per cent) were not raised by the Employment Judge and/or were not a permissible option on the evidence.

Simler DBE P J
[2016] UKEAT 0343 – 15 – 1406, [2016] UKEAT 0343 – 15 – 1506
Bailii, Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570972

The claimant, being dismissed, had signed a detailed settlement agreement, confirming a range of matters said to have been included. He now appealed agaist rejection of his claims including breach of contract, unfair dismissal, a Wages Act claim and various others including personal injury and unlawful race discrimination. The employers successfylly resisted relying upon the settlement and on limitation.
Held: Appealing against the dismissal of post employment allegations as having no reasonable prospect of success.

Simler DBE P J
[2016] UKEAT 0678 – 15 – 0902
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570968

Jurisdictional Points : Extension of Time: Reasonably Practicable
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Claimant had lodged various claims of unfair dismissal and sex (pregnancy related) discrimination, all outwith the relevant three month time limits.
During the statutory three month period the Claimant had instructed solicitors and instructed them to raise proceedings should there be no response from the Respondent to a seven day letter. The Employment Tribunal found that the Claimant was without funds to have those proceedings initiated around the time of the expiry of the time limit. However, standing that she had been in receipt of legal representation and the finding that she had not been advised in relation to fee remission, the Tribunal had erred in failing to address the issue of the adequacy of the legal advice she had received. The failure to grapple with the question of whether the solicitors had been at fault was directly analogous to the situation that had arisen in eBay (UK) Ltd v Buzzeo UKEAT/0159/13. The Tribunal in this case had focused only on the Claimant’s pregnancy and the imminent birth of her son in considering the reasonable practicability test, when the role of the solicitors was an equally important factor. There was also confusion in the Judgment about the two separate periods – that prior to the expiry of the three month period and thereafter – in the analysis of the evidence.
In approaching the second limb of the test in section 111 Employment Rights Act 1996, the Tribunal had regarded the requirement to state the early conciliation number on a claim form as ‘technical’ when the authorities made clear that it was an essential requirement.
So far as the approach to the just and equitable test in section 123 Equality Act 2010, the approach of the Tribunal was flawed for similar reasons to those found in the application of the reasonable practicability test.
The appeal was allowed.

Lady Wise
[2016] UKEAT 0128 – 16 – 0809
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570979

EAT Practice and Procedure : Estoppel or Abuse of Process
PRACTICE AND PROCEDURE – Review
The Claimant had brought a number of claims against his employer, the Respondent. A Preliminary Hearing had been fixed to determine all issues of time bar raised by the Respondent. An Employment Tribunal decided that one of the claims (Claim 4) had been brought after the expiry of the three month period in the Equality Act 2010, but that it would be just and equitable under section 123 of that Act to allow it to proceed.
After a final hearing before a second, separate Tribunal and on the basis that the evidcne supported only a single incident in the early part of the period covered by Claim 4, that claim was dismissed on the basis that it was out of time and the Tribunal accordingly had no jurisdiction to uphold it. The claim would have been established but for the time limit issue.
Held: allowing the appeal –
The second Tribunal had erred in a number of ways in its approach to the time bar issue. No consideration had been given to the principles of res judicata or issue estoppel in relation to the first Tribunal’s decision on the time bar point. In the absence of an appeal, that decision was binding on the subsequent Tribunal. Further, the decision of the second Tribunal to interfere with the Preliminary Hearing Judge’s decision could not be characterised as a reconsideration. Reconsideration of Judgments is not a concept developed at common law and is available only using the mandatory procedure prescribed in the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. None of the relevant Rules applicable to reconsideration had been followed by the Tribunal. The procedure had been unfair, depriving the Claimant of the right to be heard on the issue.
In any event, reconsideration would not have been required in the interests of justice. The proper outcome following the final hearing was that the Claimant had succeeded in a limited part of his claim.
Appeal allowed and Order in Claimant’s favour substituted.

Lady Wise
[2016] UKEAT 0177 – 16 – 0609
Bailii
England and Wales

Employment

Updated: 25 January 2022; Ref: scu.570978

Purle QC HHJ
[2016] EWHC 2636 (Ch), [2016] WLR(D) 546
Bailii, WLRD
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570471

Directive 2003/88/EC – Organisation of working time – Entitlement to paid annual leave – Sick leave – Annual leave coinciding with sick leave – Entitlement to take annual leave at another time

Lenaerts P
C-135/15, ECLI:EU:C:2016:774, [2016] WLR(D) 532
Bailii, WLRD
Directive 2003/88/EC
European

Employment

Updated: 24 January 2022; Ref: scu.570439

EAT Practice and Procedure : Striking-Out/Dismissal
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Claimant made a number of claims against his former employer. An Employment Judge decided to hold a Preliminary Hearing to consider a number of matters, including (at the Tribunal’s own initiative) consideration of striking out some of the claims.
At the Preliminary Hearing the Employment Judge decided to consider whether to strike out all of the claims, not just those that parties had been given notice would be considered for striking out. His decision was that none of the claims had any reasonable prospect of success and he struck them all out.
On appeal it was decided that, insofar as the Claimant, who was unrepresented and whose first language was not English, had no prior notice at all that two of the claims would be considered for striking out at hearing, the striking out of those was so tainted by procedural unfairness that the Judge’s ruling on those could not stand. Even had there not been such unfairness, the Judge’s decision so far as the discrimination claim was concerned was premature given that discrimination claims should not normally be struck out without enquiry.
Further, all of the striking out decisions had been made following consideration only of whether the test in Rule 37(1)(a) of the 2013 Regulations had been met. There had been a complete failure to address the necessary second stage of the exercise of discretion, identified as necessary in the case of HM Prison Service v Dolby [2003] IRLR 694 EAT. That failure amounted to a clear error of law. Appeal allowed.

Lady Wise
[2016] UKEAT 0098 – 16 – 2206
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570379

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity
– Costs
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Appearance of bias – Cost Hearing – adequacy of reasons for costs award
During the course of the Liability Hearing of the Claimant’s claims (the ET being concerned with four separate claims, consolidated for hearing), the ET had given a costs warning, urging the Claimant to focus on ‘whether certain of his claims now had any prospect of success’ and whether his claim was ‘so very weak having come apart in cross examination and by reference to the contemporaneous documentation and also his answers’ (paragraph 16). These comments had been made in the context of a history of difficulties relating to the understanding of the Claimant’s case in the ET proceedings and concerns as to whether he had properly appreciated what he had to establish.
The ET hearing had then gone part-heard and, during the period of the adjournment, the Claimant lodged a complaint about the ET (specifically, the Employment Judge), contending it was biased and complaining of the manner in which he had been warned of the risk of costs. His complaint was investigated but rejected by the Regional Employment Judge, who found that the costs warning had not been given in the manner alleged and the ET had not evidenced bias. The Claimant was further advised as to his right to apply to the ET to recuse itself if he considered it was biased and/or to appeal to the EAT.
After the resumed hearing of the claims, the ET (by its Reserved Judgment) dismissed the Claimant’s various claims. His subsequent appeal against that Liability Judgment – which included allegations of bias – was then rejected on the papers as being totally without merit.
The matter then returned to the ET to determine a costs application made by the Respondent, for a total sum of andpound;94,156.96, on the basis that the Claimant had acted unreasonably in the bringing of the proceedings and/or their pursuit; alternatively, the claims were misconceived.
At the outset of the Costs Hearing, the ET drew the parties’ attention to the case Oni v NHS Leicester City [2013] ICR 91 EAT, and provided both with an opportunity to make representations. The Claimant did not – then or at any other time – submit that this was a case akin to Oni and/or that the ET ought to recuse itself from determining the costs application. Having found that the Claimant had behaved ‘otherwise unreasonably’, certainly in pursuing the proceedings ‘at latest from the first costs warning’ made by the Respondent in correspondence, and in respect of all but his complaint of unfair dismissal, the ET concluded it was appropriate to make a costs award. After summarily assessing the Claimant’s means, the ET considered the award should be for 85% of the total sum expended by the Respondent, the 15% reduction relating to the costs the ET considered would have been incurred in hearing the unfair dismissal claim.
The Claimant appealed on two bases: (1) whether the ET ought to have recused itself from hearing the application given its earlier costs warning to him during the Liability Hearing, and (2) whether the ET adequately explained its assessment of an award of 85% of the Respondent’s total costs, in particular given: (i) its view of the potentially reasonably arguable unfair dismissal claim, and (ii) its finding that the unreasonable conduct dated from the Respondent’s first costs warning.
Held: allowing the appeal in part.
The bias or Oni point:
In standing in the shoes of the impartial, informed observer (Porter v Magill [2001] UKHL 67), the fact that the Claimant had previously made complaints of bias (in his complaint to the Regional Employment Judge and in his appeal against the Liability Judgment) provided no basis for concluding that the ET could not continue to consider the subsequent costs application (Ansar v Lloyds TSB Bank plc [2007] IRLR 211 CA and Oni at paragraph 38). Further, in establishing the relevant facts, it was not irrelevant to consider how the Claimant saw the position at the time: as reflected in his complaint, he understood the ET to have given a costs warning, not to have expressed a concluded view on any such future application. Whether or not his subsequent failure to apply for the ET to recuse itself amounted to a waiver of his right to complain of apparent bias (Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 CA), it assisted in establishing he had understood what had been said at the original Liability Hearing.
Having due regard to the full context, this is not a case where the ET impermissibly stepped over the line. An ET must be able to give guidance to parties as to how their case or conduct might be viewed and the risks they might be taking if they continue down a particular path. In certain circumstances, not to do so could itself be considered a failure to try to ensure a level playing field. At the same time, the ET must be careful not to reach a conclusion as to whether the case or conduct should be viewed in a particular way before it had heard from both sides on the point.
The ET in this case had suggested that the Claimant might focus on whether certain of his claims now had any prospect of success; that was not the statement of a concluded view that they did not, but an urging that – given the evidence – the Claimant reflect on his position. The ET did no more than properly warn the Claimant of that which was apparent from the ET Rules; there is a risk of costs in certain circumstances in ET proceedings and the ET was ensuring that the Claimant was aware of the position and asking him to reflect upon it. This would not cause the informed and impartial observer to consider that there was a possibility of bias.
The adequacy of reasons point:
The ET clearly considered the Respondent’s costs warnings to the Claimant were relevant in determining whether its costs jurisdiction was engaged. Although the ET made various other criticisms of the Claimant’s conduct in pursuing the claims thereafter, it explained its finding on unreasonable behaviour as relating ‘at latest from the first costs warning’ (referring to the Respondent’s first warning to the Claimant in correspondence). And whilst the Claimant was aware that the Respondent’s application had been made on broader grounds, he was entitled to understand the basis for the award actually made. The focus of the ET’s decision was on the reasonableness of his conduct in pursuing his claims after the Respondent’s first costs warning.
When the ET came to assess the level of the award, it reduced the total sum claimed by 15% in respect of the unfair dismissal hearing. Although that was a broad brush assessment, the ET was best placed to determine how to proportion the relevant costs between the claims and to assess how much should be attributed to the unfair dismissal case. The appeal in that respect must fail.
On the other hand, it was not possible to see any allowance made for the period prior to the first costs’ warning, although there was no statement that the ET had found its costs jurisdiction was engaged in respect of costs incurred prior to that time. Whilst it may only have said that the Clamant behaved otherwise unreasonably at latest from that warning, the Claimant was entitled to expect the ET’s findings on costs to be set out clearly; there was no clear finding that the ET had found he had behaved unreasonably prior to that date. The appeal would therefore be allowed on this point and remitted to the same ET to reconsider whether its award of 85% of the total costs expended was meant to apply to costs post-dating the first costs warning sent by the Respondent or to all costs and, if the latter, on what basis was that award made?

Eady QC HHJ
[2016] UKEAT 0080 – 16 – 2408
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570388

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity
JURISDICTIONAL POINTS
The Claimant complained that the Employment Tribunal (1) failed to determine some issues of sex discrimination which she put forward; (2) misapplied section 123(3) of the Equality Act 2010 by failing to find that the Respondent had been responsible for conduct extending over a period; (3) misapplied section 123(1)(b) by failing to extend time on the just and equitable basis; (4) failed to make proper and sufficient findings concerning a meeting on 9 July and in particular to address section 111A of the Employment Rights Act 1996; (5) demonstrated apparent bias.
Appeal dismissed. None of the grounds were made out. Although the Employment Tribunal had not given specific attention to section 111A of the Employment Rights Act 1996, the Claimant’s case required it to consider what took place at the meeting on 9 July in order to see whether the Respondent’s conduct was improper, and the Employment Tribunal had not offended against the provisions of section 111A.

David Richardson HHJ
[2016] UKEAT 0114 – 16 – 0208
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570387

EAT Transfer of Undertakings: Service Provision Change – definition of activities – whether activities ‘fundamentally the same’ – The Employment Judge did not err in law in his definition of ‘activities’ for the purpose of Regulation 3(1)(b) of TUPE (service provision change); and he applied the correct legal test when deciding for the purpose of Regulation 3(2A) that the activities in question remained fundamentally the same before and after the transfer.

Richardson HHJ
[2016] UKEAT 0120 – 16 – 0109
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570394

EAT Unfair Dismissal: Reasonableness of Dismissal – Procedural fairness/automatically unfair dismissal
The Respondent’s decision to dismiss the Claimant took into account a final written warning to which she was subject. At the appeal against her dismissal the Claimant complained about the final written warning. The Employment Judge found that the Respondent’s appeal officer had investigated and considered the final written warning. The Claimant argued that this finding was perverse; the Respondent argued that the finding was not perverse, and in any event that the issue of internal appeal had not been raised by the Claimant in her ET1 claim form, so that it was not permissible for the Employment Judge to consider it.
Held. (1) The Employment Judge had been correct in law to consider the issue: it is part of an Employment Judge’s task under section 98(4) to consider the substance of what happened throughout the dismissal process including the internal appeal, and to consider whether the process overall was fair by the standards of section 98(4): West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192 HL and Taylor v OCS Group Ltd [2006] ICR 1602 CA applied. This is so well established, and such a core feature of unfair dismissal law, that an Employment Judge will be expected to adopt this approach as a matter of course: Langston v Cranfield University [1998] IRLR 172 EAT applied. (2) The Employment Judge’s finding was not perverse: it was a permissible inference from the primary facts. Appeal dismissed.

David Richardson HHJ
[2016] UKEAT 0129 – 16 – 0809
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570391

EAT Transfer of Undertakings: Transfer
The Employment Judge erred in law in finding that a transfer had taken place following the termination of a franchise by the franchisee. The parties had initially intended that the franchisor would take over the showroom concerned and employ the Claimant. The Employment Judge found, essentially because of this intention, that there was a TUPE transfer when the franchise terminated. However she did not apply the correct, multi-factorial, approach to the question whether a transfer had actually taken place. Reasoning in P Bork International A/S v Foreningen af Arbejdsledere I Danmark [1989] IRLR 41 and Cheesman v R Brewer Contracts Ltd [2001] IRLR 144 applied; Wood v Caledon Social Club Ltd UKEAT/0528/09 considered.

David Richardson HHJ
[2016] UKEAT 0349 – 15 – 0209
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570390

EAT Practice and Procedure : Preliminary Issues
On appeal against the decision of the Employment Tribunal that it had jurisdiction to set aside a settlement agreement on the ground that the claimant lacked capacity to contract, it was argued that the position as set out by Silber J in Industrious Ltd v Horizon Recruitment Ltd (in liquidation) and Vincent did not extend to agreements where the alleged invalidity was due to capacity.
A distinction between agreements induced through error or misrepresentation and those purportedly entered into by a party who lacked capacity is artificial and unsound. The relevant legislation requires the Employment Tribunal to consider the validity of any purported settlement agreement. Only if it is valid both in form and in substance will the Tribunal’s jurisdiction to determine the claim be ousted.

Lady Wise
[2016] UKEAT 0024 – 15 – 1105
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570378

EAT Jurisdictional Points: Extension of Time: Reasonably Practicable – The Claimant instructed solicitors in relation to an unfair dismissal claim. Time for presenting the claim was to expire on 25/10/15. On 08/10/15 the solicitors advised him to seek new solicitors in relation to the claim but gave no advice about the need to present a claim by 25/10/15. On 14/10/15 there was a Solicitors’ Regulatory Authority (‘SRA’) intervention which prevented the solicitors from taking any action or communicating with clients thereafter. The Claimant saw other solicitors on 05/11/15 and, with the assistance of his wife but without having obtained the file, presented his claim on 10/11/15.
The Employment Judge extended time for presenting the claim under section 111(2)(b) Employment Rights Act 1996 on the basis that the SRA intervention was a special reason preventing the presentation of the claim in time. She failed to consider (as invited by the Respondent) whether the solicitors should have advised on 08/10/15 that the claim needed to be presented urgently and what the result would have been if such advice had been given.
That was an error of law and the appeal would be allowed. Further, since it was clear that the solicitors should have advised of the urgent need to present a claim and that, if they had done so, a claim would have been presented in time, the Employment Appeal Tribunal substituted a decision that the claim was out of time and the Employment Tribunal had no jurisdiction to consider it.

Shanks HHJ
[2016] UKEAT 0196 – 16 – 1309
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570395

Unfair Dismissal: Reasonableness of Dismissal
The appellant was given a final written warning.
She was dismissed for misconduct while that warning was current. Her appeal against the decision of the Employment Tribunal (‘the ET’) that her dismissal was not unfair was dismissed. The Employment Appeal Tribunal held that the ET had not erred in law in reaching that decision.

Elisabeth Laing DBE J
[2016] UKEAT 0066 – 16 – 1207
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570384

EAT Jurisdictional Points : Fraud and Illegality
PRACTICE AND PROCEDURE – Perversity
The key issue before the Employment Tribunal related to an oral agreement varying of the Claimant’s contract of employment concerning the provision of a car. The Employment Tribunal rejected the Claimant’s evidence on that question and said, further, that if the agreement had been in the terms for which the Claimant contended it would have been tainted by illegality and unenforceable.
Held: The Employment Tribunal was not perverse in rejecting the Claimant’s evidence on the question of variation. Moreover it committed no error of law in concluding that if the agreement had been in the terms for which the Claimant contended it would have been tainted by illegality. Hall v Woolston Hall Leisure Ltd [2001] ICR 99 applied. On these and on subsidiary grounds the appeal was dismissed.

David Richardson HHJ
[2016] UKEAT 0078 – 16 – 1807
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570382

EAT Practice and Procedure: Disclosure – An experienced Employment Judge ordered disclosure by a third party of Judgments and interlocutory Orders relating to cases of a similar type to those being litigated by the Claimants.
It was argued that he had failed to apply the test of relevance and necessity before making the Order and that he had focused only on a concern about the inequality of arms between the parties to the litigation. It was also contended that he should have first examined the documents and ought to have understood that only Judgments, not interlocutory Orders were in the public domain.
The Judge had been addressed on the test and it could easily be inferred from his Reasons, taken as a whole, that he had applied it. The circumstances, unusually, justified the Order for disclosure at an early stage in the proceedings, the Claimants having been unable to comply fully with an Order for particularisation without it. In the absence of confidentiality objections, it had been competent and appropriate for the Judge to order disclosure without first examining the documents for reasons adequately explained by him. Any distinction between Judgments and interlocutory Orders, only the former being strictly in the public domain, had been dealt with by redaction and limitation of the type of Judgments covered by the Order. The Judge’s focus on the overriding objective in exercising his power to order disclosure of documents was in the circumstances entirely appropriate and the outcome a fair one. The appeal was dismissed.

Lady Wise
[2016] UKEAT 0107 – 16 – 2510
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570397

EAT Unfair Dismissal – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Reasonableness of dismissal
VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Protected disclosure
VICTIMISATION DISCRIMINATION – Dismissal
PRACTICE AND PROCEDURE – Disposal of appeal including remission
The Employment Tribunal (‘the ET’) held that the Appellant was dismissed for four instances of misconduct, two of which were protected disclosures and that the Appellant’s dismissal was not unfair.
In deciding whether the reason for the Appellant’s dismissal was that he had made protected disclosures, the ET asked, not what the reason or principal reason for the dismissal was, but whether the dismissal was ‘grossly’ or ‘blatantly’ unfair. The Employment Appeal Tribunal (‘the EAT’) held that the ET had misdirected itself.
In deciding whether or not the dismissal was unfair the ET decided that the Respondent would have been entitled to dismiss the Appellant for the two incidents of misconduct which were not protected disclosures. The EAT held that the ET had misdirected itself, as the Respondent had dismissed the Appellant not for two incidents of misconduct, but for four, two of which were protected disclosures, on the basis of the decision of the House of Lords in Smith v Glasgow City District Council [1987] ICR 796. The ET should therefore have held that the Appellant’s dismissal was unfair.
The EAT would have remitted the case to the ET on this question, had it not also held that the ET misdirected itself on the question whether the dismissal was unfair.

Elisabeth Laing DBE J
[2016] UKEAT 0124 – 16 – 1410
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570398

EAT Transfer of Undertakings: Service Provision Change
The Appellant ran a ‘park-and-ride’ service under a contract with the local council by virtue of which it received a substantial subsidy. The Second Respondent, having grown impatient with a tendering process, decided to run a commercial service on the same route, using its own staff and buses, without a subsidy from the Council. As a result the Council terminated its contract with the Appellant.
The Appellant’s case was that the Second Respondent was a subsequent contractor carrying out the same activities ‘on the client’s behalf’, the local council being the client. The Employment Judge rejected this argument, holding that the Second Respondent was not carrying out the activities on the local council’s behalf, but as a commercial venture on its own behalf.
Held: the Employment Judge did not err in law. The Employment Judge’s approach focussed upon the ordinary meaning of the service provision change provisions within the Transfer of Undertakings (Protection of Employment) Regulations 2006 and applied those provisions in a commonsense and pragmatic way. Metropolitan Resources Ltd v Churchill Dulwich Ltd [2009] IRLR 700 EAT and Hunter v McCarrick [2013] IRLR 26 CA applied.

David Richardson HHJ
[2016] UKEAT 0035 – 16 – 0308
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570385

Appeal against a Determination of the Pensions Ombudsman.

[2016] EWHC 2519 (Ch), [2016] WLR(D) 535
Bailii, WLRD
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570348

Appeal by British Gas against an order of the EAT dismissing British Gas’s appeal against a judgment of the Employment Tribunal. The sole issue before the tribunals was one of statutory interpretation. The practical question that is raised is whether the holiday pay of an employee with statutorily defined ‘normal working hours’, whose remuneration does not vary with the amount of work done during such hours, should (i) be calculated solely by reference to his basic pay; or (ii) include an element referable to the amount of the results-based commission he normally earned.

Sir Terence Etherton MR,m Gloster LJ, Sir Colin Rimer
[2016] EWCA Civ 983
Bailii
England and Wales

Employment

Updated: 24 January 2022; Ref: scu.570108

Stocker VC, Beldam LJJ
[1991] EWCA Civ 17, [1991] IRLR 305
Bailii
England and Wales

Employment

Updated: 23 January 2022; Ref: scu.569917

EAT Contract of Employment: Implied Term/Variation/Construction of Term – DISABILITY DISCRIMINATION – Reasonable adjustments
After the Claimant became disabled through a back injury the Respondent gave him work in a new role (‘key runner’) at his existing rate of pay and led him to believe that the role was long-term. The following year, however, it said that it was only prepared to employ him in this role at a reduced rate of pay; and when the Claimant refused to accept these terms he was dismissed.
It was argued by the Claimant that there was a variation of his contract entitling him to work as a key runner at his existing rate of pay. The Employment Tribunal found that there was no such variation. The Claimant cross-appealed on this point. The Employment Tribunal had rejected his case, at least in part, because it considered that an employer was entitled to impose an adjustment on an employee without the employee’s consent. This was an error of law.
However the Employment Tribunal went on to find that the Respondent was required, as a reasonable adjustment, to employ the Claimant as a ‘key runner’ at his existing rate of pay. The Respondent appealed on this question. The Employment Tribunal had been entitled to reach this conclusion. Appeal dismissed. O’Hanlon v Commissioners for HM Revenue and Customs [2007] ICR 1359 CA and Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley UKEAT/0417/11 considered.

David Richardson HHJ
[2016] UKEAT 0243 – 15 – 2608
Bailii
England and Wales

Employment

Updated: 22 January 2022; Ref: scu.568718

EAT Practice and Procedure: Costs – The Claimant and her representative absented themselves from the ET hearing during day two. The ET continued with the hearing on days two and three and gave Judgment with Reasons rejecting her claims. At a subsequent Costs Hearing the ET found that the Claimant had behaved unreasonably in absenting herself on day two; it made no findings adverse to her prior to that point. It awarded costs against her in respect of the refreshers of the Respondent’s counsel for the second and third days.
HELD: the ET was entitled to conclude that the costs of the Respondent incurred after the Claimant left on the second day were caused by the Claimant’s unreasonable behaviour – it had given proper reasons. However, counsel’s fee for the second day was incurred prior to the Claimant absenting herself, and the ET had not justified awarding an item of costs incurred prior to the commencement of the unreasonable conduct. Appeal allowed in part.

David Richardson HHJ
[2016] UKEAT 0055 – 16 – 1107
Bailii
England and Wales

Employment

Updated: 22 January 2022; Ref: scu.568588

Claim for judicial review of a decision of the Central Arbitration Committee that a bargaining unit described as ‘Warehouse Operatives in the following sections: Goods In, Goods out and Selection’ at the Bridgend Regional Distribution Centre of the employer, Lidl Ltd, was an appropriate bargaining unit for the purposes of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992

Lewis J
[2016] EWHC 2040 (Admin)
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992
England and Wales

Employment

Updated: 21 January 2022; Ref: scu.568010

Whether a non-solicitation covenant was enforceable was a matter of law capable of being settled by a judge in summary enforcement proceedings. A three year restraint part of employment and share agreement was in this case unenforceable.

Gazette 10-Mar-1999, (1999) IRLR 22
England and Wales

Employment

Updated: 21 January 2022; Ref: scu.89757

EAT CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term – UNLAWFUL DEDUCTION FROM WAGES
UNFAIR DISMISSAL – Constructive dismissal
Breach of Contract/Unauthorised Deductions – Constructive Unfair Dismissal
The Claimant was a teacher, paid at level 1 on the upper pay scale (‘UPS’), working to terms and conditions laid down in the Burgundy Book. She complained that the Respondent had acted in breach of contract/had made unauthorised deductions from her pay (i) in failing to progress her to UPS2; (ii) when she had been absent from work due to work related stress, in failing to keep paying her at her full rate in accordance with paragraph 9.1 of the Burgundy Book. She further complained of constructive unfair dismissal, having resigned her employment due to the Respondent’s treatment of her in respect of her grievance (which had included a complaint about the pay progression issue) and what she took to be an email critical of her relating to an Occupational Health appointment.
The ET dismissed the Claimant’s claims. She had no right to automatic pay progression: she had to apply to be considered and had failed to do so. As for paragraph 9.1 of the Burgundy Book, she had not been able to show that a medical practitioner had attested that her injury (stress) had arisen out of, and in the course of, her employment. In respect of the constructive unfair dismissal claim, put as a ‘last straw’ case, the final matter for the Claimant had been the email relating to the Occupational Health appointment but, as she had known by the time of her resignation, that was not critical of her. As for the Respondent’s treatment of her in respect of her grievance, the ET found it had acted properly and had not thereby been in breach of any contractual obligation. In any event, the Claimant had agreed that the pay progression issue would be addressed as and when she returned to work. The Claimant appealed.
Held: allowing the appeal in part
On the appeal, the Respondent accepted that the Claimant had a contractual right to be considered for pay progression to UPS2 but argued it had not acted in breach of its obligation in this regard. This was not, however, how the ET had approached the case; it meant that the basis upon which the ET had found no contractual obligation had been rendered unsafe.
Further, although the ET had found that the Claimant had agreed the pay progression issue would be addressed upon her return to work, that did not amount to a finding that she had waived the right to complain of the breach of her express right to pay progression; although it was a relevant matter in terms of the implied obligation to maintain trust and confidence.
As the parties agreed there had been an obligation upon the Respondent to consider the Claimant’s pay progression (without her having had to make an application), the point would be remitted to the ET to determine whether the Respondent had complied with that obligation.
As for the claim under paragraph 9.1 of the Burgundy Book, whilst the Claimant’s GP might have expressed an opinion that the Claimant was unfit for work because of stress, the ET had not reached a perverse conclusion in finding that was not the same as saying the Claimant’s stress arose out of and in the course of her employment (the requirement for paragraph 9.1); the two were not necessarily the same and this had been a matter for the ET, which had reached a permissible conclusion on the point. This ground of appeal was dismissed.
In respect of the constructive unfair dismissal appeal, the ET had found that the relevant ‘last straws’ were the Respondent’s treatment of the Claimant’s grievance and the email regarding the Occupational Health appointment. The pay progression issue was part of the background to the grievance but was (a) not found to have been a last straw, and (b) would have to be viewed, in any event, in the light of the ET’s further finding that the Claimant had accepted that this issue was to be addressed as and when she returned to work and, thus, could not rely on it as a continuing breach of the implied obligation to maintain trust and confidence. Otherwise, the ET had made unchallenged findings in respect of the matters relied on as ‘last straws’ and its conclusion on constructive dismissal was not susceptible to challenge.

Eady QC HHJ
[2016] UKEAT 0005 – 16 – 0407
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567945

EAT Transfer of Undertakings – Insolvent Employer

His Hon Judge Pugsley
[2002] UKEAT 534 – 02 – 2011, EAT/534/02
Bailii, EAT
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.203200

EAT Unfair Dismissal – Reason for dismissal including substantial other reason.

The Honourable Mr Justice Burton
[2002] UKEAT 656 – 02 – 2011, EAT/656/02
Bailii, EAT
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.203249

EAT Practice and Procedure: Striking-Out/Dismissal – The Employment Judge erred in law in striking out the Claimant’s claims of unfair dismissal and disability discrimination in respect of dismissal. He ought to have applied Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly [2012] IRLR 755 CS at paragraph 30. There was a crucial core of disputed fact which the Employment Tribunal would have to resolve in order to determine the claims; there was no exceptional feature such as a clear admission of gross misconduct or incontrovertible documentary proof. The question whether there should be a deposit Order was remitted.

David Richardson HHJ
[2016] UKEAT 0196 – 15 – 0306
Bailii
England and Wales

Employment

Updated: 20 January 2022; Ref: scu.567282

EAT Practice and Procedure: Review – Human Rights – In the B and M appeal (UKEAT/0139/16/RN) the Employment Judge was entitled to dismiss a reconsideration application by the Claimant on the basis (a) that, as a matter of fact, the Claimant’s representative was aware of the reconsideration (telephone) hearing but failed to take part and (b) because there was no real prospect of the original decision striking out the sections 111 and 112 Equality Act 2010 claim against B and M being altered.
In the EPO appeal (UKEAT/0081/15/RN) the Employment Judge was right to confirm his earlier decision that the immunity granted by the EPO, etc Order 1978 was not incompatible with Article 6 ECHR, alternatively Article 6 was not engaged since Article 5(1) of the 1978 Order gave effect to the UK’s international law obligations (cf Benkharbouche [2015] IRLR 301 CA).

Peter Clark HHJ
[2016] UKEAT 0081 – 15 – 1307
Bailii
England and Wales

Employment

Updated: 19 January 2022; Ref: scu.566916

There was a dispute between the two Claimants, Mr Pickwell and Ms Nicholls, and their employer, the agricultural supplies company Pro Cam CP Limited (‘Pro Cam’), as to the enforceability of restrictive covenants in their contracts of employment as trainee agronomists. In each case, the contract of employment was signed some weeks or months after the claimants had received a written offer of employment from the defendant company and had signed a document accepting that offer.
The validity and enforceability of the covenants were disputed by the employees, and they sought declaratory relief that t

Curran QC HHJ
[2016] EWHC 1304 (QB)
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565184

EAT Practice and Procedure: Costs – The Claimant succeeded in the majority although not all of his claims. It was necessary for him to pursue his appeals. Fees of andpound;2,400 had been incurred. Portnykh v Nomura International Plc UKEAT/0448/13 and Look Ahead Housing v Chetty [2015] ICR 375 considered. The way in which the Claimant conducted proceeding before the Employment Judge was not relevant to the costs ordered under Employment Appeal Tribunal Rules 1993 Rule 34A(2A). Costs in the sum of andpound;1,800 subject to offset to be paid to the Claimant under Rule 34A(2A). Basildon and Thurrock NHS Trust v Weerasinghe [2016] ICR 305 applied. Claimant’s application for costs under Rule 34A(1) dismissed. Claimant to pay the Respondents’ costs in the sum of andpound;1,250 under Rule 34A(1) in respect of unreasonable conduct of proceedings in pursuing an unsustainable allegation of appearance of bias. Respondents to pay the Claimant andpound;550.

Slade DBE J
[2016] UKEAT 0204 – 15 – 1805
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565124

EAT Working Time Regulations – The Employment Judge did not err either in a domestic or a European law construction of Working Time Regulations 1998 Regulation 30(4) in holding that the Claimant was not entitled to recover compensation for injury to feelings for a breach by the employer of the requirement under Regulation 12(1) to provide rest breaks.

Slade DBE J
[2016] UKEAT 0017 – 16 – 1805
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565126

EAT Practice and Procedure: Costs – The Claimant succeeded in the majority although not all of his claims. It was necessary for him to pursue his appeals. Fees of andpound;2,400 had been incurred. Portnykh v Nomura International Plc UKEAT/0448/13 and Look Ahead Housing v Chetty [2015] ICR 375 considered. The way in which the Claimant conducted proceeding before the Employment Judge was not relevant to the costs ordered under Employment Appeal Tribunal Rules 1993 Rule 34A(2A). Costs in the sum of andpound;1,800 subject to offset to be paid to the Claimant under Rule 34A(2A). Basildon and Thurrock NHS Trust v Weerasinghe [2016] ICR 305 applied. Claimant’s application for costs under Rule 34A(1) dismissed. Claimant to pay the Respondents’ costs in the sum of andpound;1,250 under Rule 34A(1) in respect of unreasonable conduct of proceedings in pursuing an unsustainable allegation of appearance of bias. Respondents to pay the Claimant andpound;550.

Slade DBE J
[2016] UKEAT 0205 – 15 – 1805
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565123

Post employment restrictions

Molyneux J
[2016] EWHC 1421 (QB)
Bailii

Employment

Updated: 17 January 2022; Ref: scu.565797

Contract of Employment : Implied Term/Variation/Construction of Term

[2015] UKEAT 0220 – 15 – 2011)
Bailii
England and Wales

Employment

Updated: 17 January 2022; Ref: scu.565086

Moore-Bick VP CA, Patten Gloster LJJ
[2016] EWCA Civ 407
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.563068

EAT Race Discrimination: Direct – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Employment Appeal Tribunal held that the Employment Tribunal had given sufficient reasons for its decision that the Appellant’s claim for discrimination on grounds of race failed.

Laing DBE J
[2016] UKEAT 0293 – 15 – 0402
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562539

EAT Jurisdictional Points: Claim In Time and Effective Date of Termination – JURISDICTIONAL POINTS – Extension of time: reasonably practicable – Unfair dismissal – early conciliation – whether claim brought in time – section 207B(4) Employment Rights Act 1996 (as amended) (‘ERA’) – The effective date of termination of the Claimant’s employment had been 20 March 2015. The relevant notification to ACAS for early conciliation (‘EC’) purposes was made on 18 June 2015. On 30 June, the EC certificate was emailed to the Claimant’s solicitors. On 31 July, the Claimant’s claim (complaining of unfair dismissal and disability discrimination) was lodged with the Employment Tribunal (‘ET’). By its ET3, the Respondent contended the claim had been presented one day out of time. The ET agreed, holding that, whilst it was just and equitable to extend time for the purposes of the discrimination claim, it had been reasonably practicable to lodge the unfair dismissal claim in time but the Claimant had failed to do so.
On the Claimant’s appeal, contending the ET had wrongly construed section 207B(4) ERA 1996: –
Held: dismissing the appeal – Stopping the clock for EC purposes brought into play the provisions of section 207B(4). The period in question for these purposes started on 18 June 2015 (Day A) and ended one month after Day B, which was 30 June 2015. In determining what was one month after, the ET had (i) understood ‘month’ to mean ‘calendar month’ (on which no issue was taken) and (ii) had applied the corresponding date principle. That meant that time expired on 30 July and thus the claim had been presented out of time. The corresponding date principle had been approved by the House of Lords in Dodds v Walker [1981] 1 WLR 1027 HL, specifically ruling that this meant that time ran from the date of the event in question to the corresponding date in the following month, even where the relevant Rule or provision used the term ‘after’. The Claimant argued it was appropriate to see section 207B(4) as an example of the small minority of cases that Dodds allowed might fall outside the corresponding date principle; it involved a single month rather than a plurality of months. Dodds expressly spoke of a month or months, however, and there was no reason in principle why the principle should not apply in the former case. This approach had the attraction of clarity and simplicity. It was, furthermore, binding on this Court given the ruling in Dodds. The Claimant had identified no other basis of distinction, and the appeal must be dismissed.

Eady QC HHJ
[2016] UKEAT 0022 – 16 – 0802
Bailii
England and Wales

Employment

Updated: 14 January 2022; Ref: scu.562541

Mr Recorder Langstaff QC
[2001] UKEAT 1371 – 00 – 2510, EAT/1371/00, [2002] ICR 264
Bailii, EATn
England and Wales
Citing:
See Also – Scotford v Smithkline Beecham EAT 5-Dec-2000
EAT Procedural Issues – Employment Tribunal . .
Cited – Mock v Inland Revenue EAT 1-Mar-1999
In the context of the time for appealing to the EAT under Rule 3(3) EAT Rules 1993, as amended, ‘sent’ referred to the date appearing on the ET ‘decision’.
Morison P said: ‘Industrial Tribunal chairmen are required to produce reasons. When . .
Cited – Migwain Limited (In Liquidation) v Transport and General Workers Union 1979
Section 26 of the Interpretation Act 1889 applied to the receipt of notice of the proceedings leading to a decision of the Industrial Tribunal. The presumption as to receipt only arose where it was first established that the correspondence in . .
Cited – Aziz v Bethnal Green City Challenge Company Limited CA 25-May-1999
The notice of appeal was served three days late. The Registrar and Morison J refused to extend time, the judge concluding that the explanation for the delay was honest and full, but not acceptable.
Held: Permission to appeal was refused. Sir . .
Cited – London Borough of Hammersmith and Fulham v Ladejobi EAT 1-Nov-1998
The tribunal was asked as to the date from which time started to run for the purposes of calculating the 42-day period within which an appeal should have been brought from a decision of an Employment Tribunal, if it was to be brought at all.
Employment

Updated: 13 January 2022; Ref: scu.204385

The respondents were employed by B until both were made redundant in 1963. Two years and 21 months later respectively, they obtained fresh employment with the BE; A and the Respondent were associated employers.
Held: The Industrial Tribunal had been entitled to find that the plaintiffs could rely on the predecessor to section 212(3)(b) to preserve continuity between the two employments.

Philips J
[1976] EWHC QB 1, [1976] FCR 225, [1976] IRLR 146, [1976] ICR 225, [1976] ITR 50
Bailii
England and Wales

Employment

Leading Case

Updated: 12 January 2022; Ref: scu.263364

The employer had provided a permanent health scheme for directors and senior managers, which included the complainant. After its introduction the complainant, who up to that point had no written contract of employment, entered into a written contract. Unfortunately the form used was one which had previously been used before the scheme was introduced, and it was mistakenly adopted without modification. The contract contained a specific power enabling the employer in the event of prolonged illness to dismiss an employee who was unfit for work and a general provision entitling either party to bring the contract to an end on three months’ notice.
Held: The court was satisfied on the evidence that it was not the employer’s intention to exercise its contractual right of dismissal in circumstances where to do so would frustrate the employee’s entitlement to income replacement insurance. The question was whether it was an implied term of the contract that it should not do so. The problem was that the implication of the necessary term would contradict the express terms of the contract. Sedley J was able to overcome this difficulty because the contract as written was internally inconsistent in its provisions for sick pay and termination. Furthermore, the situation in which the contract was entered into was known to both parties to include an income insurance scheme which could only work if the employee whom it covered remained in employment for the duration of his incapacity or until some other determining event specified in the policy took place. The inconsistent terms of the contract were the result of using an inappropriate form without appreciating the consequences of doing so. These factors persuaded the judge to imply into the contract the term for which the complainant contended. ‘… the provisions for dismissal in a contract of employment … would not be operated so as to remove the employee’s accruing or accrued entitlement to income replacement insurance at the sole instance of the defendant (that is to say, otherwise than by reason of the employee’s own fundamental breach).’

Sedley J
[1996] IRLR 521
England and Wales
Cited by:
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – First West Yorkshire Ltd (T/A First Leeds) v Haigh EAT 20-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Where an employee is long-term absent on grounds of ill health, and his pension scheme contains provisions entitling him to an ill health pension on grounds . .
Cited – Lloyd v BCQ Ltd EAT 12-Nov-2012
lloyd_bcqEAT2012
EAT Contract of Employment : Damages for Breach of Contract – The Claimant was dismissed because of ill health. He claimed that he was entitled to (a) a golden handshake; (b) money under personal health . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 12 January 2022; Ref: scu.220481

UNFAIR DIMISSAL – Reasonableness of dismissal
The Employment Tribunal did not err in law in finding that the Claimant was unfairly dismissed. McAdie v Royal Bank of Scotland [2008] ICR 1087 considered.

[2014] UKEAT 0382 – 13 – 1605
Bailii
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.559946

(Judgment) Civil service – Officials – Appraisal – Appraisal report – Request for amendment – Refusal

F-17/15, [2015] EUECJ F-17/15
Bailii
European

Employment

Updated: 08 January 2022; Ref: scu.557011

The claimants appealed against rejection of their claims for redundancy. It had been part of their employment contract that they were collected and transported to work. After other employees were dismissed for redundancy, the transport service became uneconomic, and the employer withdrew it. The claimants were then unable to attend work, and were replaced by other more local workers.
Held: The appeals failed.
Tye men were not redundant: ‘there is no evidence whatever of any actual or expected reduction in the requirements of the business for employees to carry out work of the particular kind carried out by the appellants once the twelve had been dismissed. The accident that three of the twelve came from Port Isaac increased the cost per man of employing the remaining seven Port Isaac men and rendered their further employment uneconomic. But even if the cost per man had remained the same and the employers had come to the conclusion that Port Isaac labour was too expensive, there would, subject to the effect of Dutton’s case1, have been no redundancy situation so long as there remained the same work for seven other less expensive men to do. There is no evidence that the loss of the benefit of free transport reduced the men’s remuneration to an unrealistic level.’
The Court considered its own powers to disregard its earlier decisions: ‘In our judgment, the interests of justice will best be served if this court retains a measure of flexibility. Whilst expressly disavowing any pretensions to the status of the House of Lords, we can think of no better way of stating the extent to which this court will treat itself as being bound by its own decisions than respectfully to adopt and adapt the words of the declaration delivered by Lord Gardiner, LC . . Accordingly, we wish to say that this court regards the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules in the field of industrial relations. The court nevertheless recognises that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of industrial law. The court therefore, whilst treating its own former decisions as normally binding, will consider itself free to depart from them when it appears right to do so. In this connection the court will bear in mind the danger of disturbing retrospectively decisions which have formed the general basis of industrial relations agreements and practices.’

Sir John Donaldson
[1972] EW Misc 2, 13 KIR 308, [1973] 1 All ER 218, [1972] IRLR 124, (1973) 8 ITR 77, [1973] ICR 50, [1972] 1 WLR 1634,
Bailii
Redundancy Payments Act 1965
Cited by:
Appeal from – Chapman v Goonvean and Rostowrack China Clay Co Ltd CA 16-Apr-1973
Several of the company’s employees had been given transport to work as part of their contract. After redundancies, the remaining number of employees so entitled made the service uneconomic, and the company withdrew it. The seven appellants had to . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 January 2022; Ref: scu.554193

EAT Practice and Procedure: Appellate Jurisdiction and Costs
A new point may not be taken before the Employment Appeal Tribunal which was not taken below unless exceptional circumstances require it. In this case, an appeal as to the amount, but not the principle, of costs awarded, when this point was not argued when the case was reviewed, would not be entertained. In any event, it is unlikely that if it were, it would stand any prospect of success.

[2005] UKEAT 0364 – 05 – 1011, UKEAT/0364/05
Bailii, EAT
England and Wales

Employment

Updated: 05 January 2022; Ref: scu.236838

[2002] UKEAT 1152 – 01 – 1607
Bailii
England and Wales
Cited by:
See Also – Armstrong v Walter Scott Motors (London) Ltd EAT 19-Mar-2003
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 04 January 2022; Ref: scu.202956

[2015] EWCA Civ 828
Bailii
England and Wales

Employment

Updated: 03 January 2022; Ref: scu.550610

[2015] NICA 44
Bailii
Northern Ireland

Employment

Updated: 02 January 2022; Ref: scu.550133

EAT Jurisdictional Points: Worker, Employee or Neither – Whether a GP, whose services were provided to the Trust through a Cooperative, was a worker under section 230(3)(b) Employment Rights Act 1996. The Employment Tribunal was entitled to find that he was not.
Whether the Claimant had abandoned an argument that he was a worker under section 43K(1)(a) Employment Rights Act 1996. Against the Second Respondent he had expressly and against the First Respondent Trust he had implicitly by not pursuing it below (see Mensah v East Hertfordshire NHS Trust [1998] IRLR 531).
Observations made as to employment status under section 83(2) Equality Act 2010, an issue which did not strictly arise in this appeal.

Peter Clark HHJ
[2015] UKEAT 0536 – 13 – 1106
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.549018

EAT Working Time Regulations – Worker.

The Honourable Lady Smith
[2006] UKEAT 0079 – 05 – 0803, UKEATS/0079/05
Bailii, EAT
England and Wales
Cited by:
Appeal from – Mcmenemy v Capita Business Services Ltd SCS 30-Mar-2007
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 January 2022; Ref: scu.241215

The Honourable Mr Justice Mummery (P)
[1996] UKEAT 428 – 95 – 0103
Bailii
England and Wales

Employment

Updated: 01 January 2022; Ref: scu.208278

Appeal against the refusal to grant an interim injunction pending the return date.

[2015] EWCA Civ 450
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.548001

[2015] EWHC 1248 (Admin)
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.547366

Keene J
[1997] UKEAT 1413 – 96 – 1703
Bailii
England and Wales

Employment

Updated: 30 December 2021; Ref: scu.207327

[2015] EWCA Civ 209, [2015] IRLR 467
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.544555

Enforcement of post-termination restrictive covenants.

Snowden J
[2015] EWHC 3152 (Ch)
Bailii
England and Wales

Employment

Updated: 28 December 2021; Ref: scu.554302

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 8 – Law applicable to individual employment contracts – Article 14 – Assignment of pay claims to a trade union – Article 23 – Special conflict-of-law rules relating to contractual obligations – Directive 96/71/EC – Article 3 – Concept of ‘minimum rates of pay’ – Discretion afforded to Member States – Freedom to provide services – Social protection of workers

Wahl AG
C-396/13, [2014] EUECJ C-396/13 – O
Bailii
Regulation (EC) No 593/2008
European
Cited by:
Opinion – Sahkoalojen Ammattiliitto ry v Elektrobudowa Spolka Akcyjna ECJ 12-Feb-2015
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 . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 21 December 2021; Ref: scu.537017

The claimant appealed against a decision that his dismissal had not been unfair. He had claimed that he had made protected disclosures.

Langstaff J
[2011] UKEAT 0911 – 10 – 0112
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.432799