[1995] UKEAT 485 – 94 – 0906
Bailii
England and Wales

Employment

Updated: 20 December 2021; Ref: scu.209165

[1993] UKEAT 314 – 91 – 1702
Bailii, Bailii
England and Wales
Citing:
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 20 December 2021; Ref: scu.210467

[1995] UKEAT 462 – 95 – 1210
Bailii
England and Wales

Employment

Updated: 18 December 2021; Ref: scu.209354

[2013] EWCA Civ 1860
Bailii
England and Wales

Employment

Updated: 18 December 2021; Ref: scu.535293

Claims for sums alleged to be owing to him and for compensation following the termination of his employment

Floyd J
[2013] EWHC 1152 (Ch)
Bailii
England and Wales

Employment

Updated: 13 December 2021; Ref: scu.503479

The court considered the calculation of redundancy payments.
Held: The employer’s appeal succeeded. Though the overtime was regularly worked, it was not a contractual obligation,and was not to be taken into account.
Lord Denning MR said: ‘it is a very great advantage to the men to have short working hours of 40 hours a week – on basic rates – with considerable overtime work – on overtime rates. It means a great increase in the take-home pay. Tt means also that they can take industrial action – by banning overtime – without thereby being in breach of their contracts of employment. Those conditions can carry however with them this disadvantage: when a man is made redundant, his redundancy payment is less because his normal working hours are only 40 hours. No doubt the union feel that the advantages outweigh the disadvantage. The men cannot have it both ways. Having committed themselves by written agreement to normal working hours of 40, they cannot go back on it.’

Lord Denning MR, Orr, Lawton LJJ
[1974] EWCA Civ 11, [1974] ITR 282, [1974] IRLR 155, [1974] ICR 420, [1975] KIR 149
Bailii
England and Wales

Employment

Updated: 11 December 2021; Ref: scu.262725

The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the defendant claimed were poisonous and amounted to constructive dismissal.
Held: The defendant had erased his own diaries, and procured unauthorised and false entries in the claimant’s email inbox. The duty of trust and confidence bbetween employer and employee is a mutual one, but the test as to a breach by the employer is its effect on the employee. Though the existence of the restriction was confidential, in the circumstances of the defendant’s ne employers themselves briefing the press, the claimant was not bound to keep it so.

Bernard Livesey QC
[2007] EWHC 2892 (QB), [2008] IRLR 207
Bailii
England and Wales
Citing:
Cited – Woods v WM Car Services (Peterborough) Ltd EAT 1981
Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, but in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the . .
Cited – Lewis v Motorworld Garages Ltd CA 1985
The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: ‘This breach of this implied obligation of trust and confidence may consist of a series of action on . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd 1991
A company pension scheme had been operating for many years, with increases being provided for under one rule. A new rule was introduced to provide regular increases. The company was taken over, and the trustees sought clarification of the company’s . .
Cited – Boston Deep Sea Fishing and Ice Co v Ansell CA 1888
An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
Cited – Symbian Ltd v Christensen ChD 8-May-2000
The court granted an injunction to the company restraining Mr Christensen from undertaking or continuing employment by, or the provision of advice, assistance or services to the Microsoft Corporation at any time before 16th September 2000, being the . .

Cited by:
Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 10 December 2021; Ref: scu.261922

EAT Redundancy: Suitable Alternative Employment – UNFAIR DISMISSAL – Reasonableness of dismissal
Application of the two-fold test for suitability and unreasonable refusal of alternative employment disentitling the employee to a redundancy payment; see Bird v Stoke-on-Trent Primary Care Trust UKEAT/0074/11, paragraphs 17 to 21. Effect on finding of fair redundancy dismissal: the Claimant’s appeal is allowed and case remitted for rehearing by the Employment Tribunal.

Peter Clark HHJ
[2017] UKEAT 0293 – 16 – 0803
Bailii
England and Wales

Employment

Updated: 06 December 2021; Ref: scu.582058

(Unfair Dismissal : Reasonableness of Dismissal) – Employment Tribunal finding of unfair conduct dismissal set aside. Factors considered by ET irrelevant to reasonable investigation question. Dismissal fell within band of reasonable responses

[2014] UKEAT 0361 – 13 – 0805
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525200

Unfair dismissal – Automatically unfair reasons – Reasonableness of dismissal -Employment Tribunal entitled to conclude, following a 15 day hearing, that the Appellant’s dismissal was by reason of her conduct; not disclosures, whether protected or not, which she had made (the ET found, save for two, in bad faith). That dismissal for that reason was fair applying the Burchell test. It was a reasonable sanction.

[2014] UKEAT 0324 – 13 – 1504
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525194

[2014] EWHC 1196 (QB)
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525163

EAT Contract of Employment – The Claimant was a telephone interviewer who worked on an ad hoc basis between 7 and 43 hours almost every week. The Employment Judge made an express finding having heard evidence that the Claimant was not obliged to work any week when she did not want to and the employer was not obliged to offer her work. On that finding of fact her appeal against the conclusion that she was not an employee could not succeed. An alternative case (not advanced before the EJ) that she was an employee when working on specific assignments and that she had sufficient continuity under section 108 ERA was not a viable way of putting the claim since it was not the termination of any particular assignment that she was complaining of but the termination of the umbrella arrangement, which was not a contract of employment.

[2014] UKEAT 0116 – 13 – 2002
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525184

Transfer of Undertakings : Acquired Rights Directive

[2014] UKEAT 0298 – 13 – 1604
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525193

EAT (Jurisdictional Points : Claim In Time and Effective Date of Termination) – Bias, misconduct and procedural irregularity – Whether Employment Judge entitled to rely on last act of discrimination relied on by the Claimant in evidence for limitation purposes, although later incident mentioned in Form ET1.
Held: he was. Segor v Goodrich (EAT/0145/11/DM) and Mensah v E.Herts NHS Trust [1998] IRLR 531 (CA) considered.

[2014] UKEAT 0125 – 13 – 1303
Bailii
England and Wales

Employment

Updated: 03 December 2021; Ref: scu.525189

EAT Transfer of Undertakings : The approach to be adopted by an Employment Tribunal to the identification of a transfer by way of service provision change for the purposes of reg. 3(1)(b) Transfer of Undertakings (Protection of Employment) Regulations 2006 SI 2006/246.
Upholding the Employment Tribunal’s judgment: applying Metropolitan Resources Limited v Churchill Dulwich Ltd, Enterprise Management Services Ltd v Connect-up Ltd and Johnson Controls v UK Atomic Energy Authority, the identification of the ‘activities’ undertaken before and after the provision change was a matter of fact and degree for the Tribunal. It had been entitled to rely on the contractual documentation between the parties and no error of law was disclosed.
Natural Justice
As a subsidiary point, although it would have been preferable if the parties had been afforded the opportunity to make representations on the 2005 Government Consultation document referred to in the Employment Tribunal’s judgment, it was not central to the reasoning but merely served to amplify or underline other points that had been the subject of argument in any event. Moreover, had the parties been able to make such representations, this would have made no difference to the outcome. Applying Stanley Cole Ltd v Sheridan [2003] ICR 1449, CA, the parties had not been deprived of a fair hearing.

Eadt QC J
[2014] UKEAT 0301 – 13 – 2103
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 2006 3(1)(b)
England and Wales
Citing:
Cited – Metropolitan Resources Ltd v Churchill Dulwich Ltd and Others EAT 24-Jun-2009
metro_churchillEAT2009
EAT TRANSFER OF UNDERTAKINGS: Transfer
Migrant Helpline, on behalf of the Home Office; had a contract with Churchill Dulwich Ltd – in Liquidation (‘CD’) by which CD provided accommodation to asylum seekers. . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 02 December 2021; Ref: scu.523028

EAT Unfair Dismissal : Reasonableness of Dismissal – Dismissal found to be fair at disciplinary stage converted to an unfair dismissal following appeal. However, no material unfairness found at the appeal. The highest it was put was that the Claimant was not shown a list of unsuitable vacancies in circumstances where he was not medically fit to continue his employment as a bus driver.
With reluctance (the Claimant had 23 years unblemished service) employer appeal allowed a finding of unfair dismissal set aside.

Peter Clark J
[2013] UKEAT 0103 – 13 – 1112
Bailii
England and Wales

Employment

Updated: 01 December 2021; Ref: scu.522370

Appeal by nine claimants from a decision of an industrial tribunal concluding in six of the cases that the claim should be dismissed on the basis that the contracts were tainted by illegality.

Morgan LCJ, Higgins LJ and Coghlin LJ
[2014] NICA 3
Bailii
Northern Ireland

Employment

Updated: 29 November 2021; Ref: scu.521267

Renewed application for leave to appeal

Rimer LJ
[2014] EWCA Civ 97
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.521206

[2014] EWCA Civ 68
Bailii
England and Wales

Employment

Updated: 29 November 2021; Ref: scu.521045

EAT Practice and Procedure : Review – JURISDICTIONAL POINTS – Claim in time and effective date of termination
The issue on the appeal was whether the Employment Tribunal had erred in law by refusing to review a decision that the claim in respect of unlawful deductions was out of time. In effect the Appellant had complained about the course of events at the hearing and about the decision that he was out of time and that should have been sufficient to trigger a reconsideration even though the rest of the letter applying for a review concentrated on reasons why the application had not been made earlier. The fact that the decision as to the claim being out of time appeared to be contrary to the decision of this Tribunal in Arora v Rockwell Automation Ltd UKEAT/0097/06 and thus very arguably wrong (subject to the facts, which remained to be properly investigated), whilst not drawn to the attention of the Employment Judge at that stage and not decisive by itself, nevertheless weighed in the balance when deciding whether there had been an error of law.

Hand QC J
[2013] UKEAT 0067 – 13 – 2410
Bailii
England and Wales

Employment

Updated: 26 November 2021; Ref: scu.518529

[1998] UKEAT 38 – 98 – 0102
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.206171

[1998] UKEAT 1372 – 97 – 2201
Bailii
England and Wales

Employment

Updated: 23 November 2021; Ref: scu.206068

Extra Diision, Inner House – Appeal from EAT against finding of sex discrimination

Lord Bracadale
[2013] ScotCS CSIH – 86
Bailii
Sex Discrimination Act 1975
Scotland

Employment

Updated: 22 November 2021; Ref: scu.517017

EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal.

The Honourable Mr Justice Underhill
[2006] UKEAT 0341 – 06 – 1110, UKEAT/0341/06
Bailii, EAT
England and Wales

Employment

Updated: 19 November 2021; Ref: scu.247811

EAT Practice and Procedure – Bias, misconduct and procedural irregularity.

His Hon Judge McMullen QC
[2003] EAT 0034 – 03 – 0606, [2003] UKEAT 0034 – 03 – 0606, EAT/34/03 and EAT/224/03
Bailii, Bailii, EAT
England and Wales
Cited by:
See Also – Mitie Lindsay Ltd v Lynch EAT 20-Aug-2003
. .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 12 November 2021; Ref: scu.189498

moroak_cromieEAT2005

EAT Response lodged at the Employment Tribunal 44 minutes late and the Employment Tribunal ordered that the Respondent could take no part in the proceedings and refused to review that order on the basis it had no jurisdiction to do so. The Employment Tribunal has no power under Rule 4 to entertain an application for an extension of time for service of the response once the 28-day period has expired (Rule 4(4)) and, although it has power to entertain an application to set aside judgment in default to grant an extension of time for a response once judgment set aside (Rule 33), no default judgment was entered. However, concluded on appeal that there is power under Rule 34 where the interests of justice require to review the order made under Rule 6 not to accept a response served out of time and to direct it be accepted. The test for making such an order, as with Rule 4 and Rule 33, is what is just and equitable. Review ordered under Rule 34 and decision to accept response substituted.

The Honourable Mr Justice Burton
UKEAT/0093/05, [2005] UKEAT 0093 – 05 – 1904, [2005] IRLR 353
EATn, Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
Citing:
Cited – Kwik Save Stores Ltd v Swain EAT 1997
An appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors.
When considering barring a party for . .
Cited – United Arab Emirates v Abdelghafar and others EAT 29-Jul-1994
At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.
Cited by:
Cited – Nelson v Newry and Mourne District Council NIIT 26-Oct-2006
. .
Cited – Thompson v Hickland Haulage Ltd NIIT 22-Mar-2007
. .
Cited – Thompson v Hickland Haulage Ltd NIIT 24-Apr-2008
NIIT The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to hear the claimant’s claim of unfair dismissal because the parties reached a conciliated settlement with the . .
Cited – N Barrosso, M Mayou, A Gray, D Young v C Fahy EAT 31-Jan-2007
EAT Sex Discrimination – Vicarious liability. . .
Cited – Kredenza Ltd v M Jovicevic EAT 10-Nov-2005
EAT Sex Discrimination – Vicarious liability. . .
Cited – Richardson v U Mole Ltd EAT 9-Jun-2005
EAT The Employment Tribunal rejected a claim for unfair dismissal for non-compliance with Rule 1(4)f): there was no express statement (or ticked box, as the new form was not used) that the Claimant was an . .
Cited – Pendragon Plc T/A CD Bramall Bradford v Copus EAT 11-Jul-2005
EAT Practice and Procedure
Response served by Respondent out of time and judgment in default entered. Chairman found that pursuant to Rule 33 of the new Rules he had no discretion to review the default . .
Cited – Butlins Skyline Ltd, M Smith v Beynon EAT 20-Feb-2006
EAT Practice and Procedure – Appearance/Response. . .
Cited – C Bone v Fabcon Projects Ltd EAT 17-Mar-2006
EAT Practice and Procedure – 2002 Act and pre-action requirements. . .
Cited – SKS Ltd v Brown EAT 4-Jul-2007
EAT Practice and Procedure – striking out/dismissal and Appearance / Response and Review
Non – acceptance of response (form incomplete). Correct form sent in time, but Employment Tribunal declined to pay . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 12 November 2021; Ref: scu.257457

Morgan LCJ, Girvan LJ and Gillen LJ
[2015] NICA 47
Bailii
Northern Ireland

Employment

Updated: 11 November 2021; Ref: scu.550141

Strike out for unreasonable conduct

PRACTICE AND PROCEDURE – Striking-out/dismissal
Strike out of claim – unreasonable conduct of proceedings
During a short break in the course of giving evidence at the Full Merits Hearing of her claims, the Claimant participated in a conversation with a journalist, which included some discussion about the case and about a particular aspect of the Claimant’s evidence given shortly before the break. Aspects of this were overheard by one of the Respondent’s witnesses and by two members of its legal team, who brought the matter to the attention of the ET. Allowing the Claimant to give instructions to her legal representative and to thus provide an initial account of what had taken place, the ET then adjourned for a long weekend to enable the parties to provide statements about this matter. Upon the resumption of the hearing, the Respondent applied for the claim to be struck out due to the Claimant’s unreasonable conduct of the proceedings. Concluding that the Claimant had indeed been party to a discussion about her evidence, in flagrant disregard of the warnings given by the ET on six separate occasions that she must not do so when still giving evidence, the ET concluded that it had irretrievably lost trust in the Claimant and could no longer fairly hear her case. It considered whether there were any alternatives to striking out the claim but concluded that there were none. It therefore struck out the Claimant’s case. The Claimant appealed.

Held: dismissing the appeal
The ET had correctly addressed the four questions identified in Bolch v Chipman [2004] IRLR 140 EAT. Adopting an entirely fair process, it had been entitled to make the findings it did as to what had taken place and had permissibly concluded that the Claimant had thereby unreasonably conducted the proceedings. The ET had gone on to consider whether it could still conduct a fair trial of the Claimant’s case but, having concluded that trust had broken down, had correctly concluded it was not. Asking itself whether it was proportionate to strike out the claim, the ET had considered whether there were any alternatives but had concluded there were none. In the circumstances, that was a conclusion that was open to it and the challenge to its decision to strike out the claim would be dismissed.

Eady QC HHJ
[2018] UKEAT 0097 – 17 – 0504
Bailii
England and Wales
Cited by:
Cited – Hughes Jarvis Limited v Searle Misc 27-Apr-2018
(Oxford County Court) An application was made for the committal for contempt of a party. The court had adjourned overnight while he was giving evidence, and despite being warned against communicating with anyone else, had sent numerous emails to his . .
Cited – Hughes Jarvis Ltd v Searle and Another CA 15-Jan-2019
The claimant and director appealed from orders associated with a finding of contempt of court. The Director, the case having been adjourned overnight during the course of his evidence, and despite warnings to the contrary had sought to communicate . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 November 2021; Ref: scu.608293

The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that led to her resignation. The respondent contended that by reason of that omission the claimant had not complied with the statutory grievance procedure in the relevant respects. The EAT considered what constituted a grievance in writing which question had been troubling employment tribunals. The concerns were as to whether the requirement was to invoke the employer’s grievance procedure and what degree of detail it was necessary to put in a written document in order to comply with the statutory requirement.
Held: A claimant who has lodged a grievance about unreasonable conduct on the part of his employer is not necessarily obliged to lodge further grievances about each subsequent instance of such behaviour, even if that is relied on as the ‘last straw’.

The Honourable Mr Justice Burton (President)
[2005] UKEAT 0487 – 05 – 0512, UKEAT/0487/05, [2006] IRLR 76, [2006] ICR 304
Bailii, EAT
England and Wales
Cited by:
Cited – Lipscombe v The Forestry Commission CA 9-May-2007
The claimant had asserted constructive dismissal. He succeeded on appeal to the EAT, and the employer now appealed. He had asserted bullying by his managers, and then was absent from work after developing depression. The commission said that he was . .
Cited – City of Bradford Metropolitan District Council v Pratt EAT 4-Oct-2006
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
Cited – City of Bradford Metropolitan District Council v Pratt EAT 9-Jan-2007
bradford_prattEAT2007
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
Cited – Canary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
Cited – Riley v First Choice Homes Oldham Ltd EAT 30-Apr-2008
riley_firstEAT2008
EAT Statutory Discipline and Grievance Procedures – Whether applicable – Whether infringed – Was the modified or standard grievance procedure applicable? The Employment Tribunal found the former, and held that . .
Cited – Clyde Valley Housing Association Ltd v Macaulay EAT 3-Apr-2008
clyde_macaulayEAT2008
EAT Jurisdictional Points: 2002 Act and pre-action requirements
Statutory grievance procedure. Modified procedure. Whether letter from claimant’s solicitor set out the basis for her grievance. . .
Cited – BUPA Care Homes v Cann; Spillett v Tesco Stores EAT 31-Jan-2006
EAT Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment
Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, . .
Cited – Royal Mail Letters and others v Muhammad EAT 20-Dec-2007
EAT Practice and Procedure
Whether Claimant complied with requirements of Section 32 of the Employment Act 2002 and paragraph 6, Schedule 2 of the Employment Act (Dispute Regulations) 2004. . .
Cited – Tariq v The Home Office EAT 16-Oct-2009
EAT PRACTICE AND PROCEDURE
Disclosure
HUMAN RIGHTS
(1) The procedure sanctioned by rule 54 of the Employment Tribunals Rules of Procedure, and by the Employment Tribunals (National Security) Rules . .
Cited – Terry Ballard and Co (A Firm) v Stonestreet EAT 11-Jan-2007
EAT Practice and Procedure – Review; Insolvency
A Respondent debarred under rule 4(1) and 9 may apply for a review and, if granted, appear as a full party. Otherwise there is no purpose in allowing it to . .
Cited – Tomlinson v Computer Software Group Ltd and others EAT 12-Dec-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
2002 Act and pre-action requirements
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
EDT – Step 1 . .
Cited – Millican v Coleraine Area Rural Transport NIIT 11-Mar-2009
. .
Cited – Elhaeres v Chubb Security Personnel Ltd EAT 12-Mar-2009
EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
The Employment Judge erred in law in holding that the claims were barred by section 32(2) of the Employment Act 2002. . .
Cited – Sadare v London Borough of Lambeth EAT 6-Apr-2009
EAT PRACTICE AND PROCEDURE: Review
JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
The Tribunal held (a) that Appellant’s unfair dismissal claim was out of time and (b) that she had not . .
Cited – Suffolk Mental Health Partnership NHS Trust v Hurst and Others CA 7-Apr-2009
The employee’s union had written to the employer to say that the employee had a claim for back pay under the 1970 Act. The employer appealed a finding that this was sufficient to launch the claim.
Held: The appeal failed. It was wrong to . .
Cited – Eagles v Rugged Systems Ltd EAT 11-May-2009
EAT Jurisdictional Points
Cited – Parsons v Burworth Estates (A Firm) EAT 22-May-2009
EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Constructive dismissal – Tribunal wrong to have held that the complaints relied on by the Claimant had not been the subject of a prior . .
Cited – Evershed v New Star Asset Management EAT 31-Jul-2009
EAT PRACTICE AND PROCEDURE – Amendment
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Judge refused permission to Claimant to amend claim form to include claim under s. 103A of Employment . .
Cited – Saunders v Department for Work and Pensions – Child Support Agency EAT 14-Sep-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
In upholding the Claimant’s disability discrimination claim and dismissing her constructive dismissal claim, the Employment Tribunal misconstrued her letter of . .
Cited – Harris v Towergate London Market Ltd EAT 21-Mar-2007
EAT Practice and Procedure – 2002 Act and Pre-action Requirements

Six weeks after the Claimant’s dismissal by the Respondent, she attended a meeting with management and her union officer. Further information . .
Cited – Tran v Northern Ireland Fire and Rescue Service NIIT 4-Apr-2007
. .
Cited – Shopland v Iceland Foods Ltd NIIT 18-Apr-2007
. .
Cited – Kennedy v Department for Social Development FENI 26-Apr-2007
. .
Cited – Durnien v T Durnien Ltd NIIT 26-Apr-2007
. .
Cited – Cyprus Airways Ltd v Lambrou EAT 1-May-2007
EAT Practice and Procedure – 2002 Act and Pre-action Requirements
Unfair Dismissal – Constructive Dismissal
On 14 October 2004 the Claimant claimed constructive unfair dismissal arising out of four . .
Cited – Graham v HFC Bank Ltd FENI 2-May-2007
. .
Cited – Kennedy Scott Ltd v Francis EAT 3-May-2007
EAT Practice and Procedure – 2002 Act and Pre-action Requirements
Has the Claimant complied with Step 1 of the statutory grievance procedure where he presents his complaint at a meeting with his line . .
Cited – McCann v Tim Lewis Recruitment Ltd NIIT 16-May-2007
. .
Cited – Carcianiga v The British Leprosy Relief Association (Lepra) EAT 18-May-2007
EAT Practice and Procedure – 2002 Act and pre-action requirements
Appeal from a PHR by a Chairman that there had been no statutory grievance following Canary Wharf Management Ltd v Edebi [2006] IRLR 416. . .
Cited – Houston v Ministry of Defence NIIT 23-May-2007
. .
Cited – Alford House and others v McDonald EAT 11-Oct-2007
EAT Practice and Procedure: 2002 Act and Pre-action Requirements
Various questions relating to s.32 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004.
Cited – A Blitz v Equant Integration Services Ltd (T/A Orange Business Services) EAT 2-Nov-2007
EAT Disability discrimination: Less favourable treatment / Harassment
Practice and Procedure: Application/claim / Amendment
The Tribunal applied wrong tests in respect of disability related . .
Cited – Ward v The University of Essex EAT 3-Dec-2007
EAT Jurisdictional Points – 2002 Act and pre-action requirements
Statutory Discipline and Grievance Procedures – Whether infringed
Practice and Procedure – Compromise
The Employment Judge . .
Cited – Highland Council v TGWU/Unison and Others EAT 7-Dec-2007
EAT Equal Pay Act – Out of time
Equal pay claims and statutory grievance procedures. Whether claimants prevented by section 32(2) of the Employment Act 2002 from presenting complaints specifying different . .
Cited – Dunn v Chief Constable of PSNI NIIT 11-Dec-2007
NIIT The decision of the tribunal is that:-
(1) The claimant’s claims of discrimination on the grounds of disability and breach of contract are dismissed, following withdrawal made orally to the tribunal.
Cited – Highland Council v TGWU Unison First and others EAT 18-Dec-2007
EAT Equal Pay Act – Out of time
Equal pay claims and statutory grievance procedures. Whether claimants prevented by section 32(2) of the Employment Act 2002 from presenting complaints specifying different . .
Cited – John v Patel and Another (T/A Edmonton Exhaust) EAT 4-Feb-2008
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
Statutory Discipline and Grievance Procedures: Impact on compensation
Jurisdictional Points: 2002 Act and pre-action . .
Cited – Bury Metro Racial Equality Council and others v Lyle EAT 11-Mar-2008
EAT Practice and Procedure: Amendment
Jurisdictional Points: Claim in time and effective date of termination
Disability Discrimination: Justification
Permission to amend Notice of Appeal refused; . .
Cited – The Highland Council v TGWU and Unison EAT 3-Jun-2008
EAT EQUAL PAY ACT: Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation . .
Cited – Cannop and others v Brown and others SCS 11-Jun-2008
. .
Cited – Messrs Dean and Dean Solicitors v DionissiouMoussaoui EAT 14-Jul-2008
EAT PRACTICE AND PROCEDURE: Costs
The Employment Judge did not err in principle or omit a relevant or consider an irrelevant factor when dismissing Respondents’ applications for costs when much of a sex . .
Cited – European Credit Management Ltd v Hosso EAT 12-Aug-2008
EAT Practice and Procedure
The issue was whether the modified grievance procedure had been satisfied in relation to a claim for larger payments when no specific mention of such payment had been made in any . .
Cited – Thornton Print Ltd v Morton EAT 8-Sep-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Whether infringed
The Respondent committed a repudiatory breach of the Claimant’s contract of employment. . .
Cited – Weare v HBOS plc EAT 28-Oct-2008
EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
The EAT upheld an appeal by the employee against a decision of the Employment Tribunal which held that it had no jurisdiction to hear certain . .
Cited – Arnold and others v Sandwell Metropolitan Borough Council EAT 6-Nov-2008
arnold_sandwellEAT2008
EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
These appeals raise the issue what detail needs to be provided in an equal pay case when an employee raises a written grievance as required by . .
Cited – Carson v Brooklands Nursing Homes Ltd NIIT 5-Jul-2006
. .
Cited – Scott-Davies v Redgate Medical Services EAT 11-Aug-2006
EAT Practice and Procedure – 2002 Act and Pre-action requirements
There is no free-standing right to complain of a breach of the statutory procedures in the absence of a valid claim of unfair dismissal . .
Cited – Draper v Mears Ltd EAT 5-Sep-2006
EAT The employee was found in a company van about to drive after consuming alcohol. The Tribunal found that to his knowledge, the company had a zero tolerance rule as to driving after consuming alcohol. He was . .
Cited – Pugh v National Assembly for Wales EAT 26-Sep-2006
EAT The ET dismissed as premature the Claimant”s application for disability discrimination because the application was made less than 28 days after the Claimant”s grievance had been raised in a letter dated . .
Cited – Lipscombe v Forestry Commision EAT 28-Sep-2006
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke;
2002 Act and Pre-action Requirements
The Employment Tribunal failed correctly to construe the Claimant’s resignation letter as . .
Cited – London Borough of Lewisham v Colbourne EAT 15-Nov-2006
EAT Time Limits
Practice and Procedure – 2002 Act and pre-action requirements
Unfair Dismissal – Constructive dismissal
For the purpose of the extension of the time afforded by reg. 15 of the . .
Cited – HM Prison Service v Barua EAT 15-Nov-2006
EAT Time Limits
Practice and Procedure – 2002 Act and pre-action requirements
Unfair Dismissal – Constructive dismissal
For the purpose of the extension of the time afforded by reg. 15 of the . .
Cited – Mclogan v (T/A Canal Court Hotel) NIIT 17-Nov-2006
. .
Cited – Patel v Leicester City Council EAT 20-Nov-2006
EAT Unfair dismissal – Automatically unfair reasons
A procedure will only have been completed within the meaning of section 98A(1)(b) of the Employment Rights Act 1996 if it has been completed in accordance . .
Cited – Department for Constitutional Affairs v Jones EAT 24-Nov-2006
EAT Time limits – Just and equitable extension
The Tribunal Chairman correctly found that in the circumstances the 3 month time limit for presenting a disability discrimination claim had not been extended to . .
Cited – Brock v Minerva Dental Ltd EAT 15-Dec-2006
EAT Practice and Procedure – Amendment; 2002 Act and Pre-action Requirements
Whether actual dismissal effectively withdrawn by employer during internal appeal process; whether Claimant should have permission . .
Cited – Patel v Leicester City Council EAT 20-Dec-2006
EAT Unfair dismissal – Automatically unfair reasons
A procedure will only have been completed within the meaning of section 98A(1)(b) of the Employment Rights Act 1996 if it has been completed in accordance . .
Cited – DMC Business Machines Plc v Plummer EAT 21-Dec-2006
EAT Unfair Dismissal – Constructive dismissal
Constructive dismissal case – Appeal based on alleged non-compliance by employee with s.32 (2) of 2002 Act by reason of failure to lodge a grievance in relation . .
Cited – Carson v Brooklands Nursing Homes Ltd NIIT 11-Jan-2007
. .
Cited – McLogan v McParland Bros T/A Canal Court Hotel NIIT 18-Jan-2007
. .
Cited – Odoemelam v Whittington Hospital NHS Trust EAT 6-Feb-2007
EAT Statutory grievance procedures
Need for grievance to identify that complaint is one of racial discrimination – application to claims against employees as well as to claims against their employers. . .
Cited – Gibbs (T/A Jarlands Financial Services) v Harris EAT 27-Feb-2007
EAT Practice and Procedure – Preliminary issues
The Employment Tribunal was wrong to conclude that an ET1 could constitute a written grievance for the purpose of satisfying section 32 of the Employment Act . .
Cited – Premier Foods Plc v Garner EAT 20-Mar-2007
EAT Unfair Dismissal – Reasonableness of dismissal; Procedural fairness/automatically unfair dismissal
Wide-ranging grounds of appeal concerning the standard DDP, automatic unfair dismissal, unfair . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 11 November 2021; Ref: scu.257605

The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The procedure adopted did not follow the statutory rules, but the tribunal had found the dismissals to be fair. The employees now said they had been automatically unfairly dismissed in breach of the statutory dismissal procedure, that the dismissals were unfair for procedural failings, despite the tribunal finding they would have been dismissed anyway, and that the finding of 100% chance of dismissal was an unjustified finding displaying an error of law.
Held: The appeal succeeded. The procedure was intended to avoid matters going to the Employment tribunal, and the information to be provided must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss, but the bar for compliance with the procedures should not be set too high. At the first stage, the employer need only set out the broad grounds, but at the second it must inform the employee of the basis of those grounds: ‘the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met. ‘ The employer having failed to meet that standard, the dismissals were automatically unfair. ‘in order to comply with the statutory provisions an employer should provide to the employee not only the basic selection criteria which have been used, but also the employee’s own assessment. That will give the employee an opportunity to make representations not only about whether the criteria are justified and appropriate but also, more importantly, whether the marking given to him in respect of any particular criterion is arguably unjust, and why.’ and
‘section 98A(2) applies to all procedures, which we take simply to mean the steps which ought to be taken by an employer before determining that he will dismiss a particular employee. Those steps will of course vary depending on the reason for the dismissal. There is no magic in the word ‘procedure’ and there is no justification for seeking to redefine some steps which would naturally be described as ‘procedural’, such as the duty to consult, as ‘substantive’ merely on the basis that they are said to provide particularly important safeguards for the employee. All procedural requirements are important for employees. ‘
As to Polkey: ‘Polkey now has only limited application. . . . it is still relevant where the statutory procedures have been infringed so that the dismissal is automatically unfair [and] even where the statutory procedures are complied with but the dismissal is unfair under section 98(4), Polkey will still apply where on the balance of probabilities the employee would not have been dismissed even had a fair procedure been complied with, but where there is a chance that he might have been. ‘ The dismissals were automatically unfair, but the award was limited to the minimum basic award of 4 weeks pay.

The Honourable Mr Justice Elias (President)
[2006] UKEAT 0107 – 06 – 1204, [2006] IRLR 422, UKEAT/0107/06, [2006] ICR 1277
Bailii, EATn
Employment Act 2002, Employment Relations Act 1996 98A(2), Employment Act 2002 (Dispute Resolution) Regulations 2004 3(1), 12(1)
England and Wales
Citing:
Reversed by Statute – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – King and Others v Eaton Ltd IHCS 1-Feb-1995
The applicants were four of 20 employees selected for redundancy. One complaint was that, although they had been given details of their own marks, they were no allowed to see the ratings for others; another was that the supervisors responsible for . .
Cited – Canary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
Cited – O’Dea v ISC Chemicals Ltd CA 4-Aug-1995
Where the performance of union duties stopped a worker from doing the job he was employed for properly, a redundancy selection was possible. Here there was no redundancy comparator for a shop steward spending half his time on union activities. The . .
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – Pudney v Network Rail Infrastructure Ltd EAT 22-Mar-2006
EAT Unfair Dismissal: Procedural Fairness/Automatically Unfair Dismissal
The failure to disclose new witness statements obtained during the adjournment of an internal appeal against dismissal was a breach . .
Cited – Drake International Systems Ltd (T/A Drake Ports Distribution Services) v O’Hare EAT 2-Sep-2003
EAT Unfair Dismissal – Compensation. . .
Cited – Mugford v Midland Bank Plc EAT 23-Jan-1997
The court considered the test for reasonableness in a procedure for selection for redundancy. Peter Clarke J said: ‘As to whether a reasonable employer would or would not consult with an individual employee is, it seems to us, essentially a question . .
Cited – King v Eaton Ltd (No 2) IHCS 1998
Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been . .
Cited – T Gover and others v Propertycare Ltd EAT 22-Nov-2005
EAT Unfair Dismissal – Polkey deduction.
The ET had found basic failings in the way the employers had sought to change employment contracts. This led to constructive dismissals and a finding of unfair . .
Cited – Gover and others v Propertycare Ltd CA 28-Mar-2006
The claimants appealed dismissal of their claims for unfair dismissal, on the basis that they had been substantially dismissed as sales agents after rejecting conditions imposed unilaterally by their employers. Their damages had been limited to the . .
Cited – W Devis and Sons Ltd v Atkins HL 6-Jul-1977
The ‘just and equitable’ test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. ‘The paragraph does not, nor did s. 116 of the Act of 1971, . .

Cited by:
Cited – Draper v Mears Ltd EAT 5-Sep-2006
EAT The employee was found in a company van about to drive after consuming alcohol. The Tribunal found that to his knowledge, the company had a zero tolerance rule as to driving after consuming alcohol. He was . .
Cited – Premier Foods Plc v Garner EAT 20-Mar-2007
EAT Unfair Dismissal – Reasonableness of dismissal; Procedural fairness/automatically unfair dismissal
Wide-ranging grounds of appeal concerning the standard DDP, automatic unfair dismissal, unfair . .
Cited – BUPA Care Homes (CFC Homes) Ltd v Muscolino EAT 22-May-2006
. .
Cited – Masterfoods (A Division of Mars UK Ltd) v Wilson EAT 7-Aug-2006
EAT Unfair dismissal – Reasonableness of dismissal; Procedural
Fairness/automatically unfair dismissal
Practice and Procedure – Amendment
Employment Tribunal’s conclusion of unfairness could not . .
Cited – Kelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
Cited – City of Bradford Metropolitan District Council v Pratt EAT 9-Jan-2007
bradford_prattEAT2007
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
Cited – McCall v Northern Rail Ltd EAT 25-Jan-2007
EAT Unfair Dismissal – Reasonableness of dismissal
Practice and Procedure – 2002 Act and pre-action requirements
The Respondent dismissed the Claimant for three reasons. On appeal, two of the most . .
Cited – City of Bradford Metropolitan District Council v Pratt EAT 4-Oct-2006
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
Cited – Clyde Valley Housing Association Ltd v Macaulay EAT 3-Apr-2008
clyde_macaulayEAT2008
EAT Jurisdictional Points: 2002 Act and pre-action requirements
Statutory grievance procedure. Modified procedure. Whether letter from claimant’s solicitor set out the basis for her grievance. . .
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 – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 November 2021; Ref: scu.241217

Iniquity surpasses legal advice privilege

PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. In considering whether privilege could not be claimed as the advice in the email was given for the purpose of facilitating an iniquity, the Employment Judge erred in his interpretation of the email. Prima facie, the email gave advice on how to cloak what would otherwise be a disability discrimination dismissal as a dismissal for redundancy. Properly interpreted the email surmounted the high bar of iniquity. There was a strong prima facie case that the email recorded not just that the Claimant could be dismissed in a redundancy exercise but may claim disability discrimination. Barclays Bank plc v Eustice [1995] 1 WLR 1238 and BBGP Managing General Partner Ltd v Babcock and Brown Global Partners [2011] Ch 296 considered. Decision of the Employment Judge to strike out the relevant paragraphs in the ET1 set aside.

Slade DBE J
[2018] UKEAT 0261 – 17 – 0908
Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 37(1)(a)
England and Wales
Citing:
Cited – Barclays Bank Plc v Eustice CA 6-Jul-1995
No Professional Privilege in Iniquity
There was an allegation that the legal advice for which privilege was sought and resisted had been obtained in order to frustrate the mortgagee’s rights to the property at issue, because the mortgagors regarded the mortgagee bank as interfering with . .
Cited – BBGP Managing General Partner Ltd and Others v Babcock and Brown Global Partners ChD 20-Aug-2010
Norris J held:
‘Although the case law refers to crime or fraud or dishonesty (such as fraudulent breach of trust, fraudulent conspiracy, trickery or sham contrivances) it is plain that the term ‘fraud’ is used in a relatively wide sense: Eustice’s . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Gamlen Chemical Co (UK) Ltd v Rochem Ltd CA 4-Dec-1979
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect . .
Cited – Gamlen Chemical Co (UK) Ltd v Rochem Ltd 1983
Goulding J said: ‘For servants during their employment and in breach of their contractual duty of fidelity to their master to engage in a scheme, secretly using their master’s time and money, to take the master’s customers and employees and make . .
Cited – Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd 1972
The plaintiffs, as purchasers, and the first defendants, as sub-purchasers, were parties to a conveyance of land which provided that the purchasers had the option of re-purchasing if, within the following 20 years, the first defendants wanted to . .
Cited – Walsh Automation (Europe) Ltd v Bridgeman and others QBD 4-Jul-2002
Appeal from refusal of order for disclosure of legal advice given to a party. It was alleged that the defendant’s suggested attempt at fraud by means of a document drawn up by the solicitors would be revealed by disclosure of the advice given. . .
Cited – Dadourian Group International and Another v Simms and others ChD 7-Feb-2008
It was suggested that the use of documents revealed under court disclosure for a further purpose was a contempt of court, and that they were protected by legal professional privilege.
Held: For iniquity to be established ‘there has to be . .
Cited – Airtours Holidays Transport Ltd v Revenue and Customs SC 11-May-2016
The court was asked whether the appellant, Airtours Holidays Transport Ltd (formerly MyTravel Group plc), was entitled to recover, by way of input tax VAT charged by PricewaterhouseCoopers LLP in respect of services provided by PwC and paid for by . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Cited – Fazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .
Cited – Nationwide Building Society v Various Solicitors ChD 20-Jan-1998
Legal professional privilege could be set aside at disclosure where the fraudulent intention of one lay client was thereby shown as against another lender. The right to assert legal professional privilege does not apply to documents which came into . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 November 2021; Ref: scu.621100

Four employees said that they had been dismissed for redundancy, and now appealed against rejection of their claims.
Held: The court set out the obligations on an employer in a redundancy situation, including the need to look for alternatives to dismissal: ‘there are only two relevant principles of law arising from that subsection. First, that it is not the function of the Industrial Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy ‘as a sufficient reason for dismissing the employee’, i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal.’

Browne-Wilkinson J
[1982] ICR 156, [1982] UKEAT 372 – 81 – 2201, [1982] IRLR 83
Bailii
England and Wales
Cited by:
Cited – L T I Ltd v A R Radford EAT 19-Jul-2000
The employee had been selected for redundancy. He alleged that a collective agreement was incorporated into his contract of employment, which would put the employer’s methods of selection of employees for redundancy a breach of contract. The . .
Cited – Transport and General Workers Union v Safeway Stores Ltd EAT 23-Mar-2007
EAT Practice and Procedure – Amendment

Safeway closed a depot, leading to a large number of redundancies. The Union alleged that consultation was inadequate. Proceedings were initially commenced claiming only . .
Cited – Rolls Royce Motor Cars Ltd v Price and others EAT 2-Feb-1993
The company appealed against findings of unfair dismissal of the claimants, saying that they had been made redundant. The claimants said that the company had broken the agreed procedure, and that the dismissals were automatically unfair.
Held: . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Mitchells of Lancaster (Brewers) Ltd v Tattersall EAT 29-May-2012
mitchells_tattersallEAT2012
EAT JURISDICTIONAL POINTS – Worker, employee or neither
UNFAIR DISMISSAL
Reasonableness of dismissal
Polkey deduction
REDUNDANCY – Fairness
The Respondent had made the applicant, who was . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 11 November 2021; Ref: scu.181799

EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Procedural fairness/automatically unfair dismissal
The Appellants appealed against the Tribunal’s decision that their dismissals were fair, in circumstances where they had presented multiple grievances alleging racially discriminatory treatment and were found by the grievance panel to have acted in bad faith. They complained that their inability to appeal against that finding under the Respondent’s grievance procedures, and the role the finding played in their subsequent dismissal vitiated the fairness of the entire disciplinary process. The grounds alleged (1) an error of law by the Tribunal in arriving at their conclusion that the dismissals were fair and (2) perversity.
This was a most unusual case, as the Tribunal’s findings of fact demonstrated. The dismissals were found to be not only on the basis of gross misconduct, but also for some other substantial and free-standing reason justifying dismissal, namely the irreparable breakdown of relationships in the department where the Appellants worked. The appeals were dismissed on the basis that no error of law had been identified in the Tribunal’s reasoning, having regard to the facts found; and that their decision could not be said to be perverse. Related grounds challenging the findings on wrongful dismissal and victimisation were also dismissed.

Cox J
[2010] UKEAT 0448 – 09 – 2705
Bailii
Employment Act 2002
England and Wales
Citing:
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – Clarke v Trimoco Motor Group Ltd and Another EAT 30-Oct-1992
The claimant had been dismissed for dishonesty.
Held: A grievance procedure is not equivalent to or a substitute for a disciplinary hearing, at which the employee is provided with an opportunity to explain. The two procedures are significantly . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 November 2021; Ref: scu.416156

The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: The failure of a party’s legal representative properly to explain his client’s case to the tribunal is not an error of law so as to justify the EAT’s interference. Nor would any lack of skill or experience on the part of the appellant or his advocate. A new point of law cannot be raised before the EAT that had not been raised below, save in very exceptional circumstances, and where it can be satisfied that it has all the material facts and no prejudice would be done to the opposing case.
It was not for the Tribunal to suggest to a party a point for consideration, by it, or its advocate, which had been overlooked, or omitted, or to explore a point expressly disclaimed.
Arnold J said of the failure to take the point at the hearing: ‘It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate. It is well established in these tribunals, and we hope in this appeal tribunal, that where the representation is a non-professional representation, or possibly even where it is an inexperienced professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, perhaps by itself refining and improving the argument, perhaps by suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think that it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances’.

Arnold J
[1978] ICR 1116
England and Wales
Cited by:
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Cited – Bryant v Housing Corporation CA 21-May-1998
A complainant before an industrial tribunal will only be allowed to amend her statement in order to add an allegation of victimisation for sex discrimination where this arises naturally from the facts alleged. In this case the new claim was rather . .
Exception to – House v Emerson Electric Industrial Control 1980
The EAT may exceptionally hear a point not raised at the tribunal where no new facts were required to be pleaded. . .
Cited – M Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Fadipe v Reed Nursing Personell CA 4-Dec-2001
Failure to give proper reference. ECJ judgment giving right to make complaint only if cause was result of complaint over health and safety matters.
Held: The appeal failed. The section did not protect former workers: ‘section 44 does not, on . .
Cited – Ramsay and others v Bowercross Construction Ltd and Another EAT 14-Aug-2008
EAT PRACTICE AND PROCEDURE: Costs
Costs – whether a party can recover by way of costs counsel’s fees (yes) and those of a non legally qualified adviser, as defined in s.71 CandLSA 1990 (no). Employment . .
Cited – Dimtsu v Westminster City Council EAT 1991
The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction . .
Cited – Divine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
Cited – Slack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Cited – Asda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
Endorsed – Glennie v Independent Magazines (UK) Limited CA 17-Jun-1999
A party is under a duty to present his entire case at the first hearing in the Employment Tribunal. Where a claimant’s representative had decided to adopt a particular position in law when making representations to the original industrial tribunal, . .
Cited – Cable Realisations Ltd v GMB Northern EAT 29-Oct-2009
The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the . .
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Cited – Oakland v Wellswood (Yorkshire) Ltd CA 30-Jul-2009
The employer was in financial difficulties. A new company was formed by a customer to acquire its assets, and the employees, including the claimant were taken on by the new company. The claimant was dismissed within a year after. On claiming unfair . .
Cited – DA v Strathclyde Joint Police Board SCS 27-Jun-2012
The tribunal’s decision that the appellant had been unfairly dismissed by the respondent had been reversed at the EAT. The respondent had been allowed to withdraw a concession, and the appellant now sought to pursue a different argument. The . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 10 November 2021; Ref: scu.183853

The employer closed its bakeries and made redundancies, but without consultation. The ET decided it could make a protective award even if none of the employees had suffered any loss because the redundancies must follow.
Held: In the legislation there were provisions where sums were to be paid without any assessment of actual loss being made. ‘So it seems to us that despite the background of the desire to encourage consultation in order to avoid liability for unfair dismissal, and also despite the fact that in some areas the object of Parliament is clearly seen to be purely one of compensation, we have to look at the particular sections with which we are concerned and decide what precisely they lay down . . It seems to us that here it is important to bear in mind that the obligation which is imposed upon an employer is one in respect of descriptions of employees.’ It was ‘striking’ that s. 105 (5) of the 1975 Act did not refer to loss suffered by the employee. ‘So it would seem that basically the question is, how serious was the employer’s default in complying with the requirements of section 99? Obviously there can be defaults of different gravity. For example, one requirement of the Act is that necessary information shall be disclosed in writing. It might be that if all the information had been given orally to a trade union representative, a tribunal would not take a very serious view of that as a failure to comply with a requirement. On the other hand, failure to give reasons at all, or failure to include one of the matters specified in section 99 (5), might be more serious. A failure to consult at all, or consultation only at the last minute, might be taken to be even more serious.’
Slynn J analysed the basis of the protective award: ‘The question is, to compensate for what? It seems to us that it is to compensate for the failure to consult. It seems to us that here Parliament is providing that employers should, in this kind of potential or actual redundancy situation, discuss the matter with the union and the Secretary of State in the hope of achieving one or other of the alternative courses to which we have referred. True it is that the Tribunal has power to make a declaration. It seems to us that there is a duty, in the appropriate case, to make a declaration. In addition it seems to us that Parliament has given to the Industrial Tribunals the power, if they so decide, also to make a protective award which involves the payment of money. It seems to us that when that decision is taken, the question which has to be looked at is not the loss or potential loss of actual remuneration during the relevant period by the particular employee. It is to consider the loss of days of consultation which have occurred. The Tribunal will have to consider, how serious was the breach on the part of the employer? It may be that the employer has done everything that he can possibly do to ensure that his employees are found other employment. If that happens, a Tribunal may well take the view that either there should be no award or, if there is an award, it should be nominal. It does not seem to us that the Tribunal has to be satisfied, before it can make an award. that the employees have been paid during the relevant period. Indeed, if the application is made before the dismissals take place, these facts may not be known. It might be quite impossible to know, until the end of the period, what is the position so far as earnings from the same employer or from other sources are concerned.’ and
‘Therefore this case will now go back to the Industrial Tribunal for them to decide, on the material before them, whether there should be a protective award and, if so, what should be the length of the period which they find to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with the requirements of the section.’ and
‘That, as the cases to which we have referred show quite clearly, will involve a consideration of the length of period, the nature of the default, and the ‘just and equitable’ provision. It will also involve a consideration of the steps which were taken by the employer to deal with the situation which arose and to obtain other employment for their employees, even though they were in breach of the obligation to consult.’

Slynn J
[1980] ICR 31, [1979] IRLR 339
Employment Protection Act 1975 99(5) 105(5)
England and Wales
Cited by:
Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 09 November 2021; Ref: scu.194619

Contracts of service or for services

In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The court asked what was the test of whether a worker was self-employed or an employee. It looked to whether the employer exercised ‘control’ over the worker.
MacKenna J said: ‘A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.’
As to (i): ‘There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be . . As to (ii). Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted.’ and
”To find where the right resides one must look first to the express terms of the contract, and if they deal fully with the matter one may look no further. If the contract does not expressly provide which party shall have the right, the question must be answered in the ordinary way by implication.
The third and negative condition is for my purpose the important one, and I shall try with the help of five examples to explain what I mean by provisions inconsistent with the nature of a contract of service.
(i) A contract obliges one party to build for the other, providing at his own expense the necessary plant and materials. This is not a contract of service, even though the builder may be obliged to use his own labour only and to accept a high degree of control: it is a building contract. It is not a contract to serve another for a wage, but a contract to produce a thing (or a result) for a price.
(ii) A contract obliges one party to carry another’s goods, providing at his own expense everything needed for performance. This is not a contract of service, even though the carrier may be obliged to drive the vehicle himself and to accept the other’s control over his performance: it is a contract of carriage.
(iii) A contract obliges a labourer to work for a builder, providing some simple tools, and to accept the builder’s control. Notwithstanding the obligation to provide the tools, the contract is one of service. That obligation is not inconsistent with the nature of a contract of service. It is not a sufficiently important matter to affect the substance of the contract.
(iv) A contract obliges one party to work for the other, accepting his control, and to provide his own transport. This is still a contract of service. The obligation to provide his own transport does not affect the substance. Transport in this example is incidental to the main purpose of the contract. Transport in the second example was the essential part of the performance.
(v) The same instrument provides that one party shall work for the other subject to the other’s control, and also that he shall sell him his land. The first part of the instrument is no less a contract of service because the second part imposes obligations of a different kind: Amalgamated Engineering Union v Minister of Pensions and National Insurance [1963] 1 WLR 441, 451, 452.
I can put the point which I am making in other words. An obligation to do work subject to the other party’s control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge’s task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control.’

MacKenna J
[1968] 2 QB 497, [1968] 1 All ER 433, [1968] 2 WLR 775, [1967] EWHC QB 3
Bailii
National Insurance Act 1965
England and Wales
Citing:
Cited – Chadwick v Pioneer Private Telephone Co Ltd 1941
Stable J said: ‘A contract of service implies an obligation to serve, and it comprises some degree of control by the master.’ . .
Cited – Zuijs v Wirth Brothers Proprietary Ltd 1955
The court considered the extent of authority to be established to show the relationship of employer and employee: ‘What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in . .
Cited – Hardaker v Idle District Council CA 1896
A reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.
A statutory duty to maintain the highway could not be delegated to . .
Cited – Humberstone v Northern Timber Mills 16-Nov-1949
High Court of Australia – The Court was asked whether a contract was one of employment. For a number of years the owner had taken his truck at about the same time each day to the respondents’ factory where he had been given goods to deliver to their . .
Cited – City of Montreal v Montreal Locomotive Works Limited and Another PC 24-Oct-1946
(Canada) the Board was asked whether a corporation was the occupant of an armaments factory so as to be liable to pay an occupation tax, and whether it was carrying on a business in the factory so as to be liable to pay a business tax. The answer to . .
Cited – Bank Voor Handel En Scheepvaart NV v Slatford 1951
A Dutch bank deposited a quantity of gold in London before the start of the 1939-1945 war. In May 1940 the Netherlands were invaded and they became an enemy territory for the purposes of the 1939 Act. The Royal Netherlands Government, with the . .

Cited by:
Cited – Hewlett Packard Ltd v M O’Murphy EAT 26-Sep-2001
The applicant, a computer programmer, worked through his own limited company. That company contracted with an agency to provide his services, and the agency contracted with appellant to supply on those services. The contracts did contain some . .
Cited – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Motorola Ltd v Gary Davidson, Melville Craig Group Ltd EAT 18-May-2000
EAT Contract of Employment – Definition of Employee . .
Cited – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Cited – Cable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
Cited – Yuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
Cited – Massey v Crown Life Insurance Company CA 4-Nov-1977
Massey worked as Crown Life’s manager under 2 contracts, one a contract of employment, the other a contract of general agency. Tax and other contributions were deducted from wages paid under the former, while commission was paid under the agency . .
Cited – Upvc Designs Ltd (T/A Croston Conservatories v Latimer and Another EAT 16-Oct-2007
EAT Jurisdictional Points – Worker, employee or neither
Contract of Employment – Whether established
On the question whether the Appellant was employed under a contract of employment, the reasons of . .
Cited – Lambden v Henley Rugby Football Club and Another EAT 29-May-2009
lambden_henlryrfcEAT2009
EAT CONTRACT OF EMPLOYMENT: Whether established
The Claimant was a part time Rugby Coach. The Employment Tribunal found that he had freely elected to be paid as an independent contractor though a limited . .
Cited – Launahurst Ltd v Larner EAT 18-Aug-2009
EAT JURISDICTIONAL POINTS: Worker, employee or neither
For 13 years the Claimant worked installing double glazing for the Respondent. In 2004 he signed a ‘contract supply agreement’ though matters continued . .
Cited – Autoclenz Ltd v Belcher and Others CA 13-Oct-2009
Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the . .
Applied – Knight v BCCP Ltd EAT 16-Mar-2011
knight_bccpEAT11
EAT JURISDICTIONAL POINTS – Worker, employee or neither
The Claimant was a licensed private hire driver, who was engaged by the Respondent between 1 September 2008 and 14 October 2008. He was told that he . .
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Applied – White and Another v Troutbeck Sa EAT 23-Jan-2013
EAT Contract of Employment : Whether Established – The Claimants were engaged by the Respondent as caretaker/manager of a house and small farm estate, responsible for undertaking duties which included what might . .
Cited – Sharpe v The Bishop of Worcester CA 30-Apr-2015
Reverend Sharpe applied for the post of Rector of Teme Valley South. The right to present (or nominate) a member of the clergy to this living was vested in Mr and Mrs Miles but a person could not be nominated without the Bishop’s approval, which was . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 09 November 2021; Ref: scu.181286

Limited extra territorial jurisdiction

EAT JURISDICTIONAL POINTS – Working outside the jurisdiction
Territorial jurisdiction
The Employment Tribunal had found that the Claimant was employed by the First Respondent (a joint venture involving a Chinese University, based in China) and had worked in China, paid in Chinese currency and subject to a contract that was stated to be governed by Chinese law. In considering his claims under the Equality Act 2010, the ET held that it lacked jurisdiction to determine his complaints. The Claimant appealed, in particular contending the ET had erred in failing to find that it had jurisdiction to determine his claims under EU law (the European Parliament and Council Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (‘the Regulation’)) and the Equality Act 2010 (‘the EqA’).
Held: dismissing the appeal
The Regulation did not confer jurisdiction on the ET in these circumstances; it was concerned with the question which Courts should hear a claim; as such, it did not affect the content of the substantive law applicable to the claim itself (Bleuse v MBT Transport Ltd and Anor [2008] ICR 488 EAT applied). The approach to be adopted in determining whether the Claimant had an enforceable right under British law was laid down in the case-law of the higher appellate Courts, binding on the EAT (see Bates van Winkelhof v Clyde and Co LLP [2012] IRLR 992 CA and R (on the application of Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] ICR 975 CA). Given the ET’s findings of fact, it had correctly concluded that it the Claimant had no right to bring a claim under the EqA.

Eady QC HHJ
[2017] UKEAT 0041 – 17 – 2308
Bailii
England and Wales

Employment

Updated: 09 November 2021; Ref: scu.593140

bas_thomasEAT199303

The court had given one judgment dismissing the employer’s appeal against a finding that the employee had not unreasonably refused a new position and was accordingly redudant. Before the order was drawn up a further point of law was raied and the court sat again to consider it. It now asked: ‘whether the criterion for determining the place where the employee was employed for the purpose of S.81(2) of the 1978 Act is ‘geographical’ or ‘contractual’, as those words are commonly used in discussion of the topic?’
Held: The order not yet having been drawn, the court had jurisdiction to continue its deliberations without needing recourse to rule 26 of the 1980 rules.
The question what is the place where an employee is employed for the purposes of S.81(2)(a) and (b) is primarily a factual one, and that the only relevant contractual terms are those which go to evidence or define the place of employment and its extent, rather than to make provision for it to be changed: ‘the references to ‘the place where [the employee] was . . employed’ in S.81(2)(a) and (b) require that the location and extent of that ‘place’ be ascertainable whether or not the employee is in fact to require to move and therefore before any such requirement is made (if it is), and without knowledge of the terms of any such requirement, or of the employee’s response, or of whether any conditions upon the making of such a requirement have been complied with. To attempt to avoid these difficulties by postulating that only terms giving the employer an unqualified right to change the place of work will have the effect of enlarging the ‘place where the employee is employed’ simply transfers the ‘borderline’ referred to above to different and even less defensible territory.’

Hicks QC HHJ
[1993] UKEAT 47 – 92 – 2203
Bailii
Employment Protection (Consolidation) Act 1978 81(2), Employment Appeal Tribunal Rules 1980 26(1)(c)
Citing:
See Also – Bass Leisure v Thomas EAT 21-Jan-1993
Mrs T sought a redundancy payment on termination of her employment as a collector. The employer was to close the depot where she worked in Coventry, offering her first employment in Northampton. On her unhappiness at this she was offered work in . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 09 November 2021; Ref: scu.210493

The claimants had been employed at Hull Docks. They went on strike, were warned that a continuation of the strike would lead to dismissal, and after failing to return were dismissed. The Employment tribunal had found them fairly dismissed but for redundancy. When asked why they had been dismissed, the employer replied that they were told that they had been dismissed for taking part in industrial action after a warning that the continuance of the action might result in dismissal.
Held: Whilst it was not disputed that the decision to dismiss was fair, the reason given for the decision was wrong. It was open to an appellate court to interfere where the reason for dismissal found by the Industrial Tribunal is unsustainable in light of the findings of primary fact made by that Tribunal.

Dillon, Steyn, Waite LJJ
[1994] EWCA Civ 29, [1994] IRLR 572
Bailii
England and Wales
Citing:
Appeal from – Limb Group of Companies v Baxter and others EAT 30-Jul-1993
. .

Cited by:
Cited – Evans v Royal Wolverhampton Hospitals NHS Foundation Trust QBD 8-Oct-2014
The court was asked whether a party who requires the court’s permission to withdraw a Part 36 offer may be granted such permission on the basis of information and for reasons not disclosed to the party to whom the offer was made.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 09 November 2021; Ref: scu.263233

An employee has no right to work out his notice period where the employer chooses to pay a sum in wages in lieu of notice.

Times 16-Mar-1994, [1993] UKEAT 705 – 91 – 1512
Bailii
England and Wales

Employment

Updated: 09 November 2021; Ref: scu.83427

Mrs Morgan, was suspected by her employer of overstating her work to boost her piece-work earnings. She was asked to explain the discrepancies found. Her explanations were not accepted and she was dismissed. The Industrial Tribunal found the employer’s refusal to accept her explanation to be unreasonable. The evidence of another employee, saying she had been absent should not to have been preferred. The employer appealed successfully to the EAT: the Industrial Tribunal had impermissibly substituted their own evaluation of the other employee’s evidence for that of the employer. The employee appealed.
Held: The appeal failed. Balcombe LJ summarised the principles. The second of five principles recited the judgment in Iceland, approved by the Court of Appeal in Neale v Hereford and Worcester County Council. Applying that approach the Industrial Tribunal had substituted their own evaluation of the other employee’s evidence for that of the employer. That was an error of law. The Employment Appeal Tribunal were correct in so finding. However having identified an error of law the Employment Appeal Tribunal should have remitted the case for reconsideration, and not substituted its own finding.

Balcombe LJ
[1991] ICR 369, [1991] IRLR 89
England and Wales
Cited by:
Cited – London Ambulance Service NHS Trust v Small CA 17-Mar-2009
The trust appealed against a decision that it had unfairly dismissed an ambulance paramedic after a complaint of his behaviour on a call out, saying that the ET had substituted its own assessment for that of the disciplinary panel of the Trust.
Employment

Leading Case

Updated: 02 November 2021; Ref: scu.321867

EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as redundancies were contemplated.
Held: The Union’s appeal failed. There was no error of law. What counted as ‘good time’: ‘is not a good time before it is contemplated that the redundancies will begin but ‘in good time with a view to reaching agreement’. The employer should ask how long it would take to reach agreement with the union, and then work back that extent from the date on which decisions might be made, to find the date on which consultations should begin.

The Honourable Mr Justice Lindsay (President)
EAT/1371/99, [2002] UKEAT 1371 – 99 – 1502, [2002] IRLR 324, [2002] ICR 1365
Bailii, EATn
Trade Union and Labour Relations (Consolidation) Act 1996 188, Directive 98/59/EC
England and Wales
Citing:
See Also – MSF v Refuge Assurance Plc and Another EAT 19-Feb-2001
The Union complained of inadequate consultation by the company on its making redundancies, and now appealed form a decision that the section had not been breached. . .
Followed – Regina v British Coal and Secretary of State for Trade and Industry ex parte Vardy QBD 1993
Glidewell LJ considered the significance of the difference between the wording of the EC Directive, and the section implementing it and said: ‘In my view the difference between the wording of the Directive and the wording of section 188 of the Act . .
Cited – Dansk Metalarbejderforbund And Specialarbejderforbundet I Danmark v H Nielsen and Son, Maskinfabrik A/S, In Liquidation. ECJ 12-Feb-1985
Europa The termination by workers of their contract of employment following an announcement by the employer that he is suspending payment of his debts cannot be treated as dismissal by the employer for the . .
Cited – Hough and Apex v Leyland DAF Ltd EAT 1991
EAT The employer requested a report as to contracting out their security arrangements in late 1996. The recommendation to contract out came in January 1997. After enquiries in May, a second report repeated the . .
Cited – Griffin v South West Water Services Ltd 1995
The court asked at what point the European Directive imposed a duty to consult on an employer contemplating redundancies.
Held: The words ‘is contemplating’ referred to a point before proposals were formulated. Obiter, Blackburne J said ‘the . .
Cited – Regina v British Coal Corporation and Secretary of State for Trade and Industry ex parte Vardy and Others QBD 1993
British Coal Corporation had decided to close 31 deep mine collieries. The court was asked as to just what consultation obligations fell on the employer under the 1946 Act.
Held: The section did create an obligation to consult. Glidewell LJ, . .
Cited – In Re Hartlebury Printers Ltd 1992
Insolvency, at least per se, does not amount to a special circumstance exempting an employer from consulting employees on redundancy. Morritt J noted the distinction in the Directive between contemplated and projected redundancies and section 99 to . .
Cited – Association of Patternmakers and Allied Craftsmen v Kirvin Ltd EAT 1978
The court discussed the punitive nature of a protective award made where a company failed to consult on redundancies: ‘A Tribunal, however, is specifically enjoined to determine the [protected] period and so the amount of the award by paying regard . .
Cited – Scotch Premier Meat Ltd v Stuart Burns and others EAT 28-Apr-2000
EAT Redundancy – Definition . .
Cited – E Green and Sons (Castings) Ltd v ASTMS EAT 1984
Nolan J considered the sub-section and the disclosure requirements on a consultation: ‘Flexibility in the course of consultation is obviously desirable, but the consultation envisaged by s. 99 cannot begin until the employer has provided the . .
Cited – Lord Advocate v Babcock and Wilcox (Operations) Ltd HL 15-Mar-1972
. .
Cited – Lord Advocate v Babcock and Wilcox (Operations) Ltd HL 15-Mar-1972
. .
Cited – Rockfon A/S v Specialarbejderforbunde I Danmark Acting for Nielsen and Others ECJ 17-Jan-1996
The term ‘establishment’ for the purpose of consultation on contemplated redundancies meant the work unit to which the relevant workers were assigned: ‘The term ‘establishment’ appearing in Article 1(1)(a) of Directive (75/129/EEC) must therefore be . .
Cited – Barley v Amey Roadstone Corporation Ltd (No.2) EAT 1978
The EAT upheld an Industrial Tribunal decision that individual depots at which employees were made redundant were each separate establishments, rather than forming one grouping for the purposes of the duty to consult under s.99 of the Employment . .
Cited – Hamish Armour (Receiver of Barry Staines Ltd) v ASTMS 1979
Where an employer is contemplating making collective redundancies, it may be appropriate to disclose the information required under a confidentiality agreement. In order to demonstrate a ‘special circumstances’ defence an employer must show . .
Cited – Barratt Developments (Bradford) Ltd v UCATT EAT 1978
The Industrial Tribunal had been entitled to conclude that 14 separate construction sites linked by telephone to the Company’s headquarters constituted one establishment for the purpose of redundancy consultation with the trade union under Part IV . .

Cited by:
Cited – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been . .
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 01 November 2021; Ref: scu.168520

Colonel Waite had obtained employment with the civil service in 1967 under the Civil Service Code’s relevant terms and conditions which provided for a retirement age of 60. Although the employers could defer retirement under these terms and conditions until 65, employees had no right to stay on after 60. Colonel Waite was compulsorily retired in his 61st year and brought a claim for unfair dismissal. The question was whether his claim was barred as being brought after his ‘normal retiring age’.
Held: Nothman stated the law in terms which were too rigid and inflexible. If the normal retiring age is to be ascertained exclusively from the relevant contract of employment, even in cases where the vast majority of employees in the group concerned do not retire at the contractual age, the result would be to give the word ‘normal’ a highly artificial meaning.’ and ‘I therefore reject the view that the contractual retiring age conclusively fixes the normal retiring age. I accept that where there is a contractual retiring age, applicable to all, or nearly all, the employees holding the position which the appellant employee held, there is a presumption that the contractual retiring age is the normal retiring age for the group. ‘

Lord Fraser of Tullybelton
[1983] 2 AC 714, [1983] UKHL 7
Bailii
England and Wales
Citing:
Corrected – Nothman v Barnet London Borough County Council HL 1978
The normal retiring age for an employee is to be found by looking exclusively at the conditions of employment applicable to the group of employees holding his position.
Lord Salmon said: ‘If a woman’s conditions of employment provide that her . .

Cited by:
Cited – Wall v The British Compressed Air Society CA 10-Dec-2003
The applicant was employed as director-general, with his contract stating that his retirement age would be 70. Nobody else had a similar occupation within the organisation, and he said this therefore constituted his ‘normal age’ for retirement, . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 01 November 2021; Ref: scu.190502

alexander_standard1991

The court considered under what circumstances a collective agreement between an employer and trades unions would be incorporated into an individual employee’s contract: ‘The so-called ‘normative effect’ by which it can be inferred that provisions of collective agreements have become part of individual contracts of employment is now well recognised in employment law (see, for example, Harvey on Industrial Relations and Employment Law, vol. 235). However, serious difficulties still arise because the principle still has to be one of incorporation into the individual contracts of employment and the extraction of a recognisable contractual intent as between the individual employee and his employer. The mere existence of collective agreements which are relevant to the employee and his employment does not include a contractual intent (see, for example per Ackner LJ, Robertson v. British Gas [1983] IRLR 302). The contractual intent has to be found in the individual contract of employment and very often the evidence will not be sufficient to establish such an intent in a manner which satisfies accepted contractual criteria and satisfies ordinary criteria of certainty. Where the relevant subject-matter is one of present day-to-day relevance to the employer and employee, as for example wage rates and hours of work, the continuing relationship between employer and employee, the former paying wages and providing work, the latter working and accepting wages, provides a basis for inferring such a contractual intent. Where, as in the case of redundancy, the situation is one which does not have daily implications but only arises occasionally the inference will be more difficult to sustain. Here, there had not previously been any question of compulsory redundancies. There was no previously tested position by which a local custom could be demonstrated, nor was there any previous situation involving any of the relevant individuals, or for that matter any other employees of the defendants from which it could be inferred as a matter of individual contractual intent, that individual contracts of employment were to include as a matter of contractual right and obligation selection for redundancy on the seniority principle. It must be borne in mind that although the present plaintiffs would be the beneficiaries of the application of such a principle, by a parity of reasoning there would be other employees who would be disadvantaged. Similarly, there is no necessity to infer an intention to incorporate since collective agreements have a function and value of their own which exists wholly independently of any individual contract of employment.
. . Therefore, even in a case which involved wide express words of incorporation the Court considered it necessary to look at the content and character of the relevant parts of the collective agreement in order to decide whether or not they were incorporated into the individual contracts of employment.
The principles to be applied can therefore be summarised. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn.’

Hobhouse J
[1991] IRLR 286
Citing:
Cited – National Coal Board v National Union of Mineworkers 1986
A collective agreement between employer and the recognised trades union was ‘inapt to become enforceable terms of an individual’s contract of employment.’ Such collective agreements may deal with the appropriate mechanisms for dealing with . .
Cited – Young v Canadian Northern Railway Company PC 25-Nov-1930
Manitoba – Collective agreements have a function and value of their own which exists wholly independently of any individual contract of employment. Lord Russell referred to a ‘Wage Agreement’ entered into between the appellant’s trade union and the . .

Cited by:
Cited – Kaur v MG Rover Group Ltd CA 17-Nov-2004
The applicant was employed by the respondent who had a collective agreement with a trade union.
Held: Not all elements of the collective agreement need be intended to be legally enforceable. She complained that the collective agreement would . .
Endorsed – Wandsworth London Borough Council v D’Silva and Another CA 9-Dec-1997
The council wanted to change its Code of Practice on Staff Sickness. Employees objected. The Council argued that the Code was not part of the employment contract, and that in any event the contract reserved to the council the right to alter the . .
Cited – George v The Ministry of Justice CA 17-Apr-2013
The claimant appealed against rejection of his claim that the respondent had broken his contract of employment as a prison officer by changing the collective agreement for prisons officers. The judge had found that the respective terms were not . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 01 November 2021; Ref: scu.220324

Mrs T sought a redundancy payment on termination of her employment as a collector. The employer was to close the depot where she worked in Coventry, offering her first employment in Northampton. On her unhappiness at this she was offered work in Erdington. This involved a similar route, but because of additional travel took longer. She offered to try the route, but the employer did not say that it was a trial. Additional delays extended yet further her day. The employers appealed from the award of a redundancy payment saying that she had not been dismissed.
Held: The tribunal had made no error in law in finding that Mrs Thomas had been entitled to refuse to continue to work under the new conditions: ‘ She was not, therefore, in our view, unreasonably refusing the offer of alternative employment.’

Hicks QC HHJ
[1993] UKEAT 47 – 92 – 2101
Bailii
Employment Protection (Consolidation) Act 1978 83(2)
Cited by:
See Also – Bass Leisure Ltd v Thomas EAT 22-Mar-1993
bas_thomasEAT199303
The court had given one judgment dismissing the employer’s appeal against a finding that the employee had not unreasonably refused a new position and was accordingly redudant. Before the order was drawn up a further point of law was raied and the . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 01 November 2021; Ref: scu.210385

The ‘just and equitable’ test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. ‘The paragraph does not, nor did s. 116 of the Act of 1971, provide that regard should be had only to the loss resulting from the dismissal being unfair. Regard must be had to that, but the award must be just and equitable in all the circumstances, and it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed.’

Viscount Dilhorne, Lord Simon of Glaisdale
[1977] IRLR 314, [1977] AC 931, [1977] ICR 662, [1977] UKHL 6, [1977] 3 All ER 40, [1977] 3 WLR 214, (1978) 13 ITR 71, 8 BLR 57
Bailii
Trade Union and Labour Relations Act 1971
England and Wales
Citing:
Cited – Abernethy v Mott Hay and Anderson CA 1974
Lord Cairns said: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, . .
Endorsed – Vokes Ltd v Bear 1973
The court discussed whether, having found errors in the employer’s dismissal of the emploee, the tribunal can take into account other circumstances to say that the employee might have been dismissed in any event.
Held: Sir Hugh Griffiths said: . .

Cited by:
Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Cited – M Iqbal v Consignia Plc EAT 5-Dec-2002
EAT Procedural Issues – Employment Tribunal
The claimant had had his claims for discrimination rejected. He was found to have been unfairly dismissed, but with nil compensation because of what was found to . .
Cited – Dunnachie v Kingston-upon-Hull City Council HL 15-Jul-2004
The claimant sought damages following his dismissal to include a sum to reflect the manner of his dismissal and the distress caused.
Held: The remarks of Lord Hoffmann in Johnson -v- Unysis were obiter. The court could not, under the section, . .
Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
Cited – Associated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 01 November 2021; Ref: scu.194789

arnold_sandwellEAT2008

EAT JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
These appeals raise the issue what detail needs to be provided in an equal pay case when an employee raises a written grievance as required by the first step in the statutory standard grievance procedure set out in paragraph 6 of Schedule 2 to the Employment Act 2002. The EAT held that the information can be minimal and need state no more than that the claim is a claim under the Equal Pay Act (which was all the information in fact given in the Sandwell case.)
Observations on the proper approach to the construction of paragraph 6.

[2008] UKEAT 0332 – 08 – 0611
Bailii
Citing:
Cited – The Highland Council v TGWU and Unison EAT 3-Jun-2008
EAT EQUAL PAY ACT: Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 November 2021; Ref: scu.277571

Claims Dismissed for Material Non-Compliance

(Practice and Procedure : Striking-Out/Dismissal) The Employment Judge made an Unless Order and subsequently gave notice pursuant to Rule 38(1) that the claims of all the Claimants had been dismissed by reason of material non-compliance with the Unless Order. She found, in particular, that Claimants who had served schedules setting out the amounts claimed had not provided ‘full particulars of the amount of holiday pay claimed’ (paragraph 1 of the Unless Order); and that a mistake as regards a particular Claimant meant that confirmation by the Claimants’ solicitors that all Claimants were covered by a collective agreement did not materially comply with a requirement (paragraph 3) to say which Claimants’ contracts of employment were covered by a collective agreement.
On appeal by the Claimants against that notice, held that on the true construction of the Unless Order:
(1) Those Claimants who had served schedules had complied with the requirement in paragraph 1 to provide ‘full particulars of the amount of holiday pay claimed’.
(2) The Claimants’ solicitors had complied with the requirement in paragraph 3 of the Unless Order notwithstanding that they had made a mistake in the case of a particular Claimant.
(3) The claims of those Claimants who had complied with all three paragraphs of the Unless Order had not been dismissed.

David Richardson HHJ
[2016] UKEAT 0316 – 15 – 0310
Bailii
England and Wales

Employment

Updated: 01 November 2021; Ref: scu.570400

The claimant asserted unfair dismissal after his contract was changed to provide that his post as head of the history department would be part time. He had been ill, and the head teacher reduced his teaching periods. He accepted the change in writing under protest in order to mitigate his loss. He said that the change in his contract terms was fundamental.
Held: The change in contract terms was sufficiently fundamental to amount to a repudiation of the contract and amounted to a dismissal. The definition of dismissal in section 55 referred to the termination of a contract of employment, not of the relationship of employer and employee.
If an employee makes it clear that he is accepting a repudiation of his original contract, the fact that he agrees to be re-employed under the new contract may not prevent him saying that he had been unfairly constructively dismissed under the old one. A court might legitimately treat as dismissal and re-engagement a situation where the employer ostensibly is merely seeking to vary the contract without effecting any dismissal as such at all.
Garland J said: ‘The trite law is that of course employment results from a contract. It is the contract at which one has to look, not the relationship of the employer and employee.
Up to 31 July, the applicant, who was well and sympathetically treated by the employers, was head of history; he was employed to teach full-time at a full salary plus such allowances to which he was entitled. On 31 July, he was told that he was no longer head of history; that he would not be employed full-time and he would come down to eight periods a week plus general studies and religious education; that the salary he would receive would be exactly half the new scale which superseded the Burnham scale.
It seems to us, both as a matter of law and common sense, that he was being told that his former contract was from that moment gone. There was no question of any continued performance of it. It is suggested, on behalf of the employers, that there was a variation, but again, it seems to us quite elementary, that you can vary by consent terms of a contract, but you simply cannot hold a pistol to somebody’s head and say: ‘henceforth you are to be employed on wholly different terms which are in fact less than 50 per cent of your previous contract. We come unhesitatingly to the conclusion that there was a dismissal on 31 July.’

Garland J
[1990] ICR 39
Employment Rights Act 1978 55(2)
England and Wales
Cited by:
Cited – British Broadcasting Corporation v Kelly-Phillips CA 24-Apr-1998
When a one year fixed term employment contract was extended by a period of less than a year, but then not again renewed, there was no unfair dismissal, since the exemption for the original term applied also to any extension. There had been . .
Cited – Jones v Governing Body of Burdett Coutts School CA 2-Apr-1998
The Employment Appeal Tribunal must give reasons for its decision, if it chooses to allow the amendment of appeal the papers in order to hear a point of law which had been conceded in the industrial tribunal. Citing Liverpool Corporation v Wilson, . .
Cited – Watson v Ministry of Defence NIIT 7-Apr-2005
. .
Cited – Martin v Openwork Services Ltd NIIT 4-Oct-2007
. .
Cited – Hegarty v Software Ag (Uk) Ltd EAT 29-Jan-1999
. .
Cited – Shelton v Full House Restaurants Ltd EAT 18-Nov-2002
. .
Cited – London Borough of Hounslow v Miller EAT 28-Mar-2007
EAT Contract of Employment -and- Unfair Dismissal

The employee lodged two complaints, one of disability discrimination and one of unfair dismissal.

Tribunal Chairman stayed the complaint of disability . .
Cited – Clulee v Law Society of England and Wales EAT 29-Nov-2000
. .
Cited – Knodt v London Borough of Camden and Lowton EAT 22-Mar-2002
. .
Cited – Robinson v Tescom Corporation EAT 3-Mar-2008
EAT Contract of Employment – Damages for breach of contract – Implied term / variation / construction of term
Unfair Dismissal – Constructive dismissal
Unfair dismissal, breach of contract: whether . .
Cited – Lombard North Central Plc v Leach and Another EAT 26-Jul-1994
. .
Cited – J Sainsbury Plc v Moger 25-Feb-1994
The EAT should not accept an order by consent unless it is satisfied that there are good grounds for making the order. . .
Cited – S J Hardy v Tourism South East EAT 29-Nov-2004
EAT Redundancy – Collective consultation and information . .
Analogy – Vick v Vogle-Gapes Ltd TCC 30-Jun-2006
. .
Cited – Rajani v S Dory Ltd EAT 29-Jun-1994
. .
Cited – Steenhoff v Rother District Council EAT 20-Nov-1995
Constructive dismissal. . .
Cited – London Borough of Southwark v Johnstone and others EAT 26-Nov-1998
. .
Cited – Small Lots (Mix-It) Ltd v MacFarlane EAT 10-Dec-1998
. .
Cited – Noel v Employment Tribunal Service EAT 7-Jun-1999
. .
Cited – Noel v Employment Tribunal Service EAT 9-Feb-1999
. .
Cited – Woodhall v Greggs Plc (T/A the Bakers Oven) EAT 1-Oct-1998
. .
Cited – Woodhall v Greggs Plc (T/A the Bakers Oven) EAT 13-Apr-1999
. .
Cited – East Riding of Yorkshire Council v Walker and Another EAT 3-Dec-1999
. .
Cited – Chaffer v Southern Birmingham Community Health NHS Trust EAT 21-Sep-2001
. .
Cited – Roberts v West Coast Trains Ltd EAT 24-Jul-2003
EAT Unfair Dismissal – Reason for dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Hepworth Heating Ltd v J Akers and others EAT 21-Jan-2003
EAT Unfair Dismissal – Reason for dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Council of the City of Newcastle Upon Tyne v Allan and Others, Burr, Bell EAT 21-Mar-2005
EAT Sex Discrimination – Injury to feelings.
EAT Equal Pay Act – Out of time . .
Cited – Edem v Egg Plc, J Croft EAT 16-Jan-2006
EAT Practice and Procedure – Striking-out/dismissal – Contract of Employment: Damages for Breach of Contract
On Respondent’s application the Employment Tribunal struck out a variety of the Appellant’s . .
Cited – Winder v Aston University and Another EAT 1-Aug-2007
EAT Equal Pay Act – Part time pensions
In deciding two cases in accordance with Preston v Wolverhampton NHS Trust (No 3) [2004] ICR 993 EAT, the Employment Tribunal did not err in holding that the Claimant . .
Cited – Tait v Redcar and Cleveland Borough Council EAT 2-Apr-2008
EAT Jurisdictional Points – Claim in time and effective date of termination
The Appellant employee brought a claim (inter alia) that he had been subjected to a disciplinary suspension because he was a . .
Cited – Alcan Extrusions v Yates and others EAT 5-Feb-1996
The employers appealed against a decision that it had constructively dismissed the respondents by substantially changing their employment terms.
Held: The tribunal approved the chairman’s statement that ‘the applicants’ former contracts of . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 01 November 2021; Ref: scu.211374