Notice of dismissal begins when received by worker

The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact delivered to that address? Or when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity of doing so?’
Held: The Trust’s appeal failed Lloyd-Jones and Briggs JJSC dissenting). There was no express provision in the contract, and common law rules in contract provided no determinative guidance. The consistent approach of the EAT was correct: the notice period began when the oral or written communication came to the notice of the employee who read it or had a reasonable opportunity of doing so. The EAT was an expert tribunal as to industrial practice.
The approach consistently taken by the EAT is correct, for several reasons:
(1) The above survey of non-employment cases does not suggest that the common law rule was as clear and universal as the Trust suggests. Receipt in some form or other was always required, and arguably by a person authorised to receive it. In all the cases there was, or should have been, someone at the address to receive the letter and pass it on to the addressee. Even when statute intervened in the shape of the Interpretation Act, the presumption of receipt at the address was rebuttable. There are also passages to the effect that the notice must have been communicated or come to the mind of the addressee, albeit with some exceptions.
(2) The EAT has been consistent in its approach to notices given to employers since 1980. The EAT is an expert tribunal which must be taken to be familiar with employment practices, as well as the general merits in employment cases.
(3) This particular contract was, of course, concluded when those cases were thought to represent the general law.
(4) There is no reason to believe that that approach has caused any real difficulties in practice. For example, if large numbers of employees are being dismissed at the same time, the employer can arrange matters so that all the notices expire on the same day, even if they are received on different days.
(5) If an employer does consider that this implied term would cause problems, it is always open to the employer to make express provision in the contract, both as to the methods of giving notice and as to the time at which such notices are (rebuttably or irrebuttably) deemed to be received. Statute lays down the minimum periods which must be given but not the methods.
(6) For all the reasons given in Geys, it is very important for both the employer and the employee to know whether or not the employee still has a job. A great many things may depend upon it. This means that the employee needs to know whether and when he has been summarily dismissed or dismissed with immediate effect by a payment in lieu of notice (as was the case in Geys). This consideration is not quite as powerful in dismissals on notice, but the rule should be the same for both.

Lady Hale, President, Lord Wilson, Lady Black, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 22, [2018] 1 WLR 2073, [2018] ICR 882, [2018] 4 All ER 467, [2018] WLR(D) 265, [2018] IRLR 644, UKSC 2017/0074
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary, SC Video 2017 11 20 am, SC Video 2017 11 20 pm
England and Wales
Citing:
Cited – Walter v Haynes 6-Sep-1824
An action of assumpsit was brought upon a bill of exchange. A notice of dishonour had been posted in a letter addressed to ‘Mr Haynes, Bristol’. This was held not to be sufficient proof of notice.
Lord Abbott CJ implied that what was required . .
Cited – Gisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Appeal from – Newcastle Upon Tyne NHS Foundation Trust v Haywood CA 17-Mar-2017
The Trust had sent to the respondent a letter terminating her employment. The parties disputed when the notice took effect.
Held: Proudman J held that ‘the contents of the letter had to be communicated to the employee’.
Arden LJ held . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Cited – Griffiths v Smith 5-Mar-1790
Delivering a notice to quit to the tenant’s maidservant at his house (which was not the demised premises) was sufficient. Personal service was not necessary in every case, although it was in some. Kenyon CJ remarked that ‘in every case of the . .
Cited – Jones On The Demise of Griffiths v Marsh 21-Nov-1791
Where the tenant of an estate holden by the year has a dwelling-house at another place, the delivery of a notice to quit to his servant at the dwelling-house, is strong presumptive evidence that the master received the notice. . .
Cited – Doe Dem Neville v Dunbar 12-Dec-1826
Two copies of the notice to quit were served at the defendant’s house, one on the servant and the other on a lady at the house. The defendant complained that this was not good enough.
Held: Abbott CJ had no doubt as to the sufficiency of a . .
Cited – Papillon v Brunton 27-Apr-1860
A tenant served notice to quit by posting it to his landlord’s agent. The jury found that it arrived that same day, after the agent had left, but there ought to have been someone there to receive it.
Held: The judges agreed that this was good . .
Cited – Tanham v Nicholson 1872
The tenant was mentally disabled. He lived in the house with his adult children. The landlord served a notice to quit at the premises by giving it to a daughter. She burned it and did not inform her father.
Held: The service was effective. It . .
Cited – Wilderbrook Ltd v Oluwu CA 16-Nov-2005
The rent review notice was sent by recorded delivery, and received and signed for at the demised premises. The lease incorporated the statutory presumption as to service in section 196(4) of the Law of Property Act 1925.
Held: The Court . .
Cited – Stidolph v American School in London Educational Trust Ltd CA 1969
The Court considered the requirements for terminating a lease of business premises under the 1954 Act and supporting Regulations . The Act expressly provided that notice could be served by registered post in a letter addressed to the tenant’s last . .
Cited – Brimnes, the Tenax Steamship Co v Brimnes, Owners of CA 23-May-1974
The ship’s owners sent a telex to the charterers at 5.45 pm on 2 April 1970 withdrawing the vessel for late payment of the hire charge. The charterers’ normal business hours ended at 6.00 pm. The telex was not seen until the morning of 3 April, . .
Cited – Sun Alliance and London Assurance Co Ltd v Hayman CA 1975
The two-sided act of giving and receiving of a notice may be deemed to be done by some act other than actual receipt of the notification by the recipient.
Lord Salmon said: ‘Statutes and contracts often contain a provision that notice may be . .
Cited – Edwards v Surrey Police EAT 1-Mar-1999
In order to constitute a dismissal, a party to an employment contract must communicate to the other the termination of the contract. Employees unhappy with their work regularly walk out, only to return later. Composing a letter of resignation but . .
Cited – McMaster v Manchester Airport Plc EAT 27-Oct-1997
The claimant was summarily dismissed by letter while on sickness leave. The letter arrived 9 November 1995, but he was on a day trip to France. He read the letter on return the day after. His unfair dismissal complaint was received by the industrial . .
Cited – Stephenson and Son v Orca Properties Ltd ChD 1989
The deadline for giving notice of a rent review to the tenant was 30 June. The notice was posted recorded delivery on 28 June, but it was not received and signed for until 1 July. The issue was whether it was deemed, under section 196(4) of the 1925 . .
Cited – Hindle Gears Ltd v McGinty EAT 1985
During a strike, employers were exempt from unfair dismissal claims only if they dismissed an entire striking workforce. They were not entitled to dismiss only those strikers who were ‘unwanted elements’. So if there were striking employees who were . .
Cited – George v Luton Borough Council EAT 16-Sep-2003
EAT Time Limits – Effective date of termination
EAT The acceptance of the employer’s repudiatory breach had to be communicated, but there might be a distinction between . .
Cited – Potter and others v RJ Temple Plc (in liquidation) EAT 18-Dec-2003
The claimants faxed on the evening to the employers an acceptance of the employer’s repudiation of their contracts. The claim was not presented to the tribunal until the same day of the month three months later.
Held: The claim was out of . .
Cited – Brown v Southall and Knight EAT 1980
The employee had gone on holiday at the time when the letter of dismissal arrived at his home and he did not actually see it until he had returned from his holiday.
Held: The ‘effective date of termination’ is a statutory concept which focuses . .
Cited – London Transport Executive v Clarke CA 1981
The employee had taken unauthorised leave to go to Jamaica. After sending two letters to his home address asking for an explanation and giving an ultimatum, the employers wrote on 26 March saying that his name had been permanently removed from their . .
Cited – Sandle v Adecco UK Ltd EAT 27-Jun-2016
EAT Unfair Dismissal: Dismissal/Ambiguous Resignation
Unfair dismissal – dismissal – section 95(1)(a) Employment Rights Act 1996
The Claimant was an agency worker employed by the Respondent but . .
Cited – Gisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .
Cited – Doe Ex Dem Buross And Others v Lucas And Others 1804
The tenant had died, leaving his widow as his executrix. The notice to quit was given by leaving it at the house where he had lived during his lifetime, but there was no evidence of it having come into his widow’s hands. It was argued that this was . .
Cited – Hogg v Brooks CA 25-Jun-1885
A lease of a shop contained a provision for the landlord to terminate the demise by delivering written notice to the tenant or his assigns. The lessee mortgaged the premises by way of underlease and disappeared. Written notice to determine the . .
Cited – Freetown v Assethold Ltd CA 14-Dec-2012
A party to an arbitration under the 1996 Act disputed whether the award had been served so as to leave that party out of time to appeal.
Rix LJ spoke of the common law as requiring proof of receipt, whereas the Interpretation Act deemed receipt . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 01 November 2021; Ref: scu.609104

Onus of Establishing Reason for Dismissal

EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
Unfair dismissal – reason for dismissal – section 98(1) and (2) Employment Rights Act 1996 – burden of proof and evidential basis for decision – reasonableness of dismissal for reason found – perversity
Wrongful dismissal – perversity
Contrary to the Respondent’s primary case, the ET found it had been the Appellant’s employer (in circumstances in which the purpose of the contract of employment was to permit his secondment to a third party, RAFT) and had dismissed him. Finding for the Respondent on its alternative case, however, the ET concluded that the dismissal had been for a reason related to the Claimant’s conduct (his termination of the secondment with RAFT without prior consultation with the Respondent) and had been fair. It had further found that the Claimant’s action in terminating the secondment with RAFT without prior consultation with the Respondent had removed the purpose from his contract of employment and was inconsistent with an intention to be bound by that contract. In the circumstances, the Respondent had been entitled to summarily dismiss the Claimant and his wrongful dismissal claim failed.
The Claimant appealed on three bases: (1) the ET approached the issue of the reason for dismissal incorrectly for the purpose of section 98(1) ERA; and/or (2) there was no evidential basis for its conclusion; (3) its conclusions on unfair and wrongful dismissal were perverse.
Held: allowing the appeal in part
(1) The ET had not lost sight of the correct test under section 98(1); it had been entitled to find the Respondent had discharged the burden upon it in this regard. It had identified the relevant decision taker and reached a permissible finding as to the real reason for terminating the Claimant’s contract (Abernethy v Mott, Hay and Anderson [1974] IRLR 213 CA applied).
(2) Further, although the Respondent’s pleaded case on reason had been put in the alternative, there was adequate evidential basis for the ET’s conclusions in this respect.
(3) On the perversity challenge, the ET had reached permissible findings on the issue of reason and that this was a reason that was capable of justifying the dismissal of the Claimant in the circumstances of this case. The finding on procedural fairness had, however, disclosed a failure to properly apply the guidance laid down in Polkey v A E Dayton Services Ltd [1988] ICR 142 HL. There was no basis upon which the ET could find that the Respondent had concluded that some form of procedure could be dispensed with (as futile) in this case. Although that might be the ET’s view, the Respondent had not expressly turned its mind to the point as (as the ET found) its decision not to proceed with a hearing was informed by its desire not to act inconsistently with it stance on the question of the identity of the Claimant’s employer. The Respondent’s evidence before the ET was that it would have proceeded to hold a hearing with the Claimant, albeit it considered that the outcome would ultimately have remained the same. That being so, for section 98(4) purposes, the conclusion must be that the decision was unfair. Moreover, the ET had dismissed the relevance of the ACAS Code on Discipline and Grievance on the basis that the Code was relevant only to disciplinary proceedings; yet it had found that this was a dismissal for a reason relating to the Claimant’s conduct. The Claimant had discharged the high burden upon him to show that this was a perverse conclusion and the ET’s decision on the unfair dismissal claim would be set aside and a finding substituted that the Claimant had been unfairly dismissed.

Eady QC HHJ
[2016] UKEAT 0350 – 15 – 1409
Bailii
Employment Rights Act 1996 98
England and Wales

Employment

Updated: 31 October 2021; Ref: scu.570393

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 Industrial Tribunal is not required to be an elaborate formalistic product of a refined legal draughtsmanship but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunals basic factual conclusions and a statement of the reasons which led them to reach the conclusion which they do so on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and the reasoning to enable the EAT or on further appeal this court to see whether the question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.’

Sir John Donaldson MR, Bingham, Ralph Gibson LJJ
[1987] EWCA Civ 9, [1987] IRLR 250
Bailii
England and Wales
Citing:
Cited – Alexander Machinery (Dudley) Ltd v Crabtree CA 1974
Donaldson LJ discussed the level of detail to be given by a tribunal when giving its reasons: ‘It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials . .
Cited – Union of Construction, Allied Trades and Technicians (UCATT) v Brain CA 1981
The Court discussed how to evaluate whether the employers acted reasonably: ‘Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity – and that, of course, means common . .
Cited – Martin v MBS Fastenings (Glynwed) Distribution Ltd CA 1983
Sir John Donaldson, MR said: ‘Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, ‘Who really terminated the contract of . .
Cited – Varndell v Kearney and Trecker Marwin Ltd CA 1983
Eveleigh LJ discussed the reasons to be given by a tribunal. After quoting Donaldson LJ, he continued: ‘He is not, as I read that judgment, saying that in every case all these points to which I refer must be adhered to, otherwise there will be an . .
Cited – Martin v Glynwed Distribution Ltd CA 1983
Donaldson LJ said: ‘The duty of an industrial tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the . .

Cited by:
Cited – Perth and Kinross Council v Ann Howard EAT 4-Sep-2001
The employee had been permitted to work additional hours for another employer. She continued that work during a period of extended sickness, and was dismissed for misconduct. The tribunal held that the involvement of the auditor both in the . .
Cited – Ashraf v Francis W Birkett and Sons Ltd EAT 20-Jul-2001
The employee had been selected for redundancy. He claimed both race and disability discrimination. He appealed a rejection of race discrimination claim. He said that the Meek case required the decision to deal with any significant of conflict of . .
Applied – Cerinus v Bell College of Technology EAT 28-Sep-2001
The employee appealed against the dismissal of her claim for unfair dismissal. Following a re-organisation, she found that there was less and less work of the sort she was employed to undertake. She requested voluntary redundancy and was refused . .
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Cited – TSB Bank Plc v L M Harris EAT 1-Dec-1999
EAT Unfair Dismissal – Reason for Dismissal
The employer appealed a finding against them. An employee, when applying for another job, discovered that the reference given revealed many complaints against her . .
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
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 – Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA 6-Dec-2005
The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Atabo v Kings College London and others Newman, Methven, Law CA 19-Apr-2007
The claimant sought leave to appeal dismissal of her claim for discrimination, saying that the EAT had missapplied the test in Madarassy and associated cases on the burden of proof.
Held: ‘the applicant did not make out a prima facie case of . .
Cited – Dignity Funerals Limited v Bruce OHCS 14-Oct-2004
The employee was found to have been unfairly dismissed. The employer appealed the compensatory award which was based on his depressive illness. They said that the illness predated the dismissal.
Held: The EAT’s decision was set aside. In . .
Cited – Burns v Royal Mail Group Plc (No 2) (Formerly Consignia Plc), Humphrey EAT 14-Jan-2004
The hearing was an adjourned second hearing. The appeal on sex discrimination had been dismissed, and the balance of the claim for constructive unfair dismissal was adjourned. At that adjourned hearing the claimant now sought to re-open the claims . .
Cited – W v Leeds City Council and SENDIST CA 29-Jul-2005
The court recognised a distinction between educational and non-educational provision as it affected a statement of special educational needs. Judge LJ: ‘Consistent with the relevant statutory provision, Part 3 of the Statement must make provision . .
Cited – H v East Sussex County Council and Others CA 31-Mar-2009
The claimant had a statement of special educational needs, which she sought to have altered to specify a different school. She appealed from a refusal to amend the statement, saying that the Tribunal had not given sufficient weight to educational . .
Cited – Preston v J Smith and Sons (Clerkenwell) Ltd EAT 23-Jun-1992
. .
Cited – Freeman v Salford Health Authority EAT 28-Jul-1992
. .
Cited – Reid v Durabella Ltd (Fomerly Phoenix Floors Ltd) EAT 17-Nov-1992
. .
Cited – Darr and Another v LRC Products Ltd EAT 16-Dec-1992
. .
Cited – North Yorkshire County Council v Ratcliffe and others EAT 21-Jan-1993
School catering assistants claimed equal pay under the Act. Their work had been valued as equal to that of men, but following a contracting out procedure, they earned less than men.
Held: The Council had failed to show that the difference was . .
Cited – Kaur v Brose Ltd EAT 8-Feb-1993
. .
Cited – Northamptonshire County Council v Dattani EAT 17-Feb-1993
. .
Cited – Katigbak v Exchange International EAT 29-Apr-1993
. .
Cited – London Borough of Ealing v Singh EAT 12-May-1993
. .
Cited – Wardman v Carpenter Farrer Partnership EAT 14-May-1993
Industrial Tribunals to receive European guidance on sexual harassment. . .
Cited – O’Callaghan v Notting Hill Housing Trust EAT 18-May-1993
. .
Cited – Anglo Scottish Petroleum Co Ltd v Hyland EAT 18-Jun-1993
. .
Cited – Green-Wheeler v Onyx (UK) Ltd EAT 6-Jul-1993
. .
Cited – Dairy Crest Ltd (T/A Dairy Products Transport) v Convoy EAT 23-Nov-1993
. .
Cited – Firsteel Ltd v Sherwin and others EAT 13-Dec-1993
. .
Cited – Christie v NEI International Combustion Ltd EAT 27-Jan-1994
. .
Cited – Vibroplant Plc v Johnson EAT 8-Feb-1994
. .
Cited – Al Samarrae v Dan-Air Engineering Ltd EAT 22-Feb-1994
. .
Cited – Highfield Gears Ltd v James EAT 12-May-1994
. .
Cited – Shortall (T/A Auction Centres) v Carey EAT 26-May-1994
. .
Cited – Lombard North Central Plc v Leach and Another EAT 26-Jul-1994
. .
Cited – Lincoln (UK) Ltd v Dennis EAT 13-Sep-1994
. .
Cited – Matveeff v Link Miles Ltd EAT 28-Sep-1994
. .
Cited – Automotive amd Financial Group Ltd v Bark EAT 10-Oct-1994
. .
Cited – Ali and others v Joseph Hoyle and Sons Ltd EAT 14-Oct-1994
. .
Cited – Riley v Meat and Livestock Commission EAT 21-Nov-1994
. .
Cited – Pedder (T/A D R Pedder Vehicle Repair and Tyre Centre v Bird EAT 22-Nov-1994
. .
Cited – Leicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Cited – Lloyd v IBM (UK) Ltd EAT 3-Feb-1995
. .
Cited – ERG Industrial Corporation Ltd v Knibbs EAT 22-Feb-1995
. .
Cited – John Knight (Animal By-Products) Ltd v Marshall EAT 23-Feb-1995
. .
Cited – Arbon v Welding Alloys Ltd EAT 24-Feb-1995
. .
Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
Cited – Davies v Secretary of State for Social Security EAT 5-Apr-1995
. .
Cited – Taylor and 18 Others v BICC Brand Rex Ltd and Another EAT 14-Jun-1995
. .
Cited – Chauhan v Katsouris EAT 15-Nov-1995
. .
Cited – Otto Schiff Housing Association v Kan EAT 22-Nov-1995
. .
Cited – House of Fraser v Quist-Brown EAT 27-Nov-1995
. .
Cited – Cuspo 2000 Ltd v McLachlan EAT 29-Nov-1995
. .
Cited – Taylor v H Backhouse (Baker St) Ltd EAT 29-Nov-1995
. .
Cited – Secretary of State for Employment v McVey EAT 5-Dec-1995
. .
Cited – Britannia Building Society v Griffiths EAT 26-Jan-1996
. .
Cited – Pye and others v British Coal Corporation EAT 19-Feb-1996
. .
Cited – Barker and others v Shahrokni EAT 5-Mar-1996
. .
Cited – Speciality Care Plc v Pachela and Another EAT 8-Mar-1996
. .
Cited – Bennett v Sergio Gambi and others EAT 14-May-1996
Appeal against rejection of sex harassment and discrimination claim. She said that the tribunal had given no clear inication that her allegations were either accepted or rejected.
Held: The decision adequately clarified that the tribunal had . .
Cited – Akinsanya v London Borough of Hackney EAT 20-May-1996
. .
Cited – Scott v W F Refrigeration Ltd EAT 20-May-1996
. .
Cited – Forrester v Inchcape Testing Services (UK) Ltd EAT 21-May-1996
. .
Cited – Stewart v Owner Drivers Radio Taxi Services EAT 14-Jun-1996
. .
Cited – Hellewell v Manchester Metropolitan University EAT 3-Jul-1996
. .
Cited – Oxfordshire County Council v Clarke EAT 10-Sep-1996
. .
Cited – Ravenscourt Laboratories Ltd v Soni EAT 15-Oct-1996
. .
Cited – Cook v British Gas (East Midlands) Ltd EAT 28-Oct-1996
. .
Cited – R T Tanner and Co Ltd v B T Mansfield and others EAT 4-Nov-1996
. .
Cited – Israr v The Blue Cross EAT 12-Nov-1996
. .
Cited – Martin v Secretary of State for Trade and Industry EAT 15-Nov-1996
. .
Cited – Ryalls v Drury and Another EAT 21-Nov-1996
. .
Cited – Secretary of State for Trade and Industry v Amess and Another EAT 22-Nov-1996
. .
Cited – Swallow International Hotel Ltd v Elhaouari EAT 27-Nov-1996
. .
Cited – BET Catering Services Ltd v Ball and others EAT 28-Nov-1996
Mrs Ball was an employee of a London Borough whose contract incorporated the NJC conditions. Following her TUPE transfer to BET, a private sector employer, the NJC promulgated terms that included pay increases. The issue was whether BET was obliged . .
Cited – Del Grosso v Tom Cobleigh Plc EAT 17-Dec-1996
. .
Cited – Save and Prosper Group Ltd v Sequeira EAT 13-Jan-1997
. .
Cited – Compair Holman Ltd v Evans EAT 17-Jan-1997
. .
Cited – Graham v Boots the Chemists Ltd EAT 24-Jan-1997
. .
Cited – Witheridge v Sun Alliance and London Insurance Plc EAT 6-Feb-1997
. .
Cited – Taylor Freezer (UK) Plc v Merakli and Another EAT 5-Mar-1997
. .
Cited – Donovan v New Islington and Hackney Housing Association EAT 10-Mar-1997
. .
Cited – Hudson and Needham v Gora EAT 14-Mar-1997
. .
Cited – Speller v Golden Rose Communications Plc EAT 6-May-1997
. .
Cited – D v J Alford Transport Ltd EAT 11-Jun-1997
. .
Cited – High Table Limited v Horst, Jowett and and Burley CA 1-Jul-1997
The place where an employee was employed for the purposes of the employer’s business was to be determined by a consideration of the factual circumstances which obtained until the dismissal. Where an employee had worked in only one location under his . .
Cited – Beckett v Carver and Beckett Ltd and Another EAT 8-Jul-1997
. .
Cited – Martins v Sussex Police EAT 28-Jul-1997
. .
Cited – Joseph and others v Exel Logistics and others EAT 27-Oct-1997
. .
Cited – Dench v Fynn and Partners EAT 30-Oct-1997
. .
Cited – Gledhill v G and J Spencer Plc (T/A Hygiene Specialists) EAT 31-Oct-1997
. .
Cited – Holden v West Berkshire Priority Care Service NHS Trust EAT 24-Nov-1997
. .
Cited – Eley v Huntleigh Diagnostics Ltd EAT 1-Dec-1997
. .
Cited – British Flowplant Group Ltd v Law and others EAT 16-Dec-1997
. .
Cited – Relaxion Group Plc v Bennett EAT 18-Dec-1997
. .
Cited – Leicestershire Mental Health Services NHS Trust v Pereira EAT 1998
. .
Cited – Claremont Garments (Holdings) Plc v Berry EAT 27-Jan-1998
. .
Cited – Lockwood v Permic Ltd (T/A Permic Emergency Lighting) EAT 10-Feb-1998
. .
Cited – Julienne v Post Office and Another EAT 19-Feb-1998
. .
Cited – Hussaney v Chester City FC and Another EAT 23-Mar-1998
. .
Cited – Welsh v Post Office EAT 1-May-1998
. .
Cited – Nwokenagu v Midland Nursing Home and others EAT 1-May-1998
. .
Cited – Network Communications Systems Ltd v Hill EAT 1-May-1998
. .
Cited – Khor v Caerphilly County Council and others EAT 12-May-1998
. .
Cited – Whitley and Another v Thompson EAT 14-May-1998
The claimants appealed against dismissal of their allegations of sexual harassment. The tribunal had found against them on the facts. . .
Cited – Rega v Ridge Crest Cleaning Service EAT 21-May-1998
. .
Cited – Khan v Oxford City Mosque Society EAT 23-Jul-1998
. .
Cited – Butterfield v Rapidmark Ltd (T/A 3 MV) EAT 9-Sep-1998
. .
Cited – Tayler v Pipefix Ltd EAT 14-Oct-1998
. .
Cited – Post Office v Kalam EAT 12-Nov-1998
. .
Cited – Orange Personal Communications Services Ltd v Firth EAT 18-Nov-1998
. .
Cited – Roberts v Warrington Borough Council EAT 1-Dec-1998
. .
Cited – London Borough Camden v Akers EAT 27-Jan-1999
. .
Cited – Ani Aurora Plc (T/A Edgar Allen Engineering Ltd) v Eastell EAT 1-Mar-1999
. .
Cited – Sidhu v Aerospace Composite Technology Ltd EAT 18-Mar-1999
. .
Cited – Hewitt v W E Anfield and Co Ltd EAT 1-Apr-1999
. .
Cited – Collins v John Ansell and Partners Ltd EAT 14-Apr-1999
. .
Cited – X v Y and Another EAT 15-Apr-1999
. .
Cited – D J Collins v John Ansell and Partners Ltd EAT 12-Jan-2000
EAT Transfer of Undertakings – Economic technical or organisational reason. . .
Cited – Superdrug Stores Plc v Fannon EAT 27-Jan-1997
. .
Cited – Thames Valley Police v Kellaway EAT 14-Jan-1998
. .
Cited – Dass v Tower Hamlets College EAT 13-May-1998
. .
Cited – Dass v Tower Hamlets College EAT 22-Jan-1999
. .
Cited – City and Hackney Community Services NHS Trust v Nwosu EAT 20-May-1999
. .
Cited – Smith (T/A Wimbourne Pet Centre) v Tyler EAT 1-Jun-1999
. .
Cited – Tabani v United Bank Ltd EAT 21-Jun-1999
. .
Cited – London Underground Ltd v Bragg EAT 23-Jun-1999
EAT Disability Discrimination – Disability. . .
Cited – Moore v Travelsphere Ltd and others EAT 23-Jun-1999
. .
Cited – Healy and others v Corporation of London EAT 24-Jun-1999
. .
Cited – British Telecommunications Plc v Wilding EAT 30-Jun-1999
. .
Cited – Dass v Tower Hamlets College EAT 19-Jul-1999
. .
Cited – B G Lardier v British Gas Research and Technology Plc EAT 11-Oct-1999
EAT Unfair Dismissal – Procedural Fairness
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
Cited – K E Taylor v Commissioners of Inland Revenue EAT 27-Sep-1999
EAT Sex Discrimination – Indirect . .
Cited – Mars UK Ltd T/A Masterfoods v K Parker EAT 24-Oct-2005
EAT Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of section 98 of the Employment Rights Act . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Cited – Arhin v Enfield Primary Care Trust CA 20-Dec-2010
The claimant doctor appealed against the refusal of compensatory damages awarded on a finding that she had been unfairly selected for redundancy. . .
Cited – Foster v Bon Groundwork Ltd EAT 17-Mar-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – Grant v HM Land Registry CA 1-Jul-2011
The appellant had succeeded in his claim for sex discrimination arising from his orientation, but the EAT had reversed the decision. He now appealed against the EAT decision. Although he had revealed his sexuality in one post, he had chosen to delay . .
Cited – Nambalat v Taher and Another EAT 8-Dec-2011
nambalatEAT2011
EAT National Minimum Wage Act 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the . .
Cited – East Sussex County Council v Hancock EAT 5-Nov-2003
EAT The Council appealed against a finding that the respondent, their employee, was disabled under the 1995 Act. He suffered from a long term mixed anxiety and depression disorder, but the Council disputed that . .
Cited – Eildon Ltd v Sharkey EAT 28-Jul-2004
EAT Practice and Procedure – Employment Tribunal made adverse findings against Respondent when the point had not been put to its 3 witnesses in XX. Remit to new Employment Tribunal. . .
Cited – Meikle v Nottingham City Council EAT 14-Apr-1994
The appellant challenged dismissal of her claim for indirect racial discrimination based on two grounds. First, that the Tribunal’s decision was perverse; in other words that it was a decision which, on the evidence before it, no reasonable tribunal . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 31 October 2021; Ref: scu.180513

james_greenwichEAT06

EAT Contract of Employment – Definition of employee
The Appellant was supplied by an agency to carry out work for Greenwich Council. She had no express contract with the Council but she contended that there was an implied contract, given in particular that she had worked for the Council for a period of some five years and had been treated in all respects like other permanent employees. The Tribunal considered whether there was an implied contract, following the guidance given by the Court of Appeal in Dacas v Brook Street Bureau (UK) Ltd [2004] ICR 1437. It concluded that there was no mutuality of obligation and therefore no contract with the Council at all. The Appellant submitted that the Tribunal had erred in law and reached a perverse conclusion. The EAT rejected the appeal, holding that the Tribunal had properly assessed the evidence and was entitled to conclude that there was no mutuality of obligations. The EAT made certain observations about the circumstances in which an Employment Tribunal might properly infer an implied contract between the worker and the end user.
Elias P J said: ‘When the arrangements are genuine and when implemented accurately represented the actual relationship between the parties – as is likely to be the case where there was no pre-existing contract between worker and end user – then we suspect that it will be a rare case where there will be evidence entitling the Tribunal to imply a contract between the worker and the end user. If any such contract is to be inferred, there must subsequent to the relationship commencing be some words or conduct which entitle the Tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is actually being performed, and that the reality of the relationship is only consistent with the implication of the contract. It will be necessary to show that the worker is working not pursuant to the agency arrangement but because of mutual obligations binding worker and end user which are incompatible with those arrangements.
Typically the mere passage of time does not justify any such implication to be made as a matter of necessity, and we respectfully disagree with Sedley LJ’s analysis in Dacas v. Brook Street Bureau (UK) Ltd [2004] ICR 1437] on this point. It will no doubt frequently be convenient for the agency to send the same worker to the end user, who in turn would prefer someone who has proved to be able and understands and has experience of the systems in operation. Many workers would also find it advantageous to work in the same environment regularly, at least if they have found it convivial. So the mere fact that the arrangements carry on for a long time may be wholly explicable by considerations of convenience for all parties; it is not necessary to imply a contract to explain the fact that the relationship has continued perhaps for a very extensive period of time. Effluxion of time does not of itself establish any mutual undertaking of legal obligations between the worker and end user. This is so even when the arrangement was initially expected to be temporary only but has in fact continued longer than expected. Something more is required to establish the tripartite agency analysis no longer holds good.’

Elias P J
[2006] UKEAT 0006 – 06 – 1812, [2006] UKEAT 0006 – 06 – 2112, UKEAT/0006/06, [2007] IRLR 168, [2007] ICR 577
Bailii, Bailii, EATn
Citing:
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 by:
Approved – James v London Borough of Greenwich CA 5-Feb-2008
The court considered whether an agency worker could be an employee of the defendant. Mummery LJ said: ‘As illustrated in the authorities, there is a wide spectrum of factual situations. Labels are not a substitute for the legal analysis of the . .
Cited – Muschett v HM Prison Service CA 2-Feb-2010
The claimant had been employed through an employment agency to carry out work for the respondent. He appealed against dismissal of his appeal against a ruling that he was not a worker for the respondent under the 1996 Act. He said that the . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 31 October 2021; Ref: scu.247868

EAT Victimisation Discrimination : Whistleblowing
PRACTICE AND PROCEDURE – Perversity
Appeal dismissed.
The Respondent’s principal ground of appeal – ground 2 – was a perversity ground. Perversity was not made out.
A secondary ground – ground 3 – argued that the ET had erred in law by relying, in respect of one Claimant, on detriments which were not pleaded. The ET had not fallen into this error.
Another secondary ground – ground 1 – argued that the ET had erred in law by relying in respect of both Claimants on another detriment which was not pleaded. But the Claimants had not known of the detriment prior to disclosure during the hearing; they had raised it as an issue as soon as they were aware of it; it was dealt with in evidence and submissions at the hearing; and no pleading point had been taken at the hearing. It was not permissible to take the point for the first time on appeal.
David Richardson HHJ
[2016] UKEAT 0306 – 15 – 0308
Bailii
England and Wales

Updated: 26 October 2021; Ref: scu.570386

The plumbers appealed against a finding that the plumbers it employed were workers and entitled toassociated benefits.
Sir Terence Etherton MR summarised the case law and said: ‘ I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.’
Sir Terence Etherton MR, Davis, Underhill LJJ
[2017] EWCA Civ 51, [2017] WLR(D) 120, [2017] IRLR 323, [2017] ICR 657
Bailii, WLRD
England and Wales
Citing:
Appeal from – Pimlico Plumbers Ltd and Another v Smith EAT 21-Nov-2014
EAT Contract of Employment : Whether Established – WORKING TIME REGULATIONS – Worker . .

Cited by:
Appeal frrom (At CA) – 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 . .
Cited – Stuart Delivery Ltd v Augustine EAT 5-Dec-2019
Jurisdictional Points – Worker, Employee or Neither – CONTRACT OF EMPLOYMENT – Whether established
The Tribunal had not erred in concluding that when Mr Augustine, a delivery courier, was undertaking fixed hours ‘slots’ for the Respondent, . .
Cited – Stuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.574303

Six employees asked for an interim injunction to prevent their employers terminating their contracts of employment in the context of an industrial dispute. Their union had been threatening to take industrial action. The plaintiffs asserted that they should be regarded as individuals, separate from their union but the respondents asserted that the facts and circumstances showed that, in threatening to take industrial action, the union was acting as their agent. The issue for the court was whether or not interim injunction should be granted not whether or not the union was acting as agent of the plaintiffs.
Held:
Stephenson LJ said: ‘The argument that this second master of the men is also in some respects their agent will need evidence to support it’
Geoffrey Lane LJ said: ‘It is not possible, for instance, to say how far, if at all, the union may have been acting as agent for individual members, in dealing with the employers.’
Stephenson LJ, Geoffrey Lane LJ
[1975] IRLR 90
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.276941

EAT Redundancy – Fairness –
His Honour Judge A Wilkie QC
EAT/937/00
EATn
England and Wales

Updated: 16 October 2021; Ref: scu.255640

Trustees of the appellant charity’s pension scheme sought to sanction the base against which pensions would be uprated under the scheme from a link to the Retail Prices Index, to a link to the Consumer Prices Index.
Held: Lewison and McFarlane LJJ, Vos LJ dissenting, the appeal was dismissed. Lewison LJ summarised the principal question in the appeal in this way:
‘The critical words in the definition of the RPI are ‘or any replacement adopted by the Trustees without prejudicing Approval.’ Does the definition mean:
(i) the RPI or any index that replaces the RPI and is adopted by the trustees; or
(ii) the RPI or any index that is adopted by the trustees as a replacement for the RPI?’
Sir Terence Etherton Ch, McFarlane, Lewison LJJ
[2016] EWCA Civ 1064, [2017] Pens LR 2
Bailii
England and Wales
Cited by:
Appeal from – Barnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 October 2021; Ref: scu.570871

Underhill, Lindblom, Singh LJJ
[2018] EWCA Civ 129
Bailii
England and Wales

Updated: 27 September 2021; Ref: scu.604206

[2001] UKEAT 1402 – 00 – 0706
Bailii
England and Wales
Cited by:
See Also – Drury v Bedford Hospital NHS Trust EAT 25-Mar-2002
EAT Disability Discrimination – Disability. . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 September 2021; Ref: scu.203961

[1998] UKEAT 90 – 98 – 1410
Bailii
England and Wales

Updated: 14 September 2021; Ref: scu.206822

[1997] UKEAT 1302 – 96 – 0403
Bailii
England and Wales

Updated: 14 September 2021; Ref: scu.207330

[2002] UKEAT 1173 – 00 – 1106
Bailii
England and Wales

Updated: 05 September 2021; Ref: scu.202946

[1996] UKEAT 284 – 94 – 1402
Bailii
England and Wales

Updated: 24 August 2021; Ref: scu.208186

The Secretary of State must give express reasons and findings of fact when dismissing staff.
Times 15-Nov-1993
England and Wales

Updated: 24 August 2021; Ref: scu.87692

EAT Unfair Dismissal: Reasonableness of Dismissal – The Employment Tribunal did not err in law in concluding that the final written warning issued to the Claimant by the Respondent was ‘manifestly inappropriate’: cross-appeal dismissed.
The Employment Tribunal, however, erred in its application of section 98(4) of the Employment Rights Act 1996: rather than asking whether it was reasonable to dismiss on the footing that the warning given had been an ordinary written warning, it should have focussed upon the actual reasoning of the Respondent and asked whether, applying the objective standard of the reasonable employer, it acted reasonably in dismissing the Claimant. This would depend on how it took account of the final written warning. Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374 CA, Wincanton Group plc v Stone [2013] IRLR 178 EAT, Way v Spectrum Property Care Ltd [2015] IRLR 657 CA considered and applied. Appeal allowed.
David Richardson QC HHJ said that: i. A final warning may be found manifestly inappropriate ‘if there was something about its imposition that once pointed out shows that it plainly ought not to have been imposed’.
ii. The latter test was satisfied in the case of a warning for gross misconduct where the conduct ‘plainly did not amount to gross misconduct either on a reading of the Respondent’s own disciplinary procedure or by generally accepted standards’.
iii. A final warning will never be manifestly inappropriate if it was within the range of reasonable responses, although the two tests are not the same.
iv. If a final warning was manifestly inappropriate, and if the employer attached significant weight to it when deciding to dismiss (as opposed to treating it as mere background or as indicative of the standard to be expected while in reality dismissing for the post-warning misconduct), it would be difficult to see how the employer’s decision could have been reasonable.
David Richardson QC HHJ
[2016] UKEAT 0335 – 15 – 0906
Bailii
England and Wales
Cited by:
Cited – Fallahi v TWI Ltd (Unfair Dismissal) EAT 17-Aug-2021
‘Manifestly Inapproproiate’ is a general Test
The Appellant was employed as Senior Project Leader – Technology. The Respondent raised issues about his performance. On 26 January 2016 an informal performance management process commenced and objectives were set, with targets to be measured in . .

Lists of cited by and citing cases may be incomplete.
Updated: 19 August 2021; Ref: scu.570969

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
RACE DISCRIMINATION
VICTIMISATION DISCRIMINATION
HARASSMENT
UNFAIR DISMISSAL – Constructive dismissal
The Claimant resigned. In a discursive ET1 he complained of the conduct of his senior manager toward him as her deputy, generally asserting that she had undermined and overruled him, taken actions adverse to him, declined to involve him in decisions and queried things such as his claim for time off in lieu. He said that though she had agreed that he could work on one Sunday a month, she drew up a rota providing he should work for 3 in every month even though she knew he was a Christian who placed a value on churchgoing. Finally, she sent him an email which though it appeared anodyne to an uninformed reader, was being used by her to belittle him: and this was the last straw which justified him in resigning. She had asked him to take over a shift from another employee who began at 10am, but insisted that he started at 9 without good reason. These were acts of harassment, or victimisation, or sex/race discrimination as well as being a breach of the implied term, justifying resignation. At a Preliminary Hearing an Employment Judge, in the Claimant’s absence, without hearing evidence, relying in part on what she was told by the senior manager (who was at the hearing), and on 40-50 documents out of a bundle of some 800 pages, not all of which she had read though they were presented as relevant, focussing upon individual events in isolation and relying also in part on what was said in the Respondent’s ET3, struck-out the whole claim as not being reasonably arguable. This was held the wrong approach: moreover, she had not directed herself as to that which is the correct approach, namely to take the allegations in the claim at their reasonable highest, unless conclusively disproved by a relevant document. The appeal was allowed, save in those respects in which notwithstanding the error of approach the Judge was plainly and obviously right to reach the conclusions to which she had come.
Remitted for further hearing to a different Tribunal.
Langstaff P J said: ‘The meaning that correspondence or observations have when they are directed by one person to another may often depend very much on the context of the relationship between the two … [Looking at incidents in isolation] is perhaps to fail to see the eloquence of the story painted by the whole of the series of events and to focus instead upon events taken individually as though they were in silos. In a constructive dismissal case arising out of a poisoned relationship between parties, what matters is the totality of the picture rather than any individual point along the way.’
Langstaff P J
[2015] UKEAT 0312 – 14 – 2105, [2015] ICR 1285
Bailii
England and Wales
Cited by:
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.565074

When considering whether an unfair dismissal claimant was an employee, the tribunal should first establish as a fact the terms of the agreement and then consider whether any of the terms were inherently inconsistent with the existence of a contract of employment in order to determine whether the contract was a contract of service or a contract for services.
Peter Clarke J
[1998] UKEAT 1261 – 97 – 3001, [1999] IRLR 367
Bailii
Employment Rights Act 1996 1
England and Wales
Cited by:
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 . .
Cited – Emerging Markets Partnership (Europe) Ltd v Bachnak CA 19-Dec-2003
The claimant asserted unfair dismissal. The company denied that he was an employee. The company now appealed against the decision of the EAT to grant the claimant’s appeal. The claimant had been an employee, but the arrangement had been varied so . .
Appeal from – Express and Echo Publications Limited v Tanton CA 11-Mar-1999
A contract for services, which required the contractor to provide an alternate worker in case of sickness, could not be a contract of employment. Such a clause could not be said to require the services to be provided personally.
Mr Tanton . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.206027

EAT Unfair Dismissal: Dismissal/Ambiguous Resignation
Unfair dismissal – dismissal – section 95(1)(a) Employment Rights Act 1996
The Claimant was an agency worker employed by the Respondent but working on assignment to another entity. When her assignment came to an end, the Respondent failed to take proactive steps to find other work for the Claimant and made little attempt to contact her, assuming that she was not interested in further agency work. For her part, the Claimant also made no attempt to contact the Respondent. On the Claimant’s subsequent claim of unfair dismissal, the ET found that she could have claimed constructive dismissal but had not done so. It further found that there had been no direct dismissal by the Respondent: it had done nothing to communicate a dismissal to the Claimant; the employment relationship was still continuing when the Claimant lodged her claim. She had not met the burden of proving she was dismissed for the purpose of section 95 Employment Rights Act 1996 and thus could not pursue a claim of unfair dismissal. The Claimant appealed.
Held: Dismissing the appeal.
Accepting that a direct dismissal for the purposes of section 95(1)(a) could be implied from the employer’s conduct and, further, that the circumstances giving rise to the possibility of a constructive dismissal could co-exist with a direct dismissal (Hogg v Dover College [1990] ICR 39 EAT), the employer’s unequivocal intention to dismiss still had to be communicated to the employee. The burden of proof remained on the Claimant. The ET had not erred in asking whether the Claimant had established that the Respondent had communicated an unequivocal intention to treat the contract of employment as at an end – that she was dismissed. And, in the circumstances of this case, had reached a permissible conclusion that she had not.
Eady QC HHJ said: ‘dismissal does have to be communicated. Communication might be by conduct and the conduct in question might be capable of being construed as a direct dismissal or as a repudiatory breach, but it has to be something of which the employee was aware.’
Eady QC HHJ
[2016] UKEAT 0028 – 16 – 2706
Bailii
England and Wales
Cited by:
Cited – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.570380

The claimants faxed on the evening to the employers an acceptance of the employer’s repudiation of their contracts. The claim was not presented to the tribunal until the same day of the month three months later.
Held: The claim was out of time. The fax was accepted under the Act on the day it was received, and not on the following morning when it was first read.
Richardson J
UKEAT/478/03, [2003] UKEAT 0478 – 03 – 1812, Times 11-Feb-2004, [2003] All ER (D) 327 (Dec)
Bailii, EATn
Employment Rights Act 1996 97
England and Wales
Cited by:
Cited – Gisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .
Cited – Gisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Cited – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.191945

The claimant was summarily dismissed by letter while on sickness leave. The letter arrived 9 November 1995, but he was on a day trip to France. He read the letter on return the day after. His unfair dismissal complaint was received by the industrial tribunal on 9 February 1996. Accordingly, if the effective date of termination of his employment was 9 November when the letter arrived at his home, his complaint was presented one day out of time. If his employment did not effectively terminate until the following day when he read the letter, his complaint was in time.
Held: The effective date of termination of a contract of employment could not be earlier than the date on which an employee received knowledge that he was being dismissed. The doctrine of constructive or presumed knowledge had no place in questions as to whether a dismissal had been communicated, save only in the evidential sense that an industrial tribunal would be likely to assume that letters usually arrive in the normal course of post and that people are to be taken, normally, as opening their letters promptly after they have arrived. Notices terminating employment were deemed to be served on the day they were actually received. In the absence of wilful shutting of eyes to a letter, notions of when notices were constructively served have no place in employment law.
Morison J P
Gazette 13-May-1998, [1997] UKEAT 149 – 97 – 2710, [1998] IRLR 112, 593 IRLB 17
Bailii
England and Wales
Citing:
Followed – Brown v Southall and Knight EAT 1980
The employee had gone on holiday at the time when the letter of dismissal arrived at his home and he did not actually see it until he had returned from his holiday.
Held: The ‘effective date of termination’ is a statutory concept which focuses . .

Cited by:
Cited – Gisda Cyf v Barratt CA 2-Jul-2009
The employer wrote to the employee on 29 November 2006 informing her of her dismissal, the letter arrived on the 30th, and she read it on the 4th of December. The employer appealed against a finding that the effective date of dismissal was the date . .
Emphatically Approved – Gisda Cyf v Barratt SC 13-Oct-2010
The parties disputed the effective date of termination of the claimant’s employment. Was it the date on which the letter notifying her was sent, or was it on the day she received it. She had been dimissed without notice, and the date was the date on . .
Cited – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.83573

Leggatt J
[2016] EWHC 2615 (Comm)
Bailii
England and Wales
Cited by:
See Also – Marathon Asset Management Llp and Another v Seddon and Others ComC 22-Feb-2017
. .
Se Also – Marathon Asset Management Llp and Another v Seddon and Others ComC 14-Mar-2017
. .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.571026

Appeal by the employer against a decision of the Industrial Tribunal that the respondent employee was unfairly dismissed.
[1996] UKEAT 725 – 95 – 2506
Bailii
England and Wales

Updated: 04 July 2021; Ref: scu.208473

Working Time – Rest Breaks

EAT Working Time Regulations 1998 – rest breaks – Regulations 12(1) and 30(1) – Prior to July 2012, the Claimant had an eight and a half hour working day, paid for eight hours, with the intention that he take a half hour unpaid lunch break (although the nature of his work meant that this could be difficult to fit into the working day). On 16 July 2012, the Respondent emailed the Claimant expressing its expectation (at best) or instruction (at worst) that he was to work straight through for eight hours, without the half hour break, but then to leave earlier than he would have done before. In July 2014, the Claimant lodged a grievance complaining that he had been forced to work without a break, which had contributed to a decline in his health.
Determining the Claimant’s complaint that he had been denied his entitlement to a 20 minute uninterrupted rest break, as provided by Regulation 12(1) Working Time Regulations 1998 (‘the WTR’), the ET considered it was required to follow the approach laid down by the EAT in Miles v Linkage Community Trust Ltd [2008] IRLR 602, which had held that there had to be an actual refusal of a request to exercise the right to a rest break in order to give rise to a legal liability under the WTR. Adopting that approach, the ET concluded:
(1) Prior to July 2012, the Claimant’s work arrangements had allowed for a half hour break, consistent with his entitlement under Regulation 12(1). Even if it was often difficult to take that break, that did not mean the Respondent had ‘refused’ to permit the Claimant to exercise his right.
(2) By its email of 16 July 2012, the Respondent had (at best) stated its expectation or (at worst) instructed the Claimant, that he should work through for eight hours without a break. Until his grievance, however, the Claimant had not actually made a request for a break. Although his grievance had included such a request, there was no evidence – at least by the time of the ET claim – that the Respondent had in fact refused it.
The claim was therefore dismissed. The Claimant appealed.
Held: allowing the appeal
There were conflicting decisions of the EAT on the approach to be taken to rights to rest under the WTR. As the WTR had been introduced to implement the Working Time Directive (‘the WTD’), it was appropriate to consider the language and purpose of the WTD, as explained by the Court of Justice in Commission v UK C-484/04 [2006] IRLR 888. Adopting that approach, it was clear that the construction of the WTR allowed by the EAT in Scottish Ambulance Service v Truslove UKEATS/0028/11 was to be preferred to that in Miles. As the ET’s reasoning followed the approach laid down in Miles, the appeal would be allowed and the case remitted for determination of the issues in the light of this Judgment.
Eady QC HHJ
[2016] UKEAT 0130 – 16 – 1611
Bailii
Working Time Regulations 1998 12(1) 30(1)
England and Wales

Updated: 25 June 2021; Ref: scu.571429

Appeal from refusal of claim for redundancy payment – employee or independent contractor
Morison P J
[1998] UKEAT 109 – 98 – 1102
Bailii
England and Wales

Updated: 14 June 2021; Ref: scu.206187

Peter Clark HHJ
[1998] UKEAT 731 – 97 – 1102
Bailii
England and Wales

Updated: 14 June 2021; Ref: scu.206178

‘whether it would be just and equitable to extend time for bringing a complaint of unlawful discrimination where the applicant was unaware of her right to make her complaint timeously, because she and her lawyers were reasonably unaware of the extent of her applicable rights under the Sex Discrimination Act 1975 [The Act] until after a decision of the European Court which clarified the ambit of the Equal Treatment Directive.’
Morison P J
[1998] ICR 518, [1998] UKEAT 528 – 97 – 1102, [1998] IRLR 494
Bailii
England and Wales

Updated: 14 June 2021; Ref: scu.206148

[1998] UKEAT 589 – 97 – 1102
Bailii
England and Wales

Updated: 14 June 2021; Ref: scu.206169

References: [2002] UKEAT 0446 – 01 – 1004
Links: Bailii
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.202745

In Scottish receivership an employee was not entitled to claim for preference of payment of claim for wages for absence of notice when the company went into receivership. Scottish receivership distinct process.
References: Times 25-Jun-1998
This case is cited by:

• Cited – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
  Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.83077

References: EATS/0087/04, [2005] UKEAT 0087 – 04 – 2102
Links: Bailii
Coram: The Honourable Mr Justice Bean
Ratio: EAT Unfair Dismissal – Exclusions including worker
Jurisdiction: England and Wales

Last Update: 18 May 2019
Ref: 223394

References: EATS/0020/03
Coram: The Honourable Lord Johnston
Ratio: EAT Practice and Procedure – Application
Jurisdiction: England and Wales

Last Update: 14 March 2019
Ref: 186059

References: EAT/919/02
Coram: Mr Recorder Luba QC
Ratio: EAT Unfair Dismissal – Compensation
Jurisdiction: England and Wales

Last Update: 13 March 2019
Ref: 185932

References: EAT/52/03, [2003] EAT 0052_03_0708, [2003] UKEAT 0052_03_0708
Links: Bailii, Bailii
Coram: His Hon Judge J Burke QC
Ratio: EAT Unfair Dismissal – Reason for dismissal
Jurisdiction: England and Wales

Last Update: 21-Aug-17
Ref: 185784

References: EAT/716/02
Coram: His Hon Judge Mcmullen QC
Ratio: EAT Unfair Dismissal – Reasonableness of dismissal
Jurisdiction: England and Wales

Last Update: 21-Aug-17
Ref: 185787

References: [2016] NIIT 01017_15IT
Links: Bailii
Ratio:
Jurisdiction: Northern Ireland

Last Update: 19-Feb-17
Ref: 571530

References: [2013] NIIT 01510_05IT
Links: Bailii
Ratio:
Jurisdiction: Northern Ireland

Last Update: 30-Nov-16
Ref: 514094

References: [1220] EngR 713, 5 Mar 150 11 Co 89, The Earl of Devons case Office, Grants, Nonability, (1220-1623) Jenk 121, (1220) 145 ER 85 (B)
Links: Commonlii
The King’s grant of an office which requires skill, as in the Common Plea or King’s Bench, to an unskilful man, is void ; even though it be made to him and his assigns. A grant of an office of skill to an inifant, to he exercised in presenti, is void ; but if in futuro, arid that he be of full age and expert, when the ottice is to be exercised, the grant is good. The Bishop of Rochester granted the office of register there to A, for life, and after the death of A to B an infant ; at the time of the death of A. H. was become of full age, and being expert was capable of the office; this grant is good.
Last Update: 31-Jan-16 Ref: 461625

References: [1860] EngR 774, (1860) 5 H & N 797, (1860) 157 ER 1399
Links: Commonlii
An indenture sealed and delivered to an attorney who is acting for all the parties to it, with directions that it is not to take effect till something else is done, operates merely as an escrow. Quaere, whether, in order to enable a master to sue on the covenants in an indenture of apprenticeship, it is necessary that he should have executed the deed or a counterpart of it.
Last Update: 08-Jan-16 Ref: 285613

References: [2011] UKUT B1 (TCC)
Links: Bailii
STATUTORY MATERNITY PAY – date from which statutory maternity pay can be claimed.

References: Times 25-May-1965
Coram: Widgery J
The claimant sought damages against her employer saying they had failed to meet their duty of care to prevent bullying.
Held: The court refused to strike out the claim that ‘[the plaintiff] was so bullied and belittled by her colleagues that she came to the verge of a nervous breakdown and had to resign’.
This case is cited by:

• Cited – Waters -v- Commissioner of Police for the Metropolis HL (Times 01-Aug-00, House of Lords, Gazette 12-Oct-00, [2000] 1 WLR 1607, Bailii, [2000] UKHL 50, [2000] IRLR 720)
  A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
  Held: . .
• Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
  The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
  Held: The appeal succeeded. The . .

References: [1862] EngR 1027, (1862) 3 B & S 139, (1862) 122 ER 53
Links: Commonlii
Master and servant, Wages. Deduction.-Upon a complaint under stat. 20 G. 2, c. 19, s. 1, by an artificer against his master for nonpayment of wages, the justices may make a deduction from the wages on the ground that the work was badly done.

References: [1994] UKEAT 596_93_2502, [1994] ICR 800
Links: Bailii
Coram: Mummery J P
The EAT should not accept an order by consent unless it is satisfied that there are good grounds for making the order.
This case cites:

• Cited – Hogg -v- Dover College EAT ([1990] ICR 39)
  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 . .

This case is cited by:

• Approved – Re M (A Minor) (Care Orders: Threshold Conditions) HL (Times 22-Jul-94, Gazette 12-Oct-94, Independent 18-Aug-94, lip, [1994] 2 AC 424, (1994) 92 LGR 701, [1994] 3 WLR 558, [1994] 3 All ER 298)
  The father had been sentenced to life imprisonment for the murder of the child’s mother. Application was made for the child to be made subject to a care order. The father appealed refusal of an order.
  Held: When an application was made on the . .
• Cited – A McKenzie -v- East Sussex County Council EAT (EAT/1334/98, Bailii, [1999] UKEAT 1334_98_1312)
  EAT Disability Discrimination – Disability
  The parties sought to settle the appeal by consent. The Tribunal was obliged to consider the merits before making an order. In this case the order requested was . .
• Cited – AB -v- CD EAT (Bailii, [1997] UKEAT 1272_96_1311)
  The claimant had been a cook. A poster was put up at work redrawn to show her in a sexually suggestive pose. The court now considered an appeal agreed by consent by the parties.
  Held: Since the case had been heard, the Court of Appeal in Tower . .

References: EAT/338/02
Links: EAT
Coram: His Hon Judge Clark
EAT Unlawful Deduction from Wages

References: Gazette 09-Jun-1999, [1999] IRLR 288
Coram: Lord Jauncey of Tullichettle
Financial wrong-doing short of dishonesty can be a basis for summary dismissal. Gross misconduct sufficient to justify dismissal must in the particular circumstances so undermine the trust and confidence of an employer that he should no longer be required to continue the employment. The identity of the employer and employee were relevant factors.
Lord Jauncey said: ‘The character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-a-vis the employer must all be considered in determining the extent of the duty and the seriousness of any breach thereof.’ and ‘conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.’ and ‘The question of whether there has been a repudiatory breach of that duty justifying instant dismissal must now be addressed. Whether misconduct justifies summary dismissal of a servant is a question of fact.’
This case cites:

• Cited – Clouston and Company Limited -v- Corry PC (Bailii, [1905] UKPC 70, [1906] AC 122)
  (New Zealand) . .
• Cited – Laws -v- London Chronicle (Indicator Newspapers) Ltd CA ([1959] 1 WLR 698, [1959] All ER 285)
  Lord Evershed MR discussed the justification for summary dismissal: ‘It follows that the question must be – if summary dismissal is claimed to be justified – whether the conduct complained of is such as to show the servant to have disregarded the . .
• Cited – Sinclair -v- Neighbour CA ([1967] 2 QB 279)
  The manager of a betting shop took £15 from the shop till for the purpose of gambling; he knew that he would not have been given permission to do so if he had asked. He put an IOU in the till and repaid the money next day. He was summarily . .
• Cited – Lewis -v- Motorworld Garages Ltd CA ([1986] ICR 157, [1985] IRLR 46)
  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 . .

(This list may be incomplete)
This case is cited by:

• Cited – C Lo Sterzo -v- London Borough of Lewisham EAT (EAT/1223/99)
  The applicant had been dismissed for gross misconduct in his supervision of building works carried out for his respondent employer. He appealed dismissal of his claim on the basis that no tribunal could properly find the employers decision to be . .
• Cited – Fulham Football Club (1987) Ltd -v- Tigana CA (Bailii, [2005] EWCA Civ 895)
  The defendant had acted as manager of the claimant. The claimant appealed dismissal of its claim for breach of contract and of fiduciary duty, and his claim for payment of sums due under share options granted to him.
  Held: The appeal failed. . .
• Cited – Mars UK Ltd T/A Masterfoods -v- K Parker EAT (Bailii, [2006] UKEAT O412_05_1801, UKEAT/0412/05/SM, EATn)
  EAT Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of section 98 of the Employment Rights Act . .
• Cited – Coulson -v- Newsgroup Newspapers Ltd QBD (Bailii, [2011] EWHC 3482 (QB))
  The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
• Cited – Mason -v- Huddersfield Giants Ltd QBD (Bailii, [2013] EWHC 2869 (QB))
  The claimant rugby league player complained of his dismissal under a clause allowing such for behaviour which might bring the club into disrepute. He had engaged in a celebratory evening out involving a naked run. . .

(This list may be incomplete)
Last Update: 22-Feb-16 Ref: 84238