Employment

Appeal No. UKEAT/0496/10/RN Land Rover v Mr C Short

Thu, 24 Nov 2011 16:54:02 GMT

PRACTICE AND PROCEDURE- Bias, misconduct and procedural irregularity

This was a successful appeal by the Respondent in an action for disability discrimination and unfair dismissal.

The Claimant worked on the production track line for Land Rover. He was recognised as being disabled, suffering from persistent upper extremity symptoms. That had the consequence that he could not perform the core functions of his allocated employment. He was dismissed on 5 December 2008 because Land Rover, despite its size, could not identify any alternative position in its employment for which the Claimant, with his disability, was suitable. A number of jobs which he had mentioned were unavailable. One of the of roles was “occupied by employees who were unwilling to move”.

At the ET, a list of issues was agreed between the parties. It was unclear whether the list permitted exploration of and argument about whether an employee could be required in breach of a collective agreement to move to another job so that a disabled employee no longer capable of doing his own job could take the vacated post. When the employer’s witnesses were cross-examined about this, counsel objected that an amendment would be needed, and if permitted would wish to call further evidence and might need an adjournment to do so. The Claimant’s counsel responded that no amendment was needed. The ET failed to rule, or give any view as to whether the issue was or was not before them for determination until making its decision. The ET found in favour of the Claimant.

The Respondent appealed on this issue. The EAT held that by failing to give a view on whether the issue was to be determined, the ET deprived the Respondent of the opportunity of asking for an adjournment. In all the circumstances of the case, this was significantly unfair. The case was remitted to the same tribunal for re-determination.

Appeal No. UKEAT/0177/11/DA Mr K Eaton v Messrs Spencer, Cox, Da Vinci & Conroy and Wiggles Experience (a firm)

Thu, 24 Nov 2011 16:52:36 GMT

PRACTICE AND PROCEDURE – Striking-out/dismissal

This was a successful appeal by the Claimant in an action for unfair dismissal, sexual orientation discrimination, victimisation and harassment.

The Claimant commenced employment in April 2007 at a nightclub called Bent. He is homosexual and the club was, at that time, promoted as a venue for the gay community. Many of the staff were also homosexual. The club changed hands in about September or October 2008. By this time the Claimant had been promoted from barman to Assistant Manager. His employment transferred under the provisions of the TUPE Regulations 2006. The new owners wished to rebrand the club as a heterosexual venue. On 12 December 2008 the Claimant was dismissed.

An ET a default judgment was issued in favour of the Claimant and he was awarded compensation totalling £5,328.36 in respect of unfair dismissal and £2,700 for injury to feelings in the discrimination claims. The Claimant appealed against the level of compensation awarded in the discrimination claims.

The EAT allowed the appeal and set aside the award of compensation in respect of sexual orientation discrimination, harassment and victimisation. The remedy issue was remitted for re-consideration by a different employment judge sitting alone.

Appeal No. UKEATPA/0569/11/DM Mr B Hinton v Argos Ltd

Thu, 24 Nov 2011 16:50:20 GMT

VICTIMISATION DISCRIMINATION- Whistleblowing

This was an unsuccessful appeal by the Claimant in an action for victimisation discrimination.

The EAT held that there was no error of law. The Employment Tribunal clearly found that the Claimant was dismissed fairly by reason of redundancy. That finding meant that the claim that he was dismissed for whistleblowing failed.

It is reasonably arguable that the claim of pre-employment detriments which failed as a matter of construction of Employment Rights Act 1996 s43B and application of Cavendish Munro Professional Risks Management Ltd v Geduld was wrong.

Appeal No. UKEAT/0210/11/SM Mr D Joao v Jury’s Hotel Management UK Ltd

Thu, 24 Nov 2011 16:49:14 GMT

VICTIMISATION DISCRIMINATION – Health and safety

This was a successful appeal by the Claimant in an action for unlawful deduction from wages and unfair dismissal.

The Respondent had rostered the Claimant to work nine consecutive nights and dismissed him after he complained. The Claimant alleged that he had been unfairly dismissed as a result of raising queries about the health and safety of his working environment.

An ET rejected his claim for unfair dismissal, holding that the working pattern was lawful under the WTD. The claim for unpaid wages was upheld. The Claimant appealed against the unsuccessful elements of his claim.

The EAT allowed the appeal and held that the ET had failed to consider whether the Claimant reasonably believed that the working pattern was lawful. Instead it concluded that, since it was not unlawful, no-one could think otherwise. The claim was remitted to a fresh tribunal for determination.

Appeal No. UKEAT/0381/11/ZT Ms S Minakova v Brownlow Properties Ltd.

Thu, 24 Nov 2011 16:47:17 GMT

PRACTICE AND PROCEDURE – Admissibility of evidence

This was an unsuccessful appeal by the Claimant in an action for unlawful deduction from wages. At the ET, the Claimant had sought to introduce documentary evidence for first time during closing submissions. The ET ruled that the evidence was inadmissible. The Claimant appealed to the EAT.

The EAT dismissed the appeal, holding that the ET was correct to rule the evidence inadmissible. In any event, the evidence was unlikely to advance the Claimant’s case on unlawful deductions which she was unable to establish.

Appeal No. UKEAT/0533/10/DA Mr G F Lewis v. New College Oxford

Thu, 24 Nov 2011 16:46:15 GMT

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

This was a successful appeal by the Claimant in a race discrimination and unfair dismissal case. The Claimant appealed on the grounds that the Employment Tribunal did not allow his representative to develop his case and at least one member had a fundamental misunderstanding of the case.

The EAT found in favour of the Claimant and remitted the action for reconsideration at a fresh tribunal.

UKEAT/0174/11/DA and UKEAT/0502/11/DA Chief Constable of West Midlands Police v. Mr R Gardner

Thu, 24 Nov 2011 16:45:12 GMT

DISABILITY DISCRIMINATION – Reasonable adjustments and compensation

This was a successful appeal by the Respondent in a disability discrimination case.

The Claimant injured his knees, principally his right knee, whilst on operational duties in February 2006. He returned to work on and off throughout 2007. In January 2008 he returned to work on light duties. He submitted a grievance in February 2008 that the police force had not made appropriate adjustments throughout 2007. Shortly thereafter he resigned and claimed that he had been discriminated against on the basis of his disability.

The ET held that the police force had failed to comply with its duty to provide a reasonable adjustment for the disability of the Claimant. It had therefore discriminated against him under ss.3A(2) and 4 of the Disability Discrimination Act 1995.

The Respondent appealed on the basis that the ET had not identified what it was in respect of Claimant’s disability that resulted in a requirement for him to attend at his place of work on a flexible timetable. This was a necessary finding if the ET were to determine what adjustment it was reasonable for the Respondent to have to make.

The EAT upheld the appeal and remitted the case for reconsideration at a fresh tribunal. The question arose whether an ET should adopt Ogden tables in place of the tables annexed to the Employment Tribunals guidelines to determine pension loss. It was held that it was not an error of law to do so if cogent and credible reasons were articulated for doing so, as they were here, though it was not to be encouraged.

Appeal No. UKEAT/0029/11/DA Bahous v Pizza Express Restaurant Ltd

Thu, 24 Nov 2011 16:43:26 GMT

RACE DISCRIMINATION and JURISDICTIONAL ISSUES – Extension of time: just and equitable

This was an unsuccessful appeal by the Respondent in a race discrimination case.

The Claimant was a British citizen of Moroccan origin. In July 2009 he was asked by his employer to produce his passport under threat of suspension. He had done so in the past but the Respondent had lost its copy. On this occasion he did not produce his passport and was duly suspended. Only he and an African employee were asked to produce their passports. The Claimant raised a grievance on 15th July. The grievance was not finalised until the 15th December.

The ET held that the Claimant had been discriminated against on the basis of his race. The held that the whole act of discrimination ended with the culmination of the grievance in December 2009. The Respondent appealed against this finding on the ground that the claim should have been time-barred as the act of discrimination occurred in July 2009.

The EAT held that the grievance process formed part of a continuing act of discrimination. It was just and equitable to extend the time period of the act in this case. The appeal was dismissed.

UKEAT/0395/11/DM Asif v. Elmbridge Borough Council

Thu, 24 Nov 2011 16:39:05 GMT

UNFAIRNESS IN REDUNDANCY AND EQUAL PAY

This was a partially successful appeal by the Claimant in an action for unfair selection for redundancy and equal pay. The Claimant argued that she had been unfairly selected for redundancy as a result of the failure of the Respondent to consider alternative employment for her when a post became available within her work group. She also argued that the Respondent did not have a genuine material factor defence to her equal pay claim.

The EAT held that the first ground of appeal was reasonably arguable and should be addressed at a full hearing. The second ground of appeal was dismissed. The Employment Tribunal correctly compared appraisals of the work she had been doing with that of a man.

UKEAT/0157/11/DA and UKEAT/0158/11/DA Ms U Bhardwaj v FDA & Others

Thu, 24 Nov 2011 16:36:46 GMT

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

This was a partially successful appeal by the Claimant in an action for race discrimination. The appeal was on the ground that there was apparent bias as a result of contact between the lay members of the Employment Tribunal and three of the five individual Respondents, themselves lay members. The Claimant also appealed on the grounds of perversity, reasons, time-bar, falsity, good faith and agency.

The EAT held that the issue of apparent bias should be addressed at a full hearing. The other grounds of appeal were dismissed.

Appeal No. UKEAT/0263/11/RN Veterinary Laboratories Agency v Dr T Sandvik

Thu, 24 Nov 2011 16:35:29 GMT

DISABILITY DISCRIMINATION AND UNFAIR DISMISSAL

This was a successful appeal by the Respondent in an action for disability discrimination and unfair dismissal.

The EAT held that the ET did not follow earlier CMD orders for the trial of issues and made findings on different issues. It did not address time-bar and justification. Its finding on unfair dismissal was so connected with the failure to deal adequately or correctly in law with the Disability Discrimination Act 1995 points that it could not stand. The appeal was allowed and a the case was remitted to a fresh tribunal.

UKEAT/0270/10/DA and UKEAT/0271/10/DA South East Leisure Group Ltd v (1) Mr Y E Vachoumis and (2) Zaff Brighton Ltd (debarred)

Thu, 24 Nov 2011 16:34:00 GMT

PRACTICE AND PROCEDURE

This was a successful appeal by the First Respondent in an action for unfair dismissal. The appeal centred on the matter of who the correct employer of the Claimant was.

The Employment Tribunal by oversight did not respond to the First Respondent’s application for a review of its debarment for want of a timely ET3. The Employment Judge did not follow the EAT’s direction to make a decision on the application prior to the full hearing. The Appellant did not have a hearing. It was conceded the Employment Judge would be bound to order a review. As he had not done so, the appeal would be allowed and the Employment Tribunal directed to accept the ET3 and hold a full hearing.

UKEAT/0204/11/SM and UKEAT/0205/11/SM London Central Bus Company v Mr A Nana-Addai

Thu, 24 Nov 2011 16:20:24 GMT

UNFAIR DISMISSAL AND WRONGFUL DISMISSAL

This was a case in which the Respondent and the Claimant both appealed and cross-appealed against a finding of the Tribunal that the Claimant was not unfairly dismissed but was wrongfully dismissed.

The Claimant was a bus driver with the Respondent’s company. On 1 July 2009 he was the first driver of the day on a particular bus. The check links on the wheels were not engaged. Subsequently two other drivers drove the bus, and because the check links were not in place, the nuts worked loose and came off, causing the near-side rear wheel to fall off. The Claimant was dismissed.

The ET found that the decision of the Respondent to dismiss the Claimant was within the band of reasonable responses set out in Iceland Frozen Foods. It went on to find that the Claimant, while not unfairly dismissed, had been wrongfully dismissed.

The EAT found that the Tribunal had not applied the correct test for the wrongful dismissal claim and had failed to distinguish between the tests for unfair dismissal and wrongful dismissal. The case was remitted to the same Tribunal for re-determination.

UKEATS/0020/11/BI Rodger (Builders) Ltd v. Mr A N MacDonald

Thu, 24 Nov 2011 16:17:55 GMT

UNFAIR DISMISSAL – Reasonableness of dismissal

This was a successful appeal by the Respondent in an action for unfair dismissal.

The Claimant worked as a crane driver in the Respondent’s family-owned plant hire business. In July 2009 the Claimant was delivering a crane to a customer’s site. He was driving too fast and without reasonable care and as result the vehicle came off the road and the crane toppled over. The Claimant was dismissed. The Employment Tribunal found that the dismissal was unfair.

The EAT allowed the appeal and found that the ET had failed to address the issue of the reasonableness of the dismissal in accordance with British Home Stores v Burchell. In particular, it had failed to consider whether the employer’s belief that employee was guilty of serious negligence was a reasonable belief arrived at after a reasonable investigation. The case was remitted to a fresh Tribunal for re-determination on the issues of liability and contribution.

UKEAT/0424/09/JOJ DR I M KORASHI v ABERTAWE BRO MORGANNWG UNIVERSITY LOCAL HEALTH BOARD

Thu, 06 Oct 2011 17:04:45 GMT

Whistleblowing, race discrimination and victimisation: this was an appeal made by a medical practitioner who claimed he had suffered detriment as a result of his making protected disclosures. He also claimed race discrimination and victimisation for having made a complaint of race discrimination. The Claimant attempted to introduce new evidence in the appeal.

The EAT dismissed the appeal and held:

(1) that the ET correctly dismissed the whistleblowing (Public Interest Disclosure Act) claims as having failed to meet one or other of the conditions in Employment Rights Act 1996 s 47B 47C 47G and 47H. Further, some were presented more than three months after the act of detriment (not the date of disclosure).

(2) It was open to the ET to dismiss claims of discrimination and victimisation under the Race Relations Act 1976.

The EAT refused to allow new evidence on appeal. In future, such applications should be made first to the ET.

UKEAT/0104/11/RN MINISTRY OF DEFENCE v P AND Q

Thu, 06 Oct 2011 16:49:43 GMT

Sex discrimination and victimisation claim: the first claimant was an Army officer against whom court-martial proceedings were brought, and subsequently dropped, and who was thereafter involved in prolonged proceedings under the Army’s greivance procedure. She alleged sex discrimination and victimisation. The second claimant was her defending officer in the court-martial proceedings and her assisting officer in the complaint proceedings. She claimed to have suffered adverse treatment as a result, constituting “associative discrimination/victimisation”. Both sets of claims were poorly particularised and arguably to a greater or lesser extent out of time. At a Pre Hearing Review the ET judge made a deposit order in relation to the victimisation claims but not in relation to the remainder of the claims.

The EAT held:

(1) The ET judge was wrong not to disallow/strike out victimisation claims, since at no time in the course of the relevant proceedings had the claimants made any allegation of sex discrimination, and accordingly the complaints on which they relied could not constitute protected acts underthe Sex Discrimination Act 1975.

(2) The judge was entitled not to impose a deposit order in relation to the remaining claims.

UKEAT/0608/10/LA GODFREY MORGAN SOLICITORS LTD v COBALT SYSTEMS LTD

Thu, 06 Oct 2011 16:37:33 GMT

Costs orders: This was an appeal against a wasted costs order in the sum of £7,313 made by Employment Judge Ash in the Norwich Employment Tribunal on 12 January 2010.

The order was made against the Claimant's representatives, Godfrey Morgan Solicitors Ltd (“GM”). GM refused to represent the Claimant at tribunal and advised that he would have to pay them to instruct counsel. The Claimant was unable to afford this. He instructed GM to withdraw the claim. GM failed to do so until the Claimant instructed them to do so again a few days before the hearing. The ET found that the Claimant was incorrectly advised and that his instructions had not been carried out by GM. GM was therefore liable for the Respondent's wasted costs in preparing for a hearing that should have been withdrawn.

The EAT dismissed the appeal and held that:
(1) The ET judge was entitled to refuse to allow GM to produce their file for the first time at the hearing in order to show that the Claimant had been properly advised.

(2) The judge was not wrong to allow employers to make submissions and to cross-examine – Observations of Elias J. in Ratcliffe Duce and Gammer v Binns doubted.

(3) The judge did not misdirect himself as to the applicable principles, notwithstanding the fact that he was not referred to the relevant authorities

UKEAT/0034/11 The Secretary of State for Business Innovation & Skills v (1) Miss C M Coward (2) Local Taverns Ltd (a dissolved company)

Tue, 23 Aug 2011 16:49:23 GMT

Rights on Insolvency: The claimant was made redundant and soon afterwards the company which employed her was dissolved. The claimant claimed redundancy pay and notice pay from the Secretary of State under ss166 and 182 of the ERA 1996 which specify the circumstances in which claimants can bring claims when a company ceases trading. The Tribunal ruled that both payments should be awarded. The Secretary of State appealed against the payment for notice pay because s183(3), which sets out the definition of insolvency, had not been satisfied; the company had ceased trading but there was no proof that it had become insolvent. There was no appeal against the redundancy payment since in this case there is no condition that the company is insolvent.

The EAT agreed with the respondent. The ET had erroneously decided that the company was insolvent, basing its decision on the fact that the company had unpaid debts and had ceased trading. However, there was no proof that the company was insolvent and indeed a search of Companies House only showed that the company was dissolved, which did not necessarily mean that it fell within s183(3).

UKEAT/0308/11 Westlb AG London Branch v Mr P Pan

Tue, 23 Aug 2011 16:48:43 GMT

Bias, misconduct and procedural irregularity: The claimant was bringing claims of race discrimination, harassment, victimisation and unfair constructive dismissal. He was suffering from a depressive order which meant that he was unfit to attend the initial hearing which was adjourned for several months, the Tribunal acknowledging the stress of being at the hearing and agreeing to make adjustments to accommodate the claimant. The claimant's solicitors then asked that the Employment Judge be excused from sitting as Chair in respect of the hearing, criticising the judge for being biased and saying that a fair hearing could not take place in front of her. The letter was not copied to the respondent but the Tribunal sent them a copy, and asked the claimant to make a proper application. The claimant made a proper application, again not copying the application to the respondent. The Employment Judge, whilst not agreeing that the conditions for recusal had been formally satisfied, decided that the hearing should take place in front of a different panel to save costs, enable the parties to concentrate on the substantive issues and to ensure that any upset experienced by the claimant did not continue. The respondent asked for a review of the decision which was refused. The respondent appealed.

The EAT allowed the appeal, saying that the EJ did not decide the application to recuse herself upon correct principles. Firstly, she decided the application without giving the respondent any opportunity to make representations upon it. Secondly, she decided the application on her own without her members. Thirdly, her decision did not take into account the guidance set out in the cases of Ansar v Lloyds TSB Bank and Peter Simper & Co Limited v Cooke (No 1)

UKEAT/0187/11 Computers in the City Ltd v Mr A Amamize

Tue, 23 Aug 2011 16:48:02 GMT

Unfair Dismissal: The claimant was dismissed summarily following an investigation into his chairmanship of a rival company, in breach of his terms and conditions which included confidentiality and restraint clauses. He brought complaints of wrongful and unfair dismissal to the ET who upheld both claims, reducing the award by 75% for contributory fault but also decided that Polkey did not apply in this case. Further, they felt unable to say whether dismissal would have occurred fairly had a proper procedure been followed. The respondent appealed against the liability and remedy judgments.

The EAT rejected the appeal against the liability judgment in respect of the unfair dismissal; the ET had not erred by finding that the dismissal was procedurally as well as substantively unfair. However, the ET had failed to grapple with the Polkey question and this issue was remitted to the Tribunal for re-consideration. The wrongful dismissal decision was also remitted on the basis that the ET had failed to take into account the contractual term providing for summary dismissal for dishonesty whether or not it was connected with the claimant's employment. Dishonesty was in any event a breach of the implied term of trust and confidence, itself a repudiatory breach of a contract of employment.

UKEAT/0546/10 Ms J Williams v Vance Miller & Alan Ford T/A Kitchens, Kitchen Dreams And Rock Solid Kitchens

Tue, 23 Aug 2011 16:44:59 GMT

Contract of Employment: The claimant brought unfair dismissal proceedings against 2 respondents who she claimed were both her employers. The claimant had no documentary evidence as to the identity of her employer but the Tribunal’s decision as to the identity was eventually based upon a letter which was signed by the second respondent, saying that company documentation should have shown that the first respondent was the person doing the trading and that the second respondent used to be involved in the business but wasn’t at the time of writing of the letter. This evidence led the Tribunal to conclude that the first respondent, but not the second, was the employer of the claimant and ruled that the claimant had been unfairly dismissed. Furthermore, the Tribunal said they would not have expected the first respondent to claim to be the employer, which he did, if he was not. The claimant appealed.

The EAT allowed the appeal. The ET should have made findings as to whether they accepted the evidence from the claimant that it was the second respondent who had interviewed her and offered her the job. The Tribunal was entitled to take into account the fact that the claimant had no documentary evidence as to who her employer was, but the significance of this depended on other evidence, about which the Tribunal made no findings.

UKEAT/0499/10 Ms P A Richardson v HSBC Bank Plc

Tue, 23 Aug 2011 16:44:18 GMT

Reason for dismissal including substantial other reason: The claimant had brought claims of disability and race discrimination and unfair dismissal after being made redundant. The unfair dismissal claim succeeded but the claimant was awarded limited compensation because, according to the Tribunal, she had not engaged in the process of finding alternative work. At the time of meetings which were held to discuss her possible redundancy, the claimant was off sick and she did not attend them. However, the Tribunal held that, even if the respondent had adjourned the meeting until the claimant was well enough to attend, held a further meeting and at that meeting considered whether there was a redundancy situation and whether alternative work had been explored, it would have found that there was a redundancy situation and alternative work had been explored with the claimant but that she had failed to engage in the process. It would have then gone on to consider whether to dismiss and if so whether in reaching a decision to dismiss that was a reasonable decision. It would then have decided to dismiss the claimant. The claimant appealed on the bases that the Tribunal had i) failed to consider whether the respondent made reasonable attempts to find alternative employment for the claimant, effectively placing upon her an onus to suggest such employment; and ii) failed to consider whether the Claimant's selection for redundancy was fair in all the circumstances.

The EAT agreed that the case should be remitted to the same Tribunal to re-consider the two questions of mitigation and selection. On the first issue, the Tribunal had considered alternative employment in the context of the question whether holding a meeting would have made any difference; this was the wrong starting point since the respondent had known for many months that the claimant was potentially to be made redundant. On the second issue, the Tribunal, while it made some relevant findings of fact, had not addressed the point of whether the respondent acted reasonably in selecting the claimant for redundancy in its reasons. Both issues needed to be re-considered since the amount of compensation awarded could be significantly different.

UKEAT/0227/11/DA M-Choice UK Ltd v Miss S Aalders

Tue, 23 Aug 2011 16:43:36 GMT

Claim in time and effective date of termination: The claimant was given 6 months notice of termination of her employment after she had worked at the respondent’s for 6 months. The notice period given meant that the effective date of termination resulted in her acquiring the 12 months continuous service required to bring a claim of unfair dismissal, which she did a couple of weeks before the notice period expired. The respondent then dismissed her summarily before the notice period had expired, and argued that as she did not now have the 12 months continuous service, the Tribunal could not hear her claim of unfair dismissal. The matter was further complicated by the claimant initially claiming ordinary unfair dismissal and then applying to amend the ET1 and claim automatic unfair dismissal instead, on the basis that she had been dismissed because she had brought a claim of unfair dismissal. The issue before the Tribunal was to work out the effective date of termination: was it the date of the end of the notice period or had the date been brought forward as a result of the summary dismissal? The Tribunal ruled that the effective date of termination, as defined in s97 of the ERA 1996, was the date of expiry of the notice period, and therefore allowed the claim to proceed to a full merits hearing. The respondent appealed.

The EAT considered the case of Stapp v The Shaftesbury Society and decided that it was not distinguishable from the present case, saying that ‘where an employee is dismissed while he or she is working out their notice, the date of the ending of their employment is brought forward from the date on which their notice would have expired to the date on which they were summarily dismissed, even if the effect of that is to leave the employee without the necessary period of continuous service to present a complaint of unfair dismissal’. The issue before the Tribunal was now to decide whether the claimant had been dismissed for bringing a claim of unfair dismissal or for another reason.

UKEAT/0088/11 NHS Leeds v Mrs J Larner

Tue, 23 Aug 2011 16:42:55 GMT

Working Time Regulations - Holiday pay: The claimant was off sick for the entirety of one pay year and was then dismissed on capability grounds. She had not requested any holiday during the time she was off sick and on termination of her employment the respondent refused to pay her for the accrued holiday pay. The Tribunal held that she was entitled to be paid for the annual leave which she had no opportunity to take in the year she was off sick. The respondent appealed, arguing that regulation 15(1) of the Working Time Regulations 1998 meant that unless notice is given as specified in the regulation, no entitlement to leave under regulation 13, and consequently no entitlement to payment under regulation 16, can arise.

The EAT disagreed with the respondent. The claimant was presumed not to have been well enough to exercise her 'right to enjoy a period of relaxation and leisure' so she did not have the opportunity to take her annual leave. Instead she had the right to have her leave entitlement under regulation 13 carried over to the following year, and she had that right without having to make a formal request for the leave to be carried over.

UKEAT/0445/10 Mr S Connolly v Whitestone Solicitors

Tue, 23 Aug 2011 16:41:55 GMT

Fraud and illegality: The claimant was employed as an assistant solicitor with the respondent. At the start of his employment there was a discussion between the claimant and the respondent, instigated by the claimant, as a result of which the parties agreed that he would be treated for tax purposes as self-employed. It was agreed that his remuneration would be paid gross and that the claimant would declare the income on his self assessment tax return, as well as claim expenses on a self employed basis. The claimant brought claims against the respondent, who argued that the Tribunal could not entertain these claims because the claimant was not an employee. The ET ruled that the claimant was an employee but then looked into the remuneration arrangement with the respondent. They ruled that it fell within the category of case described by Elias P in Grace v BF Components Ltd 'where the contract was lawful when made but has been illegally performed, and the party seeking the assistance of the court knowingly participated in the illegal performance'. This ruling was made despite assertions by the claimant that he had not intended that the initial arrangement would go on for so long but attempts to clarify his employment status with the respondent had failed. The claimant appealed.

The EAT allowed the appeal, saying that, although the ET was right to raise the issue of illegality, she had not applied the law correctly and did not deal adequately in her reasons with the claimant's case. Moreover, she should have ensured that the question whether he knew his assertion to be self employed was unsustainable was put to him for him to deal with.

UKEAT/0069/11 London Borough of Waltham Forest v Mr E Martin

Tue, 23 Aug 2011 16:41:07 GMT

Race Discrimination - Discrimination by other bodies: The claimant, a black man, was employed as a part-time bus driver by the local authority as well as being a local resident. It was decided that part-timers, who did not earn bonuses unlike full-timers, should in fact be granted a bonus, including a bonus going back several years. The claimant, who was also receiving state benefits, did not declare the back pay or the increase in future wages. The local authority brought criminal proceedings in its capacity as a prosecuting authority against the claimant in his capacity as local resident, for benefit fraud. In its capacity as his employer, the local authority gave the claimant in his capacity as an employee a final written warning lasting for 2 years for making false claims for benefit. The claimant claimed that the decision to prosecute him, rather than imposing an administrative penalty instead, and the length of his written warning, amounted to acts of race discrimination. The ET ruled that it had jurisdiction to hear the claims of race discrimination despite the respondent arguing that the ET only had jurisdiction over claims of race discrimination in the employment field, and the respondent's decision to prosecute and not to impose an administrative penalty instead, even if discriminatory, were not in the employment field. He was being prosecuted as a local resident who was alleged to have failed to declare his true income, not as an employee.

The EAT considered the case of Ministry of Defence v DeBique, which held that it was not necessary for an employee to prove that a discriminatory PCP had to have been applied to the claimant by the employer acting in its capacity as employer. However, this did not mean that because the discriminatory provision, criterion or practice does not have to be applied by the employer in its capacity as employer, therefore the detriment to which the employee was subjected as a result of the application of the discriminatory provision, criterion or practice does not have to have been in the employment field. In the opinion of the EAT the fact that the decision to prosecute may have consequences for the employee's future employment did not bring the decision to prosecute within the employment field. The ET decision to allow the claim relating to the length of the written warning was remitted to the EJ for him to decide, in the light of the changed circumstances, whether it would be just and equitable for the Tribunal to consider the claim.

UKEATS/0061/10 Ms Ibolya Martin v The Co-Operative Group Ltd T/A The Co-Operative Pharmacy

Tue, 23 Aug 2011 16:40:12 GMT

Bias, misconduct and procedural irregularity: The claimant complained that she had resigned after having been suspended in bad faith, in circumstances where she had made certain whistleblowing allegations, and she believed the grievances from other employees on which her suspension was based were not genuine ones. The Tribunal rejected her claim and found that there was no basis for her belief that the respondent had any ulterior motive in suspending her or had acted in bad faith. The claimant appealed, claiming that the Employment Judge was biased, he was not fully prepared, he was a member of the Co-Operative Society and that could be said to have influenced his decision, he had not read the original claim so did not consider the claimant's true claim and he had denied the claimant the opportunity to question the witnesses in full.

The EAT rejected all the grounds of appeal. They accepted the responses from the EJ and the lay members which explained their reasons for decisions made during the hearing.

UKEAT/0495/10 Mr T Macquet v Naiade Resorts (UK) Ltd

Tue, 23 Aug 2011 16:39:03 GMT

Unfair Dismissal: The claimant was employed as Marketing Communication Manager for Europe. He was successful at his job but there was some friction between him and the Group Managing Director. The claimant learnt that one of his former subordinates had been appointed to the post of Managing Communication Manager, which encompassed all aspects of communication, including PR and Press Relations in Europe, which at that point were the sole responsibility of the claimant. The claimant did not raise a protest or grievance when he found out about the appointment because he had no idea that it was proposed that part of her role would be in taking over the part or most of his role. The claimant was made redundant soon afterwards. He claimed that the dismissal was a sham and there was no genuine redundancy situation and that he had been dismissed because the Group Managing Director disliked him. However, the ET was satisfied that the respondent had followed a fair procedure with adequate consultation. It concluded that there was a genuine redundancy situation because the respondent had to cut its costs, the respondent was not obliged to include the claimant's colleague in the selection pool with the claimant because their roles were different and it was satisfied there was no suitable alternative vacancy for the claimant.

The EAT overturned the decision of the ET because it had failed to give adequate reasons i) that there was a redundancy situation that led to the dismissal of the claimant; ii) that there had been, or was expected to be, any diminution or cessation in the kind of work undertaken by the claimant; iii) why the claimant was placed in the redundancy pool on his own; and iv) why the consultation process was satisfactory.

UKEAT/0495/10 Mr T Macquet v Naiade Resorts (UK) Ltd

Tue, 23 Aug 2011 16:39:01 GMT

UKEAT/0035/11 & UKEAT/0183/11 Miss C Fox v Ocean City Recruitment Ltd

Tue, 23 Aug 2011 16:38:14 GMT

Victimisation Discrimination: The claimant complained that she was being sexually harassed by a Mr Ellis, the cousin of the Managing Director of the respondent. He was suspended for 5 days while investigations took place. It was found that there was insufficient evidence to discipline him and, although the claimant and other witnesses were given the opportunity to amplify their witness statements, they did not do so. The claimant and 2 other colleagues were then made redundant in an effort to stem the losses the respondent was incurring; no attempt was made to comply with the statutory dismissal procedures. Meanwhile, Mr Ellis was restored to work, although he too was later made redundant. The claimant maintained that she was not made redundant because of financial considerations but because she was being victimised for having raised complaints, and her belief was confirmed when she learnt that, notwithstanding she, a victim of Mr Ellis' conduct, had been dismissed, he was restored to his post. The ET found that Mr Ellis' conduct constituted harassment; the claim against him was settled between the parties. However, the ET also found that the respondent had made out its defence on the basis that as soon as Mr Ellis' misconduct was reported it took all reasonably practical steps to prevent such behaviour recurring. The ET found that the decision to dismiss was an act of unlawful victimisation and awarded a sum for injury to feelings in the lower Vento band, uplifting the amount by 10% in recognition of the respondent's failure to comply with the statutory procedures. The claimant appealed against the liability and remedy judgments.

The EAT concluded that the ET had misdirected itself as to the defence of having taken reasonable steps to prevent discriminatory conduct by employees. It relied on steps taken after the acts of discrimination, rather than before. The ET had given no reasons for awarding a 10% uplift for failure to comply with statutory procedures and had failed to give adequate reasons for awarding a sum as damages for injury to feelings.

UKEAT/0055/11 Mr D Jacovelli v Royal Mail Group Ltd

Tue, 23 Aug 2011 16:37:31 GMT

Unfair Dismissal: The claimant, a union representative, was accused of taking time off which had not been agreed in advance. He appealed against a warning, given to him in October 2008, for misconduct, saying that he had been given verbal permission by a manager, which she denied. The claimant then found an email in December 2008, just before his appeal was due to take place, which showed confirmation that the manager had approved his absence. The appeal was adjourned so that the respondent could check out the authenticity of the email. The respondent thought the email exchange was fraudulent and should be investigated further, the manager denied that she had received or replied to it and the claimant was suspended. Enquiries were made to the respondent's IT department, which was unable to confirm whether or not the disputed email was genuine, and the respondent came down on the side of the claimant's manager. The claimant was subsequently dismissed and an appeal was heard in July 2009 where the claimant was represented by his divisional representative. The appeal was dismissed. The ET found that the claimant had been fairly dismissed.

At the EAT, the claimant sought to argue that the ET should not have found that his dismissal for misconduct was fair because the employer's delay meant that internal IT records which might have substantiated his case were no longer available. Also, if the disciplinary procedure applicable to trade union representatives (which he was) had been applied, the practical consequence would probably have been that his union representative would have secured the IT documentation before the expiry of the period during which IT records were kept. The EAT dismissed the appeal since the claimant had not argued either point before the Tribunal and the Tribunal was not obviously wrong to come to the conclusion that overall, the employer's disciplinary process had been fair.

UKEATS/0054/10 & UKEATS/0055/10 Mr James Siddons v The Tontine Hotel

Tue, 23 Aug 2011 16:36:46 GMT

Unfair Dismissal -Compensation: The claimants were found to have had drinks from the bar of the hotel where they worked without paying, and they were dismissed. Their dismissals were held to be procedurally unfair because i) the person who carried out the investigation was involved in the disciplinary hearing and ii) the person who took the decision to dismiss was not present at that hearing but relied on second hand information to do so. However, the ET did find that the internal appeal procedure could not be faulted. The ET applied a 100% Polkey reduction to the compensatory awards and a 75% reduction to the basic awards.

On appeal, the EAT found that the Tribunal's failure to find that the dismissals were substantively unfair was not perverse and, further, that they were entitled to make the Polkey reduction that was applied. The cross-appeal succeeded on the basis that the Tribunal had failed to have any regard to the appeal procedure which plainly cured the earlier procedural deficiency and they had erred in their application of the 'just and equitable' principle to the basic award. A 100% reduction was substituted.

UKEAT/0378/10 Royal Cornwall Hospitals NHS Trust v Mr J Watkison

Tue, 23 Aug 2011 16:36:01 GMT

Victimisation Discrimination - Whistleblowing: The claimant was the Chief Executive of the respondent when the issue of changing the provision of cancer services in the region was up for discussion. The claimant was strongly in favour of a rigorous consultation process involving interested parties before a final decision was made. The SHA, which supervised the activities of the respondent, believed that a less rigorous approach was sufficient. The SHA heard that the claimant had obtained opinion from counsel that the respondent and the PCT would be acting unlawfully if they did not consult on the proposed changes. This information was described as 'a severe irritant' to the SHA. The claimant was subsequently suspended and was eventually dismissed just before a meeting which, if the claimant had not been dismissed, he would have attended and reiterated the advice that to proceed without consultation was illegal and that would be an obstacle to the wish of the SHA to transfer the service. The Employment Tribunal held that he was dismissed as a result of pressure applied by the SHA to the respondent as a result of his disclosure. The respondent appealed.

The EAT dismissed the appeal for 3 main reasons: i) the disclosure made by the claimant was a protected disclosure within the meaning of s43B(1)(b) of the ERA and it complied with the requirements of that provision in that the respondent and the PCT would be likely to fail to comply with their legal obligations if they did not consult on the changes; ii) there was clear evidence that the SHA had applied pressure on the respondent to dismiss the claimant; iii) the ET had reached the decisions open to them and for which they had given full and adequate reasons.

UKEAT/0240/10 Mr J Iteshi v (1) London Borough of Harrow (2) Ms J Farmer (3) Ms S Clarke

Tue, 23 Aug 2011 16:35:12 GMT

Race Discrimination - Direct: The claimant, a black African of Nigerian nationality, applied for 2 jobs: Legal Assistant and Legal Services Assistant. He did not get an interview for the first job but was offered the second job. There was then a delay in processing his appointment while the respondent got the necessary clearance that the claimant was entitled to work in Great Britain. During this delay, the claimant had several telephone calls with the respondent, during which he became frustrated and argumentative, leading the respondent to withdraw the offer. The claimant claimed race discrimination on the basis that i) he was not short listed for the post of Legal Assistant despite being a qualified barrister; ii) the job offer was withdrawn because of his race and iii) he was promised, but did not get, a temporary position while the processing of his appointment was ongoing. The ET found that the claimant had not been short listed for the Legal Assistant post because he was not qualified in terms of relevant experience to do that type of work. They accepted that the withdrawal of the Legal Services Assistant post constituted less favourable treatment but this was not by reason of the claimant's race: the post was withdrawn because of the claimant's behaviour during the telephone calls. The ET concluded that the temporary post had never been offered to the claimant. Finally, the ET awarded costs against the claimant for persisting in a fundamentally misconceived approach. The claimant appealed, complaining of errors of fact, perversity, misdirection and inadequacy of reasons.

The EAT dismissed the appeal. There was no merit in any of the claimant's arguments and in reality, the appeal was simply an attempt to re-argue the facts.

the majority and there was ample evidence upon which to base their judgment.

UKEAT/0135/10 The Hira Company Ltd v Mr T Daly

Tue, 23 Aug 2011 16:34:33 GMT

Constructive dismissal: The claimant resigned after a catalogue of instances which he claimed undermined his position as sales manager. Problems with delivery dates and the quality of products meant that the claimant's commission was reduced. There were also occasions where the respondent made decisions regarding orders which they did not discuss with the claimant. The final straw was the handing over of a large account, which the claimant had secured, to another sales person. The Tribunal, by a majority concluded that the cumulative effect of the claimant's customers being supplied with faulty goods, late deliveries and delivery diversion was unreasonable conduct on the part of the respondent, and, taken with the removal of a large account, entitled the claimant to resign being a fundamental breach of the implied term of trust and confidence. The minority held that none of the previous matters should be taken into account. His view was that none of the matters raised, whether taken in isolation or together, amounted to a breach of the implied term of trust and confidence because there were sound business reasons for what had been done, none of which had been maliciously or capriciously directed at the claimant personally.

The EAT considered the two approaches of the majority and minority decision and the case of Malik and Mahmud v Bank of Credit and Commerce International SA. The case of Malik established that 1) the conduct complained of, which must be without reasonable and proper cause, must be likely to destroy or damage the requisite degree of trust and confidence between employee and employer; 2) it is the effect of the conduct on the employee, when looked at objectively, which matters and 3) so the employer's intention or motive when engaging in the conduct is not relevant. The EAT concluded that there was no misdirection on the part of

UKEATS/0024/06 Glasgow City Council v Edward Cunningham

Tue, 23 Aug 2011 16:33:48 GMT

Implied Term/Variation/Construction of Term: The claimant was a gardener employed by the respondent local authority. At a meeting between his union, the GMB, and the respondent, an agreement was reached regarding a change in the terms and conditions of gardeners' employment. That agreement was entered into subsequent to a Single Status Agreement having been entered into between Scottish local authorities and trade unions in Scotland. The issue before the Tribunal was whether agreement had been reached at the meeting and, if so, what it was that had been agreed. The Tribunal found that there was agreement and that its terms were as recorded in a memorandum issued 6 days after the meeting. However, the ET pronounced an order which went beyond what was stated in that memorandum.

The EAT allowed the appeal. The Tribunal were wrong to have made a finding or order relating to matters not mentioned in the memorandum. The Tribunal misapplied their own findings in fact and in so doing made an error of law. They required, as discussed in the case of BT v Sheridan, to consider and decide the case in accordance with their own findings.

UKEATPA/1807/10 Mr C Taylor v HP Enterprise Services UK Ltd

Tue, 23 Aug 2011 15:42:27 GMT

Striking-out/dismissal: The claimant made a number of claims in relation to his redundancy in 2005. The respondent denied them, together with succeeding claims of disability and race discrimination and a claim for unlawful deductions. The issue before the EJ was whether the claim should be struck out because the claimant had not actively pursued the matter. There had been 4 case management discussions and none had moved the case forward, the claimant had not produced a witness statement, no documents had been agreed, the issues had not been identified and many of the witnesses had left the respondent's business some time ago. The EJ held that most of the delay was caused by the claimant's failure to deal with the case. He had not obtained representation, he was suffering from depression but was not taking any medication and the EJ ruled that the case be struck out because it was not being actively pursued. The claimant appealed.

The EAT agreed with the EJ who had recognised that striking out the case was a draconian measure. The EJ had correctly applied the judgment in Peixoto, which was directly on point, she had correctly distinguished between Abegaze and the present case and no fault could be found in the exercise of discretion.

UKEAT/0028/11 Mr M Synonds T/A Symonds Solicitors v Miss S Redmond-Ord

Tue, 23 Aug 2011 15:41:18 GMT

Constructive dismissal: The Respondent is a solicitor and was at the time a sole practitioner. The Claimant worked as his PA/Legal Secretary. The issue in this constructive unfair dismissal claim revolved around a conflict of evidence given by the Claimant and the Respondent. The Claimant had met with the respondent to ask for time off to do some travelling, both to Africa and Nepal. In the Claimants evidence she stated that the respondent agreed with her travel plans, however the respondent gave conflicting evidence and stated that he was not informed of the Nepal travel plans. It is clear that the Tribunal chose to prefer the Claimant’s evidence on the matters in issue and in particular the question as to whether she gave Mr Symonds the dates on which she was going to travel at that meeting in the restaurant.

UKEAT/0308/11 Westlb AG London Branch v Mr P Pan

Tue, 23 Aug 2011 15:39:49 GMT

Bias, misconduct and procedural irregularity: The Claimant who was employed by the bank resigned on the 6 December 2010. The claimant brought 2 claims against the bank. The first claim was brought about when he was still employed by the bank, in which he claimed that he was subjected to race discrimination, harassment and victimisation. In the second claim, which began in December 2010, additional allegations were made by the claimant of a similar nature as to that of the first claim. Additionally he claimed that he was constructively and unfairly dismissed. The Claimant applied in effect for the recusal of the Employment Judge on the grounds of bias. The judge did not see the reasons of the recusal to be satisfactory, nevertheless, she decided the hearing should take place in front of a different panel. The bank appealed against the decision for a fresh panel, however, there was some doubt about the availability of the original panel. Mr Pan was unable to attend on medical grounds and received a medical not to accompany this. The tribunal also became aware that Mr. Pan had been taken to hospital over fears for his welfare. Mr Pan’s medical records were updated so the issues could be dealt with in a more orderly manor. The state of Mr. Pan’s health improved and it was concluded that he was well enough to attend the tribunal as long as intervals were available.

The ETA’s decision stated the Employment Judge, while rejecting a complaint of bias, ordered that a fresh panel be convened to continue the hearing of a case. Her decision did not take into account guidance in Ansar v Lloyds TSB Bank [2006] ICR 1565 (EAT), [2007] IRLR 211 (CA) and Peter Simper & Co Limited v Cooke (No 1) [1984] ICR 6. the decision was set aside

UKEAT/0084/11 (1) Mrs R Hellewell (2) Mr J Mcardle v (1) AXA Services Ltd (2) AXA Sun Life Services

Tue, 23 Aug 2011 15:36:55 GMT

Unlawful Deduction from Wages: The Claimants made claims against their employer for an unlawful deduction from their wages contrary to the provisions of section 13 of the Employment Rights Act 1996, in respect of money due under its bonus scheme for the years 2009 and 2010. The Claimants had been dismissed by reason of gross misconduct by the end of April 2010. The Employment Tribunal held that because the Claimants had been dismissed by reason of gross misconduct they were not entitled to receive their bonuses.

The Claimants appealed.

Held:

Dismissing the appeal because: -

1. A decision to pay or not to pay a bonus does not constitute “a deduction from wages” so as to engage the consent provisions in section 13 (1) of the Employment Rights Act 1996 (“ERA”);

2. For there to be a deduction for the purposes of section 13 (3) of the ERA, there has to be a sum to which an employee has some legal but not necessarily contractual entitlement from which the deduction could be made;

3. There is therefore an exercise which has to be completed before section 13(1) and (2) could apply with the preliminary stage being considering whether there is a sum legally payable in accordance with section 13(3) and it is only if the answer is in the affirmative that there has to be a consideration as to whether there is a deduction from that sum so as to invoke sub-sections (1) and (2) of section 13;

4. The defendant’s bonus schemes for 2009 and 2010 did not amount to a variation of contract so as to engage section 13(5) ERA; and

5. The Claimants were not entitled to their bonuses for 2009 and 2010 and there had been no deduction of their wages.

UKEAT/0513/10 Mrs A Fereday v South Staffordshire Nhs Primary Care Trust

Tue, 23 Aug 2011 15:34:28 GMT

Unfair Dismissal, Constructive dismissal: The Claimant was appealing against a decision of the Employment Tribunal sitting in Birmingham and dated 1 July 2010 by which it dismissed her claim for unfair dismissal against South Staffordshire NHS Primary Care Trust on the basis that the Claimant’s resignation could not be construed as constructive dismissal. In the original grounds of appeal it had been argued that the Employment Tribunal wrongfully took into account matters from autumn 2008 as relevant to affirmation when there was “a last straw” in February 2009.

The appeal was dismissed because the Employment Tribunal was entitled to hold that the Claimant had affirmed the contract. W E Cox Toner (International) Ltd v Crook [1981] IRLR 447 applied.

UKEAT/0037/11 Nottinghamshire Healthcare Nhs Trust v (1) Mr N Hamshaw And Others (2) Perthyn (3) Choice Support

Tue, 23 Aug 2011 15:33:43 GMT

Transfer of Undertakings, Service Provision Change: This is an appeal by Nottinghamshire Healthcare NHS Trust from a decision of Employment Judge Morgan sitting alone in the Employment Tribunal at Sheffield. The twelve individual Claimants before the Tribunal had been employed by the Trust at Hillside House, a care home for adults with learning disabilities, which was closed on 31 March 2010.

The Employment Tribunal was entitled to find that there was no TUPE transfer (whether a transfer of undertaking or a service provision change) where residents of a care home operated by an NHS Trust were rehoused in individual homes; and the Claimant care workers, formerly employed by the NHS Trust at the care home, were then offered employment by the Second or Third Respondents, in most cases to sleep in at the service users’ homes. The economic entity did not retain its identity, and the services provided were not fundamentally or essentially the same after the change as they had been before.

UKEAT/0040/11 Wincanton Plc v (1) Mr S L Atkinson (2) Mr N A Marrison

Tue, 23 Aug 2011 15:32:51 GMT

Unfair Dismissal, Reasonableness of dismissal: The Respondents were employed as drivers by the Appellant which carried on business as a haulage company and they were required to have in addition to their normal HGV licence, an ADR licence to enable them to carry the dangerous loads which were required of them by the Appellant. As the Respondents were over 45 years of age, they were required to renew their licence every five years and this entailed passing a medical test.

As a result of their inadvertence, the Respondents failed to renew their HGV licences and therefore the First Respondent had been driving without a licence for about a month and the Second Respondent had been driving without a licence for the previous five months. At disciplinary proceedings, both Respondents accepted that they had been guilty of misconduct. It was decided that given the potentially serious adverse effects to the Appellant of the Respondents driving without a licence, the dismissal of both Respondents was justified. Those potentially adverse consequences were that not only that the Appellant’s insurance cover would be placed in jeopardy, but also that the Regulators could take action over the breach and jeopardise the Appellant’s operator’s licence; this could also damage the Appellant’s standing in the increasingly competitive market in which the Appellant competes nationally with other haulage companies for large contracts.

The Respondents appealed and advanced an argument based on a precedent relating to a Mr Preston, who had some six years earlier allowed his HGV licence to lapse but in whose case, no disciplinary action of any type was taken. The appeal of the Respondents was dismissed and the Appellant relied on three cases in which those employees, who had failed to renew their licenses were dismissed.

The Respondents brought claims for unfair dismissal and wrongful dismissal and the Employment Tribunal held that those claims succeeded because in the present case, none of the potential problems arose for the Appellant as the Regulator took no steps against them, no client was inconvenienced and the reputation of the Appellant was not placed in jeopardy.

In addition, the case of Mr Preston showed that dismissal was not appropriate. The Employment Tribunal upheld the claim for wrongful dismissal and unfair dismissal, but it held that the Respondents through their own conduct had contributed to their dismissal and this reduced the sums payable to them for unfair dismissal by 60%. The Appellant appealed.

Held: Allowing the appeal because:-

(a) The Employment Tribunal failed to consider properly the crucial question which was whether the decision of the Appellant to dismiss the Respondents fell within one of the reasonable range of responses for the Appellant in dealing with the Respondents as it erred (i) in considering as decisive the fact that the Respondents failed to renew their licences had actually no adverse effect on the Appellant while regarding as unimportant the accepted fact that such failures had the potential for causing very serious problems and financial losses for the Appellant; and (ii) in attaching too much weight to the case of Mr Preston and incorrectly regarded the Appellant’s treatment of him as imposing the accepted tariff (Hadjioannou v Coral Casinos [1981] IRLR 352 and Paul v East Surrey DHA [1995] IRLR 305 applied); and

(b) The Employment Tribunal should have considered whether the Respondents’ dismissal was wrongful in the light of the Appellant’s disciplinary procedure and the potential consequences to the Appellant but it did not do so.

UKEAT/0074/11 Ms L Bird v Stoke-On-Trent Primary Care Trust

Tue, 23 Aug 2011 15:31:56 GMT

Suitable alternative employment, Redundancy: The claimant, was employed by the Respondent in a role with both managerial and clinical responsibilities. The employee was dismissed for redundancy in November 2007, but she did not receive a redundancy payment on the ground that she had unreasonably refused offers of suitable alternative posts. In determining that one of the posts was suitable for her, the Tribunal was held to have failed to take into account two features of the evidence which were relevant to whether the post was suitable for her. In determining that the employee had unreasonably refused the offer of that post, the Tribunal was held to have substituted its own view about the reasonableness of the reasons for her refusal, rather than considering whether someone in her particular circumstances could reasonably have taken the view of the alternative post which she did.

UKEATS/0061/10 Ms Ibolya Martin v The Co-Operative Group Ltd T/A The Co-Operative Pharmacy

Tue, 23 Aug 2011 15:31:07 GMT

Bias, misconduct and procedural irregularity: The claimant was employed as qualified pharmacist. The claimant resigned in October 2007. The basis of the claimants resignation is that she had been suspended by her employers when they received a grievance from two employees with whom she worked. The suspension, she believed was in bad faith. The tribunal rejected her claim and found there was no basis for her belief that the Respondent had any ulterior motive in suspending her or for her belief that the Respondent had acted in bad faith when doing so. A notice of appeal was presented to the tribunal in October 2010. There were 5 grounds on the basis of this appeal, they are as follows. Firstly she believed the EJ was biased by pointing out the fact that the claimant was Hungarian – this was found to be discriminatory. Also the EJ failed to recognise that the claimant was a qualified pharmacist. Secondly the EJ was not prepared. Thirdly the EJ admitted to being a member of the Co-Operative society and said that that may affect his decision. Fourthly, since the Judge did not read the original claim he did not consider what the Claimant refers to in the Notice of Appeal as her true claim. Finally, the Notice of Appeal states that the EJ denied the Claimant the possibility of questioning the witnesses in full that she had cited, whilst witnesses on the other side were carefully examined.

UKEAT/0449/10 Mr H Sood v The Governing Body Of Christ The King School & Ors

Tue, 23 Aug 2011 15:30:21 GMT

Striking-out/dismissal: The claimant brought claims of direct race discrimination, harassment and victimisation contrary to the RRA, protected disclosure detriment, unfair dismissal, breach of the Religion or Beliefs Regulations 2003 and disability discrimination. In all the claimant included 174 separate allegations although did withdraw 53 of them. The EJ, at a pre-hearing review, struck out a number of other claims on the grounds that they had no reasonable prospect of success or that they were being pursued unreasonably. The claimant appealed.

The EAT considered the Employment Tribunals rules in respect of striking out claims and allowed the appeal. The EAT disagreed with the EJ that, where there was a substantive claim of direct discrimination, the alternative claim of victimisation, based on the same factual allegations ought to be struck out. Similarly, the EAT could see no basis for striking out complaints of disability discrimination as an alternative to victimisation under the RRA. The EJ was not entitled to come to the conclusion that claims under the DDA were 'merely fanciful alternatives' to claims under the RRA.

UKEAT/0003/11 Garside And Laycock Ltd v Mr T G Booth

Tue, 23 Aug 2011 15:28:10 GMT

Reason for dismissal including substantial other reason, Unfair Dismissal: Employment Tribunal considered reasonableness/fairness of employer’s decision to dismiss for “some other substantial reason” by reference to principles of law derived from Catamaran v Williams when that case had actually decided the reverse; and by asking whether it was reasonable for the employee to accept lesser terms offered to him and avoid dismissal, rather than whether it was reasonable for the employer to dismiss. Appeal upheld.

Observations upon the considerations that may apply where a Tribunal is considering dismissals for a failure to accept wage-cutting proposals inspired by economic downturn in the business

UKEAT/00092/10 1) Sefton Metropolitan Borough Council 2) Sefton New Directions v Hincks And Others

Tue, 23 Aug 2011 15:27:19 GMT

2002 Act and pre-action requirements, Jurisdictional Points: Equal pay claimants in their original grievances named a single comparator – In their ET1s they named further comparators, and they subsequently sought to name more by amendment – Respondents sought to strike out the additional comparators in the ET1s and resisted the applications for permission to amend – Strike-out refused and amendment applications granted

HELD, dismissing the appeal, that the fact that the further comparators had not been named in the grievance did not mean that the Tribunal was deprived of jurisdiction by section 32 (2) of the Employment Act 2002 – Suffolk Mental Health NHS Trust v Hurst [2009] ICR 1011 followed; Brett v Hampshire County Council (UKEAT/0500/08) distinguished

UKEAT/0364/10 Dr K Smith v London Metropolitan University

Tue, 23 Aug 2011 15:26:16 GMT

Reasonableness of dismissal, Unfair Dismissal: The ET erred in holding that the Appellant lecturer was fairly dismissed for misconduct in refusing to undertake duties which the Respondent required her to undertake. The ET failed to consider whether the employer had conducted a proper investigation into the agreement reached as to those duties when the Appellant moved to a new academic department. That failure undermined not only their decision as to whether the employer had conducted a reasonable investigation into the misconduct alleged but also their conclusion as to whether dismissal for refusing to carry out certain duties was within the range of reasonable responses.

Case remitted to determine the fairness of dismissal under the Employment Rights Act 1996 section 98(4). Appeal from dismissal of the Appellant’s claim under the Employment Rights Act 1996 section 47B(1) dismissed. Cross-appeal from the finding that breach of grievance procedure was a fundamental breach of contract allowed.

Unfair dismissal claim remitted to an Employment Tribunal to determine the fairness of the Appellant’s dismissal under the Employment Rights Act 1996.

UKEATS/0058/10 Mr James Mcbride v Falkirk Football & Athletic Club

Mon, 18 Jul 2011 15:02:04 GMT

Constructive dismissal: Claimant employed as football coach and was appointed manager/head coach of U19’s team. He was told, without any discussion or consultation, that the subsequently appointed Academy Director would be responsible for picking the U19 team, a matter which would also have had significant consequential effects on the Claimant’s role. The Claimant having resigned as a result, claimed unfair constructive dismissal. Employment Tribunal held by the EAT to have erred in law in dismissing his claim. They had no basis to imply a term into the Claimant’s contract regarding the handover of responsibility to the Academy Director, the Tribunal had erred in their conclusion that the lack of consultation was not a breach of the implied term of trust and confidence because an “autocratic style of management” was the norm in the football world and, on the evidence, it was plain that the Claimant had resigned not only because of the removal of important aspects to his managerial role but because of the manner in which it was done. Finding of unfair constructive dismissal substituted and the claim remitted to a freshly constituted Employment Tribunal for assessment of compensation.

UKEATS/0060/10 Strathclyde Joint Police Board v Mr Andrew Cusick

Mon, 18 Jul 2011 15:01:03 GMT

Bias, misconduct and procedural irregularity: The claimant was dismissed for failing to tell the police the whereabouts of his brother after a warrant for his arrest had been issued. The Tribunal found that he had been dismissed unfairly for two main reasons: 1) the claimant was employed by Strathclyde Joint Police Board and as such he owed no duties to Strathclyde Police Force; 2) the respondent had no reasonable grounds for its belief that the claimant had committed an act of misconduct, the basis being that he was under no duty to provide information about his brother’s whereabouts to the police.

The EAT overruled the judgement of the ET, saying that the terms of the Police (Scotland) Act 1976 plainly showed the claimant had a duty to the Strathclyde Police Force. Also, this duty and the findings of fact showed that the respondent had reasonable grounds for their belief.

UKEATS/0064/10 Ventrac Sheet Metals Limited v Mr Craig Fairly

Mon, 18 Jul 2011 15:00:08 GMT

Unfair Dismissal: The claimant, a trainee, was made redundant in circumstances where it was agreed there was a genuine redundancy situation. However, the claimant had no warning of his impending redundancy, he was dismissed at a meeting with immediate effect, he was not advised of his right to appeal, he was not told he was entitled to have a witness at the meeting and he was not given any explanation of the reasons for his redundancy. Further, no consideration was given to the question of whether the claimant or another trainee should be made redundant. The Tribunal found that the conduct of the respondent could not be described as merely procedurally inept or technically irregular. The Tribunal had seldom come across a case in which an employer had acted in such an unfair manner towards an employee. The Tribunal declined to make a Polkey reduction, concluding that i) there had been a most serious flaw in the decision making process by the respondent, and the respondent was not entitled to expect the Tribunal to speculate about what might have happened had the respondent acted totally differently; and ii) in their view it would be quite unjust to seek to construct a hypothesis which the respondent company itself never envisaged in order to reduce the compensatory award. The respondent appealed.

The EAT ruled that neither of the two propositions presented by the Tribunal were sound in law. It was not the case that where the procedural failing in question was a heinous one that the employer was to be deprived of a Polkey reduction. Punishment was not a relevant aspect of the assessment of compensation under s123. Nor was it the case that it was only where the employer had themselves envisaged a hypothesis which emerged from the evidence that a Tribunal was entitled to formulate one. The EAT applied a 35% Polkey reduction to the compensation awarded by the Tribunal.

UKEAT/0610/10 Jobcentre Plus Department of Work And Pensions (DWP) v Mrs J M Graham

Mon, 18 Jul 2011 14:59:26 GMT

Unfair Dismissal: The claimant, an Advisory Service Manager, was a long standing employee of the respondent. The DWP policy stated that the staff must not use their positions to help friends, family or acquaintances. The claimant was dismissed following an investigation into the help the claimant gave to a friend of her daughter. The Tribunal found that she had been unfairly dismissed because the dismissal fell outside the band of reasonable responses, applying their own subjective judgement that the claimant was simply doing her job, but without addressing the respondent's concern that the claimant was assisting an acquaintance in breach of their well-known policy.

The EAT concluded that the ET had fallen into the trap of substituting their view for that of the employer. The giveaway comment was the ET asking themselves the question 'what did the claimant actually do wrong?'.

UKEATS/0065/10 Mr James Reilly v Tayside Public Transport Company Ltd T/A Travel Dundee

Mon, 18 Jul 2011 14:58:38 GMT

Striking-out/dismissal: The claimant, a bus driver, was dismissed following an incident in which he crashed the bus into a bridge. He claimed that he had been unfairly dismissed pointing to i) not having had access to evidence that his employers had gathered; ii) their failure to follow up matters raised in the disciplinary process; iii) his belief that he was not wholly to blame for the accident because he had not adequately been advised of a change of route; iv) his belief that the respondent's decision to dismiss was based on the value of the damage caused, and v) that there was inconsistency of treatment as between him and other drivers who had had accidents and/or committed other breaches of driving safety without being dismissed for misconduct. At a pre-hearing review, only documents were considered: no oral evidence was led. It was accepted on behalf of the claimant that minutes of disciplinary and appeal hearings were accurate, but there were also two documents which contained evidence that could have assisted the claimant both as regards the fairness of the disciplinary process and the criticism of the sanction imposed. The EJ discounted these latter two documents because the claimant did not refer to them at the disciplinary or appeal hearing. On the basis of various 'facts' he went on to determine that dismissal was within the range of reasonable responses and as such, the claim had no reasonable prospects of success. The claim was struck out.

The EAT ruled that the EJ had gone too far. The EJ required to be very careful in considering an application for strike-out at the pre-hearing review. His convention obligations required him to have regard to Article 6 and the employee's right to a fair hearing. The pre-hearing review was manifestly not a hearing to determine the issue the claimant sought to raise. The EJ did not have all the evidence before him that would have been led about the relevant events at a full hearing. The EJ had also not given adequate reasons for discounting the evidence that might have assisted the claimant.

UKEAT/0484/10 Compass Group Plc v Mr K A A Ayodele

Mon, 18 Jul 2011 14:57:54 GMT

Retirement: The claimant requested that he work for another two years following his 65th birthday. The respondent rejected his request. The Tribunal held that the dismissal was unfair on the basis that the managers in question regarded themselves as absolutely bound by a company policy against granting extensions; accordingly the request had not been genuinely considered as required by paragraph 6 of schedule 6 of the Employment Equality (Age) Regulations 2006. The claimant was awarded compensation equivalent to two years loss of earnings on the basis that that was the period of extension requested. No Polkey deduction was made.

The EAT upheld the ET judgment. The consideration of a request under schedule 6 did indeed have to be genuine, or 'in good faith', notwithstanding the generally limited nature of the relevant obligations. The appeal against the quantum award was also dismissed; the issue of a Polkey deduction had not been raised at the ET.

UKEATS/0042/10 Skills Development Scotland Co.Ltd v (1) Miss Mairi Buchanan (2) Ms Patricia Holland

Mon, 18 Jul 2011 14:57:07 GMT

Equal Pay Act: The two claimants’ and their comparator’s contracts were transferred to Scottish Enterprise and subsequently to the respondent, both transfers being subject to TUPE. It was agreed that all three jobs were of equal value for the purposes of s1 of the Equal Pay Act. On transfer to Scottish Enterprise in 2002, the claimants’ salaries were roughly £10,000 less than that of their comparator and this continued to be the case until the claims were presented at the Tribunal in 2008. From 2004 until 2008 all three employees, in common with all Scottish Enterprise employees, received routine ‘across the board’ pay increases, year on year, which meant that, in effect, the claimants pay could not catch up with that of their comparator. The Tribunal found that Scottish Enterprise carried on awarding salary increases to the comparator without questioning whether or not his contract required them to do so and they did not have TUPE constantly in mind. They referred to there being a lack of evidence generally to show that TUPE was the reason why Scottish Enterprise awarded the comparator pay increases, despite accepting that Scottish Enterprise had ‘in general terms pay practices which avoided singling out employees or freezing salaries’ and a policy of ‘across the board payments’ and ‘consistency in treatment’. The gist of the Tribunal’s reasoning was that from 2004 onwards, Scottish Enterprise should have taken steps to rectify the pay disparity by ‘red circling’, ie freezing, the comparator’s salary.

The EAT held that the Tribunal had erred in law. Their findings were demonstrative of there having been a genuine explanation for the pay disparity complained of which was not, in any way, gender related. The causal chain between TUPE and the disparate pay had not been broken.

UKEAT/0054/11 Mr E Kudjodji v Lidl Ltd

Mon, 18 Jul 2011 14:54:30 GMT

Preliminary issues: The claimant claimed unfair dismissal and race discrimination. The ET decided at a pre-hearing review that the race discrimination claim was out of time, but the unfair dismissal was in time and therefore they had jurisdiction to hear the complaint. The judgment was given orally and expressed in writing under Rule 28. In light of issues which were thrown up in another case, the EJ decided to review her judgment a few months later, but did not actually alter her decision. Both parties had the opportunity to argue that it should be changed but either declined to do so or did not successfully do so. The unfair dismissal case then came before a different employment judge who came to the conclusion that the unfair dismissal claim was out of time and should therefore be dismissed. The claimant appealed on the grounds that the second EJ had no jurisdiction to determine the question of jurisdiction on time grounds, it already having been decided.

The EAT allowed the appeal quoting the case of Radakovits which demonstrated that, where there has been a final determination of a particular issue in the proceedings within rule 28, the court has no right to interfere no matter how strongly the subsequent Tribunal or Tribunal Judge may feel that an error of law has been made, or a potential injustice has been caused. The right to interfere to remedy a supposed error or injustice does not lie in a subsequent Tribunal. It rests with the appellate courts, or, if there should be a review, and if the original Employment Judge is willing to consider a review, on review under rule 34, but it is not for the second Tribunal to consider.

UKEAT/0512/10 City Index Ltd v Ms S Kurt

Mon, 18 Jul 2011 14:53:22 GMT

Race Discrimination: The claimant claimed that she had been subjected to race discrimination and harassment on grounds of her nationality and/or national origins. The Tribunal upheld 5 of her 24 claims, concluding that treatment had the effect of creating a humiliating, degrading and offensive environment for the claimant, allegations of harassment had been established and the respondent had not established the reason for the less favourable treatment was not discriminatory. The respondent appealed, submitting that the Tribunal had not adequately discharged its proper function in determining these sensitive claims of discrimination and harassment and, most particularly, had failed to meet the requirements of rule 30(6) of the Employment Tribunal Rules of Procedure.

The EAT agreed with the respondent. The ET had not done justice to the evidence, the case or the submissions in expressing itself in the terms that it did. First, there were various unexplained mismatches between the pleaded case of the claimant and the basis upon which the claims in the end decided. Second, there was a failure by the ET to address the obvious point that, having found adversely to the claimant on credibility in relation to the vast majority of allegations, it needed to take that into account in reaching a judgment on the others. Finally, the ET were bound to explain how they were satisfied that one of the allegations amounted to discrimination and/or harassment.

UKEAT/0310/10 Mr N Bouzir v Country Style Foods Ltd

Mon, 18 Jul 2011 14:52:25 GMT

Race Discrimination: The claimant and his wife, who were both Muslims, brought claims against the respondent when they were both interviewed for, but not offered, jobs in a bakery. The respondent failed to reply to statutory questionnaires served by the claimant and his wife, saying they were too busy. The claimant's wife claimed race and religious discrimination. Her claim of race discrimination was dismissed, the Tribunal saying that there was no evidence to indicate that she was being treated less favourably because of her origin. Her claim of religious discrimination was upheld, the Tribunal concluding that the respondent was either concealing or not admitting the true reason for not offering her a job. As for the claimant, he only claimed race discrimination in his ET1, and this claim was also rejected on the basis that there was no evidence to show that the claimant's race was the reason why he was not offered a job.

The EAT agreed with the submission that the Tribunal had not considered the burden of proof provision in s54A(2). The claimant must have proved facts from which the Tribunal could conclude that he had been treated less favourably on grounds of race, given the conclusions which it reached in respect of his wife's claim.

UKEAT/0358/10 South Tyneside Council v Mrs A Ward

Mon, 18 Jul 2011 14:51:40 GMT

Reasonableness of dismissal: Long-serving employee. Multiple grievances against her line managers. Unable to continue working in the same department. Employer willing to provide suitable alternative employment. After long period of negotiations between employer and employee, in order to bring matters to a head, employer gives three months notice of dismissal but continues to offer alternative employments (with continuity of employment) which are unreasonably refused during the notice period. Employment Tribunal hold that the dismissal was unfair because at the date notice was given it was premature (no precise offer had been made and the grievance procedure was incomplete).

The Tribunal also held that the same two matters constituted failure to make reasonable adjustments for the disabled employee.

Issue on appeal: whether Employment Tribunal should have considered reasonableness of dismissal as a whole i.e. embracing all matters between giving of notice and its expiry – including rejection of reasonable offers carrying continuity of employment and abandonment of grievances which had had no prospect of success.

Appeal allowed and remitted to same Tribunal to further consider.

UKEAT/0005/11 Mrs N Price v Transport for London

Mon, 18 Jul 2011 14:50:53 GMT

Bias, misconduct and procedural irregularity: The claimant was diagnosed as dyslexic and was given some software which would help her with reading and writing. Repeated requests from the claimant for training on how to use the software culminated in a letter from the claimant to the respondent in January 2009, complaining that the respondent had failed to make reasonable adjustments. At about this time, the respondent made a conscious decision not to provide the claimant with training, the respondent instead supplying the claimant with a CD so that she could teach herself. The claimant was dismissed in October 2009 and she raised claims of unfair dismissal and failure to make reasonable adjustments. Her unfair dismissal claim was rejected, and so was the failure to make reasonable adjustments, the latter claim being out of time. The ET held that part of the delay in presenting an ET1 was excusable but held that the letter written by the claimant marked the end of the period of excusable delay. It was not just and equitable to extend the period to the date of the presentation of the ET1. The claimant appealed, claiming that the Tribunal, having decided that the period of omission to make reasonable adjustments ended immediately prior to January 2009 with the ‘CD assertion’, failed to give the claimant the opportunity to make submissions, in the context of that decision, on whether it would be just and equitable to extend time for her claim. The Tribunal had invited submissions on the just and equitable issue at the end of the evidence. The claimant’s submission at that time was that the question of applying the just and equitable proviso did not arise because the period of omission had continued up to the date of the claimant’s dismissal. When this submission was made the claimant did not know that the Tribunal would hold that the period of the omission had ended in January 2009.

The EAT rejected the claimant’s appeal. There was no substantial prejudice caused to the claimant by the failure of the Tribunal to alert the parties to the weight that they were going to be attaching to the letter. None of the three matters advanced by the claimant would have made any difference to the outcome.

UKEAT/00092/10 1) Sefton Metropolitan Borough Council 2) Sefton New Directions v Hincks and Others

Mon, 18 Jul 2011 14:49:58 GMT

Jurisdictional Points: Claimants in an equal pay case raised grievances naming a single comparator. In their ET1's they named further comparators and they subsequently sought to name more by way of amendment. The respondent sought to strike out the references to the jobs named in the ET1's that were not referred to in the original grievances on the basis that the claims in relation to those jobs were distinct claims in respect of which no grievance had been lodged and which accordingly the Tribunal had no reason to entertain. They also resisted the application to amend for the same reason. The Tribunal decided both points in favour of the claimants and respondent appealed.

The EAT reminded itself that they were dealing with the standard, not modified, procedure and that it was paragraph 6 rather than paragraph 9 of the Employment Act 2002 (Dispute Regulations 2004) that applied in this case. Paragraph 6 states simply that 'the employee must set out the grievance in writing and send the statement or a copy of it to the employer'. The claimant also had to ensure that they complied with s32(2) in that the complaint which was the subject of the proceedings should be substantially the same as the complaint about which they had lodged the grievance.

The EAT preferred the argument put forward by the claimants; they would have sufficiently satisfied the requirements of paragraph 6 by lodging a statement relating to equal pay, even if they had identified no comparator. The fact that they had gone further, by identifying a comparator, did not have effect to limit the complaint. All that mattered was that both the grievance and the proceedings related to a claim for equal pay.

UKEATPA/1189/10 Miss O Baiyelo v London Borough of Southwark & Others

Mon, 18 Jul 2011 14:49:06 GMT

Reasonableness of dismissal: The claimant, an employee of the Council, was dismissed following the discovery that she had presented herself as homeless and made an application for the 'right-to-buy' a property, despite already owning a property which she had not disclosed on the application form. The Tribunal held that the respondent had conducted a reasonable investigation into the matters, that there was a genuine belief that the claimant had not disclosed material which she ought to have disclosed and that she was guilty of gross misconduct. It did so after a reasonable investigation and dismissal was in the band of reasonable responses. On review, the Tribunal would not vary its decision in the light of new evidence brought by the claimant since the evidence could have been adduced during the course of the hearing.

The EAT upheld the ET judgment, saying that the ET was entitled to form a view about the new evidence and there was ample other material upon which the Tribunal had already based its decision with no necessity for the new evidence. Two other submissions from the claimant, namely bias by a Tribunal member and an application to adduce new evidence before the EAT, were rejected.

UKEAT/0605/10 Faron Fariba v 1) Pfizer Limited 2) Gwenaelle Bartley 3) Judith Mcdonald 4) Frieda Houghton

Mon, 18 Jul 2011 14:48:02 GMT

Striking-out/dismissal: The claimant claimed that she had been dismissed unfairly contrary to the ‘whistleblower’ provisions of the ERA 1996 and that she had suffered race and disability discrimination. The procedural history was very complicated but culminated in an application by the respondent to strike out the claim on the bases that i) the manner in which the proceedings had been conducted was ‘scandalous and/or unreasonable and/or vexatious and/or; ii) the claimant had failed to comply with orders of the Tribunal. If the application for a strike out was successful, the respondent said they would seek an order for costs. The EJ made the fundamental point that the ‘case [was] not ready for trial, and in [his] judgment [the claimant was] not making any effort to get ready for hearing, nor has she shown any indication that she will make such effort.’ The EJ considered the making of an ‘unless order’ but decided that it was not appropriate in the light of successive case management orders which had not been complied with. The claimant, in his view, was intent on using litigation for inappropriate reasons and therefore struck out the claim. He also ruled that a costs order in this case was appropriate and that such costs should be assessed by a costs judge in the County Court. The claimant appealed.

The EAT upheld the decision of the ET. The EJ was entitled to strike out claims by a claimant who had demonstrated by her disregard for tribunal orders and the allegations made in correspondence against the respondent, their solicitors and the Tribunal that she was incapable of bringing her complaints to a fair and orderly trial.

UKEAT/0075/10/CEA London Borough of Hackney v Ms Natasha Sivanandan and Others

Mon, 18 Jul 2011 14:46:12 GMT

Race Discrimination: The proceedings had begun in 1999 after the claimant sued for discrimination and victimisation. She had been interviewed unsuccessfully for two posts in quick succession: one at the local authority and another at a race relations agency, that worked closely with, and was partly funded, by the council. Her claims were brought against; the local authority, one of their employees who had been on the agency interview panel, the agency Board and the company that ran the agency: the exact legal status of the agency was unclear. In the course of the proceedings, the agency was disbanded and the local authority was debarred, leaving only the employee to defend the remedy claim, as the agency board members did not participate in any of the proceedings. Eventually the remedy claim was heard in 2008, no respondents were represented and a total award of c£427,000 was made in a written judgment of 2009. All the respondents were found joint and severally liable except for the employee.

In this appeal Underhill J reviews the principles awards and joint tortfeasors, summarising the current position as broadly that

Where the same, "indivisible", damage is done to a claimant by concurrent tortfeasors, each is liable for the whole of that damage.
It is potentially unjust that a single tortfeasor could find himself responsible to the claimant for the entirety of damage for which others may also be liable or to which they may have contributed... though apportionment between the tortfeasors themselves has no impact on the liability to the claimant
If there is a rational basis for distinguishing the damage caused by tortfeasors the position is different and the court can hold that a tortfeasor is only liable for the damages attributable to them.

He goes on to review recent authorities, such as Bullimore v Pothecary Witham Weld, involving apparent apportionment and observes that while making the individual discriminator share some of the costs of their actions may be broadly attractive, it is not just that the claimant should bear the risk of pursuing against a respondent who may not be able to meet the liability, concluding that

"we would encourage tribunals henceforward only to make "split awards" between such respondents (as regards the same injury or loss) if such an order is positively sought by one of the parties and if it is clearly demonstrated what proper legal basis (i.e. something other than the 1978 Act) exists for the discretion referred to in Armitage …"

but emphasising that nothing in his judgment precludes apportionment. He then dismisses the cross-appeal .

UKEAT/0511/10 Mr P S Lockey v East North East Homes Leeds

Tue, 12 Jul 2011 08:56:20 GMT

Striking-out/dismissal: The claimant was dismissed summarily for gross misconduct in three respects: 1) failure to carry out a management instruction, in this case fitting a particular type of door to a property occupied by a tenant; 2) behaving unacceptably towards a senior member of staff and 3) behaving unacceptably in front of the tenant. The respondent carried out an investigation but did not interview the tenant. The claimant claimed that he did start to comply with the instruction but was asked to leave because he was considered not well enough to continue. He also denied swearing at the manager in front of the tenant. The Tribunal, at a pre-hearing, struck out the claims of unfair dismissal and breach of contract, saying that neither claim had a reasonable prospect of success. The claimant appealed, on grounds which challenged the use by the Tribunal of the power to strike out in circumstances such as these.

It was submitted that as a general principle cases should not be struck out on the ground that they have no reasonable prospect of success when central facts were in dispute. The EAT agreed, saying that the Tribunal’s evaluation of the evidence of the decision maker may be of some importance and the Tribunal should keep carefully in mind that it cannot test the decision maker’s reasoning when it hears an application to strike out such a claim. The claimant’s case could not be dismissed as unarguable without a full hearing.

UKEAT/0003/11 Garside and Laycock Ltd v Mr T G Booth

Tue, 12 Jul 2011 08:55:36 GMT

Reason for dismissal including substantial other reason: The respondent asked the workforce to accept a pay cut because it was experiencing financial difficulties. All the employees except the claimant agreed to the cut. Following numerous meetings the claimant was dismissed. The Tribunal considered the reasonableness and fairness of the employer’s decision to dismiss for ‘some other substantial reason’ by reference to principles of law derived from the case of Catamaran v Williams. The Tribunal ruled that the claimant had been unfairly dismissed. The correct test to apply was whether the very survival of the respondent depended on the pay cut – it didn’t. Secondly, it was reasonable for the claimant to seek to maintain terms and conditions which he had enjoyed for many years and not to agree to the pay cut.

The EAT overruled the ET decision for two main reasons. First, the case of Catamaran had actually decided the reverse; the Tribunal had selected from Catamaran not the principle that was adopted on appeal but the very principle that was rejected. Secondly the Tribunal’s attention should have been on the reasonableness of the employer, having established ‘some other substantial reason’ and not on what was reasonable or unreasonable for the claimant to do.

UKEAT/0611/10 Williamson & Soden Solicitors v Mr J J R Briars

Tue, 12 Jul 2011 08:53:45 GMT

Worker, employee or neither: The claimant was a solicitor at the respondent’s firm. It was common ground that he was an employee from 2001. In 2003 he became what was described as a salaried partner, but despite the word ‘partner’ it was common ground that he remained an employee of the firm. In 2004, new arrangements were agreed between the respondent and claimant whereby the claimant would be paid a fixed guaranteed amount plus a profit share, those arrangements being confirmed by a letter which also referred to the Williamson & Soden Partnership Agreement which was the agreement between equity partners. The claimant brought claims before the Tribunal, but the respondent submitted that the claims could not be heard because the claimant was not an employee of the firm. The Tribunal first tried to ascertain what the partnership agreement actually referred to; was it the agreement entered into in 2003 or the agreement mentioned in the letter of 2004? The Tribunal concluded that it had not been intended to make the claimant an equity partner and thus the agreement was the 2003 agreement. Further, the claimant’s title or status had not changed from salaried to equity partner, the benefits of the existing contract were to continue as before, the claimant had no risk of losses that the firm might incur, he had no capital stake, he was subject to the requirements that he meet targets, he was challenged when these were not met and he was not consulted about significant events in the life of the firm. The claimant had been engaged by the respondent under a contract of employment from the outset and nothing arose to change the claimant’s position as an employee of the respondent.

The question to be determined by the EAT for the purposes of jurisdiction was not whether the claimant was a partner nor whether he was self employed, but whether he came within the definition of employee. The Tribunal had well in mind the fact that the claimant received a profit share and specifically addressed the question as to whether the receipt of that share meant that it should no longer regard him as an employee, despite not referring expressly to the Partnership Act 1980. The EAT ruled that the ET was correct to conclude that the claimant was an employee.

UKEAT/0487/10 Mr H Chatwal v Wandsworth Borough Council

Tue, 12 Jul 2011 08:52:55 GMT

Religion or Belief Discrimination: The claimant was a Sikh who was not supposed to have contact, direct or indirect, with meat or meat products as this conflicted with his religious belief. A requirement was introduced whereby the employees had to clean the communal kitchen on a rota basis or, if they declined, they would no longer be able to use the kitchen. The claimant refused to clean the fridge and was thus banned from using the kitchen. The claimant was later suspended, and eventually dismissed, on an unrelated matter. The claimant brought a claim of indirect race, religion and belief discrimination more than a year after his suspension. The Tribunal, at a pre-hearing review, ruled that the claim was in time but found that he had not been discriminated against because, although the beliefs of Sikh members amounted to religious beliefs and the requirement to clean the fridge was a PCP, the claimant could not show that, in respect of the non-touching of meat, there was a significant group of others of the same religion or belief as himself. The claimant appealed, and the respondent cross appealed on the time limit issue.

The EAT allowed the appeal and cross appeal. The Tribunal should have said whether it rejected or accepted the expert evidence on the extent to which a group of others might hold the same beliefs as the claimant. They had not identified which submissions it preferred and why, and should have indicated why, assuming it accepted the expert’s estimate that ‘some’ of over 1000 Sikh members in England shared the claimant’s beliefs, that did not constitute a ‘group’. On the time limit issue, the Tribunal correctly found that the PCP was still in place right up until the claimant’s dismissal, but had not dealt with the respondent’s case as to the effect of the period of suspension.

UKEAT/0527/10 Robert Stack v Ajar-Tec Limited

Tue, 12 Jul 2011 08:51:01 GMT

Worker, employee or neither: The claimant was a director and shareholder of the respondent and worked for the business without remuneration. There was a discussion between himself and another shareholder about becoming an employee but a contract of employment was never drawn up. A memorandum confirmed the intention of the parties that 'the target was that the directors would become full-time employees of the business drawing a salary at a rate of £5,000 per month'. The Tribunal ruled that the claimant was neither an employee nor a worker within the definition of Part X or II of the ERA and so could not bring his claim of unfair dismissal and unlawful deductions. The reason for this conclusion was that the claimant 'did not have contract whatsoever and no terms had been agreed and, in particular, there was no consideration that was agreed which was a necessary finding to show that he was working under a contract'.

Counsel for the claimant submitted, with reference to the cases of Way v Latilla and Currencies Direct Ltd v Ellis, that the EJ was wrong in law. These 2 cases had established that the absence of agreement as to the amount of remuneration was not inconsistent with the existence of a contract whether of service or for services. The EAT agreed, saying that a contract of service or services can in principle exist even if the parties have not agreed the amount of remuneration. The matter was remitted to a different Tribunal.

UKEAT/0129/11 St John Ambulance v Mr A Mulvie

Thu, 07 Jul 2011 13:33:07 GMT

Victimisation Discrimination: The claimant had resigned from his post on 12 February 2010 and submitted claims on 4 May that year alleging a series of detriments and protected acts stretching back to 2002. The resignation followed a letter of 12 January 2010 stating that the trustees of the respondent charity would not engage with the claimant over his grievances. Before the ET it was argued that this issue should be considered as part of the full hearing and the judge agreed that it would be "potentially dangerous for [the tribunal] to decide on this issue [i.e. whether the complaint under section 47B was in time] without hearing evidence from the parties".

In this judgment, Keith J overturned this decision as the claimant had suffered no detriment since the letter of 12 January 2010 and therefore the claim should have been submitted by 12 April. Accordingly "If there were no acts in the three months before the claim was presented, it is not possible to look for any link between them and any other acts." However he did not strike out the claim as the ET still had to consider the issue of whether it would have been reasonably practical to present the claim by 12 April.

UKEAT/0430/10 Publicis Consultants UK Ltd v Ms F O'farrell

Thu, 07 Jul 2011 13:32:16 GMT

Redundancy - Fairness: The claimant was made redundant and received a severance package made up of an ex-gratia payment, statutory redundancy pay and accrued holiday pay. The ex-gratia payment was equivalent to 3 months salary, 3 months being her notice period. The Tribunal found that her dismissal was unfair and allowed her claim that the company was in breach of contract by failing to pay her notice pay. The Tribunal found that the ex-gratia payment was a gift or payment made by favour and was not a payment made on account of any legal obligation. The ex-gratia payment could therefore not amount to a payment of notice pay and this payment was still outstanding. The respondent appealed.

The task for the EAT was to consider and find the correct construction of the severance pay letter as a matter of law. They said that nothing in the language used in the letter suggested or implied that the payment was in fact another form of payment that the company was legally obliged to make, ie a payment for a period of notice. It was tolerably plain what the latter said and what the words used would, in the context in which they came to be written, be taken to mean by any reasonable and objective reader.

UKEAT/0054/11 Mr E Kudjodji v Lidl Ltd

Thu, 07 Jul 2011 13:31:29 GMT

Practice and Procedure: The claimant claimed unfair dismissal and race discrimination. The ET decided at a pre-hearing review that the race discrimination claim was out of time, but the unfair dismissal was in time and therefore they had jurisdiction to hear the complaint. The judgment was given orally and expressed in writing under Rule 28. In light of issues which were thrown up in another case, the EJ decided to review her judgment a few months later, but did not actually alter her decision. Both parties had the opportunity to argue that it should be changed but either declined to do so or did not successfully do so. The unfair dismissal case then came before a different employment judge who came to the conclusion that the unfair dismissal claim was out of time and should therefore be dismissed. The claimant appealed on the grounds that the second EJ had no jurisdiction to determine the question of jurisdiction on time grounds, it already having been decided.

UKEAT/0592/10 Mr E Komeng v Sandwell Metropolitan Borough Council

Thu, 07 Jul 2011 13:29:49 GMT

Race Discrimination: The claimant was a part time care worker at the respondent. The respondent offered all care workers the chance to undertake an NVQ in Care. The claimant asked several times over the course of 3 years, from 2006 to 2009, to do the NVQ course but was given various excuses as to why his request had not been taken up. He then found out that 2 other colleagues, who were white and worked full time, had been enrolled on the course despite being employed for less time than the claimant. He raised a grievance which included the lack of training opportunities, he was given an application form to complete and he started the course a few months later. His claim at the Tribunal related to unlawful discrimination in respect of provision of training, provision of supervision and provision of a reference, all of which were rejected. At the Tribunal, the claimant claimed that he had never been given an application form until he raised his grievance. The respondent confirmed that no application from the claimant was booked in prior to the grievance, but said that there was a general inefficiency in the processing of the NVQ applications and in fact there were several other employees who wished to go on the course but who were not put on it. The Tribunal referred to general problems relating to training courses throughout the respondent’s training centres and also said that the claimant had applied for the course in the year 2007, but unfortunately, the application was never properly processed or followed up. The claimant had ‘become a victim of the respondent’s sometimes disorganised and unsatisfactory training regime’. The Tribunal rejected the race discrimination claim, saying that although it was true the 2 comparators chosen by the claimant were white, full time and had been on the course, there were other white, full time employees who had fared much worse than the claimant. The claimant appealed on the issue of discrimination in respect of the training only.

The respondent argued that the Tribunal had i) not addressed the initial complaint in 2006; ii) made no finding on the whether or not the claimant was asked to complete an application form; iii) apparently found that a form was sent in 2007 but could not explain how this could have occurred if he was never asked to complete a form; iv) made no findings as to the numerous requests to go on the course and v) had not examined at all the circumstances of the claimant’s comparators. The EAT agreed with these arguments and concluded that, as the Tribunal had dealt with the training compendiously, the only safe course was to remit the whole issue of training for reconsideration.

UKEAT/0015/11 Mr M Johnston v Welsh National Opera Ltd

Thu, 07 Jul 2011 13:28:53 GMT

Reason for dismissal including substantial other reason: The claimant had been the principal oboist in the respondent's orchestra since 1974. In 2004 concerns were raised about his performance in terms of what is called ensemble playing. In 2006 the respondent invoked an audition procedure which was to be found in clause 1.17.1 of a collective agreement made between the respondent and the Musician's Union. The claimant passed this audition which was a solo audition, not an audition involving the orchestra. The claimant complained before the audition that he should play with the orchestra, considering the complaint was about his ensemble playing. The respondent replied, saying that, since there was a performance issue with the claimant, there was no alternative but to embark on implementing clause 1.17.1, which did not provide for playing in ensemble, and if they did depart from this position, they would be open to criticism from the claimant or the union. Also, the respondent said it would be too difficult to re-create the live performance arena. The claimant raised a grievance, complaining that the issue of his ensemble playing remained unresolved. The claimant was eventually dismissed following a disciplinary hearing and his appeal was rejected. At the Tribunal, the respondent was found to have acted within a reasonable range of responses. Counsel for the claimant argued that the Tribunal had made an error of construction involving the analysis of the rubric of the collective agreement and the disciplinary procedure, and that the judgment was perverse.

The EAT regarded the construction adopted by the Tribunal, that ensemble playing is not included in clause 1.17.1, as erroneous. There was nothing in the clause that excluded ensemble playing and it was never the intention of the parties that the agreement was not to cover all aspects of poor artistic performance. The EAT could not say with any certainty that, had the Employment Tribunal appreciated that the claimant was entitled to have the poor artistic performance procedure operated in terms of his ensemble playing, they would have reached the same conclusions about the reasonableness of the employer's position and the matter was remitted to a fresh Tribunal.

UKEAT/0049/11 First Choice Homes (Oldham) Ltd v (1) Mr D Capon (2) Mr R Chadwick

Thu, 07 Jul 2011 13:27:59 GMT

Reasonableness of dismissal: The claimants were employed as electrician and joiner and, up until their dismissal, had been long serving employees with impeccable disciplinary and attendance records. On the day in question the respondent received a telephone call to the possibility that some of the respondent's employees had broken into a private property which was owned by the caller jointly with her ex-husband, and against whom she said she had an injunction preventing him from entering the premises. A housing officer went to the property and found the 2 claimants and the ex-husband there. One of the claimants was doing something to a lock on the inside of a door and his toolbox was beside him. The claimants were suspended on the suspicion that they had broken into and entered property belonging to another, that they had done so in order to work in that property in the company's time, and that they had misused the company's property and uniform to do so. The account given by the 2 claimants was that they had used their own time, their lunch break, to advise a friend on how to change the locks and that they had not entered the property without authorisation because, so far as was known to them, they were authorised to enter when the friend found a key under a doormat. The allegations against the claimants were that i) they had entered a property; ii) without authorisation they had entered a private property within company time; iii) they had misused company time and property and iv) they had issued or entered fraudulent timesheets. At the disciplinary hearings, the respondent concluded that it was not acceptable for the employees to carry out work during lunch time using a van with the respondent's livery and whilst wearing the respondent's uniform. Their actions had brought the company into disrepute and were a substantial breach of the implied duty of trust and confidence. Both claimants were dismissed and their appeals, which were more akin to reviews than re-hearings according to the Tribunal, were also dismissed. The Tribunal upheld their unfair and wrongful dismissal claims, saying that the respondent had not undertaken an adequate investigation, the appeal was inadequate, dismissal was not within the range of reasonable responses because there was a lack of clarity in the policy regarding lunch break activities and use of company vehicles and the actions of the claimant could not be classed as gross misconduct. The respondent appealed, claiming that the ET judgment was perverse.

The EAT upheld the decision of the ET. The Tribunal was not perverse in making findings that in these circumstances an employer could rightly be criticised for failing to obtain evidence from the householder said to have invited the employees to the house, and had in that and other respects inadequately investigated what had happened, and in holding that to dismiss the employees was to go beyond the objective standards of the reasonable employer. The Tribunal was also entitled to hold that the breach of contract in driving a company van further than permitted by the policy was not a repudiatory breach justifying summary dismissal.

UKEAT/0424/10 Mr W Hiero v Changework Now Ltd

Thu, 07 Jul 2011 13:27:09 GMT

Practice and Procedure: The claimant was offered a job with the respondent but a few days later the offer was withdrawn, the respondent citing loss of business as the reason. The respondent claimed that at the time the job offer was withdrawn, they did not know that the claimant was disabled because they had not yet received a questionnaire from the claimant giving details of his disabilities. Therefore the withdrawal had nothing whatsoever to do with the claimant's disabilities for the simple reason that they were unknown to the respondent until after a meeting had been held making the decision to withdraw the offer. The claimant claimed that the minutes of a meeting, at which it was alleged the withdrawal of the offer was decided, were fabricated, the basis of his claim being down to various discrepancies between dates of email communication. The discrepancies were explained by the respondent and the claimant was apparently put off from pursuing the matter because of his inexperience in litigation. The Tribunal concluded that the respondent had held the meeting and that the minutes produced were genuine. They dismissed the claimant's claim. The claimant applied for a review of the decision following the receipt of new evidence which purported to show that the respondent had indeed fabricated the minutes. The Judge refused the application on the basis that the claimant knew about the date discrepancies at the time of the initial hearing and had full opportunity to cross-examine the respondent at that time. The claimant appealed on the grounds that the EJ had erred in rejecting the evidence as new evidence, and failed to consider whether it was in the interests of justice to have a review even if the evidence did not qualify as new evidence.

The EAT decided that the ET had erred by considering the application for review only in terms of new evidence pursuant to rule 34(3)(d). Although the refusal of the application for review could not have succeeded on that basis, the interests of justice were also engaged and the ET should have considered the point being made by the claimant that there was now evidence that the email in question must have been manipulated.

UKEAT/0310/10 Mr N Bouzir v Country Style Foods Ltd

Thu, 07 Jul 2011 13:12:21 GMT

UKEAT/0571/10 The Secretary Of State for Business Innovations & Skills v (1) Mr J Studders (2) Mr C M Baldwin (3) Mr A Ballantyne (4) Unity Personel Limited (In Voluntary Liquidation) (Debarred)

Thu, 07 Jul 2011 13:11:18 GMT

Worker, employee or neither: The respondent was an employment agency which supplied the claimants to the end user. Although there was no obligation for the respondent to provide work to the claimants and there was no obligation for the claimants to accept the work, the Tribunal found that the claimants were in fact employees and entitled to unpaid wages from the, by now, insolvent respondent. This ruling was also made in spite of a clause in the contract which specified that the terms did not give rise to a contract of employment and the claimants were engaged as self-employed workers. The claimants were paid only when on assignment and the contract was terminable on either side at any time without notice. The respondent did not exercise any day-to-day control over the claimants. The respondent appealed against the ruling.

The EAT overruled the decision of the ET, saying that there was nothing to suggest that the parties intended that the respondent should be the employer; it was clear from the terms of the contract itself that the respondent had no such intent. The only conclusion that a properly directed EJ could have come to was that there was no mutuality of obligation, and no control at all over the times or manner in which the claimants were to work.

UKEAT/0418/10 Mr M Zeff v Lewis Day Transport Plc

Thu, 07 Jul 2011 13:09:50 GMT

Jurisdictional Points: The claimant was a manager of a chauffeur operation in a team with four other people. A downturn in business resulted in the chauffeur being closed and two administrators in the team being employed elsewhere in the organisation. The employer circulated news of other jobs within the organisation though the claimant did not respond to any of the posts and he was subsequently made redundant. The ET found that this was a true redundancy so no selection criteria were relevant, the procedure had been fair and that any award would have been reduced to nil.

In this appeal, the claimant made several points which, as noted by the EAT, would have been uncontroversial if it ET's approach on the issue of whether 3 or 5 posts had been made redundant was wrong. After reviewing the submissions, Langstaffe J finds that, among other things, there was no error in law with the ET's approach and that that their decision regarding the claimant's pursuit of other opportunities in the organisation was not so speculative as to be impermissible.

UKEAT/0609/10 Mr W Howard v Campbell's Caravans Ltd

Thu, 07 Jul 2011 13:08:59 GMT

Reason for dismissal including substantial other reason: The claimant was approaching his 65th birthday and the respondent notified him in May 2008 that he will retire on 12 November 2008 but could request to continue working. In subsequent discussions, the claimant indicated he would like to extend his employment but no formal response was received. in September 2008 a downturn in work meant that the claimant was laid off, and he wrote to the respondent complaining of the lack of formal response and claiming that he had been laid off because of his impending retirement. On 30 October the respondent confirmed that the request for an extension had been turned down. The claimant issued proceeding on various grounds in the ET but by the time of this appeal the only issue was whether the claimant had suffered age discrimination.

In this judgment, Underhill J reviews ss 98ZA – ZF of the ERA 1996, which regulates fairness of dismissals for retirement on after 65, and the Employment Equality (Age) Regulations 2006. He also reviews the submissions of the claimant that, broadly, the notification of retirement had not set a specific date (the claimant had in fact retired two days after his 65th birthday) and that there should be no need to refer to the staff handbook to confirm the policy. Underhill J accepts the latter point but goes on to conclude that the "point only matters if it is indeed the case that the letter did not state a date of retirement" which, on a natural reading it did as it stated that he would be retired on his 65th birthday; the fact that he worked until 14 November did not matter. He then goes on to state that it was clear that the reason for dismissal was fair and was not unlawful age discrimination.

UKEAT/0566/10 Mr K Oudahar v Esporta Group Ltd

Thu, 07 Jul 2011 13:07:44 GMT

Automatically unfair reasons: The claimant was a chef, working in the kitchen at the respondent. Work was undertaken in the kitchen which was unfinished by the time the claimant returned the next day. According to the claimant, there were wires hanging out from the walls and he refused to obey an instruction to mop the floor behind the fryers because he was concerned for his own safety. He was suspended. During the subsequent investigation a witness said the area the claimant was asked to clean was free from danger, the claimant had not alleged that he was in any danger and the claimant was dismissed in part by reason of disregard of food hygiene and in part by reason of the failure to obey instructions. S100(1)(e) of the ERA says:

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that - ….

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."

The Employment Tribunal found that the claimant's dismissal did not fall within s100(1)(e) because the respondent had investigated the contention about health and safety and preferred the account of the witness who said there was no risk. The respondent was therefore dismissing the claimant for failing to follow a reasonable instruction.

The EAT ruled that the ET had failed to apply s100(1)(e) properly. Firstly they had to consider whether there were circumstances of danger which the employee reasonably believed to be serious and imminent and whether he took or proposed to take appropriate steps to protect himself. Secondly, if the criteria were made out, the Tribunal should have asked whether the employer's sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, the dismissal must be regarded as unfair. The Tribunal did reach a conclusion on this question but it did not reach a conclusion on the first. Also, the mere fact that the employer disagreed with the claimant as to whether there were circumstances of danger, or whether the steps were appropriate, was irrelevant.

UKEATS/0052/10 Mr William Frew v Springboig St John's School

Thu, 07 Jul 2011 13:06:14 GMT

Polkey deduction: The claimant, a social worker employed at a residential school for teenagers, was dismissed following an incident where he allegedly kicked a pupil. After the incident he went to the Deputy Principal in a distressed state and admitted that, through provocation and fear, he had kicked a pupil. The pupil gave a conflicting account of what had happened but did not want to involve the police. A disciplinary hearing was started but then adjourned so that the panel could hear evidence from another witness. The hearing was never resumed; instead the claimant was dismissed and the dismissal letter advised him that he had a right to appeal but only in writing. Despite correspondence between the claimant’s solicitor and the respondent, where the solicitor made it clear that there were irregularities at the disciplinary stage and the claimant did not have fair hearing, an appeal hearing was refused. The Tribunal found the dismissal to be procedurally unfair, saying that there was one glaring error that had been committed by the respondent, namely that there ‘was no appeal whatsoever’. The Tribunal gave no consideration to the respondent’s failure to reconvene the disciplinary hearing. The Tribunal ruled that as the claimant had admitted kicking the pupil, there was a 100% probability that he would have been dismissed if a proper disciplinary procedure had been followed. They also ruled that the claimant was 100% to blame for his own dismissal and made no compensatory award. No consideration was given to the making of a basic award.

The claimant submitted that the Tribunal had erred by failing to take account of the whole circumstances which included that the decision to dismiss was arrived at without the disciplinary hearing being completed and without an appeal hearing. The Tribunal had failed to have regard to the fact that an appeal hearing would have required to consider not only the issue of whether or not the misconduct alleged had occurred but, if it did, what, in the whole circumstances, including any mitigation advanced, was the appropriate sanction. They had looked only at the issue of whether or not there was misconduct, looked at that from only the respondent’s perspective and engaged in speculation that went too far. The conclusion that there was a 100% likelihood of dismissal in any event was, on the facts found, not one at which a Tribunal could reasonably arrive. The EAT ruled that the ET had erred in three respects; (a) in their assessment of the Polkey reduction; (b) in their assessment of contribution and (c) in their failure to consider making a basic award.

UKEAT/0025/11 Miss T Mirikwe v (1) Wilson & Co Solicitors (2) Mrs A Soyer (3) Mr K Vincent

Thu, 07 Jul 2011 13:05:25 GMT

Unfair Dismissal: The claimant brought proceedings against the respondent, claiming race and sex discrimination and breach of contract. All her claims were dismissed, judgment being given in the morning, and the respondent made an application for costs which was heard in the afternoon of the same day. The claimant did not attend in the afternoon, despite the fact she was still in the building, and a costs order was made against her. The ET did not think it appropriate to take into account her means because of her failure to attend the costs hearing and the extent of the unreasonableness of her conduct of the litigation. Counsel for the claimant argued that the Tribunal had not correctly dealt with the issue of costs because they had taken into account the claimant's failure to return to the hearing as an important factor, and that they had done so only because they wished to punish her for that conduct. The ET had also mentioned only the non-attendance as an example of a situation in which a party may not have their means taken into account, when in fact the case of Jilly mentioned another example, namely the giving of unsatisfactory evidence. Taking such a significant or disproportionate account of non-attendance was a simple reflection of its displeasure at her conduct, rather than a matter genuinely relevant to the question of whether her means should be considered.

The EAT rejected this argument, saying that they had not simply treated the non-attendance as an aspect of unreasonable conduct. The Tribunal had dealt with the failure to return to the hearing separately from her generally unreasonable conduct, believing that her attendance may have assisted on the question of her means. The non-attendance had not been deployed punitively by the ET.

UKEAT/0587/10 Mrs N M Burden v Stevenage Borough Council

Thu, 07 Jul 2011 13:04:07 GMT

Constructive dismissal: The claimant worked as an arboriculturalist for a local authority. There were problems at work with colleagues, and a planned project move did not resolve the issues as hoped by a manager. These problems, including use of offensive language in the workplace and alleged bullying, and work pressures led to the claimant going off ill. On her return there was a further incident concerning a poster that the claimant thought offensive and she went on sick leave again. There was subsequent involvement by occupational health and a grievance procedure was in place but 22 months later the claimant resigned. In the ET, a majority found that the some of the allegations were true but had been acceptable; that the various incidents had not represented less favourable treatment on grounds of sex and that the claims were out of time given the length of time that the claimant had been off sick and her failure to pursue the grievance.

In the judgment HHJ Hand reviews the tribunals handling of the evidence and the issue of acceptance of a waiver of the contract. He concludes that the ET had conflated the concept of affirmation with that of reasonable practicability to present a claim and so had misdirected itself, principally as the tribunal had not sufficiently considered discussion between the parties to reach an accommodation. On the sex discrimination claims, while noting submissions from the claimant about the tribunal not using the approach set out in Igen v Wong, he found that the ET was entitled to reach the conclusion it had. However the unfair dismissal claim was remitted to a different tribunal partly because of the dissenting view of one of the panel.

UKEAT/0612/10 Mr S Weare v HBOS Plc

Thu, 07 Jul 2011 13:03:17 GMT

Practice and Procedure: The claimant was given a written warning following a disciplinary hearing which found that he was guilty of taking unauthorised absence. The respondent informed the FSA about the forthcoming disciplinary hearing (which the claimant did not know about at the time) and later about the result of the hearing (which the claimant did know about). He resigned soon afterwards and claimed constructive dismissal, dismissal by reason of making protected disclosures, detriment suffered as a result and unlawful deductions from wages. A Tribunal rejected all the claims. The claimant applied for a review of the judgment nearly a year out of time, the basis of the review being the discovery of an email which had been sent from the respondent to the FSA notifying them of the forthcoming disciplinary hearing, the claimant claiming that this caused him detriment. The review application was dismissed on the grounds that it was out of time and there was no reasonable prospect of the judgment being varied or revoked; any detriment to the claimant was caused not by the notification of the forthcoming hearing but the notification of the outcome, the claimant knew of that email and the sanction imposed by the respondent was a permissible one. The claimant presented a fresh claim, complaining of detrimental treatment as a result of making protected disclosures; this claim was struck out on the basis that it was an attempt to re-open matters which were, or ought to have been, raised before the Tribunal. The claimant also applied to the Registrar to see the full version of redacted documents disclosed by the respondent which was refused.

The EAT rejected all 3 appeals. The review appeal failed because it was out of time and without merit: the knowledge of the first email to the FSA would not have affected the nature of the substantive hearing. The application to see the full version of redacted documents failed on the basis that they were available at the original hearing. The strike out decision was upheld on the basis that it was an attempt to re-litigate the first claim.

UKEAT/0216/09 Northumberland County Council v Mrs E Collins & Others

Thu, 07 Jul 2011 13:01:58 GMT

Equal Pay Act - Work rated equivalent: The issue arose in relation to s1(5) of the Equal Pay Act as amended where the claimants had compared themselves with temporary road workers or labourers. The road workers’ terms and conditions, like those of the claimants, were governed by a document called the ‘White Book’ and both groups were graded MG1. The question before the Tribunal was whether or not the temporary road workers were evaluated into the White Book thus enabling the claimants to make a comparison between temporary road workers and themselves. According to the Tribunal, the evidence suggested that someone at the respondent had carried out an exercise to ensure that the job specifications and job descriptions for the temporary road workers fell within the MG1 grade, and to do so, in an honest way, they must have been evaluated in accordance with the White Book. The respondent appealed.

The EAT accepted the submissions of the respondent and allowed the appeal. It was implicit in the Tribunal judgment that the evidence of the respondent’s witnesses, that there had never been an evaluation of the temporary road workers, had been rejected but the Tribunal had given no reasons for arriving at this conclusion. Alternatively, the conclusion was one which no reasonable Tribunal properly directing itself on the evidence could have reached.

UKEAT/0613/10 & UKEAT/0614/10 Dr A Olayemi v (1) Athena Medial Centre (2) Dr A C Okoreaaffia & Others

Thu, 07 Jul 2011 13:01:15 GMT

Unlawful Deduction from Wages: The claimant was claiming sex discrimination and unfair dismissal and Counsel for both sides had agreed a list of issues prior to the Tribunal hearing which was to take place 18 months after the initial complaint was made. 2 months after the list of issues had been agreed, the claimant applied to amend her claim to include a claim that she had been dismissed unfairly as a result of making protected disclosures. The proposed amendment would have involved the insertion of 24 sub-paragraphs identifying 24 instances in which the sending of emails or correspondence was said to amount to a protected disclosure. The EJ refused the application of the basis of, amongst other factors; i) the lateness of the application; ii) the impact on the scope of the evidence that would arise by allowing the amendment and iii) the prospects of her succeeding with the amended claim did not appear good. On appeal the claimant argued that the EJ failed to direct himself in law to assess the balance of injustice and hardship as between the applicant and respondent to the application, he had failed to properly identify and assess a real prospective hardship that the claimant may suffer if the amendment was not allowed, the EJ had allowed himself to be over-influenced by delay as a factor in this case and the EJ had taken into account, wrongly, that there would potentially be an enlargement in the scope of evidence.

The EAT rejected each ground of appeal. The EJ had in terms been reminded immediately before making his decision of the correct approach in balancing injustice and hardship and the correct approach had been expressly stated in 2 letters before him. Although the EJ had not expressed himself directly to the matter of the prospective hardship the claimant may suffer, nothing turned in the circumstances of this case on his failure to do that expressly. The EJ did not treat the question of time or delay as being determinative and indeed had said as much in the letter rejecting the application. Finally, the EJ was right to direct himself that the scope of evidence and more importantly the argument around the protected status of the numerous documents would considerably widen matters before the Tribunal.

UKEAT/0589/10 Miss L Mak v Waygood Gallery Ltd

Thu, 07 Jul 2011 13:00:12 GMT

Appellate jurisdiction/Reasons/Burns-Barke: The claimant claimed that she had been unfairly constructively dismissed following the submission of a grievance to the respondent, which they responded to 4 months later by a letter from their solicitor. The Tribunal found that at no stage did the respondent breach any term express or implied of the contract of employment of the claimant or contravene any statutory obligation. The reason for the resignation of the claimant was nothing to do with what the respondents had done and the claimant's claim was dismissed. The claimant appealed.

The EAT found that the ET judgment was not Meek compliant. The Tribunal had listed the right questions to answer, but the extremely compressed reasoning did not answer them. The Tribunal should have said whether the conduct by the respondent amounted to a repudiatory breach of contract, and, if not, why not.

UKEAT/0582/10 Gateshead City Council v Mr I T Hope

Thu, 07 Jul 2011 12:59:05 GMT

Reasonableness of dismissal: The claimant was a teacher in a specialist behaviour unit. He had been suspended following allegations about his relations with other staff but returned to work after a final written warning. He was suspended again 8 months later following further allegations and after an internal hearing he was dismissed. The ET found that he had been unfairly dismissed as there were no reasonable grounds for believing him to be guilty of the alleged behaviour and that the investigation had been insufficient, particularly as the investigators had not interviewed pupils who had witnessed the behaviour.

In this judgment, Recorder Luba reviews the relevant statutes and the ET's written reasons. He concludes that they did not misdirect themselves but that it was a case where the ET was plainly failing to examine the relevant questions from the perspective of whether "the employer's responses were reasonable but were rather substituting their own views." Although strictly unnecessary, in the light of his first conclusion, he then goes on to consider the other grounds of appeal put forward finding, broadly, the ET had misdirected themselves by placing the burden on the employers to prove the dismissal was reasonable when the correct position is that neither party bears a burden.

election point the respondent would not have been able to rely on that submission.

UKEAT/0244/10 Mr D Phillips v Xteria Communications Ltd

Thu, 07 Jul 2011 12:56:48 GMT

Collective consultation and information: The claimant worked in a site for a US owned company who in May 2008 decided that they needed to close the site. Following formal notification of a redundancy process, the employees at the site met to elect representatives and, after some changes, three representatives were notified to the employers and no objections received from employees. As the process unfurled the respondent changed tack and decided to retain the site but with a reduced workforce. The claimant was part of the exercise and was found by the ET not to have engaged with a consultation meeting. He was subsequently made redundant with one other worker. He issued proceedings but these were rejected by the ET.

In this appeal, the claimant submitted, among other things, that the employer had not complied with ss 188 & 188A of TULRCA as there had been no election of employee representatives and that the ET had been wrong to have found so. Recorder Luba QC reviews the language of the relevant sections and the intention of Parliament. He concludes that there was an election as the number of candidates matched the number of required representatives and in such circumstances no ballot is required. However he then goes on to reject the ET's further finding that holding a compliant ballot would not have been reasonably practical and that had the appeal succeeded on the

UKEAT/0164/11 Mrs A Vatish v Crown Prosecution Service

Thu, 07 Jul 2011 11:48:58 GMT

Restricted Reporting Order: The appellant, who was the claimant in the Tribunal proceedings, was appealing against a Restricted Reporting Order which had been made, preventing the publication of things said in the course of the Tribunal proceedings which may have the effect of identifying the alleged victim of the misconduct in question but only so long as the proceedings were ongoing. The claimant had already given her evidence, amongst which there were allegations that her manager had touched her in circumstances which would constitute a sexual assault. A witness denied, contrary to earlier confirmation to the claimant that the manager had also frequently pinched her bottom, that she had been inappropriately touched by him. The hearing was then adjourned. The claimant did not oppose the making of a rule 49 order, but did oppose the making of an order under rule 50. The respondent supported the making of an order under both rules and the Tribunal proceeded to take that course. The order under rule 50 prevented the identification of the claimant, the manager and the witness. The claimant appealed.

The EAT ruled that the order made by the ET was wrong in law. A Restricted Reporting Order should not be made unless it is necessary to do so in order to protect the interests of justice or some article 8 right of an affected person. In the present case, the claimant did not wish for her identity to be protected, and in any case, her evidence had now been given and reported widely. The manager might in principle have been entitled to protection to prevent being subjected to undue pressure during the giving of his evidence or to protect his article 8 rights. However, he had made no application at any stage on this basis. The EAT also could not see why the witness needed protecting since she had already given evidence and it was difficult to see how the fact that she had never suffered inappropriate touching by the manager could engage her article 8 rights.

UKEAT/0497/10 Sheffield City Council v Mr G Norouzi

Thu, 07 Jul 2011 11:48:11 GMT

Harassment: The claimant, who was Iranian, was a residential social worker at a home for troubled children. One of the children's behaviour was extremely challenging and there were a number of incidents when the claimant was on shift including mocking of his accent and saying that he should go back home. As a result he went on sick leave and issued claims of harassment and indirect discrimination under the RRA 1976. The ET found that a) the respondent had been on notice of the problems following a report and had not acted to put in effective measures to prevent the behaviour; and b) that the behaviour was harassment for which the respondent was liable given their inaction.

In this appeal, the respondent challenged the factual findings, the delay in provision of the reasons, the motivation for mimicking the claimant's accent and also attempted to introduce a new point following the EAT decision in Conteh. Underhill concludes broadly that

i) although the reasons were delayed, the delay was not exceptional and so did not constitute a ground of appeal

ii) the ET had been entitled to find that the Council was required to do more than to change the child's behaviour or support the claimant to manage it

iii) the underlying motivation of the child in mimicking the claimants accent, that it was to challenge authority rather than motivated by race, was irrelevant

iv) that the respondent could not introduce the point following Conteh, concerning inaction leading to the creation of a hostile environment, as it had been open to the claimant to argue before the Tribunal even though the Conteh case had not been decided at that stage.

UKEAT/0051/11 Independent Insurance Co Ltd (In Provisional Liquidation) v (1) Mr J Aspinall (2) Mrs T O'callaghan

Thu, 07 Jul 2011 11:47:16 GMT

Collective consultation and information: The respondent, which went into provisional liquidation in 2001, failed to comply with s188-189 of TULRCA as there was no trade union representative or an elected representative of the employees who were to be made redundant. The Employment Tribunal made protective awards of 90 days not only to the claimants who brought claims but also to the other 350 employees who either had not brought claims or who had had their claims settled or dismissed. One such employee would benefit from the award notwithstanding that his claim had been withdrawn and dismissed at an earlier hearing. The Tribunal said in defence of its ruling that:

'Section 189(3) then defines what a protective award comprises. It is an award in respect of one or more descriptions of employees who have been dismissed as redundant (etc) and in respect of whose dismissals (etc) the employer has failed to comply with a requirement of section 188'

and rejected the submission that it only had jurisdiction to make a protective award in respect of a person who has been dismissed as redundant where a complaint has been proved in respect of that person. This view was contrary to the views expressed in Harvey on Industrial Relations.

Counsel for the respondent submitted that it was necessary to construe the phrase 'description of employee' in the case of an individual claimant as referring to that individual only rather then the entire class of which he was one. Such a construction would avoid all the anomalies that arose if the construction favoured by the ET were to be correct. The EAT agreed with this argument, ruling that the right to a protective award should be limited to those persons who were represented by a trade union or employer only, or to claim in their own right only. The view expressed in Harvey was right and Parliament would not have intended the statute to produce an absurd result.

UKEAT/0024/11 Community Law Clinic Solicitors Ltd & Ors v Mr S Methuen

Thu, 07 Jul 2011 11:46:26 GMT

Striking-out/dismissal: The claimant, an Asian man aged 54 when he was dismissed, was dismissed after employment lasting just 5 months because he had failed to meet targets. He was replaced by a younger Afro-Caribbean woman who was paid very much less than the claimant. The claimant claimed that he had been dismissed on the grounds of his age, sex and race. The respondent denied all these claims, saying that he had been dismissed because the department was running at a loss and could not afford to employ the claimant on his current salary. At a pre-trial review, the Tribunal decided that the case had little prospect of success, but it had crossed the threshold of possibility and was not a case that was bound to fail. The respondent appealed.

On the sex and race issues, the EAT disagreed with the ET, saying that it could not be the law that, where an employee is dismissed for whatever reason and is replaced by someone whose protected characteristics are not exactly the same as the claimant, can get a discrimination case to trial simply by asserting that the replacement employee is different. On the age discrimination claim, the EAT agreed with the ET that the claim was very close to the line but just on the right side.

UKEAT/0541/10 Miss C Johanson T/A Kaleidascope Child Care v Mrs D Yeo

Thu, 07 Jul 2011 11:45:42 GMT

Parties: The claimant made complaints to the ET, naming the respondent as Cathy Johanson, trading as Kaleidascope Child Care. A response was filed by Kaleidascope Child Care Limited, the address of the respondent being a PO box number which was different to the address the claim was sent to originally. The ET gave notice of the hearing and sent it the respondent at the PO box address. The respondent did not attend the hearing, which was decided in favour of the claimant, and judgment was made against Cathy Johanson, trading as Kaleidascope Child Care, by taking evidence from the claimant and examining documents. When the judgment came to the notice of the respondent, they applied for a review saying that they had had no notice of the hearing. The review was refused by the ET on the basis that the notice of hearing was properly served at the address given and it was the responsibility of a party to advise of any change of address. Cathy Johanson appealed against the judgment made against her on the grounds that she had had no chance to make any representations about being effectively joined as a party, and no opportunity to defend the proceedings in her own right. She did not accept she was trading as Kaleidascope Child Care; a company owned the business.

The EAT agreed with the respondent. Until the hearing, Cathy Johanson had not been named as a party. The ET's order and notice of hearing had been issued to the company. The judgment in substance made her as a party and proceeded immediately to determine the proceedings against her. The Tribunal fell into error by proceeding immediately to enter a judgment against her. The EAT also made an order joining both Cathy Johanson and the company as respondents so that at the next hearing, both of them would be before the Tribunal.

UKEAT/0563/10 Lycee Francais Charles De Gaulle v Ms M Delambre

Thu, 07 Jul 2011 11:43:29 GMT

Age Discrimination: The claimant, who was still employed by the respondent, had won her claims of age discrimination and victimisation at the ET. Appeals against the liability judgment and remedy were rejected by the EAT and Court of Appeal. This appeal concerned the three recommendations made by the ET, which intended to assist the respondent in making the necessary transition to comply with its obligations as an employer under UK Employment Law and thereby obviate or reduce the adverse effects on the claimant of the acts of discrimination. The ET directed that the respondent circulate the judgment to each member of the Governing Board and senior managers, employ a qualified HR manager and undertake a programme of equality and diversity training. The respondent contended that the first recommendation should not be made because there was no Board of Governors, the second recommendation should be criticised because it was too wide, and the third recommendation used language that was too vague and it was onerous in that diversity training must be provided.

The EAT upheld the recommendations, first saying that the French body known as the Commission Paritaire was the Board of Governors. Secondly, an HR professional would be able to give advice about the way in which disciplinary action for matters of minor misconduct should be handled. Finally, equality was at the heart of the matter and the Tribunal had made ample findings about the lack of understanding and equality – the Tribunal were entitled to recommend diversity training since it was part of the recruitment policy that the claimant should have an opportunity equally to compete for promotion in the future.

UKEAT/0272/10 & UKEAT/0479/10 & UKEAT/0480/10 Pressure Coolers Ltd v (1) Mr J Molloy (2) Maestro International Ltd (3) The Secretary Of State For Trade And Industry

Thu, 07 Jul 2011 11:42:20 GMT

Transfer of Undertakings - Insolvency: The claimant, who had 20 years service, had been made redundant following the transfer of the business to the new owners. He had been notified of his redundancy in the afternoon of the day of transfer and received no pay in lieu. The ET clearly found that the claimant had been dismissed by the respondent and that the Secretary of State was liable for payments in lieu, accrued holiday and failure to consult while the respondent's were liable for the basic award and compensation. On review, undertaken because of an error in the judgment, the ET concluded that the Secretary of State was not liable for the payment in lieu of notice and the failure to consult.

In this appeal the respondents argued, broadly, that the statutory scheme in Part XII applied to a relevant employee, irrespective that employment had not been terminated, and that the date of the transfer was the date of termination making the transferor, and ultimately, the Secretary of State liable. After reviewing the statutory provisions and the relevant authorities, including OTG v Barke & Slater, Cox J rejects these submissions primarily because under article 5 of the Directive and TUPE, the debts have to be payable before transfer to come under the guarantee of the state and that was not the case here. She also makes some observations on the procedure the ET should have adopted when reviewing their original judgment.

UKEAT/0460/10 Mr P Lancaster v TBWA Manchester

Thu, 07 Jul 2011 11:40:33 GMT

Unfair Dismissal - Compensation: The claimant was recognised as disabled within the meaning of the DDA. He was dismissed for redundancy following a scoring exercise involving the claimant and 2 other employees, where the claimant scored the lowest. The 3 employees were scored against 16 selection criteria, 3 of which the claimant claimed placed him at a disadvantage as they required communication skills and he had a social anxiety disorder. He sought an adjustment by the substitution of these criteria with objective criteria such as attendance and length of service. The Employment Tribunal held that the substitution of these criteria with those suggested by the claimant would have made no difference to his final score and he would still have been selected for redundancy. The ET also held that replacing all the redundancy criteria with objective measures would not be a reasonable adjustment, in the light of the fact that they were not satisfied that it could have prevented the PCP from having the disadvantageous effect of the claimant being made redundant. The ET dismissed the age discrimination claim but upheld the claim of unfair dismissal because the respondent had failed to consult with the claimant. They awarded just 4 weeks compensatory pay, ruling that the claimant would have been dismissed within that time anyway, had proper procedures been followed. The claimant appealed.

The EAT upheld the disability and age discrimination rulings. The ET did not err in having regard to the extent to which taking the suggested step, ie changing the selection criteria to more objective ones, would prevent the effect in relation to which the duty is imposed in deciding that the adjustment was not reasonable. The ET was entitled to conclude that replacing all the criteria was not a reasonable adjustment, having regard to the creative and senior level of the post held by the claimant. However, the ET erred in limiting the compensation award to 4 weeks pay without considering whether the respondent had made reasonable efforts to identify and offer suitable alternative employment.

UKEAT/0293/10 Miss H Wilcox v Birmingham Cab Services Limited

Thu, 07 Jul 2011 11:39:38 GMT

Direct disability discrimination: The claimant worked as a debt advisor and asked the respondent if she could work at a bureau close to her home because she suffered from agoraphobia and travel anxiety, which prevented her from using public transport. She resigned when the respondent refused the move on a guaranteed permanent basis. The Tribunal dismissed her claim of a failure to make reasonable adjustments on the basis that a) the respondent had neither the actual nor the constructive knowledge required by s4A(3)(b) and b) that in any event the refusal was reasonable. Her disability discrimination claim was dismissed because the Tribunal ruled that the respondent’s decision was not on the grounds of the claimant’s disability. Finally the constructive dismissal claim was dismissed on the basis that the respondent had not breached the contract in any relevant respect.

The EAT upheld the Tribunal’s decisions in all respects. The Tribunal was entitled to find that a) the respondent did not have the necessary knowledge, that the claimant was disabled, at any relevant time and b) the respondent’s conduct was not on the ground of the claimant’s disability. Also, the Tribunal’s decision on the constructive dismissal was not vitiated by having directed itself by reference to Claridge, notwithstanding Buckland.

UKEAT/0232/10 Mr M S Tasneem v Dudley Group of Hospitals NHS Trust

Thu, 07 Jul 2011 11:38:40 GMT

Contract of Employment: The claimant was a locum consultant. In 2003 all consultants were given the opportunity to indicate whether they wished to give formal commitment to a new contract. The claimant did not receive this correspondence but he was aware of the relevant information. He applied much later but the Tribunal found that he never actually did accept the terms of the offer to go on to the new contract. In 2006 the respondent needed to change the structure of the team of consultants, in particular it wanted to appoint 2 substantive consultants to redress the balance between the substantive consultants and the locums. The claimant applied for one of the posts of substantive consultant but was not offered the job. His post of locum then ceased, the Tribunal ruling that the dismissal was fair as being for a permissible reason, namely for some other substantial reason. The Tribunal made the express finding that the claimant knew of the contents of the new contract and his failure to apply for the new contract was his own decision, made for his own reasons. As to the unsuccessful application, the Tribunal ruled that the claimant did not get the job because he performed badly at the interview and not because of his race.

The EAT upheld all the conclusions of the ET. The ET found that the instructions for the notification of the new terms was not incorporated into the claimant's contract and anyway, this was academic because the claimant had ample knowledge of the proposed changes. The Tribunal had been meticulous in examining the evidence and they had reached a careful and considered conclusion. None of the grounds of appeal raised issues of law.

UKEAT/0388/09 Mrs S Sivagnansundarum v Whipps Cross University Hospital NHS Trust

Thu, 07 Jul 2011 11:37:43 GMT

Appellate jurisdiction/Reasons/Burns-Barke: The Tribunal had rejected the claimant's claims of race discrimination, constructive dismissal, victimisation and a Part 1 claim. It was submitted by counsel for the claimant that the judgment of the Tribunal had been inadequately reasoned. Compliance with rule 30(6) of the Rules meant that the Employment Tribunal was obliged to deal expressly with all live issues; if the Employment Tribunal concluded that an issue was not a live issue then that should be made clear. Counsel accepted that a "narrative" form of judgment was not erroneous of itself but sufficient findings and reasons so as to show how the Employment Tribunal had reached the conclusion(s) had to be manifest in the judgment. In turn, that must mean the judgment should not be reconstructed by reference to cross referencing the evidence and arguments below to the judgment in order to make more of it than appeared on its face. The second part of the claimant's general submission was that the claimant had never agreed that the draft Schedule containing 13 particulars comprised all the issues that the Employment Tribunal needed to consider.

The EAT ruled that, although a failure to deal with all points raised will not necessarily amount to a breach of rule 30(6), relevant matters requiring findings of fact had not been dealt with here and therefore the only course was for the matter to be remitted. Two other discrete allegations were remitted too, as the question as to whether there should be a declaration in relation to the Part 1 claim depended on the findings made in the other matters.

UKEAT/0551/10 Mrs K Williams v (1) Guardian Care Homes Ltd & Ors (2) Mrs E Reay

Fri, 03 Jun 2011 14:07:24 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke: The claimant, a regional manager, was dismissed following communication with another employee who was being disciplined for gross misconduct. At the time, the claimant was off sick but she still managed to assist her colleague which, according to the respondent, undermined the company position and amounted to gross misconduct. Her conduct called into question whether the claimant was really ill, since she was apparently too ill to attend meetings regarding her own situation but was able to assist her colleague. The Tribunal held that the respondent had carried out a reasonable investigation and the dismissal was within the band of reasonable responses. The claimant’s principal ground of appeal related to the sufficiency of the Tribunal’s reasons.

The EAT agreed with Counsel for the claimant who submitted that the Tribunal’s reasons were insufficient to comply with rule 30(6) of the Employment Tribunal Rules 2004. Although the Tribunal had made lengthy findings of fact, they had not evaluated the respondent’s reasons. A cross-appeal concerning the correct respondent was also upheld, the EAT concluding that it was not sufficient to say that all the named companies within the group should be jointly and severally liable because there was no basis for supposing that all the named companies jointly employed the claimant.

UKEAT/0562/10 St James Management Services Ltd v Miss N Power

Fri, 03 Jun 2011 14:06:05 GMT

Unfair Dismissal - S.98A(2) ERA: The claimant was selected for redundancy by the MD of the respondent and she attended various meetings but at no time was she provided with financial information so that she could have any input on the central issue of cost-cutting. The respondent gave her a step 1 letter which was followed by a meeting. At the meeting she was told that the decision to dismiss had been taken and she was given a pre-prepared letter confirming that fact. The decision to dismiss had therefore been taken prior to the step 2 meeting. The claimant claimed sex discrimination, sexual harassment and unfair dismissal: the unfair dismissal claim was upheld by the Tribunal. The matter was further complicated by the fact that the claimant and the MD of the respondent had had an affair. The Tribunal found that the respondent had not acted fairly in treating redundancy as a reason for the dismissal of the claimant and rejected the argument that s98A(2) applied. The failings by the respondent were much more than procedural. The entire background had to be considered: whilst the dismissal was not an act of sex discrimination, the Tribunal was satisfied that the manner in which the MD had arbitrarily decided to dismiss the claimant was in significant part due to the intimacy there had been between them. The respondent appealed, claiming that s98A(2) did apply and thus the dismissal was fair.

The central issue was whether this case should have been depicted as a fair dismissal because of procedural defects and not an unfair dismissal. The EAT considered the legal principles to be applied to s98A(2) which are found in Alexander & Hatherley v Brigden Enterprises. They agreed with the ET that s98A(2) was not relevant in this case because the prior sexual relationship between the claimant and the MD went to the heart of the decision making – this was not a procedural defect.

UKEAT/0589/10 Miss L Mak v Waygood Gallery Ltd

Fri, 03 Jun 2011 14:05:13 GMT

UKEATPA/0659/10 Mr M F Barreto v Wincanton Group Ltd

Fri, 03 Jun 2011 14:04:17 GMT

Appellate jurisdiction/Reasons/Burns-Barke: The claimant had already won his claim for unfair dismissal but appealed against the dismissal of his race discrimination claim. The appeal was rejected under rules 3(7) and 3(8) but instead of using rule 3(10) to request an oral hearing at the EAT the claimant chose to go to the Court of Appeal. The Court of Appeal declined to hear his case as the claimant had not exhausted the EAT process. By the time the claimant was informed of this, his application for a 3(10) hearing was out of time. The Registrar refused to extend time and the claimant appealed.

The EAT first ruled that exhaustion of the EAT process was not a requirement for an appeal under ETA s37. The EAT then decided under rule 21 and in the alternative under rule 3(10) that the case had no reasonable prospect of success. Permission to appeal the rule 21 decision to the Court of Appeal was refused.

UKEAT/0335/10 Mrs S Francis v Cleveland Police Authority

Fri, 03 Jun 2011 14:03:25 GMT

Practice and Procedure: The claimant resigned from her post with the respondent following a period of bullying and isolation. She found work soon afterwards but resigned from this new post within 3 months. The Employment Tribunal found that she had been unfairly constructively dismissed by the respondent but limited her loss of earnings compensation to the date on which she resigned from her new job. The Tribunal’s reason for this was on the basis that there were no medical records reflecting her case that she was still suffering from work-related stress at the time and she had in fact resigned from the new job because the work just did not suit her. The claimant appealed against the remedy award.

The EAT found that the Tribunal was wrong to proceed on the basis that there was no relevant reference in the claimant’s medical records at the time she left her new job. The Tribunal should have checked with the claimant and her GP whether in fact there were recorded visits to the GP at the relevant time. The Tribunal therefore had proceeded on an assumption or finding of fact concerning the absence of recorded visits to the GP which no reasonable Tribunal, on a proper appreciation of the law and the evidence, could have proceeded.

UKEATS/0043/10 Scottish & Southern Energy Plc v Mr David Raymond Innes

Fri, 03 Jun 2011 14:02:34 GMT

Statutory Discipline and Grievance Procedures - Impact on compensation: The claimant was dismissed after it was found that he was using the internet excessively for personal use when he was supposed to be working. 3 months earlier he had been disciplined for the same conduct and received a written warning. The claimant admitted what he had done but claimed that he had had previous problems with depression and that his health problems had increased at the time his excessive use of the internet had resumed. The respondent conceded that the dismissal was automatically unfair because they had not told the claimant in the step 1 letter that dismissal was a possibility. However, the ET also ruled that the dismissal would have been unfair in any event because the respondent had failed to investigate properly the import of the internet usage report and had failed to investigate whether the claimant’s conduct could have been linked to his medical condition. No Polkey deduction was therefore applicable. They did find that the claimant contributed to his own dismissal by using the internet excessively, failing to take steps to obtain medical assistance and failing to alert his managers that he was having difficulties. They set the contributory fault at 15%. The respondent appealed against both rulings in respect of remedy.

The EAT found that the ET had misdirected itself on both aspects. The claimant had admitted misconduct so there was little scope for further investigation and dismissal was plainly within the band of reasonable responses. Dismissal would clearly have been on the agenda without the procedural failure and a Polkey deduction was plainly applicable. Also the 15% deduction due to contributory fault was so low as to be perverse.

UKEAT/0523/10 Mr H Stoyle v The Artful Group Ltd T/A Art Group - In Administration (Debarred)

Fri, 03 Jun 2011 14:01:36 GMT

Disability Discrimination: The claimant claimed to have been bullied by a manager and due to his complaints he was given, according to the claimant, an unjustified final warning, which was overturned on appeal. However, the claimant was then moved to a different department. He then suffered heart problems and the respondent gave him light duties until the business moved premises. Although light duties were available in the new premises, the claimant was not given them and he resigned soon afterwards, claiming that the bullying, the unfair transfer and failure to provide him with light duties constituted constructive dismissal. He also claimed that the failure to provide light duties amounted to direct disability discrimination or disability related discrimination and the respondent had failed to make reasonable adjustments. The Tribunal dismissed all his claims, saying that the respondent had maintained its duty of care towards the claimant and the claimant suddenly, for his own reasons, decided to resign. They also ruled that the reasonable adjustment claim must fail because the claimant resigned whilst the respondent was still looking for suitable alternative duties and he had not insisted upon some arrangement being made to provide him with light duties. The claimant appealed.

The EAT agreed with the claimant and allowed the appeal. The ET had misstated the law on the disability discrimination claim and had failed to deal with the essential issues. The Tribunal had failed to address claims of direct disability discrimination and disability related discrimination. The Tribunal conclusions on constructive dismissal issue were vitiated by its failure to deal with the disability discrimination issue properly and by a further failure to deal with a significant part of the claimant's case.

UKEAT/0369/10 Cromwell Garage Ltd v Mrs H L Doran

Fri, 03 Jun 2011 14:00:39 GMT

Sex Discrimination - Pregnancy and discrimination: The claimant, who worked as Forecourt Manager at a small garage, announced that she was pregnant and from that point on, the MD of the respondent made a number of comments at various stages, including one which suggested that a woman could not run a family and do a job at the same time. It then came to the MD's attention that a co-worker of the claimant's was associated with drug dealing, which, he said, meant there was a risk that the business would be associated with illegal activity. When the claimant was due to return to work after her maternity leave, the MD suggested that her hours should be changed, and he instigated disciplinary proceedings as a result of her failure to disclose knowledge of the drug dealing. She refuted this matter on her first day back, she was then dismissed and her appeal was also dismissed. The Tribunal found that the burden of proof, that discrimination had not taken place, shifted to the respondent; they failed to discharge it, the Tribunal concluding that the change in hours and the disciplinary matter were to do with the claimant's maternity. The explanations of the respondent were not persuasive and were indeed incredible. As part of her compensation, the Tribunal awarded the claimant £12,000 in respect of injury to feelings, which formed part of this appeal.

The respondent contended that the Tribunal had failed to pay sufficient attention to the problems of a small business, the burden of proof should not have passed to the respondent, the Tribunal was wrong to find that the dismissal was automatically unfair because the reason was not connected with maternity and the award for injury to feelings was manifestly excessive. The EAT disagreed: the ET was entitled to find that the burden of proof shifted to the employer, to explain the MD's comments about the claimant's pregnancy and the disciplinary action. The Tribunal also did not err in placing the injury to feelings in the middle of the Vento Da'bell band.

UKEAT/0379/11 Mr N Cherfi v G4S Security Services Ltd

Fri, 03 Jun 2011 13:59:22 GMT

Religion or Belief Discrimination: C was employed as a security guard by R at a site in Highgate where R had a contract with Land Securities Trillium to provide safety and security services. Trillium required a specified number of security officers to be on site for the full duration of operating hours. Thus all security officers working at the site were required to remain on site throughout their shifts. C, a Muslim, was refused permission to leave the site on Fridays in the middle of the day to attend a mosque in Finsbury Park. Apart from financial penalties the continuation of the contract was in danger if a full complement of security staff was not on site throughout. R offered C a variety of alternatives to meet his requirements but C refused them all. C claimed religious discrimination, both direct (in respect of other matters) and indirect (in respect of the subject matter of the appeal). The ET dismissed his claim in this regard. C appealed. The EAT dismissed the appeal. R’s provision, criterion or practice was a proportionate means of achieving a legitimate aim.

UKEAT/0500/10 Mr P Burns v Santander UK Plc

Fri, 03 Jun 2011 13:58:31 GMT

Unlawful Deduction from Wages: The claimant was arrested and charged with various criminal offences, remanded into custody for 6 months until he was found guilty of 2 of the offences, bailed and then given a non-custodial sentence. During his time on remand the claimant was not paid by the respondent. During bail he was suspended on full pay until a disciplinary hearing which decided that he should be dismissed. The claimant claimed unfair dismissal, breach of contract, unlawful deductions from wages and holiday pay. This appeal concerns the unlawful deductions claim. The ET had to decide if wages were properly payable to the claimant during the period he was on remand. He was ready and willing to work but was unable to do so because he was in prison. The ET found his inability to work was avoidable because he had disabled himself from attending work as a result of being charged with criminal offences and remanded into custody.

The thrust of the submission from Counsel for the claimant was that the event which prevented the claimant from attending work was unavoidable: the decision to remand him in custody lay with the court, not him and accordingly he was entitled to be paid wages during this period. The EAT agreed with the ET and found that the claimant's period in custody was an avoidable impediment giving rise to circumstances where it was to be implied that he was not entitled to his wages.

UKEAT/0515/10 Wilsons Solicitors (In a matter of wasted costs) v (1) Craig and Sybil Johnson (2) BTSTU Ltd (In liquidation) (3) BTS Group Ltd (4) Alexander Mccallum

Fri, 03 Jun 2011 13:57:45 GMT

Practice and Procedure: The claimants instructed a firm of solicitors to handle their claims of unfair dismissal. Their ET1, which was prepared by the solicitor's firm, included a separate Particulars of Claim in which the details were said to be poorly pleaded. The respondents complained of deficiencies in the Particulars of Claim and served a request for further information, which the firm preferred to supply by way of amendment. An EJ decided that the issue of an amendment could be dealt with at a CMD. The CMD took place but the judge, after reviewing the draft amended Particulars of Claim, found them to be still substantially unclear and incomplete and the solicitor was unable to provide further details or clarity. The CMD was aborted 'for reasons not the fault of the respondent'. The solicitor was on notice that an application for a wasted costs order would be made against him at the next CMD, and this was duly granted. The EJ also ordered that the solicitor should repay the claimants' costs that they had already paid in relation to the aborted CMD. The solicitor appealed against both orders, saying that he had not been permitted to address the Tribunal on the question of whether a wasted costs order should be made. He also claimed that the judge had failed to consider whether the deficiencies which formed the basis of the order were the result of negligence on the part of the solicitor or because of the nature of his instructions from the claimants.

The EAT rejected, amongst other points, the argument that the solicitor had been unable to address the question of the wasted costs order, saying that he had been given an opportunity to respond at the CMD and the suggestion that the process should have been in 2 stages was not a procedural requirement. The EJ was entitled to conclude that the defects in the Particulars of Claim were as a result of his negligence rather than failures by the claimants.

UKEAT/0370/10 Mr M J Bailey v R & R Plant (Peterborough) Ltd

Fri, 03 Jun 2011 13:56:47 GMT

Unfair Dismissal: The claimant was approaching his 65th birthday and in accordance with paragraph 2(1) of Schedule 6 of the Employment Equality (Age) Regulations 2006 (now repealed), the employer informed the claimant in writing of the essential conditions for exercising his right not to retire. Paragraph 5(3) required that the employee’s statutory request must be in writing and must state that it was made under that paragraph. The claimant made such a request which was considered by the respondent, but all they could offer him was part time work which did not suit the claimant. His employment came to an end on his 65th birthday. The Tribunal held that the employer had complied with paragraph 2(1) but that the claimant had not complied with paragraph 5(3) because he had not stated that his request was made under that paragraph. The dismissal was thus fair. The claimant appealed.

The EAT considered the wording of paragraphs 5(3) and 2(1) and concluded that although paragraph 5(3) was quite clear that the employee should state that he was making his request under that paragraph, it was the employer who had a duty to inform the employee of this essential condition. The letter from the employer to the claimant did not satisfy the requirements of paragraph 2(1), the dismissal was therefore retirement and the dismissal was unfair.

UKEAT/0543/10 Computers In The City LTD v Mr J Martin (Debarred)

Tue, 17 May 2011 11:25:12 GMT

Wrongful dismissal: The claimant was dismissed summarily when it was found that he had been working for another company during the respondent’s office hours. When he was questioned, the claimant initially denied that he worked for the other company but eventually admitted it, playing down his involvement. One of the reasons for the dismissal was ‘an irrevocable breach of the implied term of trust and confidence’. The Tribunal upheld the claimant’s claim of wrongful dismissal, concluding that it had not been established on the evidence that the claimant was guilty of such serious misconduct as to justify his summary dismissal and was entitled to his one month’s notice pay.

On appeal, the EAT accepted the submissions of the respondent that the ET did not appear to have taken any account of the respondent’s case that the claimant was dishonest when he was interviewed about the use of his computer at work for matters related to the other company. The ET had concentrated only on the question whether it was permissible for the claimant to have worked for another company as well as the respondent.

UKEAT/0536/10 Ms J Small v Bark Havering and Redbridge NHS Trust

Tue, 17 May 2011 11:24:30 GMT

Sex Discrimination: The claimant went off sick for a long period because of multiple pregnancy related illness. Her sick pay was stopped without prior warning but was reinstated once the claimant wrote a grievance letter to the respondent. The claimant had been late in sending in sick certificates which was in breach of the respondent’s sick pay policy, and had also behaved badly at a meeting and over the telephone. During the claimant’s period of maternity leave, it was decided that the claimant’s line manager would be replaced; however, the claimant received letters and an email from her former line manager concerning her return to work and outstanding holiday pay. The claimant complained about a number of incidents generally described as race and/or sex discrimination and harassment. The ET upheld an allegation of sex discrimination concerning the respondent’s failure to consult the claimant about changes to her shift patterns (which is not under appeal) but dismissed all the other complaints. The claimant appealed against the dismissal of two particular complaints; the stoppage of her sick pay and the return to work communication.

The EAT ruled that the ET had not made clear findings as to whether the claimant had established facts raising an inference of sex discrimination under the first stage of Igen v Wong and, if she had, whether the respondent had discharged the second stage burden of proof. However, they said that even though there was evidence that two black members of staff had been spoken to rudely by the line manager, it could not be inferred that the stopping of the claimant’s sick pay could be based on her race. The appeal on the issue of sick pay was allowed on the ground of sex discrimination only. The EAT also remitted the issue of the return to work to the Tribunal, to decide if the sending of the letters and email constituted a detriment, and if so, to apply Igen v Wong in the usual way.

UKEAT/0518/10 Mr C Price v Commisioners for Revenue & Customs

Tue, 17 May 2011 11:23:49 GMT

Constructive dismissal: The claimant claimed that he been constructively dismissed, the circumstances of which included a failure by the respondent in dealing with his grievance. The claimant’s proposed retirement was postponed pending the outcome of his grievance and he was off sick until he resigned several months later. The Tribunal concluded that the respondent had breached their target in respect of dealing with the grievance within the time limit but it was not a fundamental breach of the procedure. Even though the delay in dealing with the grievance was unsatisfactory, it did not amount to a breach of the implied term of mutual trust, the finding of which required a very significant breach (Claridge v Daler Rowney Ltd applied). The claimant appealed.

At the EAT, counsel for the claimant submitted that the Tribunal had incorrectly applied the approach taken by Elias J in Claridge because it had been expressly disapproved by the Court of Appeal in Buckland. The EAT agreed; the ET had misdirected themselves in law by reference to the former President’s approach in Claridge.

UKEAT/0441/10 I Lab Facilities LTD v Miss L Metcalfe & Others

Tue, 17 May 2011 11:23:10 GMT

Transfer of Undertakings: The claimants worked for I Lab UK Ltd which was subsequently transferred to I Lab Facilities Ltd after UK went into liquidation. The UK business had been struggling financially and the claimants were warned that redundancies were possible. They were served notice of termination of their employment to take effect on 11 July 2009. On 11 August, Facilities purchased UK with a rider that the goodwill did not include anything arising from the work done by the claimants. The Tribunal Judge held that the claimants had been dismissed for a reason falling within regulation 7(1) of TUPE with the result that their employment was subsequently transferred from UK to Facilities. Each claimant was part of that transfer and their dismissal were transfer-related within the meaning of regulation 7(1). The Tribunal said that it was Facilities’ intention to continue the part of the business currently done by the claimants and the intention behind dismissing the claimants was to attempt to create a situation whereby this work could be taken over by Facilities, leaving behind employees who were not required without any liability to pay them redundancy payments. The respondent appealed.

At the EAT the respondent argued that there was no finding by the Tribunal that a pre-transfer economic entity retained its post-putative transfer. There was also no finding as to the date of the transfer. The EAT agreed, and in the absence of relevant findings of fact by the Tribunal allowed the appeal and remitted the case to a fresh Tribunal.

UKEAT/0537/10 Mr J J Cullinane v (1) Balfour Beatty Engineering Services Ltd (2) NRL LTD

Tue, 17 May 2011 11:22:24 GMT

Extension of time - reasonably practicable: The claimant found out that his name was included in a blacklist and sought advice with his union concerning job applications with two employers, the second of which was with the respondent. A meeting with the union took place 4 weeks later due to the number of claims the union had to deal with. A claim against the first employer was made the next day; the claim against the respondent was made more than 6 weeks later. The respondent claimed that the claim was out of time and the Tribunal agreed, dismissing the claim. It was common ground that it was not reasonably practicable for the claimant to have brought his claim within a period of 3 months from when it occurred since he was ignorant of it, and also that it was not reasonable for him to have taken steps until the receipt of the information of the blacklisting. However, the EJ said that the union had acted dilatorily in 2 respects: by not giving the claimant an appointment sooner and by not issuing proceedings until 2 weeks later. If the union had issued proceedings against the first employer straight after the meeting with the claimant, there was no reason why they could not have done the same with the claim against the respondent. The Judge also held that the unreasonable delay by the union must be treated as unreasonable delay by the claimant himself. The claimant appealed.

The EAT ruled that the EJ’s judgment was flawed. There was a clear distinction between the 2 claims and the judge had erred by not considering the evidence from the union that they wanted further advice before feeling sufficiently confident to make a decision about the second claim. In respect of the delay of the meeting with the union, the EAT did not reach a conclusion as to whether the Judge’s approach was reasonable; the reason given by the claimant was plausible but the Judge required further detail.

UKEAT/0260/10 Mr J Francois v Castle Rock Properties LTD T/A Electric Ballroom

Tue, 17 May 2011 11:21:37 GMT

Costs: The claimant had been dismissed from his job with a security firm and the subsequent ET proceedings was represented by an inexperienced solicitor, free of charge. He was successful in the claims for unfair dismissal as the investigation was inadequate and the appeal process flawed. He was awarded 4 weeks compensation as it was felt that he should obtain alternative employment in that time and the tribunal refused a request for interest on the grounds that it had no power to do so. The respondent also sought an order for costs on the grounds that the claim had been conducted unreasonably and the tribunal agree as they found the conduct had seriously added to the length of the hearing.

In this judgment, HHJ Richardson first considers the claim for interest and the claimant's argument, following Melia v Magna Kansei, that the tribunal has a power to include as part of an award a sum to reflect late payment. He rejects that primarily as the case had not been argued that way before the tribunal, though conceding that "the point is an interesting one; but it must await decision another day, in a case where the ground has been adequately laid in the hearing before the Tribunal." He then sets aside the costs order as just because a representative has been slow in presenting a case, it does not follow they have acted unreasonably. Any order should be on the basis of careful findings on the issue and the tribunal in this case not not made any such findings.

UKEAT/0046/11/SM Queensway Surgery v Dr J S Jayatilaka

Tue, 17 May 2011 11:20:50 GMT

Amendment: The claimant was a GP, who suffered from neurosarcoidosis and diabetes, resigned from the respondent's practice in 2009, issuing an ET1 complaining of constructive unfair dismissal. The claims were resisted in the respondent's ET3 in October 2009 but an application to amend to add the disability discrimination claims was made in January 2010. This was also opposed but the amendment was allowed. In this appeal, the respondent's argued, partly, on the grounds that this was not a re-labelling but a new cause of action.

HHJ Clark agrees with that submission, following Housing Corporation v Bryant, for part of the judgment but allows the amendments relating to claims of failure to make reasonable adjustments and harassment partly because the factual basis was clearly set out in the ET1.

UKEAT/0469/10 Mr M A Sanders v Kingston Transport LTD T/A Sussex Skips

Tue, 17 May 2011 11:19:53 GMT

Polkey deduction: The claimant had been dismissed as an HGV driver after various accidents and incidents. At a meeting to discuss the problem it was alleged that the claimant tried to strike one of the respondent's directors and he was dismissed. In the ET the claimant succeeded and was awarded compensation. They also preferred the claimant's evidence on the incident at the meeting so no Polkey reduction arose, though the respondents had made it clear that the claimant would have been dismissed for his conduct before that meeting.

In this judgment, HHJ Reid concludes that the ET did not deal properly with the submissions for a reduction based on the previous incidents as they had narrowed their focus to the events at the meeting: it was illogical for the tribunal to have said that it preferred the claimant's version of events at the meeting and therefore the other points did not arise. The matter was therefore remitted for reconsideration.

UKEAT/0079/11 John Lewis Partnership v Mr A P Charman

Tue, 17 May 2011 11:19:15 GMT

Extension of time: reasonably practicable: The claimant was summarily dismissed and he launched an internal appeal which took place 10 weeks later. 4 weeks after the appeal hearing he was sent a letter dismissing his appeal. 3 weeks later the claimant presented a claim to the ET. The claimant claimed that he did not know about the time limits and thought it would be sensible to await the outcome of the internal appeal before presenting a claim to the ET. The ET ruled that it had not been reasonably practicable for the claimant to present a claim before the determination of his internal appeal and that he had presented his claim within a reasonable period thereafter, thus they had jurisdiction to hear the claim. The respondent appealed.

The EAT agreed with the ET. The starting point was that if an employee was reasonably ignorant of the relevant time limits it could not be said to be reasonably practicable for him to comply with them. The claimant was unquestionably ignorant of the time limits but the question was whether that ignorance was reasonable. In this case, it was not unreasonable for the claimant to await the outcome of his appeal. The cases of Bodha and Palmer did not apply because these were cases when the claimant was, or should have been, aware of the time limits and delayed nevertheless.

UKEAT/0477/10 HCA International LTD v Mrs J L May-Bheemul

Tue, 17 May 2011 11:18:29 GMT

Costs: The claimant had resigned her position after she had made complaints to her managers that other staff were using her user name and password and that her subsequent treatment had caused severe depressive illness. She then issued proceedings on the grounds of disability discrimination, protected disclosures and unfair constructive dismissal. All claims were resisted and an offer was made but rejected. The proceedings were halted by further illness to the claimant and the judge hearing the case so that it was relisted afresh. The ET dismissed all the claims, save one relating to a unpaid SSP but that was rectified. The respondents then applied for costs which the ET rejected as, broadly, they did not find the claimant's conduct was unreasonable or misconceived.

In this appeal, the respondent's put forward an argument that the authorities he cited meant that it will be perverse not to award costs to the successful party where there is a finding that the losing party's central allegation is untrue. The EAT rejected this "without hesitation" and adds that even where "a central allegation is found to be a lie, that may support an application for costs, but it does not mean that, on every occasion that a Claimant fails to establish a central plank of the claim, an award of costs must follow"

They then proceed to reject the other grounds of appeal, including perversity, and agreeing with the tribunal's approach.

UKEAT/0365/10 Mr N A Insaidoo v Metropolitan Resources North West Ltd

Tue, 17 May 2011 11:17:44 GMT

Chairman alone: The claimant made claims of unfair dismissal and race discrimination which were dismissed by the ET. During the course of the proceedings, the respondent served on the claimant some witness statements which the claimant claimed to contain untruths pertaining to be discrimination by reason of victimisation, and claimed compensation for injury to feelings. The ET referred to the case of Heath v Commissioner of Police of the Metropolis which made it clear that judicial proceedings immunity extended not only to common law claims but also to claims under the discrimination legislation. The ET therefore dismissed the claim on the basis that the witness statements attracted judicial proceedings immunity.

At the EAT, Counsel for the claimant argued that the principles of judicial proceedings immunity do not apply to claims of discrimination by way of victimisation. They referred in particular to the decision of Coote v Granada Hospitality Limited which established that it was a necessary concomitant of the substantive rights accorded by the Equal Treatment Directive to employees not to be discriminated against on the grounds of their sex and there should be adequate measures in place to prevent then being victimised for asserting that right. The EAT rejected this argument, concluding that the ratio in Heath applied to all kinds of discrimination including discrimination by way of victimisation.

The claimant appealed against the dismissal of his unfair dismissal claims on the grounds of procedural unfairness, as the claims had been determined by a judge sitting alone when there should have been a three member panel. The EAT found that this claim of unfair dismissal for asserting a statutory right was determined in error by an Employment Judge sitting alone and, accordingly, Section 4 (1) Employment Tribunals Act 1996 applies. The appeal was allowed and the case remitted to be determined by a three member Tribunal.

UKEAT/0524/10 Mrs S Kurumuth NHS Trust v North Middlesex University Hospital

Tue, 17 May 2011 11:16:57 GMT

Polkey deduction: The claimant was a health care worker, originally from Mauritius. In 1997 she was refused leave to remain in the UK but was allowed to stay pending an appeal. That appeal was not determined by the time of her appointment in 2003 but the respondent later requested further information and was dissatisfied with the claimant's response and instigated a disciplinary procedure. She was dismissed as there was no evidence that she had the right to work. In subsequent ET proceedings the dismissal was found to be automatically unfair but no compensation was awarded as she would have been dismissed in any event.

In this appeal, the claimant's principal argument was that the Tribunal ought to have decided her immigration status. The EAT rejected that submission as, although the ET has misdirected itself on the issue of the burden of proof, they must take "a non-pernickety and non-fussy approach" and the ET's analysis was consistent with the reasonableness approach. They also confirmed that there was no error of law in the ET's approach in reducing the compensation to zero.

UKEAT/0320/10 & UKEAT/0406/09 Mrs A K Grewal v The Commissioner of Police of The Metropolis

Tue, 17 May 2011 11:16:08 GMT

Race Discrimination - Burden of proof: The claimant, who was of Indian origin, was undergoing officer safety training with the Metropolitan police. The training did not go well and concerns were voiced by her instructor but the claimant complained about her treatment. Her complaints were investigated and not upheld so she issued proceedings, setting out 17 allegations of less favourable treatment on grounds of race including "over-supervision" by the instructor and victimisation because the others students laughed at her. The ET accepted those allegations, rejecting the others, finding that the burden of proof has shifted on the over-supervision point. A Review Tribunal deleted the victimisation claim as it had not been pleased or fully canvassed in evidence.

In this appeal, the EAT found that the ET had failed to make clear what findings of fact they had used to reach their conclusions so it was not Meek-compliant. They also found, following Madrassy, that the burden of proof has not shifted, commenting that:

"The burden of proof does not shift to a respondent merely because a claimant establishes a difference in status (in this instance her race) and a difference in treatment"

There needed to be "something more" and that that was not the case here.

They then rejected the claimant's appeal as, following Chapman v Simon, the Employment Tribunal is limited to deciding the complaints made to it and although Southern Cross

"demonstrates that where the facts complained about have been canvassed fully it is acceptable for an Employment Tribunal to find a different juridical basis for the complaint put forward "

Again, that was not the case here.

UKEAT/0604/10 Mrs E A Prest & Others (1) Mouchel Business Services Ltd (2) Middlesbrough Borough Council

Tue, 17 May 2011 11:15:17 GMT

Equal Pay Act: The claimant brought equal pay claims against the two respondents, the second one having transferred the business to the first in 2001. Initially 2 comparators were named in the claimants’ ET1 but in 2009 the claimants applied to make amendments which named different comparators. The first issue to be decided by the ET was how far back the claimants could claim by reference to these new comparators. s2(5) of the 1970 Act provided that the claimants could not be awarded any payment by way of arrears of remuneration in respect of a time earlier than the arrears date. The arrears date was defined in s2ZB(2) as the date falling 6 years before the day on which proceedings were instituted. If the introduction of a new comparator constituted the “institution” of distinct “proceedings” as at the date that the application is made ie 2009, the claimants could only claim in respect of the period back to 2003, and thus would lose the chance of recovering arrears for 2001-3. The EJ held that the arrears date should be calculated back from the date of the application to amend. The second issue related to the benefits of increases in pay following the transfer; the EJ followed the ruling in Alemo-Herron which held that the effect of reg 5 of TUPE was merely to secure employees the benefit of the contract as at the moment of transfer and that they were not entitled to the benefit of any subsequent increases. The claimants appealed on both issues.

The EAT allowed the appeal on the issue of the arrears date. The essential question was whether the 2 claims – the one originally pleaded and the one introduced by way of amendment – were in substance the same. What mattered was not whether the comparators were different but whether the work done by the comparators was comparable to the work done by the claimants. It was, so therefore the nature of the claim had not changed. The arrears date was 6 years prior to the presentation of the ET1. The second issue was stayed pending the decision of the Supreme Court in Alemo-Herron.

UKEAT/0490/10 Dr J S Parmer v East Leicester Medical Practice

Tue, 17 May 2011 11:14:11 GMT

Victimisation Discrimination: The claimant made claims of unfair dismissal and race discrimination which were dismissed by the ET. During the course of the proceedings, the respondent served on the claimant some witness statements which the claimant claimed to contain untruths pertaining to be discrimination by reason of victimisation, and claimed compensation for injury to feelings. The ET referred to the case of Heath v Commissioner of Police of the Metropolis which made it clear that judicial proceedings immunity extended not only to common law claims but also to claims under the discrimination legislation. The ET therefore dismissed the claim on the basis that the witness statements attracted judicial proceedings immunity.

UKEAT/0376/10 (1) Walsall MBC (2) Housing 21 LTD v (1) Miss D M Birch & Ors (2) Sodexo Health Care Services LTD

Tue, 17 May 2011 11:13:21 GMT

Amendment: The claimants were council workers whose employment had been transferred in 2008 following which their union issued equal pay claims through two different firms acting for different groups of claimants. The firm acting for the group in this appeal named only the transferor as respondents and it was not until year later, when all the claimants were now represented by the same firm, that an application was made to amend the claim. The employment judge allowed the joinder partly because the balance of hardship was in favour of the claimants and partly because the transferee was already a party to the proceedings.

In this judgment, Richardson HHJ considers the legal principles involved, including transfer of equal pay claims following Sodexo and the powers to amend a claim set out in Selkent. He then deals with the first point of appeal that there is no discretion to allow an amendment to add a cause of action or party where the application to make the addition is made outside a limitation period. He states that this point is not open to the EAT in the light of previous case law, a point conceded by counsel for the appellants. He then proceeds to reject the further grounds of appeal as broadly: a) equal pay claims are not in a special category subject to "immutable time limits"; b) the judge had accounted for the expiration of the time limit and accorded it considerable weight; c) she had not failed to take into account the transferee's potential hardship in reaching her decision.

UKEAT/0470/10 Mr S Noor v Foreign & Commonwealth Office

Tue, 17 May 2011 11:12:25 GMT

Disability Discrimination - Reasonable adjustments: The claimant, who suffered from dyslexia and dyspraxia, had applied for a new position in the immigration service. He had replied to an external advert that set out 4 key competencies but that advert differed, mistakenly, from the an internal advert which required a further key competency. He applied and set out evidence for his 4 competencies and he was given additional time for interview but was surprised when he was asked about the additional competency. He wrote a letter of complaint and asked for a re-interview as he had been placed at a disadvantage. That was refused as the claimant's marking indicated he would not have been appointed, even had he successfully answered the unexpected question. Subsequent proceedings in the ET were struck out as the judge found that it would not be a reasonable adjustment to re-interview the claimant.

In this judgment HHJ Richardson reviews the opposing submissions and the relevant legislation, including s18 of the DDA 1995. He agrees that the judge was right to proceed on the basis that the claimant had been placed at a disadvantage. He then goes on to consider the reasonable adjustment point, and following Project Management v Latif, concludes that

"an Employment Judge should carefully consider whether there is any other potential reasonable adjustment and should strike the claim out only if it is plain and obvious that there is none......

In this case we consider that the Employment Judge fell into error by concentrating on the proposal for re-interview. She ought to have considered also the question whether any adjustment could have been made prior to, or at, the interview to prevent the disadvantage."

He also points out two further errors of law. Firstly, "it is certainly not the law that an adjustment will only be reasonable if it is completely effective" and that the purpose of the reasonable adjustment is to remove disadvantage and it is not fatal to the case if the applicant does not get appointed to the post.

UKEAT/0336/09 Dr C D'silva v Manchester Metropolitan University

Tue, 17 May 2011 11:11:21 GMT

Disciplinary and grievance procedure: The claimant asked the ET for an adjournment of the hearing on the grounds that he was not fit to conduct the proceedings properly and was unable to obtain legal representation. The ET refused his application firstly on the basis that the claimant had not produced any medical evidence to support his contention that he was unfit to conduct the proceedings. They added that they were ‘mindful of the history of this particular claimant in the context of applications for postponements on grounds of ill health being timed coincidentally with a sudden loss of representation’. The ET then addressed the issue of a recent loss of representation and concluded that the overriding objective as applied to the circumstances did not require the postponement of the hearing. The claimant had had many months to prepare for the hearing and the Tribunal would be able to guide him through any procedural issues which might arise. The claimant appealed.

The EAT first considered whether the refusal of an adjournment rendered the hearing of the Tribunal unfair and weighed up the effect on both parties if applications to adjourn were granted. They decided that there was no ‘one size fits all’ approach to deciding what was fair in such circumstances. They then had to decide if the claimant was fit to proceed with the hearing and concluded that the ET was entitled to concentrate upon the absence of medical evidence. Given the presence of the claimant and his witnesses, the fact that the claimant was not off work ill and the absence of medical evidence, the EAT agreed that it was fair to proceed with the hearing.

UKEAT/0254/10 Mrs E Vivian v Bournemouth Borough Council

Tue, 17 May 2011 11:10:33 GMT

Unfair Dismissal: The claimant had made allegations of bullying against a senior manager, which was handled under the respondent's Prevention of Bullying & Harassment at Work Policy. The complaint was not upheld, the claimant appealed but the outcome was that it was decided to place her in redeployment pool as she could no longer work in her current role. The claimant then raised, while on stress-related sick leave, a further formal grievance about the redeployment, their handling of the original complaints and a reduction in sickness pay, but these were again rejected and she was dismissed with 12 weeks pay in lieu. The ET found that the claimant had made a protected disclosure but that i) the claim was out of time; ii) that the neither those handling the investigations and appeals, nor the reason for dismissal, had been motivated by the protected disclosure; and iii) the reason for dismissal of the claimant was potentially fair.

In this appeal, Slade J reviews in detail the submissions of the claimant on, among other things, the issues of what constituted acts and / or detriments for the purposes of time limits and whether the motivation of those handling the complaints process and dismissal was relevant. She concludes that i) the claim was out of time as the placing in the redeployment pool was not an act for these purposes; ii) the dismissal was fair on its merits and iii) that the tribunal had not erred in finding that the reason for dismissal was the claimant's refusal to co-operate with the redeployment.

UKEAT/0085/10 Mr P Ross v Eddie Stobart LTD

Tue, 17 May 2011 11:09:23 GMT

Working Time Regulations: 1. The Claimant was a “mobile worker” to whom the Road Transport (Working Time) Regulations 2005 (“the RTR”) applied. The Tribunal did not consider the RTR; and if it had considered the RTR ought to have found that the Claimant was correct in asserting that if the Respondent required him to work a “period of availability” it was not entitled to require him to stay in the depot: definitions of “period of availability”, “working time” and “workstation” in reg. 2 applied.

2. The Tribunal ought to have considered whether the Claimant, when he raised this issue with his manager, made a protected disclosure: see section 43C(1)(a) of the Employment Rights Act 1996. Moreover, although disclosure to VOSA was not protected by virtue of section 43C, it might potentially be protected by virtue of section 43G.

3. The Tribunal did not make adequate findings to address the Claimant’s case under section 100(1)(c) of the Employment Rights Act 1996.

4. The Tribunal’s findings concerning the principal reason for dismissal were vitiated by its misunderstanding of the RTR and its failure to make adequate findings to deal with the Claimant’s case under section 100(1)(c).

5. Section 101A and section 45A of the Employment Rights Act 1996 do not extend to contraventions of or rights conferred by the RTR; no process of interpretation can add the RTR to section 101A(2) and section 45A(5).

Appeal allowed. Case remitted for re-hearing.

UKEAT/0374/10 Mr P Dabson v David Cover & Sons LTD

Tue, 17 May 2011 11:08:29 GMT

Reasonableness of dismissal: The respondent announced that redundancies would have to be made and, not having a recognised union, made arrangements for the election of employee representatives, as it was required to do under s188 of TULR(C)A 1992. An employee representative was duly appointed, being the only employee who had been nominated. The claimant was placed in a pool of three, from which two employees would be appointed to other posts. A marking exercise was undertaken after which a provisional decision was made that the claimant would be made redundant. Two consultation meetings were held with him before the final decision was made. The claimant claimed that the respondent had not complied with the requirements of s188 and so was required to consult individually with the employees; he argued that since his consultation meetings had taken place after the decision to dismiss was taken, they had not complied. The Tribunal rejected the s188 argument, saying that the fact that the management had gone through the scoring exercise before the consultation meetings took place did not render the consultation ineffective since the selection of the claimant was provisional and subject to further consultation. The second point argued by the claimant was that it was wholly illogical for the respondent to mark the claimant lower for the same skills required for the lesser post of the two than he had achieved for the more senior post. The ET also rejected this point, saying that the ultimate scores awarded to the claimant were fair, reasonable and appropriate and it was not for the Tribunal to rescore the claimant. The claimant appealed, claiming that the Tribunal's decision was perverse and not Meek compliant.

The EAT agreed with the ET on the s188 point, saying that the conclusion that the redundancy process was 'as adequate as could reasonably be expected' had been reached by considering the correct test. The EAT also rejected the claimant's argument on the skills scoring exercise, saying that the ET was perfectly entitled, in the absence of obvious mistake or good faith, to conclude that as the jobs were different, a different skill mix was required and so therefore there was no inconsistency.

UKEAT/0056/10 & UKEAT/0057/10 & UKEAT/0058/10 & UKEAT/0059/10 Birmingham City Council v Ms S Barker

Tue, 17 May 2011 11:07:35 GMT

Equal Pay Act - Other establishments: Appeal by the respondent against various rulings by the ET in multiple equal pay claims, including 1) some claimants had permission to amend their claims; 2) some claimants employed in community schools could compare themselves with other Council employees; and 3) the Tribunal had jurisdiction to entertain the claims of claimants as they had complied with s32(2) of the Employment Act 2002.

Some claimants pleaded their case using the incorrect job descriptions and applied to amend their claims. In some cases permission to amend was granted, the Tribunal concluding that the application to amend amounted to a re labelling exercise which would not cause significant problems for the respondent but would cause significant prejudice to the claimants if refused. The respondent appealed against this decision and the claimants whose application to amend was rejected also appealed. The second issue related to claimants who were employed in community schools. The respondent claimed that, even though they were employed by the local authority, the governing body of the school had ultimate control over the terms and conditions of the employees. Comparison for the purpose of art. 157 of the Lisbon Treaty should only be between persons whose terms and conditions derived from a ‘single source’, and the respondent argued that as the governors should be treated as this source of terms, the claimants were accordingly to be regarded as in different employment from their comparators. The Tribunal understood counsel for the respondent to have conceded on this point; the respondent appealed saying that this concession had been misunderstood. The third issue related to whether or not the claimants had complied with the modified grievance procedure in which the grievance statement should include the basis for the grievance.

The EAT upheld the decision of the Tribunal on the amendment issue, rejecting the respondent’s challenge that the claimants’ amendments in fact involved entirely new factual and legal allegations which changed the basis of the claims. The EAT ruled that the change in the job description would not cause any real difficulties to the respondent. The claimants’ appeal was allowed on the basis that there was no justification in treating them differently to those claimants whose amendments were allowed. The ‘single source’ argument was rejected by the EAT; the evidence did not point to the governors rather than the local authority being the true source of the terms and conditions. On the third issue the EAT ruled that the claimants were not debarred by s32(2) of the Employment Act 2002 because the grievance fell within the terms of reg 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

UKEAT/0283/10/JOJ Ms C Deer v (1) Mr G Walford (2) University of Oxford

Tue, 17 May 2011 11:06:27 GMT

Victimisation Discrimination: The claimant, an academic, initiated proceedings following the refusal of a former academic supervisor to give her a reference on the grounds that he only refused to give the reference because of the claimant's involvement in previous employment proceedings against the University. The supervisor claimed no knowledge of those previous proceedings although they had been the subject of considerable press coverage. In the ET a deposit was requested, and agreed at a pre-hearing review, because the judge felt that the claimant's contentions had little prospect of success. The claimant had also initiated additional claims by then all of them dismissed by the tribunal after a three-day hearing. The tribunal also found that the claim had been conducted unreasonably so awarded costs against the claimant.

In this judgment, Underhill J reviews and rejects the various grounds of appeal on liability as, broadly, there was no real evidence to support the claimant's suspicions.

On the costs issues, he stated that there is no general rule that it was wrong in principle to determine costs without written reasons, as had been argued by the claimant. He then goes on to uphold the decision on costs, commenting that

"taking an overall view, exceptional as the award of a full costs order in the Employment Tribunal may be, we agree with the Tribunal that this is a case where it was justified. The Claimant had brought an expensive and damaging claim …... based on nothing more than an implausible speculation and had persisted in it after a clear warning from the Tribunal."

UKEAT/0292/10 British Midland Airways LTD v Ms F Hamed

Tue, 17 May 2011 11:05:39 GMT

Disability Discrimination - Reasonable adjustments: The claimant was a flight supervisor when she suffered an accident which rendered her unable to carry out cabin crew duties. She was given administrative duties instead, until the airline was taken over by the respondent in these proceedings. The respondent had a policy of only placing flight staff in administrative roles in instances of pregnancy and the claimant was placed on long term sick leave. There were several meetings between the claimant and respondent at which alternative roles were discussed, but none were deemed suitable, either because there were no vacancies at that time, or because the role involved some sort of physical activity which the claimant could not undertake. After 52 weeks off sick, the maximum allowed on full pay, the claimant lodged a grievance, saying that she was disappointed that her employment would be terminated on grounds of capability. She was eventually dismissed. The ET found that the respondent had failed to make reasonable adjustments, saying in particular that they had failed to treat the case as one in which disability discrimination issues should have been addressed. Instead, the respondent viewed the claimant as a long term sick employee as opposed to an employee with a disability.

At the EAT, counsel for the respondent argued that the ET had concentrated more on their failure to treat the case as a DDA issue rather than focussing on what the respondent actually did in respect of looking at other employment, which, they continued, was the reasonable adjustment in this case. The EAT disagreed, saying that the ET had not taken their eye off the ball but had in fact looked at the factual background and considered what the respondent had done and what it had not done. The second ground of appeal, that the ET had failed to identify the steps which the respondent ought to have taken in order to prevent the PCP from having the effect of placing the claimant at a substantial disadvantage, was also rejected.

UKEAT/0090/10 Ms J E Jones v The City and County of Swansea

Tue, 17 May 2011 11:04:32 GMT

Compensation: The claimant, who had a history of mood disorder, had resigned work in 2005 following the birth of her child but was alleging that subsequent unemployment, and loss of earnings, was a result of depression caused by events at work and the tribunal proceedings. The judgment on liability in the subsequent ET proceedings, which found in the claimant's favour, was sent in April 2008 but the ET's remedy judgment found that

"we do not consider that any depressive continuation of the claimant's position can be said to be caused by the way the claimant was treated whilst at work. On the balance of probability, we conclude that the effects of her dismissal would have ceased to be any substantial or important factor at all in any ongoing depression that the claimant suffers from April 2008. The stress of the Tribunal Hearing would have been largely, if not wholly, lifted at this point."

They also accepted the evidence of one of the two experts that other non-related factors played a part and reduced the figure to 50%, favouring the approach in Dignity Funerals. That award was then subject to an uplift of 25% because the investigation had been flawed.

In this appeal, counsel for the claimant contended that the judgment failed to comply with r30(6) of the 2004 Regulations when considering the medical evidence and that as the respondent had refused to engage with the original grievance the uplift should be greater than 25%. HHJ Hand reviews the judgment and finds that it did satisfy s30(6) and that they had explained why the uplift was only 25%, adding that " to accept that an apportionment of 50% is wrong would be no more than stepping into the position of the Employment Tribunal as a fact finding body". The cross-appeal was also dismissed as it was a new point and no evidence on it had been presented to the ET.

UKEATPA/1245/10 Mr S Leira v Ministry Of Justice

Mon, 25 Apr 2011 15:15:23 GMT

Time for appealing: The claimant lost his case at the Employment Tribunal and appealed. However, his appeal was lodged out of time and permission to extend time was refused on the basis that the delay was not excusable. The claimant contended that he had in fact submitted his appeal in time: the EAT did have evidence of an item that had been posted to them but it had inadequate postage so was not delivered. The properly constituted Notice of Appeal was not received by the EAT until 98 days after the deadline. The claimant claimed that he had done what was reasonably practicable to comply with the rules and said that it would be unjust and inequitable not to allow an extension of time.

The EAT disagreed with the claimant; a failure to produce material with the proper postage is not an excusable failure and the delay was very substantial. The appeal was dismissed.

UKEAT/0406/09 & UKEAT/0320/10 Mrs A K Grewal v The Commissioner of Police of the Metropolis

Mon, 25 Apr 2011 15:14:34 GMT

Race Discrimination - Burden of proof: The Claimant alleged race and religious discrimination, harassment on racial and religious grounds and victimisation against the Respondent in respect of her treatment on a training course. The ET dismissed all but one of her claims of direct race discrimination but held in relation to one matter the onus of proof had been transferred to the Respondent and he had not discharged it. In addition the ET made a finding of unlawful race and religious discrimination by victimisation in relation to another complaint. On review the ET set aside the finding of victimisation on the basis that the claim had never been made as a claim in victimisation. The Respondent appealed against the finding of race discrimination and the Claimant against the decision on review. Held: the ET’s judgment was not Meek-compliant but in any event the onus of proof had not been transferred to the Respondent and the review decision was correct. Respondent’s appeal allowed and Claimant’s appeal dismissed.

UKEAT/0463/10 Mr C Molaudi v Ministry of Defence

Mon, 25 Apr 2011 15:13:46 GMT

Jurisdictional Points: The claimant brought a complaint of race discrimination by way of submitting a ‘service complaint’. The service complaint was brought out of time and was rejected by the appropriate military authorities as being out of time and that as there were no extenuating or mitigating factors the matter was closed, The claimant then lodged an ET1 claiming race discrimination. The Employment Judge rejected the claim, saying that the legislation was clear: no complaint could be presented to the Tribunal unless a service complaint had been made. A service complaint could not be said to have been made if it was not accepted as out of time under the Armed Forces Regulations. The question of whether it was just and equitable to extend the time limit had already been considered by the prescribed Officer and could not be reconsidered by the Tribunal. The claimant appealed against the refusal by the ET to hear his complaint, the issue in question being section 75(9) of the RRA, which states that ‘no complaint to which sub-section (8) applies shall be presented to an Employment Tribunal under section 54 unless…the complainant had made a service complaint in respect of the act complained of...'

Counsel for the claimant said that the ET had erred by interpreting the provision in section 75(9) that the claimant ‘made a service complaint’ as meaning ‘making a timely service complaint or one accepted by the respondent'. The EAT rejected this argument, saying that 1) the term ‘service complaint’ meant a complaint which could be considered substantively and that meant a complaint rejected by the military authorities brought out of time did not fall within that definition; and 2) the Racial Discrimination Directive 2000/43/EC did not require a different meaning to be given to the words ‘service complaint’ so that it covered a complaint to the military authorities which was brought out of time.

UKEATS/0036/10 Ms Linda Mcwilliam & Others v Glasgow City Council

Mon, 25 Apr 2011 15:12:50 GMT

Sex Discrimination: The claimants had all signed compromise agreements entitling them to be paid various compensation payments by the respondent as a result of discussions relating to potential equal pay claims. No prior claims had been presented to an Employment Tribunal. The respondent had organised independent solicitors to give advice to the claimants before they signed the compromise agreements. This advice took the form of a powerpoint presentation from one of the solicitors followed by individual meetings with solicitors during which the compromise agreements were discussed. The claimants were claiming that the respondent had not complied with s77(B) of the Sex Discrimination Act 1975. The claimants’ primary position was that there had to be a pre-existing claim before the Employment Tribunal before a compromise agreement could be valid. Their other grounds were essentially whether the claimants had ‘received advice’ from an ‘independent advisor’ and whether their solicitors were ‘acting in the matter for the respondent’ rather than for them. The Employment Judge found that it was not necessary for there to be a pre-existing tribunal claim or for a prior grievance to have been raised; all that was required was that the complaint to be compromised had been sufficiently identified and that the employee had not been asked to sign a blanket waiver of all possible claims they may have. The EJ was satisfied that the advice given via the group presentations was incorporated into the advice given by the individual solicitors and that once all these communications were taken into account, advice had been given on the terms and effect of the compromise agreements. Finally, whilst the EJ accepted that the solicitors did not begin acting for the claimants until the individual meetings were held, it was clear they were acting to protect the interests of the claimants and there was no question of them acting for the respondent.

The EAT agreed on the issue of the ‘particular complaint’. They said that there was nothing ambiguous or obscure in the statute and indeed it would have been absurd if the statute had meant that the complaint must get as far as the Employment Tribunal before a valid compromise agreement can be entered into. The EJ was right in her decision that the presentation was incorporated into the advice given by the individual solicitors. The EAT also agreed that the facts pointed only to the solicitors having acted for the claimants and in fact the respondent had been at pains to ensure the claimants were provided with advice that was truly independent.

UKEAT/0603/10 Mr G Holt v EB Security Services

Mon, 25 Apr 2011 15:12:01 GMT

Continuity of employment: The claimant was employed at a pub until that no longer existed but he was employed by an associated employer soon after his employment contract ended with the first employer. However, there was a week in between the two posts where there was no employment, which, the Employment Judge ruled, meant that he did not have one year’s continuous service and therefore the claimant’s claim of unfair dismissal could not be heard. The Employment Judge ruled that there was no contract of employment during this week but failed to cite s212(3) of the ERA which says that, if the employee is absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, then that period counts in computing the employee’s period of employment.

The EAT said that s212(3) should have caught the attention of the EJ and so remitted the case back to her to determine whether, guided by Ford v Warwickshire County Council, continuity could be afforded to the claimant by virtue of that section.

UKEAT/0283/10/JOJ Ms C Deer v (1) Mr G Walford (2) University of Oxford

Mon, 25 Apr 2011 15:11:09 GMT

Victimisation Discrimination: Respondent 1, the Claimant’s former academic supervisor, declines to give her a reference. The Claimant brings a victimisation claim on basis that he knew, and was motivated by the fact, that she had previously brought a sex discrimination claim against the University, Respondent 2. Respondent 2 denies knowledge of the previous claim and the Tribunal is invited to draw inferences from what are said to be evasive answers to statutory questionnaire.

The Tribunal dismisses claim, accepting that Respondent 1 had no knowledge of the previous proceedings and did not drawing inferences from the answers to questionnaire. Costs were awarded.

The EAT upheld the decision of the Tribunal on the following grounds:

(1) Tribunal entitled to dismiss claim – Answers to questionnaire did not justify inference of discrimination

(2) Tribunal entitled to award costs. The claim had been misconceived from the start, since there was no evidence supporting Claimant’s suspicions, and a deposit order had been made.

UKEAT/0093/10 Mr T Pybus v Geoquip Ltd

Mon, 25 Apr 2011 15:09:45 GMT

Contributory fault: The claimant sold his business, but not the underlying company to the respondent and worked for the respondent as an employee. He was dismissed after the respondent found, amongst other things, that he had undertaken business in competition with the respondent and that he was responsible for a number of misrepresentations in the sale agreement of the business to the respondent. His internal appeal failed and he won his claim of unfair dismissal on the basis that the respondent had not carried out adequate investigations into the matters for which the claimant was dismissed. The ET ruled that no deductions from the claimant’s compensation were appropriate. The respondent applied for a review and the ET ruled that a 35% Polkey reduction was appropriate, that the claimant’s employment would not have continued for more than 9 months from the date of dismissal, that he had contributed to his own dismissal to the extent of 50% and that he had failed to mitigate his loss. The claimant appealed on five grounds, including the assertion that the ET was wrong to exclude the claimant’s evidence as to the issue of the Polkey deduction.

The EAT dismissed most of the grounds but upheld those on the 35% Polkey deduction and the 9 month issue. They ruled that there was simply no evidence before the ET upon which it could find that there was a 35% chance that the witness relied on by the respondent, who did not give evidence at the hearing, would have confirmed the wrong doing of the claimant. On the 9 month issue, the ET had failed to consider the contract of employment, which stated that notice could only be given on or after the expiry of the 3 year fixed term period, which had not yet been reached. The EAT said that there was no reasoning as to why the ET had picked a 9 month period. The EAT also agreed that the further evidence should not have been admitted at the ET because it was an attempt to re-open matters which had already been agreed at the liability hearing.

UKEAT/0239/10 Mr M Brill v Interactive Business Communications Ltd

Mon, 25 Apr 2011 15:08:52 GMT

Damages for breach of contract: The claimant, a salesperson, worked for the respondent on a commission only basis: he was not paid a salary. The commission he received was paid in 2 tranches: one payment upon placing of an order by the client and the second after the payment of the invoice. There was a time lag between the 2 payments, which meant that the effects on commission payments were not felt until several months after the work of securing the order had been done. The claimant left the employment of the respondent and lost his claims of unfair dismissal and breach of contract. The ET also dismissed his claim for unpaid commission after the termination of his employment which is the subject of this appeal. The issue before the ET was whether the claimant was entitled, by way of commission, to receive payment for work which he had undertaken and orders which he had obtained prior to the termination of his employment. They looked carefully at the contract of employment, and found that, on the balance of probabilities, the claimant was given the contract, did not like what he read, that he detached the commission structure from it and signed the remainder of the contract. The significant clause in the contract stated that if the employee left the company, all outstanding commission payments would be terminated. The ET found that both parts of the contract of employment were one document and binding upon the claimant, thus the claimant was bound by this clause and any outstanding commission payment at the date of his dismissal no longer fell to be paid. The respondent conceded that a sum of over £7,000 would have been due to be paid had the claimant not been bound by this clause. The claimant appealed.

The claimant argued that the respondent, on a number of occasions, the most important of which was the ET3, conceded that it owed him the sum of £7,000 and that the ET had misunderstood or ignored that concession. The EAT rejected this argument and said that the ET had properly considered all the relevant issues and was entitled to reach the decision it did.

UKEAT/0501/10 Mr J G Lambert v Vicomte Bernard de Romanet Ltd

Thu, 14 Apr 2011 09:37:58 GMT

Unfair Dismissal: The claimant went off sick and failed to communicate with the respondent about his absence or when he was likely to return to work, although he did manage to put in an expenses claim during this period. The claimant was dismissed after 16 months absence. In addition to his claim of unfair dismissal, the claimant raised a claim of disability discrimination. The Tribunal held that his dismissal was automatically unfair because the respondent had not complied with the statutory dismissal and disciplinary procedure. They also found that the dismissal on grounds of capability was substantively unfair since the respondent had made no real effort to inform itself of the true medical position. However, they went on to find that the claimant was not entitled to a compensatory award for loss of earnings since he had misled the respondent as to his previous medical history and had failed to keep the respondent updated during his sick leave. The claimant appealed.

The EAT agreed with the Tribunal and ruled that a 100% deduction was fair. The Tribunal took the view that had the claimant made full disclosure at the outset, he either would not have been employed or more particularly his absence over the 16 month period would have been handled differently. The level of non-cooperation by the claimant caused his dismissal, albeit that the dismissal was unfair.

UKEATS/0050/10 South Ayrshire Council v Ms Caroline Aitchison and Others

Thu, 14 Apr 2011 09:35:36 GMT

Equal Pay Act: A union representative presented a collective equal pay grievance to the respondent. The letter included reference to a ‘schedule’ containing the names of the employees who were bringing the grievance. However, the schedule was in the form of a computer disc which in fact contained the names of the entire workforce, not just the names of the people bringing the grievance. The respondent wrote back to the union representative, asking them to specify the actual people who were bringing the grievance and cite comparators and grounds. A grievance by the entire workforce was not acceptable. The union representative failed to provide this information and instead lodged an ET1 forms on behalf of the claimants with the Tribunal. The Tribunal held that the claimants had complied with the requirements of the statutory grievance procedure and thus the court was able to hear the equal pay claims. They first found that the requirement to provide the names of the relevant employees ‘in writing’ could be satisfied by providing a computer disc. The EJ made no finding as to whether all the people on the disc had equal pay grievances at the relevant time, because her approach was that it did not matter; the names of the claimants who had presented ET1 forms were amongst those in the list on the computer disc. The respondent appealed and won.

The EAT said that, assuming that the respondent could open and read the computer disc, it could not reasonably be expected to conclude that the lists of names on the disc were those on behalf of whom the equal pay grievances referred to were being raised. If the employer could not tell which of his employees had an equal pay grievance, there could be no reasonable expectation of the resolution of grievances without litigation being achieved. The EAT also ruled that the term ‘in writing’ could not be interpreted as covering the sending of a computer disc or USB stick.

UKEATPA/0824/10 Mrs P Hancocks v Cambian Education Services Ltd

Thu, 14 Apr 2011 09:32:10 GMT

Time for appealing: In the first appeal, the claimant had not been told by his solicitor that he could appeal against the dismissal of his claim in the ET. He was unhappy with the outcome and a few days before the time limit for appealing was up, he wrote to the ET asking for advice on how to appeal. After receiving no direct help he had to follow up this correspondence and was eventually referred to the EAT. He submitted his Notice of Appeal 6 days late and it was refused. In the second appeal, one of the respondent’s was appealing against a costs order. Two other respondent’s also had a costs order made against them. The respondent in this appeal sent in a Notice of Appeal in time, but failed to attach all the ET3’s from the 4 respondents in total as specified in the practice direction and the application was rejected as not having been properly constituted.

The EAT allowed both appeals. In the first case, the claimant had written to the ET in time, and if they had directed him immediately to the EAT he would have been able to lodge his appeal in time. Also, illness within the family was accepted as contributing to the lateness of the appeal. In the second case, it was accepted that the respondent thought it unnecessary to include the ET3 from the respondent who was dismissed from the proceedings. The EAT also accepted his argument that it was of no relevance to include the ET3’s of the two respondents who had a costs order against them as they did not affect his liability.

UKEAT/0323/10 DLA Piper UK Management Services Ltd v Ms J Codyre

Thu, 14 Apr 2011 09:29:59 GMT

Unfair Dismissal: The claimant was made redundant following a scoring exercise conducted with her and her 5 colleagues. The employees were scored on a selection matrix containing 4 criteria: work performance, skills and competencies, disciplinary record and attendance. The claimant appealed against her dismissal and lost. The Tribunal found that she had been unfairly dismissed. They found no flaw in the consultation process carried out by the respondent, nor in the pool of staff used for selection. There was also no criticism of the selection criteria used. However, the respondent was found to have acted unfairly in relation to the scores attributed to the claimant in respect of her work performance and skills and competencies, and the internal appeal did not remedy those defects. In these circumstances the claimant’s dismissal fell outside the range of reasonable responses and was unfair. The Tribunal could not answer the question of any Polkey reduction because they felt unable to assess the percentage chance that the claimant would have been dismissed in any event. Nor did the Tribunal give any reasons why they dismissed the respondent’s argument that the claimant had failed to mitigate her loss.

The three grounds of appeal were based on 1) fairness; 2) Polkey and 3) mitigation. The EAT dismissed the respondent’s argument that the Tribunal’s conclusions on fairness were inadequately reasoned and that they had fallen into the trap of substituting their view for that of the respondent. However, the Tribunal should have decided on the basis of the evidence before them the chance that the claimant would have been dismissed anyway, but for the procedural failings. On the issue of mitigation, the EAT found that the Tribunal’s reasons were not Meek compliant. The case was remitted to the same ET to decide the latter two issues.

UKEAT/0197/10 DGF Ltd v Mr O O'neil

Thu, 14 Apr 2011 09:29:11 GMT

Unfair Dismissal - Polkey deduction: The claimant was found to have been unfairly dismissed by reason of redundancy but the ET reserved judgment until a couple of weeks later when any remedy, if applicable, would be decided. The respondent did not specifically address the question of a Polkey deduction in the event of a finding of unfair dismissal, only the question of fairness under s98(4). The ET went beyond the issue of fairness during their deliberations before the remedy hearing, confirming that, if a fair and proper scoring system had been applied, the claimant would not have been dismissed; therefore a Polkey deduction should not apply. After the oral liability judgment was made, the respondent then raised the question of a Polkey deduction, but the ET said they had already considered that issue and concluded that it did not apply in this case. The respondent appealed against the liability judgment, which was dismissed, but the appeal in respect of the Polkey issue was allowed to proceed.

The respondent submitted that for the Tribunal to determine the Polkey question without receiving submissions from the parties was a breach of natural justice. The EAT allowed the appeal, saying that the ET had proceeded to form a final, rather than provisional, view that there would be no Polkey deduction without first receiving or canvassing submissions from the parties. That was a procedural irregularity based on fundamental principles of natural justice. The case was remitted to the same Tribual to consider the Polkey issue afresh. However, they refused to allow further evidence to be adduced in support of the submission that a Polkey deduction ought to be made.

UKEAT/0439/10 Mr M Hussain v (1) Vision Security Ltd (2) Mitie Security Group Ltd

Thu, 14 Apr 2011 09:28:25 GMT

Age Discrimination: The claimant was working as a security guard and at the relevant time was aged 64. The respondent wrote to the claimant and his two colleagues, who were in their thirties, telling them that they were no longer required at that site and would be transferred. The two younger colleagues were transferred but the claimant was not, although there was a suitable vacancy – this post was filled externally. The claimant claimed that he had been discriminated against because of his age but he lost his case at the Employment Tribunal on the basis of evidence, which the claimant disputed, that there had been a telephone conversation between the claimant and the respondent during which he had been offered the transfer but the claimant refused it. On appeal the Tribunal again rejected the claim, although the evidence above was found not to have been true. The Tribunal ruled that the burden of proof, that age discrimination had taken place, had not shifted from the claimant to the respondent because the findings could not lead them to the conclusion that the respondent could have discriminated against the claimant. The claimant appealed for a second time.

The EAT considered the well known cases of Igen Ltd v Wong and Madarassy and in particular the relevant principle of law which says that, where a complainant proves facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit that act. Counsel for the respondent argued that the factual findings made by the Tribunal were sufficient to call for an explanation if an inference of age discrimination were not to be made and the EAT agreed. The Tribunal should have inferred in these circumstances that the claimant’s age, and more particularly the difference in age between his age and his comparators, was indeed the reason for the difference in treatment, unless the respondent proved an adequate explanation.

UKEAT/0488/10 Mott Macdonald Ltd v Dr L S Rivkin

Thu, 14 Apr 2011 09:26:28 GMT

Age Discrimination: The claimant was made redundant but was offered an interview with the respondent for a different post. At this stage he was aged 60. He did not secure the post and pursued claims of unfair dismissal and age discrimination. The Tribunal dismissed his claim of unfair dismissal but upheld the claim of age discrimination. They found that the person who interviewed the claimant was aware of his age before the interview because it was written at the top of his CV which the interviewer had received beforehand. The interviewer denied that he knew the claimant’s age, claiming that the claimant himself had brought up the age issue during the interview, the interviewer responding that the claimant had another 10 years of productive work in him. Since the compulsory retirement age was 65, the interviewer argued that this meant he had proved that he thought the claimant was in his mid fifties. The interviewer did say that his main concern was the length of time required to train the claimant up to their way of working. The Tribunal decided that the interviewer was lying when he said that he did not know the claimant’s age at the interview, and therefore, applying Igen, it was impossible to accept the explanations of the respondent, that the claimant had not been appointed because he was not suitable, once the interviewer was found to have lied.

The EAT ruled that the Tribunal had interpreted the ‘Igen stage 2’ incorrectly. The Tribunal was entitled to find that Igen stage 1 was satisfied; facts had been shown from which an inference of discriminatory motivation could be drawn. However, the question for the Tribunal was whether the respondent had nevertheless shown a non-discriminatory explanation for not offering the job to the claimant. The Tribunal acknowledged that the explanation put forward was plausible but the EAT held that it was wrong to insist that the lie meant that it was impossible to accept the explanation. The lie was a factor that should have been taken into account, but it did not preclude the Tribunal from considering the explanation.

UKEAT/0410/10 T Mobile (UK) Ltd v Mr C Singleton

Thu, 14 Apr 2011 09:25:39 GMT

Claim in time and effective date of termination: The claimant was dismissed and he lodged an appeal which took several weeks to conclude. During this time the claimant spoke to a solicitor under their free consultation procedure and was erroneously advised that he should wait until the conclusion of the internal appeal before issuing proceedings at the Employment Tribunal. The claimant was aware of the 3 month limitation period and asked the respondent several times to conclude his appeal as soon as possible so that he would have time to complete the ET1. One email from the claimant to the respondent included the latest date on which the claimant thought he could lodge his ET1, which unfortunately for the claimant was 2 days later than the 3 months after his date of dismissal. The respondent did not correct the claimant, the internal appeal was unsuccessful and the claimant’s ET1 was lodged 1 day late at the ET. The ET decided that it was not reasonably practicable for the claimant to have presented his claim in time, giving as one of its reasons the fact that the respondent had done nothing to correct the misapprehension regarding the latest date for his claim. They also concluded that the present case could be distinguished from that of Dedman, which said that a claimant could not claim to be in reasonable ignorance of the time limit if he had consulted a skilled advisor, even if that advisor had failed to advise him properly. The present case differed from Dedman in that the claimant had sought legal advice very early in the proceedings, it was a one off telephone conversation and the firm of solicitors did not go on to represent or advise the claimant.

The EAT overturned the ET decision for 3 main reasons: 1) the EJ was wrong to conclude that the present case could be distinguished from that of Dedman; the Dedman principle was of general application; 2) the fact that the advice from the solicitor was short and free was irrelevant; 3) the erroneous latest date for filing the claim was the claimant’s own mistake – there was no evidence that the respondent had deliberately misled the claimant and there was no duty on the respondent to check out and correct any error as to a limitation period.

UKEAT/0225/10 Mindimaxnox LLP v (1) Mr T M Gover (2) Mr P S Y Ho

Thu, 14 Apr 2011 09:24:47 GMT

Case Management: The claimants were claiming unfair dismissal and unlawful deductions from wages where large sums of money were at stake. There were also High Court proceedings pending in which the claimants to the ET claim were the respondents in the High Court case. The hearing before the ET judge was to determine an application made by the respondents to the ET claim, ie the employer of the claimants, for a stay of the Employment Tribunal proceedings until the High Court proceedings had concluded. His decision effectively was to allow both sets of proceedings to run concurrently and the respondents to the ET claim have appealed.

The main ground of appeal related to the Judge not following binding authorities which should have led to the ruling that the ET proceedings would be stayed. The EAT considered the case of Chorion Plc & others v Lane in which the Judge made clear that it was wrong for essentially the same issue to be run in two separate tribunals. Where there was a significant overlap between an application to an Employment Tribunal and an action in the High Court, with common issues permeating each dispute and an effectively agreed timetable, it was appropriate to stay the ET proceedings. The EAT decided that it was not in accordance with the overriding objective to have concurrent proceedings over exactly the same factual territory except for the unique tort of unfair dismissal in the ET.

UKEAT/0093/10 Mr T Pybus v Geoquip Ltd

Thu, 14 Apr 2011 09:23:56 GMT

Unfair Dismissal - Contributory fault: The Claimant appealed on compensation issues. The Employment Appeal Tribunal allowed the appeal on the grounds that (a) there had been a failure in reasoning to make a 35% reduction because of the chance of dismissal on clear evidence; and (b) a failure to take into account the fixed term contract of employment when reducing the period of compensation.

UKEAT/0372/10 Mr M Breakell v West Midlands Reserve Forces' and Cadets' Association named as Shropshire Army Cadet Force

Thu, 14 Apr 2011 09:23:10 GMT

Jurisdictional Points - Worker, employee or neither: Appeal by an Army Cadet Force Adult Instructor from the judgment of an Employment Judge sitting alone that he was a volunteer and not in “employment” as defined by s68(1) Disability Discrimination Act 1995 as amended. The appeal was dismissed. The EAT found that the Employment Judge was correct as his factual findings were (a) there was no obligation on the Respondent to provide work; (b) there was no obligation on the Claimant to accept work offered; (c) he was paid only for the days he worked; and (d) s212 Employment Rights Act 1996 was not argued.

UKEAT/0352/10 & UKEAT/0444/10 Eversheds Legal Services Ltd v Mr J De Belin

Thu, 14 Apr 2011 09:22:06 GMT

Sex Discrimination: The respondent had to make one out of two employees redundant. The claimant’s colleague was on maternity leave at the time. One of the scoring criteria was the length of time each employee took to recover money from their clients, but since the claimant’s colleague had not been at work during the relevant period, she was awarded the maximum possible score in this area. Her total score ended up being higher than the claimant’s, by a very small margin, and he was made redundant. If she had not been given the maximum score the two scores would have either been level or the female colleague would have been selected for redundancy instead. The claimant claimed that he had been discriminated against because he had been treated less favourably than his female colleague. The Tribunal held that the different scoring method did constitute unlawful sex discrimination and the claimant had been unfairly dismissed. In awarding the claimant 3 years loss of earnings, the Tribunal added that there was insufficient evidence to enable it to carry out a Polkey exercise.

The EAT upheld the ET’s decision on liability. They dismissed the respondent’s argument that they were positively obliged to accord the female colleague the maximum score. The respondent argued that, since the possibility could not be excluded that if she had remained at work she would have performed sufficiently well to score the maximum, any lesser score would mean she might have lost out by reason of her absence on maternity leave, which would be in breach of the SDA 1975. The EAT said that more favourable treatment of the female comparator in order to compensate her for a disadvantage consequent on her absence on maternity leave would not constitute unlawful sex discrimination, if but only if the treatment was no more favourable than was reasonably necessary for that purpose. In this case, it was not reasonably necessary to accord the female comparator a notional score because there were more proportionate means available to ensure she did not lose out in the redundancy exercise because of her maternity absence. On the remedy issue, the Tribunal had wrongly refused to consider evidence that if the claimant had not been dismissed he would have been at risk of dismissal in a further redundancy exercise in less than a year’s time.

UKEAT/0401/10 Secretary of State for Justice v Anthony Macdonald-Heaney

Thu, 14 Apr 2011 09:20:37 GMT

Unfair Dismissal: The claimant, a prison officer, was dismissed for assaulting a prisoner. The Tribunal held that the dismissal was unfair for 3 main reasons: 1) the respondent had failed to probe alleged inconsistencies in the evidence; 2) the respondent had failed to consider an alternative to dismissal, having regard to mitigating circumstances and 3) the respondent had acted unreasonably in refusing a short postponement of the internal appeal. The respondent appealed.

The EAT allowed the appeal. They held that the respondent was entitled to conclude that the allegedly inconsistent evidence was reliable and in holding otherwise, the Tribunal wrongly substituted its own view. The respondent’s approach was justifiably strict and the Tribunal’s conclusion on the reasonableness of the sanction of dismissal could not be supported. Finally, the respondent’s refusal of a postponement of the appeal could not by itself render the claimant’s dismissal unfair, and the appeal process could not properly be described as cursory.

UKEAT/0223/10 Dr T Wang v University Of Keele

Thu, 14 Apr 2011 09:19:18 GMT

Claim in time and effective date of termination: The claimant received an email, which he opened and read, on 3 November 2008 giving him 3 months notice of termination of his employment. The covering letter, dated 3 November but which could not have been received by post until 4 November, was received a few days later, stating that he would only be paid up until 2 February 2009. The claimant lodged his ET1 on 2 May 2009. The respondent argued that his claim was one day out of time, because the claimant knew that his last day of employment would be 2 February, the effective date of termination of employment was 2 February and therefore his claim should have been submitted by 1 May. The Tribunal agreed and rejected the claim. The claimant appealed, saying that even though he was aware of his dismissal on 3 November, part days did not count when calculating the notice period, so notice did not start until 4 November.

The EAT said that there was just one issue to resolve, that of the commencement of the notice period. The EAT rejected the submission of the respondent that notice starts to run when an employee has knowledge that he or she has been given notice of termination. This case was not distinguishable from that of West v Kneels; the principle that part days do not count and notice does not always run from the moment it comes to the attention of the employee applied to written as well as oral notice. In this case, notice did not start to run until 4 November and therefore the claim was in time.

UKEAT/0150/10 (1) Ms J Fecitt (2) Ms A Woodcock (3) Ms F Hughes v NHS Manchester

Thu, 14 Apr 2011 09:18:01 GMT

Victimisation Discrimination - Protected disclosure: The three claimants worked as nurses for a walk-in centre. Two of the nurses were still employed by the respondent at the time of the hearing, the third was no longer employed by the respondent, the respondent refusing to offer her work. The claimants reported to the respondent that another colleague had exaggerated his qualifications and experience. The respondent discussed the matter with the colleague but found that although he had exaggerated to his colleagues, he had not done so to the respondent; he apologised and no further action was taken. It was accepted by the respondent that, when passing on their concerns, protected disclosures had been made because the claimants believed they tended to show that the health and safety of individuals was being endangered. What followed was a catalogue of incidences involving the colleague and claimants, the colleague claiming that there was some kind of witch hunt against him as the claimants pursued the matter even though senior management decided not to take any further action. The claimants also claimed, amongst other things, that threats had been made against one of them and they were subject to unpleasant behaviour by other staff at the walk-in centre. Eventually, it was decided that the best solution to the ongoing situation was to re-deploy 2 of the claimants and not offer any work to the third. The claimants all asserted at the ET that they had suffered as a result of their protected disclosures within the meaning of section 47B of the ERA, and that the third claimant had been unfairly and wrongfully dismissed. The ET held that the acts complained of were not such as to make the respondent vicariously liable. The respondent had sought to resolve the situation but was simply unsuccessful; they had not deliberately failed to act. They then considered the causal connection between the protected act and respondent’s acts or omission to act, saying:

“…any failure on the part of the respondent to take sufficient steps to protect the claimants from being subjected to a detriment was not “because” they had made protected disclosures and was not, therefore, “on the ground that” they had made the protected disclosures.”

They went on the say that the redeployment of the claimants was the only feasible way of resolving the problem and was not ‘on the ground that’ they had made protected disclosures.

The EAT found that the ET had failed to deal with the issue of vicarious liability of the respondent for the acts of its employees and should make findings on i) the acts of employees meted out to the claimants by reason of their having done a protected act; ii) the perpetrators; iii) whether there was a detriment and if so; iv) whether the acts complained of were so closely connected with the employment of those responsible so as to make the respondent vicariously liable. On the causation issue, the EAT said that, once less favourable treatment amounting to a detriment had been shown to have occurred following a protected act, the employer’s liability under section 48(2) was to show the ground on which any act or deliberate failure to act was done and that the protected act played no more than a trivial part in the application of the detriment. The employer was required to prove on the balance of probabilities that the treatment was in no sense whatever on the ground of the protected act.

UKEATPA/0879/10 Pardeep Rathour Singh-Rathour and Mirwala (Nirmala) Rani Rathour v 1) Mrs Taylor (2) Parbahti Corporation Ltd (3) Mr Moheen Hussain (4) Mr Mahfooz Hussain

Thu, 14 Apr 2011 08:30:00 GMT

Time for appealing: Time for appealing two out of time appeals was enlarged.

In the first, the Claimant did not know there was a right of appeal and when she found out, on contacting the Employment Tribunal, reasonably relied on its assurance that the matter was being actioned. The solicitors did not pass on The Judgment booklet or advice on appeal.

In the second, the Appellant’s (the Fourth Respondent) solicitors did not act speedily but the Appellant knew the deadline and did it himself. He appealed a costs order only. He did not include the ET3 of the First Respondent which had been dismissed from the Employment Tribunal proceedings. That is not an error. He did not include the ET3 of the two other Respondents (apart from himself). That was an error but it was excused by his belief that since they were not affected by the order against him, he had no need to include them. This explanation was reasonable and was accepted.

UKEAT/0183/10 Mr S Carruthers v London School of Economics Students Union

Mon, 04 Apr 2011 13:38:06 GMT

Practice and Procedure - Costs: The claimant was pursuing constructive dismissal and disability discrimination claims. The respondent made an application for costs on the grounds that the claimant’s unreasonable behaviour in preparing for the case had necessitated an adjournment, leading to wasted costs amounting to £5,800. The Tribunal ruled that the claimant should pay £4,000 towards the respondent’s costs, taking into account the claimant’s financial circumstances. The claimant appealed, arguing that the Tribunal had adopted the wrong approach when considering the costs issue, the claimant had not been provided with any schedule of costs so as to determine the reasonableness of the costs claimed by the respondent and the Tribunal had failed to consider what proportion of the respondent’s costs were thrown away as a direct result of the adjournment.

The EAT ruled that there was no error of law in the way the Tribunal had assessed the costs figure. The sum assessed was substantially less than the sum that was sought and the sum decided on was a matter which fell to be determined within the judicial discretion of the Tribunal.

UKEAT/0326/10 & UKEAT/0327/10 & UKEAT/0328/10 & UKEAT/0329/10 Mrs Adenike Allen (Nee Aboyade-Cole) v 1) Miss M Hounga 2) Mr Kunle Allen (Debarred)

Mon, 04 Apr 2011 13:36:57 GMT

Fraud and illegality: The claimant was living illegally in England, having falsified her affidavit at the instigation of the first respondent. The claimant was subjected to harsh treatment by the first respondent and was dismissed. She brought claims of unfair dismissal, breach of contract, unpaid wages and holiday pay, race discrimination and loss of earnings. The ET dismissed most of the claims, saying that on the issue of unfair dismissal, the contract of employment was tainted with illegality and she therefore could not bring the claims before the ET. The claimant’s claim of race discrimination succeeded, the Tribunal saying that the respondents would not have dismissed a hypothetical white British comparator so therefore the claimant’s dismissal was an act of unlawful race discrimination. The claimant’s non-dismissal race discrimination claims failed because she had not complied with the statutory grievance procedures. The ET also ruled that the claimant was not entitled to an award for loss of earnings as she was not allowed to work in this country. The claimant appealed against the refusal to hear some claims and against the award for injury to feelings. The respondent appealed against the ruling of race discrimination.

The EAT were particularly critical of the ET judgment in that it had recorded that its attention had been drawn to various authorities but it had failed to explain how these authorities or any of them had enabled them to reach the conclusions which they did. However, they upheld the ET’s decisions on each issue, saying, amongst other things, that the employment contract was illegal and therefore claims of unfair dismissal could not stand; the discriminatory illegality issue could proceed because the claim was not inextricably bound up or linked with the illegal conduct; the claimant had failed to comply with the compulsory grievance procedures and was unable to take advantage of any of the exceptions with the result that the non-dismissal racial discrimination claims failed.

UKEAT/0453/10 Asda Stores Ltd v Mr J E Coughlan

Mon, 04 Apr 2011 13:35:16 GMT

Unfair Dismissal - Reasonableness of dismissal: The claimant was found to have cannabis in his locker at work and was dismissed for gross misconduct. The Tribunal accepted that the respondent reasonably categorised the claimant’s behaviour as gross misconduct but went on to find that the dismissal was unfair because the respondent did not give sufficient weight to the claimant’s personal mitigation and had not considered the company’s drugs and alcohol policy properly. The claimant was held to have contributed to his own dismissal to the extent of 85%. The respondent appealed against the ruling of unfair dismissal.

The EAT ruled that the range of reasonable responses had not been properly addressed by the Tribunal. Only if their conclusion that the employer’s response fell outside the range can the respondent be said to have acted unfairly; although the Tribunal reminded itself that they should not substitute their view for that of the employer they had done precisely that. As to the drugs policy, the Tribunal had completely misunderstood the evidence before them. The drugs policy, which distinguished between assisting employees with difficulties with drugs and the type of misconduct identified in the disciplinary code, had no application in this case.

UKEAT/0405/10 Mr N Aslam v Barclay's Capital Services & Others

Mon, 04 Apr 2011 13:33:23 GMT

Practice and Procedure - Review: The claimant brought claims before the Tribunal following the selection of his white colleague to provide short term assistance for a new manager who was coming from abroad. The claimant maintained that the fact he had not been considered for this unpaid, temporary position constituted race discrimination and resigned. The Tribunal dismissed all his claims mainly on the basis of the positive assessments of the credibility of some witnesses of the respondent and a negative assessment of the claimant. The Tribunal concluded that the selection was made on the basis of appraisal records and there was no evidence that there was a discriminatory reason for the non-selection of the claimant. After the hearing it came to light that there was an email which called into question the temporary nature of the post and whether the respondent’s behaviour was on the grounds of race. The existence of the email also raised issues of credibility. The claimant applied to admit this evidence to a fresh Tribunal.

The EAT were entirely satisfied that the test for admitting further evidence was satisfied. They had no doubt that the email was relevant and would probably have had an important influence on the hearing. The EAT concluded that the non-disclosure of the email resulted in a hearing below which was unfair. However, in this case a review hearing would not suffice to correct the unfairness: the Tribunal had made adverse findings as to the credibility of the claimant which it would be difficult for the Tribunal to revisit, and it would be difficult for the claimant to have confidence in the review.

UKEAT/0339/10 Spaceright Europe Ltd v (1) Mr B Baillavoine (2) Secretary of State for Business Innovation & Skills

Mon, 04 Apr 2011 13:32:28 GMT

Transfer of Undertakings - Economic technical or organisational reason: The claimant was the CEO of the first respondent in the Tribunal proceedings. The second respondent was a subsidiary. Both the first and second respondents, which were placed into administration, were sold a month later as a going concern to the third respondent, the appellant in this appeal. It was not in dispute that the sale amounted to a TUPE transfer. The claimant was made redundant by the administrators on the same day that the first two respondents were placed into administration. The claimant was suspicious of the directors of the third respondent who had been employees of the first respondent but not formally appointed to the board. He alleged that the administrators were working with these employees to achieve their ends; that the administrators were persuaded to hold other bidders to tight time lines to prevent effective bids; and that the transfer had already been agreed at least in principle at the time of his dismissal. The Tribunal found that the claimant had been unfairly dismissed because the principle reason for his dismissal was a reason connected with the transfer which was not an economic, technical or organisational reason entailing changes in the workforce. The third respondent appealed both against the finding that the principle reason for dismissal was connected with the transfer and that it was not an ETO reason entailing changes in the workforce.

The EAT found that the Tribunal was correct to follow and apply Harrison Bowden v Bowden in preference to Ibex Trading v Walton. The decision in Ibex was to the effect that a specific transfer must be in contemplation at the time of dismissal if the dismissal is to be connected with the transfer. The EAT rejected the argument that, since the Tribunal did not find any specific transfer to be in contemplation, it ought to have found the dismissal to be unconnected to the transfer. On the ETO point, the EAT agreed with the Tribunal. The reason for dismissal did not relate to the conduct of the business as a going concern; the business was always going to need a managing director. The reason was related to the sale of the business and therefore the dismissal was unfair.

UKEAT/0282/10 Mrs M Castellotti v Mrs C Dagul and Mrs D Moliterno T/A Cheeky Monkeys Nursery School

Mon, 04 Apr 2011 13:31:40 GMT

Jurisdictional Points - Fraud and illegality: The claimant worked initially as a volunteer in a nursery school. She then made an application for a CRB certificate which she obtained two months after starting as an employee. The claimant claimed that she had not been paid the wages or holiday pay due to her for these two months, the respondent alleging that she was still a volunteer for this period. The central issue for the Tribunal to decide was whether the claimant was an employee, a worker or neither. Unfortunately the EJ did not decide this central issue, instead taking a point of his own which said that the contract of employment during the relevant period was illegal because the claimant did not have the necessary CRB document. Therefore, the Tribunal could not hear her claim.

The EAT was particularly critical of the ET judgment for three main reasons. Firstly the EJ could and should have decided the factual issues between the parties. On the question of illegality he should have ensured that he gave a proper statement of the applicable law; in this case he got it wrong – it was not illegal to employ the claimant without a CRB certificate. Thirdly, the EJ should have initiated a review of the ET judgment once he realised that he had decided the case on a point which he took of his own motion without identifying the legal basis for the point and without giving the parties an opportunity to address him on that legal basis