Employment

Miss A M Ashman v Sainsburys UKEAT/0252/09

Mon, 15 Mar 2010 11:59:00 GMT

Practice and Procedure - Perversity

This is an appeal against an Employment Tribunal’s judgement arguing perversity. The EAT held that, based upon the facts, no evidence of perversity and the appeal was dismissed.

D Curran & Sons Limited v Mr J Beswinski UKEAT/0476/09 & UKEAT/0477/09

Mon, 15 Mar 2010 11:58:56 GMT

Jurisdictional Points - Worker, employee or neither

The Tribunal accepted jurisdiction in a case in which the employee who lived and worked mainly in England drove lorries for a company based in Northern Ireland. There was no evidence the company had an office in England. The Tribunal failed to give sufficient reasons why it concluded it had jurisdiction, and may have asked where the employee worked or was based rather than the appropriate, and different, question which was whether the employer conducted business in England and Wales. Since the decision was not plainly and obviously right, it was to be remitted.

Jackson Grundy Estate Agents v Mrs K Hall UKEAT/0423/09

Mon, 15 Mar 2010 11:57:33 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

This is an appeal regarding whether the Tribunal’s judgement was Meek compliant. There was a failure by the Employment Tribunal to explain why they preferred the evidence of one witness to another on a crucial factual issue. Observations of Morison P in Tchoula approved by the Court of Appeal in Anya (para 24) applied. Case remitted to fresh employment tribunal for rehearing on issue of sex discrimination.

NCP Services Limited v Mr G Topliss UKEAT/0147/09

Mon, 15 Mar 2010 11:56:55 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

Appeal in respect of the award by the Tribunal of £3,000 costs, and cross-appeal in respect of the calculation of future loss of £35,700 both allowed, because the Tribunal had failed to give any adequate explanation of these awards, and in particular how the figures were arrived at. A further point arose during the hearing before the Appeal Tribunal, as to which there appeared to be no authority – that is whether on remission to a Tribunal to reconsider the award in respect of future loss it should have regard to circumstances as they were at the time of making the decision appealed from, or whether it should have regard to circumstances as they will be on the date the remitted case is determined by it. It was held that the latter is the appropriate course.

Council of the City of Newcastle Upon Tyne v Mr J Marsden UKEAT/0393/09

Mon, 15 Mar 2010 11:56:18 GMT

Practice and Procedure - Review

Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer adjournment if absence of Claimant had been explained and adjournment applied for – Counsel tells Judge that he does not know reason for Claimant’s absence and fails to apply for adjournment – At subsequent review hearing Claimant proves that counsel had given him express advice that he need not attend PHR - Judge revokes dismissal of claims and orders further hearing.

The EAT held that although the Judge’s detailed reasoning was to some extent defective, the substantive decision was correct: although generally a review would not be permitted on the basis that evidence that should have been called first time round had not been called as a result of the error of a representative, counsel’s lack of frankness with the Tribunal, which cost the Claimant the chance of an adjournment, was an exceptional circumstance which rendered it just to revoke the strike-out – Consideration of the extent to which earlier cases such as Flint v Eastern Electricity Board and Lindsay v Ironsides Ray & Vials, which emphasise the weight to be attached to finality and suggest that a review cannot generally be justified on the basis of the incompetence of a party’s representative, require reconsideration in the light of the over-riding objective - Sodexho v Gibbons and Williams v Ferrosan considered.

Mr A Plank v Atkins Limited UKEATPA/0799/09

Mon, 15 Mar 2010 11:55:36 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

This is an appeal which held that the Appellant was entitled to a R3(10) hearing following rejection of his second Notice under R3(8). The appeal was without merit. That R3(10) application was dismissed.

Mr I Sawar v SKF (UK) Limited UKEAT/0355/09

Mon, 15 Mar 2010 11:55:02 GMT

Contract of Employment - Wrongful dismissal

An employee claimed that a Tribunal was perverse to reject his claim that the employer must have been in breach of the implied term of trust and confidence in circumstances where he had refused to provide a company car of the style requested by the employee, then criticised the employee to a junior employee and others outside the company for the way he handled complaints about the car he was given, then circulated - to the same junior employee and outsiders - an “apology” from the line manager who had done this, before as a last straw rejecting an appeal in respect of an internal grievance so tersely as to provide little or no reason for its rejection. The Employment Appeal Tribunal held that although such conduct might often, even usually, amount to a breach of the implied term, the Tribunal here was entitled, by regard to the context, to determine the claims against the employee as it had.

Mr A Agbodo v Hertfordshire County Council UKEAT/0243/09

Mon, 15 Mar 2010 11:54:25 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

Employment Appeal Tribunal practice – allegations of apparent bias/procedural irregularity – EAT findings of fact as to what occurred before the Employment Tribunal. Based on those findings the Porter v Magill test of the fair-minded observer was not met in this case. Award of £10,000 costs upheld on the basis of the Employment Tribunal’s reasoning. Lodwick v Southwark L.B. considered.

London Waste Limited v Mr G Scrivens UKEAT/0317/09

Mon, 15 Mar 2010 11:53:50 GMT

Unfair Dismissal - S.98A(2) ERA

This is an appeal which held that the Employment Tribunal had made a number of flawed findings regarding the procedure followed by the Respondent and that the Tribunal’s conclusions also seemed to be flawed. Case remitted for re-hearing before a differently constituted employment tribunal.

Miss J Miller v Bellway Homes Limited UKEAT/0309/09 & UKEAT/0436/09

Mon, 15 Mar 2010 11:53:12 GMT

Practice and Procedure - Perversity

This is a case where the Respondent’s perversity challenge to Employment Tribunal liability finding of sex discrimination and unfair dismissal failed.

The Claimant’s appeal against the remedy judgment allowed in relation to ‘cut-off date’ for lost earnings. The Employment Tribunal failed to consider, on the face of their reasons, a material factor, namely whether the new employment secured by the Claimant was coming to an end in any event due to economic circumstances. That point remitted to same Employment Tribunal for further consideration.

(1) Unison (2) Miss A Fenton v (1) National Probation Service South Yorkshire (2) Addaction UKEAT/0339/09

Mon, 15 Mar 2010 11:52:28 GMT

Practice and Procedure - Application/Claim

ET1 submitted with a fully pleaded case identifying two Claimants – however ET1a form needed to identify additional Claimants was omitted. Employment Judge held that no valid claim presented by second Claimant. The EAT allowed the appeal by following the principles in Hamling v Coxlease School. This case also contains observations on procedure to be followed where Tribunal staff do not appreciate that a claim has been made – review application not necessary.

Renfrewshire Council v Mr B Martin UKEATS/0031/07

Mon, 15 Mar 2010 11:51:14 GMT

Age Discrimination

Age Discrimination. Local Authority employer who rejected the job application of a 63 year old but they could not have employed him. He was a councillor. Appeal upheld and claim struck out as having no reasonable prospects of success.

M&L Sheet Metals Limited v Mr S Willis EAT/0474/09

Mon, 15 Mar 2010 11:50:04 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

This is an appeal regarding issues involving Meek compliance – perversity – constructive dismissal (see now Buckland (CA) – causation of loss following sexual orientation harassment – statutory uplift where no discussion took place at grievance meeting – costs in the EAT.

(1) B (2) C v A UKEAT/0503/08

Mon, 15 Mar 2010 11:49:27 GMT

Sex Discrimination - Inferring discrimination

Claimant summarily dismissed, without any kind of process, on the basis of an allegation that he had raped a colleague – Dismissal without due process held by the Tribunal to constitute sex discrimination on the basis that the employer had feared that if Claimant were not dismissed summarily he might commit violence towards the complainant or others; and that that fear was on the ground of his sex.

Held that there was no sufficient basis in the evidence for the inference of discrimination – Observations about the drawing of inferences

Newcastle Upon Tyne NHS Hospitals Trust v Mrs S Armstrong & Others UKEAT/0069/09

Mon, 15 Mar 2010 11:48:46 GMT

Equal Pay Act - Material factor defence and justification

Appeal from decision of Employment Tribunal on issues remitted by the Court of Appeal in Armstrong v Newcastle upon Tyne NHS Hospitals Trust [2006] IRLR 124.

Held: The Tribunal was entitled to find:

(a) that the factor relied on by the Respondent was “tainted by sex” because it originated in the Respondent’s intention (on a CCT exercise) to match market rates which it appreciated were depressed by factors peculiar to women (Ratcliffe v North Yorkshire County Council [1995] ICR 833 applied);

(b) that the continuation of the resulting differential in the period to which the complaint related had not been shown to be objectively justified by the costs or industrial relations implications of removing it or by the Respondent’s attempts to phase it out.

Discussion of ratio of Ratcliffe and of whether the Court of Appeal adopted the correct analysis of the necessary steps in considering a “GMF” defence where the factor relied on is alleged to be indirectly discriminatory.

A v B UKEAT/0206/09

Mon, 15 Mar 2010 11:48:01 GMT

Unfair Dismissal - Reasonableness of dismissal

Employee dismissed because of police “disclosure” that he had been engaged in paedophile activity in Cambodia, notwithstanding his acquittal by a Cambodian court, and that he posed a continuing risk to children. The Tribunal held that:

(1) That the employer, which had not accepted the disclosure uncritically and had taken reasonable steps to assess its reliability, had been entitled to treat the information as reliable and to dismiss the Claimant on the basis of it in order to avoid potential reputational damage, even though he did not work with children.

(2) That the Tribunal had been entitled to hold that a lack of candour on the part of the Claimant in telling the Respondent the allegations against him constituted a sufficiently serious breach of contract to justify his summary dismissal.

A v B UKEAT/0206/09

Mon, 15 Mar 2010 11:47:22 GMT

Practice and Procedure - Restricted Reporting Order

Claimant dismissed as a result of police disclosure of unsubstantiated suspicions of paedophile activity - Employment Appeal Tribunal entitled to anonymise judgment and reasons in order to protect Claimant’s art. 8 rights.

Mr J Leon v Trans Global Freight Management Limited UKEAT/0200/09

Mon, 15 Mar 2010 11:46:43 GMT

Practice and Procedure - Striking-out/dismissal

Where a Claimant is in custody as a result of the imposition of a sentence of imprisonment that is a factor which should be considered by the Employment Tribunal in exercising its discretion to strike out for non compliance with an order for disclosure.

W Brewin & Co. Limited v Mr J Marvin UKEAT/0074/09

Mon, 15 Mar 2010 11:43:17 GMT

Redundancy - Fairness

The Employment Tribunal had found lack of warning, lack of consultation, unfair application of selection criteria, unfair criteria and lack of consultation as in absentia employment. Some of the findings were redolent of ‘substitution’ but overall these were findings of fact supporting the conclusion and the appeal was dismissed.

Snows Motor Group Limited v Mr J Palmerino UKEAT/0175/09

Mon, 15 Mar 2010 11:42:39 GMT

Unfair Dismissal - Reasonableness of dismissal

The employer only bears the burden of proving the reason for dismissal and employment tribunals should take care when considering the judgment of Arnold J in British Home Stores v Burchell to distinguish between considerations as to whether the employer had a genuine belief as to the reason for dismissal, as to which the employer does near the burden of proof, and questions as to the reasonableness of investigations and disciplinary hearings and as to the reasonableness of a sanction of dismissal, as to which the employer does not have to discharge any burden. Here the employment tribunal had erred by not keeping these considerations separate and thus appearing to consider that it was for the employer to prove that it had acted reasonably throughout.

May & Baker Limited t/a Sanofi-Aventis Pharma v Mrs F Okerago UKEAT/0278/09

Mon, 15 Mar 2010 11:41:58 GMT

Race Discrimination - Aiding and abetting

The Employment Tribunal erred in law in finding that a contract worker made the Claimant’s employer liable for direct race discrimination under sections 32 and 33 of the Race Relations Act 1976. The Tribunal failed to (a) make necessary findings of fact (b) to analyse the facts and the statutory provisions and apply them correctly. Observations on the correct meaning and appreciation of sections 32 and 33.

Mr T Raja v The Secretary of State for Justice UKEAT/0364/09

Mon, 15 Mar 2010 11:40:35 GMT

Victimisation Discrimination - Whistleblowing

On an application for interim relief under sections 128-129 of the Employment Rights Act 1996 the Employment Judge erred in law in finding that such applications should be restricted to simple factual disputes. By doing so she added a requirement that had no statutory basis. Appeal allowed and remitted for hearing before another Employment Judge. Observations on the meaning of “likely” in section 129(1) of the Employment Rights Act 1996: (Taplin v C. Shippam Ltd [1978] IRLR 450) approved and followed.

The Secretary of State for Work and Pensions (Job Centre Plus) and Others v Ms J Wilson UKEAT/0289/09

Mon, 15 Mar 2010 11:39:46 GMT

Disability Discrimination - Reasonable adjustments

The Employment Tribunal erred in law in failing to properly apply s. 18B of the Disability Discrimination Act 1995 to the evidence and to make the necessary findings of fact about reasonable adjustments: Smiths Detection – Watford Ltd v Berriman (UKEAT/0712/04/CK) and Romec Ltd v Rudham (UKEAT/0069/DA) applies.

UPS Limited v Mr S Sammakia UKEAT/0199/09

Mon, 15 Mar 2010 11:39:08 GMT

Race Discrimination - Inferring discrimination

The Employment Tribunal were in error in finding an employer guilty of racial harassment by employees when the Claimant had specifically not claimed against the employees and one of the two acts complained of was not the subject of a written grievance and not part of a series of continuing acts. The other act was unproved.

The North West London Hospitals NHS Trust v Ms L Bowater UKEAT/0144/09

Mon, 15 Mar 2010 11:38:28 GMT

Unfair Dismissal - Reasonableness of dismissal

While assisting in the restraint of a patient admitted to A&E, the female Claimant senior nurse sat astride the naked patient and made a lewd comment for which she was dismissed. The majority Employment Tribunal Judgment of unfair dismissal and 25% contribution was set aside as perverse and the minority Judgment was substituted. The majority failed to apply the approach in London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA for it did not focus on the material available to the management, and their opinion of this conduct, at the time of dismissal, and irrelevantly invoked its perception of how the general population would view the conduct. Minority Judgment upheld.

Mr G Darnton v Bournemouth University UKEAT/0391/09

Mon, 15 Mar 2010 11:37:46 GMT

Central Arbitration Committee (CAC)

This is a case which resulted in a penalty of £10,000 being imposed for breach of reg. 19 (4) of the Information and Consultation of Employees Regulations 2004.

Mr A C W Williamson v (1) The Chief Constable of the Greater Manchester Police (2) Greater Manchester Police Authority UKEAT/0346/09

Mon, 15 Mar 2010 11:37:08 GMT

Practice and Procedure - 2002 Act and pre-action requirements

The Employment Judge sitting alone at a pre-hearing review was correct in excluding evidence obtained by a covert recording of a discussion by the panel at a capability hearing under Regulations 13 of the Police Regulations 2003 when neither the Appellant nor his representative were present having withdrawn so that the discussion could take place. The decision was within the Judge’s discretion. In any event the decision accorded with the EAT judgment in Chairman and Governors of Amwell View School v Dogherty [2007] IRLR 198.

Mr M Bebbington v Miss J Palmer t/a Sturry News UKEAT/0371/09

Mon, 15 Mar 2010 11:19:50 GMT

Jurisdictional Points - Worker, employee or neither

The Claimant, a newspaper boy, was not employed under a contact of employment, on the facts found by the ET s. 18 of the Children and Young Persons Act 1937 does not provide that a child employed in accordance with the statute is to be regarded as an employee.

(1) Mr M Manning (2) Mrs J V Longstaff v Middleton Miniature Mouldings UKEAT/0439/09 & UKEAT/0441/09

Mon, 15 Mar 2010 11:19:09 GMT

Practice and Procedure - Case Management

Whether Employment Tribunal wrongly excluded a written witness statement, the witness being said to be unwell and living in Ireland. On appeal, the Employment Appeal Tribunal found that the witness statement was admitted but no weight was attached to it. That was a matter falling within the Employment Tribunal’s wide discretion to regulate its proceedings. Perversity not made out.

Dr M S Tasneem v Dudley Group of Hospitals NHS Trust EATPA/0496/09

Mon, 15 Mar 2010 11:18:28 GMT

Practice and Procedure - Time for appealing

It is open to a litigant when appropriate to challenge the accuracy of the date recorded on an employment tribunal judgment as to the date when it was “sent” to him.

Employment Tribunals have a procedure to ensure that documents are sent on the on the date stamped upon the document as being the date of sending. In future cases, when requested to do so, the Employment Tribunal should be ready to provide evidence as to those procedures.

Ms N Mehta v The Mayor and Burgesses of the London Borough of Haringey UKEAT/0182/08

Mon, 15 Mar 2010 11:17:47 GMT

Jurisdictional Points - Extension of time: reasonably practicable

Employment Tribunal refused to extend time for unfair dismissal claim and for sex and race discrimination claims. Held: no error of law. Appeal dismissed.

(1) The Commissioner of the Police of the Metropolis (2) Metropolitan Police Authority v Ms E Osinaike UKEAT/0373/09

Mon, 15 Mar 2010 11:17:06 GMT

Race Discrimination - Inferring discrimination

The Respondent complained of race discrimination by her employers on many grounds. All but one was dismissed. On the single ground the Tribunal held that there was conduct from which it could conclude that Respondent would have been treated differently if she was white and the Appellants had not discharged the onus of proof. On appeal, held there was no basis on which the ET could have held that the onus had passed to the Appellants. Appeal allowed.

Mr T Ramkissoon v Brompton Bicycles Limited UKEAT/0324/09

Mon, 15 Mar 2010 11:16:17 GMT

Unfair Dismissal - Reason for dismissal including substantial other reason

The Tribunal failed to deal with an important piece of evidence which might have been crucial to the case. Remitted for re-hearing before a different Tribunal.

Mrs C Brett & Others v Hampshire County Council UKEAT/0500/08

Mon, 15 Mar 2010 11:15:19 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

This is an appeal dealing with four points arising out of the application of section 32 of the Employment Act 2002 in a series of related equal pay multiples.
(1) In a case involving the modified grievance procedure, where the Claimant in her grievance had identified four jobs but had in her eventual claim identified two of those jobs but also two which were different, she was entitled to pursue her claim in so far as it relied on comparison with the former but not the latter: each individual comparison gives rise to a distinct claim. Cannop v Highland Council [2008] IRLR 634 referred to.

(2) A Claimant cannot rely on a “collective grievance” under reg. 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 if the statement relied on raises a grievance in relation to a different job from that which she was in fact doing. But a mistake of this kind can be corrected prior to the issue of proceedings.

(3) It was sufficiently apparent that male claimants identified in a collective grievance statement were advancing “piggyback” claims, even though that was not spelt out in the statement itself.

(4) A grievance that had been withdrawn could only be reinstated in writing.

Dr D C Arhin v Enfield Primary Care Trust UKEAT/0296/09

Mon, 15 Mar 2010 11:13:59 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

The employer was found not to have acted by reason of race when selecting one of two possible candidates for a post without giving the other any interview, but by “slotting in”. “Slotting in” in these circumstances was, however, held to be unfair so as to found a finding of unfair dismissal. The reasons given by the Tribunal showed it had not clearly identified the requirements of the new post or the jobs actually being done by the Claimant and her comparator, without which the finding made (that the reason was not race, but mistake) appeared illogical. Appeal allowed with remission to a fresh tribunal.

Annodata Limited v Mr M Jones UKEAT/0378/09

Mon, 15 Mar 2010 11:13:16 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

The Appellant dismissed the Respondent in circumstances where the dismissal was procedurally unfair. The Tribunal also held, despite substantial evidence to the contrary, that the Respondent was not in fact guilty of the matters for which he was dismissed. It nonetheless held that had a fair procedure been followed he might still have been dismissed. It, without giving adequate reasons, apparently held that he had not, by the acts which were proved, contributed to his dismissal and that it was too speculative to determine what would have occurred if a fair procedure had been followed. The case was remitted to the same Tribunal further to consider the questions of contributory fault and Polkey deduction.

Mr A J Dean v Latona Luxury Limited UKEAT/0377/09

Mon, 15 Mar 2010 11:12:32 GMT

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

A was employed by B. When B became insolvent C took over B's business and employed A in circumstances where there was no TUPE transfer. A later left C's employment and claimed sums allegedly underpaid. C asserted A had been employed on C's standard terms of employment (less generous than B's) and was not entitled to the sums claimed. The ET in upholding C's submission overlooked a letter sent by C to A under which he was told he would in effect be employed on the same terms as before. Appeal allowed.

The Chief Constable of Wiltshire Constabulary v Miss S Masih UKEAT/0443/09

Mon, 15 Mar 2010 11:11:48 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

This is an appeal against the Employment Tribunal’s findings in a victimisation claim. The EAT held that the reasons given by the Tribunal were not Meek compliant. The case was remitted for a rehearing before fresh Tribunal.

Mr M T Adamson v Swansea University UKEAT/0486/09

Mon, 15 Mar 2010 11:09:51 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

The Appellant alleged bias on the part of an Employment Judge and contended that he erred in rejecting his application to recuse himself.

The outcome of the appeal raised two contested issues of fact: whether information regarding the past connection between the Employment Judge and a witness had been given before or after the parties agreed in writing that the hearing could continue with the ET as then constituted (the ‘agreement’) and whether the Employment Judge had private conversations with the Respondent’s counsel.

Having heard evidence from the Appellant and counsel and solicitor for the Respondent and considering all the relevant material including the observations of the Employment Judge and the members of the ET, the EAT were satisfied that the Employment Judge disclosed his past connection with the witness before the waiver agreement was entered into and that no private conversations took place between the Employment Judge and the Respondent’s counsel.

Whilst the past connection with a witness gave the appearance of bias the right to object was effectively waived by the Appellant entering into the agreement. The relevant steps outlined in Jones v Das Legal Expenses Insurance Co Ltd [2004] IRLR 218 were complied with. The appeal was dismissed

Bradford & Bingley Plc v Mr S McCarthy UKEAT/0458/09

Mon, 15 Mar 2010 11:09:12 GMT

Unfair Dismissal - S.98A(2) ERA

The Employment Tribunal had not imposed a burden on the Respondent of proving that the dismissal of the Claimant was fair. There was such substantial evidence of potential unfairness that the Employment Tribunal as a matter of common sense was entitled to expect the Respondent to call the relevant evidence to rebut the strong prime facie case of unfairness. When the Respondent failed to call such evidence, the Employment Tribunal was entitled to have regard to that failure. That did not mean the Employment Tribunal placed a burden of proof on the Respondent.

The case was remitted to the Employment Tribunal on a further ground of appeal. The Employment Tribunal has failed to deal with the question of whether had there been a fair procedure, the Claimant would have been fairly dismissed in any event, by reason of s. 98(2) of the ERA.

Observations on the importance of parties asking the Employment Tribunal to deal with omissions on its decisions as soon s those decisions are delivered – see Bansi v Alpha Services [2007] ICR 308.

Key Organics Limited v Dr P Billington UKEAT/0315/09

Mon, 15 Mar 2010 11:08:31 GMT

Unfair Dismissal - S.98A(2) ERA

This is an appeal which held that the Employment Tribunal ought to have found that the dismissal of the Claimant was automatically unfair, because the Respondent did not comply with step 2 of the Standard Procedure.

The Employment Tribunal’s reasoning on the Polkey issue was inadequate to explain its finding of a 25% chance of employment at £45,000 per annum. Case remitted and guidance given by reference to Software 2000 v Andrews [2007] IRLR 568 (Elias P) and Virgin Media Ltd v Seddington & Eland [UKEAT/0539/08].

Reverend Allan J MacDonald v Free Presbyterian Church of Scotland EATS/0034/09

Mon, 15 Mar 2010 11:07:53 GMT

Transfer of Undertakings - Acquired rights directive

Employment Tribunal held that a Minister of the Free Presbyterian Church of Scotland was not an employee. He was an office holder. Judgment challenged on appeal as not being “Meek” compliant. Appeal refused. The judgment, though economically explained, was adequate. Furthermore, the conclusion was entirely understandable in the light of the facts found and the relevant law. The Employment Appeal Tribunal was not, in particular, satisfied, that evidence which the Claimant sought to have revisited would, even if accepted, have led to the conclusion that the Claimant was an employee.

Mr R Opara v Partnerships in Care Limited UKEAT/368/09

Mon, 15 Mar 2010 11:07:07 GMT

Practice and Procedure - Striking-out/dismissal

This is an appeal which held that the Tribunal ought to have convened a hearing in order to determine the Claimant’s application for relief against sanctions – rules 35(3) and 36(1) and St Albans Girls’ School Governing Body v Neary [2009] EWCA Civ 1190 discussed. In any event fairness required that the Tribunal convene a hearing before making a critical finding of fact adverse to the Claimant. In any event the Tribunal’s reasons for that critical finding of fact were inadequate.

MS B Fullerton v Interights International Centre for the Legal Protection of Human Rights UKEAT/0251/09

Mon, 15 Mar 2010 11:06:31 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

The Tribunal at a pre-hearing review erred in law in holding that the Appellant was barred by section 32(2) from bringing (1) certain complaints of racial harassment and (2) a specific complaint concerning one particular individual employee. The Appellant had complied with step 1 of the grievance procedure in these respects. Appeal allowed in respect of these complaints. Cross appeal in respect of other issues, where the Appellant was successful, dismissed.

Shanahan Engineering Limited v Unite the Union UKEAT/0411/09

Mon, 15 Mar 2010 11:05:55 GMT

Redundancy - Collective consultation and information

This is an appeal regarding the application of s188 and s189 of the Trade Union and Labour Relations (Consolidation) Act 1992. The first point of appeal was dismissed regarding the extent to which special circumstances rendered it not reasonably practicable to comply with s188.

The second ground of appeal regarding assessment of a protected award was allowed and remitted.

Miss R Allen v The Secretary of State for Work and Pensions (Jobcentre Plus) UKEAT/0498/08

Mon, 15 Feb 2010 16:42:28 GMT

Disability Discrimination

The Employment Judge was entitled to find on the material before him at a Pre-Hearing Review that some grievances were not extant. The Employment Judge was entitled to determine the continuing act point at a Pre-Hearing Review. The comments of Elias J in Canary Wharf Management Ltd v Edebi [2006] IRLR 416 are not dicta but part of the ratio of the case. In any event they should be followed by the EAT.

Miss C Henderson v (1) The London Borough of Hackney (2) The Governing Body of Haggerston School (3) The Learning Trust UKEAT/0072/09

Mon, 15 Feb 2010 16:41:50 GMT

Unfair Dismissal - Reasonableness of dismissal

The Claimant was employed as a mentor and leader for girls who had barriers to learning in an inner city school. From her school computer she accessed pornography and distributed it to colleagues. She was summarily dismissed. Art 10 ECHR (freedom of expression) was engaged but the School justified the dismissal as proportionate and as pursuing its legitimate aim in protecting children. The Claimant did not have insight into her actions and the School did not share her view that it was enriching for girls to see pornography, and there was no Internet policy in place. The Employment Tribunal was correct to uphold the School’s decision, rejecting the claims for unfair and wrongful dismissal.

YKK Europe Limited v Mr M Heneghan UKEAT/0271/09

Mon, 15 Feb 2010 16:41:05 GMT

Jurisdictional Points - Working outside the jurisdiction

Respondent’s appeal against ET judgment that there was jurisdiction to determine Claimant’s unfair dismissal claim. Post the Lawson v Serco analysis, and considering Hunt v United Airlines this appeal raised the question of an employee absent from work at the time of dismissal because he was suspended or on garden leave. ET judge was held to have misdirected herself on the test to be applied. Appeal allowed and matter remitted to be re-determined.

Age Concern Newcastle Upon Tyne v Mrs S Brady UKEAT/0187/09

Mon, 15 Feb 2010 16:19:30 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

This is an appeal discussing whether the Employment Tribunal decided the case in favour of the Claimant on a basis not advanced by Claimant? The EAT held that it did not and the appeal was dismissed.

Birmingham City Council v (1) Barker & Others (2) Adshead & Others (3) Sagoo & Others (4) Drinkwater & Others (5) Attwall & Others (6) Stubbins & Others UKEAT/0447/09

Mon, 15 Feb 2010 16:18:42 GMT

Practice and Procedure - Chairman alone

An Employment Judge decided, contrary to the usual practice and the expectations of the parties, to sit alone on a forthcoming PHR to determine the ‘material factor’ defence in two major equal pay multiples.

On appeal, the EAT held that the reasons for his decision were flawed, and that the usual practice of hearing such an issue with lay members was sound; and that the right decision at the time that it was taken would have been to direct a hearing by a full tribunal; but since the effect of now substituting such a decision would be to necessitate a substantial adjournment, the lesser of two evils was to allow the decision to stand.

Mr R Khan v Vignette Europe Limited UKEAT/0134/09

Mon, 15 Feb 2010 16:18:03 GMT

Practice and Procedure - Disclosure

An appeal brought by the Claimant (a Muslim) against the ET’s refusal of his application to adjourn the hearing of his claims part-heard on the third day of the hearing. This was his third application to adjourn the hearing and the first application to raise, as a ground for adjournment, the requirements of Ramadan, their effects upon him, and the need to adjourn in order to accommodate them. Application to call as fresh evidence expert opinion on religious observance and requirements during Ramadan refused in the circumstances. The ET’s discretionary decision to refuse the application to adjourn, and then to continue to hear the case in the Claimant’s absence, after he left the Tribunal, was held to have been arrived at after carefully balancing all the relevant factors in an unusual case, and not to violate the Claimant’s rights under Article 6 ECHR. Judgment upheld.

Mr William G Coats v Strathclyde Fire Board UKEATS/0022/09

Mon, 15 Feb 2010 16:17:21 GMT

Victimisation Discrimination - Protected disclosure

Firefighter, who was also trade union health and safety representative, claimed that, having made a protected disclosure, he had suffered a detriment (section 44 of the Employment Rights Act 1996) and been refused permission as a health and safety representative to take time off for the performance of health and safety functions. Claim dismissed. Perversity appeal not upheld.

KLT Water Engineering Limited v (1) Mr G Irvine (2) Mr S Oliver (3) G & K Valve Services Limited UKEATS/0005/09

Mon, 15 Feb 2010 16:16:38 GMT

Unfair Dismissal - Constructive dismissal

This is an appeal regarding the application of TUPE. The appeal related to the question of whether claimants who resigned asserting unfair constructive dismissal could direct their claims against a company to which the business of their employers transferred some 10 months later in circumstances where no transfer was in contemplation at the time of resignation. The EAT held that such a claim did not fall within the scope of the TUPE regulations.

Alstom Transport v Mr A Tilson UKEAT/0358/09

Mon, 15 Feb 2010 16:15:55 GMT

Jurisdictional Points - Worker, employee or neither

The Employment Judge was wrong to decide a contractual document was bogus so opening the way for a finding in the Claimant’s favour that he had an implied contract of employment. That ground was expressly eschewed by his counsel and the “employer” had no opportunity to address the point. The judgment was set aside as the intention of the parties was that there was no employment relationship.

San Ling Chinese Medicine Centre v Miss Lian Wei Ji UKEAT/0370/09

Mon, 15 Feb 2010 16:15:15 GMT

Jurisdictional Points - Worker, employee or neither

This is an appeal which determined that the Employment Tribunal did not err in holding that the Claimant’s contract of employment was not tainted by illegality. Hall v Wollston Hall Leisure Ltd [2004] 4 AER 787 applied. Blue Chip Trading Ltd v Helbawi UKEAT/0397/08/LA and Vakante v Governing Body of Addey and Stanhope School [2005] ICR 231 considered.

Mrs J Beattie & Others v Leicester City Council UKEAT/0386/09

Mon, 15 Feb 2010 16:14:35 GMT

Jurisdictional Points - Worker, employee or neither

Whether by implied agreement Claimants were employed by Local Education Authority under ‘Regulation 24 Agreement’ so that they could rely on LEA comparators in equal pay claims. Employment Tribunal finding that they were not upheld.

Mr A Mockett v Credit Suisse Securities (Europe) Limited UKEAT/0299/09

Mon, 15 Feb 2010 16:13:58 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

The Employment Tribunal failed correctly to apply regulation 15(2) of the Employment Act 2002 Regulations 2004. Had it done so, it would have given the Claimant the benefit of the three-month extension and found the claim was presented in time. Full hearing at the Employment Tribunal ordered.

Fitness Solutions Scotland Limited v Mr David Park UKEATS/0032/09

Mon, 15 Feb 2010 16:13:14 GMT

Unfair Dismissal - Reasonableness of dismissal

Tribunal erred in finding that there had been a failure to follow the statutory dismissal procedure where they had considered only whether or not it had been followed prior to the date of the employers’ decision to dismiss. They should have considered whether or not it had been followed in the course of the procedures that were followed by the employers after that date and before the claimant was actually dismissed since those procedures were capable of remedying the earlier deficiency.

Tribunal also failed to have proper regard to apparent anomaly between date of “dismissal” meeting and termination date in circumstances where an agreement was reached between parties involving payment of money to claimant.

The Chief Constable of Avon & Somerset Constabulary v Mr N T Dolan UKEAT/0295/09

Mon, 15 Feb 2010 16:12:30 GMT

Disability Discrimination - Disability related discrimination

On a previous appeal the EAT remitted the issue of justification of disability related discrimination for reconsideration by the ET. After the EAT judgment but before the remitted hearing the HL gave judgment in Malcolm v London Borough of Lewisham [2008] IRLR 700. At the remitted hearing the Appellant Chief Constable contended that the ET should consider first whether the Chief Constable had treated the claimant less favourably than others for a reason relating to his disability before, if necessary, considering the issue of justification. The EAT held that the ET did not err in holding that it had no power to consider the issue of less favourable treatment as it was bound by the terms of the order on remission to consider only the issue of justification. Aparau v Iceland Frozen Foods PLC (No 2) [2000] IRLR 196 applied. If this were a case of issue estoppel the relevant facts did not fall within the exception referred to in Arnold v National Westminster Bank PLC [1991] 2 AC 93 relied on by the Chief Constable. Further, the ET did not err in refusing to consider the issue of less favourable treatment at the remitted hearing if and insofar as it relied on the possibility that it may have wished to hear additional evidence if it were to consider that new issue.

Understandably on the then state of authority, until the judgment in Malcolm, the Chief Constable had not asserted that the claimant’s treatment was not less favourable than others. This was not an issue in the ET3, no such issue was identified at a CMC or raised at the liability hearing. No application was made to amend the original Notice of Appeal or the terms of the Order on remission from the EAT. Employment Tribunals are creatures of statute. The ET did not err in refusing to decide an issue which it was not empowered to consider (see Aparau para 24).

Peninsula Business Services Limited v Ms s Malik UKEAT/0340/08

Mon, 15 Feb 2010 16:11:35 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

Inadequacy of reasons for Employment Tribunal findings in relation to s4(1) and (2) Disability Discrimination Act 1995. Observations on use of the Burns-Barke procedure. Late taking of new point on jurisdiction not permitted. Appeal allowed; case remitted for re-hearing by fresh Employment Tribunal.

Devon & Somerset Fire & Rescue Service v Mrs S Tilke UKEAT/0303/09

Mon, 15 Feb 2010 16:10:55 GMT

Unfair Dismissal - Constructive dismissal

Employment Tribunal erred in (a) applying wrong test for constructive dismissal; (b) applying the wrong test for breach of the implied term of trust and confidence; (c) failed to adequately explain how the last straw doctrine applied to the facts of the case and (d) failed to explain adequately why the Claimant had not affirmed the contract.

Dr G M Truter v (1) University of Leicester (2) Professor R Burgess (3) Dr A Hall UKEATPA/0740/09, UKEATPA/0770/09, UKEATPA/0813/09 & UKEATPA/0814/09

Mon, 15 Feb 2010 16:10:08 GMT

Practice and Procedure - Postponement or stay

There was no basis for interfering with case management directions of an Employment Judge refusing a stay, nor grounds for allowing interim appeals when the claims stood struck out without appeal.

Mrs A Patel v (1) Oldham Metropolitan Borough Council and (2) The Governing Body of Rushcroft Primary School UKEAT/0225/09

Mon, 15 Feb 2010 16:09:25 GMT

Disability Discrimination - Disability

In determining whether the effects of an impairment are long term for the purposes of Schedule 1 paragraph 2 (1)(a) and (b) of the Disability Discrimination Act 1975 the duration of effects of a condition which is likely to develop or has developed from a different condition may be aggregated with the duration of the effects of the original condition.

Mrs Eileen Grant v McKechnie Plastic Components UKEAT/0390/09

Mon, 15 Feb 2010 16:08:45 GMT

Disability Discrimination - Disability

In a case involving the question of whether the Claimant was disabled the Employment Judge did not have regard to SCA Packaging Ltd v Boyle [2009] IRLR 746. As all the facts had been heard in evidence the EAT applied Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 and upheld the judgment of the Employment Judge that the Claimant was not disabled. Ancillary grounds of appeal relating to the hearing were also dismissed.

Dr E Forson v (1) The Governing Body of Harwich School (2) Mr Nigel Mountford (3) Mr Stephen Fender UKEATPA/0660/09

Mon, 15 Feb 2010 16:07:07 GMT

Race Discrimination - Direct

The Claimant was employed as a maths teacher subject to a policy for dealing with classroom disruption and racism which counselled against public confrontation with pupils. He did not follow the policy and was given a final warning. He did not change and was dismissed. The Employment Tribunal did not err when it defined the issue as relating to “his race” rather than “on grounds of race”. The former is narrower than the latter but both are correct according to how the issue was defined. On the facts the Employment Tribunal was entitled to dismiss the claims.

Inchcape Retail Limited v Mr B Symonds UKEAT/0316/09

Mon, 15 Feb 2010 16:06:16 GMT

Unfair Dismissal - Reasonableness of dismissal

An Employment Tribunal erred when it substituted its view for that of management conducting a redundancy selection exercise. It was not for the Employment Tribunal to decide the management were wrong in law to add one person whose job was redundant into the pool, and in the award of points to him, the Claimant and others. Since the Claimant did not challenge the criteria, and these included subjective assessment by managers, the award of points could not be faulted as a question of law.

Mr T O'Neill v Metronet Rail BVC Limited UKEAT/0356/09

Mon, 15 Feb 2010 16:05:34 GMT

Race Discrimination - Direct

The Claimant was employed for less than one year. On the substance of his case, the Employment Tribunal found race played no part in his treatment by the employer. It addressed the law correctly and on the facts made a permissible application of the law. Even if he succeeded on the procedural and time points, he could not overcome these findings. There is no error in an Employment Tribunal finding the employer behaved unfairly or unreasonably yet race played no part: Zafar.

Ms A Wacha v (1) Mrs M Lewis (debarred) (2) Novas Scarman Group Limited UKEAT/0229/09

Mon, 15 Feb 2010 16:04:55 GMT

Statutory Discipline and Grievance Procedures - Whether infringed

Employment Tribunal erred in law in finding Claimant had complied with the statutory appeal procedure under the Employment Act 2002 but the Respondent employer was not required to make an increase in compensation under s.31(3). The Tribunal made no reference to s31(4) and it was completely unclear whether it had that provision in mind. Case remitted to the same Tribunal.

Miss M Franco v Bowling & Co. Solicitors UKEAT/0280/09

Mon, 15 Feb 2010 16:04:11 GMT

Sex Discrimination - Continuing act

An Employment Judge at a CMD has no power to limit a claim of sex discrimination, said to be of a continuing act extending back for the 6 years of the Claimant’s employment, to the last 2 years.

London Underground Limited v Mr G Vuoto UKEAT/0123/09

Mon, 15 Feb 2010 16:03:34 GMT

Disability Discrimination - Disability related discrimination

Appeal by Respondents against ET’s findings on disability related discrimination, reasonable adjustments and unfair dismissal. No error of law found in ET’s reasoning or decisions on these claims. Given their findings of fact, they were held to be entitled to find in the Claimant’s favour and their judgment was held to be sufficiently reasoned. Appeal dismissed.

The Cross-appeal by Claimant against ET’s conclusions on statutory grievance procedures was successful, the ET having erred in their approach to the relevance of the Claimant’s failures in the circumstances. Cross-appeal allowed.

British Airways Plc v Ms E c N Mak & Others UKEAT/0055/09

Mon, 15 Feb 2010 16:02:54 GMT

Jurisdictional Points - Working outside the jurisdiction

Hong Kong based cabin crew employed on Hong Kong to London flights. Whether working partly at an establishment in Great Britain for purposes of s.8(1) Race Relations Act 1976; reg 10(1) Age Regulations 2006. Employment Tribunal finding that they were upheld.

Mr J Lyons v Mitie Security Ltd UKEAT/0081/09/CEA

Thu, 21 Jan 2010 19:59:40 GMT

WORKING TIME REGULATIONS - Holiday Pay

Entitlement to minimum paid holiday leave can be subject to fairly operated statutory or contractual notice requirements to an employer.

Mr P Harman v Ministry of Defence UKEAT/0594/05

Tue, 12 Jan 2010 10:54:42 GMT

Disability Discrimination - Justification

The Appellant alleged that the Tribunal had misdirected itself on the issue of justification in a disability discrimination case and had asked whether the employer’s decision was rational, in the sense of perverse, rather than within the range of reasonable responses as laid down in Jones v Post Office [2001] ICR 805. EAT held that as a matter of construction of the decision, the Tribunal did not fall into this error.

National Society for the Prevention of Cruelty to Children v Mr J Dear UKEAT/0553/08

Tue, 12 Jan 2010 10:53:58 GMT

Unfair Dismissal - Constructive dismissal

The Claimant was employed by the Respondent in a position involving child protection. He failed to comply with procedures laid down by the Respondent and the Respondent therefore laid down certain performance requirements which the Employment Tribunal considered were put in place to ensure the Claimant’s further compliance with proper procedures. In those circumstances the EAT reversed the finding of the majority of the Employment Tribunal that the imposition of those performance requirements amounted to a disciplinary sanction and constituted a repudiatory breach of contract.

The EAT also allowed the Respondent’s appeal against the finding by the majority of the Employment Tribunal that it was in repudiatory breach of contract by not complying strictly with a grievance procedure.

Mr F Daley v Serco Home Affairs Limited & Others UKEAT/0086/09

Tue, 12 Jan 2010 10:52:49 GMT

Unfair Dismissal - Constructive dismissal

The Claimant’s appeals against the Employment Tribunal’s conclusions on the issues of constructive dismissal and four specific allegations of discrimination on the grounds of race failed on the facts. The Employment Tribunal had adequately set out the facts it found and explained the reasons for its findings.

Unison v (1) Somerset County Court (2) Taunton Deane Borough Council (3) South West One Limited UKEAT/0043/09

Tue, 12 Jan 2010 10:52:05 GMT

Transfer of Undertakings - Consultation and other information

In regulation 13 of TUPE the “affected employees” whose representatives the employer must inform and consult about a relevant transfer are those who will be or may be transferred, those whose jobs are in jeopardy by reason of the proposed transfer, and those who have internal job applications pending at the time of transfer. The definition does not extend to everyone in the workforce who might apply in the future for a vacancy in the part transferred.

Ms M Garrett v Lidl Limited UKEAT/0541/08

Tue, 12 Jan 2010 10:49:46 GMT

Disability Discrimination - Reasonable adjustments

This is an appeal which considered that a move to a different store could amount to a reasonable adjustment. In considering harassment it is important to consider the effect on the alleged victim irrespective of the motive of the harasser.

Ms L O'Neill v Buckinhamshire County Council UKEAT/0020/09

Tue, 12 Jan 2010 10:49:03 GMT

Unfair Dismissal - Constructive dismissal

This is an appeal which established that pregnant workers are not automatically entitled to a work risk assessment under Regulation 16 of the Management of Health and Safety at Work Regulations 1999 in the absence of evidence that the work involves a risk to the health and safety of the expectant mother.

Mr David Young v Hexion Speciality Chemicals UK Limited UKEATS/0023/09 & UKEATS/0024/09

Tue, 12 Jan 2010 10:47:22 GMT

Practice and Procedure - Application/Claim

ET1, presented on the last day before time bar, stated a claim for unfair dismissal. Date of termination of employment specified but not start date. Employment Tribunal rejected claim and refused review. Appeal upheld. Tribunal ought to have accepted the claim; it was not open to it to conclude that it was clear that it did not have power to consider the claim. Also, it could be inferred that claimant’s position was that he had been employed for at least the qualifying period.

Miss A Olubodun v Total Stay Group Limited UKEAT/0204/09

Tue, 12 Jan 2010 10:46:42 GMT

Race Discrimination - Inferring discrimination

There was a claim for breach of contract by failing to pay notice pay. The ET encouraged the parties to settle this outside the hearing but then failed to incorporate the agreement in the final order as there was a dispute over the correct amount to be paid. This ground of appeal was agreed.

The remaining claim of perversity in failing to infer race discrimination was dismissed. The Appellant failed to satisfy Yeboah v Crofton [2002] IRLR 634.

Sandwell & West Birmingham Hospitals NHS Trust v Mrs A Westwood UKEAT/0032/09

Thu, 31 Dec 2009 11:37:31 GMT

Unfair Dismissal - Reasonableness of dismissal

Gross Misconduct raises a mixed question of law and fact; as a matter of law it connotes either deliberate wrongdoing or gross negligence; Wilson v Racher applied. An employment tribunal does not necessarily substitute its own judgment for that of the employer by making findings of fact as to matters not dealt with by the internal disciplinary hearing; Small v London Ambulance Service considered.

It is a misdirection in law for the employment tribunal to consider the employer’s conduct in relation to contributory fault; Parker Foundry v Slack applied.

Miss S Palihakkara v British Telecommunications Plc UKEAT/0167/09

Thu, 31 Dec 2009 11:36:43 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

Applications by the Claimant for admission of new evidence were refused: Ladd v Marshall applied. The Employment Tribunal examined the 40-odd claims and dismissed all but one contract claim. No error of law. The Claimant contended that the Employment Judge displayed an error of law in oral exchanges with her leading counsel but these were not reflected in her counsel’s evidence to the EAT nor in the reserved judgment of the full Tribunal, which is the proper source of the self-directions.

Mr S Jones v Money Expert Limited UKEAT/0255/09

Thu, 31 Dec 2009 11:36:05 GMT

Practice and Procedure - Review

This is a case in which the Claimant has emigrated to Australia. The claim was dismissed. An issue arose as to whether it was fair to the Claimant that the Respondent brought documents which had not been disclosed. By the time of the review which is the subject matter of appeal the Respondent’s witness was no longer available. The appeal was dismissed on the basis that the Employment Tribunal was acting within its discretion in refusing to revoke the original decision.

Securitay Limited v Mr L Webster UKEATS/0013/09 & UKEATS/0030/09

Thu, 31 Dec 2009 11:35:31 GMT

Unfair Dismissal - Reasonableness of dismissal

Tribunal found claimant, a security guard, to have been unfairly dismissed where he was dismissed for misconduct consisting of (a) writing a letter to respondents in which he unjustifiably alleged impropriety and dishonesty on the part of a director and (b) failing to follow reasonable instructions to attend for work at a new site. Tribunal found that the instruction to attend for work was unreasonable because employers had failed to consider what would be the effect on the claimant of being required to travel further and work night shift and therefore the dismissal was unfair. Claimant had previously worked in same location and there were no difficulties in him being able to work night shift. On appeal, Tribunal found to have substituted its own view for that of the reasonable employer, on no basis in the evidence. Further, it had failed to have regard to the effect of part (a) of the claimant’s misconduct and had wrongly included a sum in respect of pay in lieu of notice in the award of compensation. In other respects the award was ill – founded and the reduction for the claimant’s own contribution seemed to be inadequate. There being sufficient clear findings of fact which demonstrated that no reasonable Tribunal could have found the dismissal to be unfair, a finding of fair dismissal was substituted.

The Royal Bank of Scotland v Mrs M Abraham UKEAT/0305/09

Thu, 31 Dec 2009 11:34:55 GMT

Practice and Procedure - Striking-out/dismissal

Claimant in partial breach of unless order. Employment Judge incorrect to split the unless order to allow one claim to proceed once a breach has been established all claims subject to the order should be struck out subject to any relief granted under the review procedure.

Ms M Garrett v Lidl Limited UKEAT/0541/09

Thu, 31 Dec 2009 11:34:22 GMT

Disability Discrimination - Reasonable adjustments

This is an appeal which concluded that a move to a different store could amount to a reasonable adjustment. In considering harassment it is important to consider the effect on the alleged victim irrespective of the motive.

Mr T Bampouras & Others v Edge Hill University UKEAT/0179/09

Thu, 31 Dec 2009 11:33:48 GMT

Unfair Dismissal

3 “test” cases of some 68 claims at the instance of university lecturers who had had changes to their contracts of employment arising from a national agreement, the Pay Framework Agreement, imposed on them by their employers. Claimants’ claim that their contracts had thereby been terminated and that in the circumstances they had been unfairly dismissed, which failing, unfairly constructively dismissed, rejected by the Employment Tribunal. On appeal, Tribunal’s judgment upheld.

City of Edinburgh Council v (1) Ms C Wilkinson and others (2) Ms A McLeod and others UKEATS/0062/08

Thu, 31 Dec 2009 11:33:14 GMT

Equal Pay Act - Equal value

Equal pay. Expenses of four days of preliminary hearing to determine s.1(6) issue awarded to claimants. Circumstances in which award set aside by Employment Appeal Tribunal.

Mrs V Ashby v Monterry Designs Limited UKEAT/0226/08

Thu, 31 Dec 2009 11:32:38 GMT

Jurisdictional Points - Worker, employee or neither

Was the Claimant an employee? ET judgment, holding that she was not, pre-dated the decision in Neufeld. EAT held that the ET misdirected themselves on the relevance of her directorship and shareholding in the Respondent company and allowed the appeal. To be remitted for re-determination.

Spectrum Agencies v Mr D Benjamin UKEAT/0220/09

Thu, 31 Dec 2009 11:32:01 GMT

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

Construction of bonus payment term of contract of employment, made in writing. Applying the reasonable observer test explained by Lord Hoffmann in ICS Ltd v West Bromwich Building Society this EAT rejected the construction placed on the term by the Employment Tribunal and reversed their decision.

Mr R C English v (1) Royal Mail Group Plc (2) Mr G Warburton UKEAT/0288/09 & UKEAT/0290/09

Thu, 31 Dec 2009 11:31:23 GMT

Sex Discrimination

Preliminary hearing of an appeal dismissing a claim of sex discrimination. Appeal allowed through to a full hearing on grounds of inadequate findings of fact and failure to address the Claimant’s submissions in its conclusions.

Mr G Taylor v (1) XLN Telecom Limited (2) Mr T Fitzpatrick (3) Ms T Pinfold (4) Mrs S Hutchinson UKEAT/0385/09

Thu, 31 Dec 2009 11:30:36 GMT

Sex Discrimination - Injury to feelings

This is a case where the Employment Tribunal found Claimant to have been dismissed partly because he had made a complaint of racial discrimination – it declined to make any award of injury to feelings or personal (psychiatric) injury because although there was evidence that he had suffered both the Claimant had in his evidence attributed his distress to the dismissal and its manner generally and not to the element of victimisation (of which indeed he was arguably unaware at the time) – it reached that conclusion reluctantly but believed it was bound by the observation of Lawton LJ in Skyrail Oceanic Ltd v Coleman [1981] ICR 864 that “any injury to feelings must result from the knowledge that it was an act of sex discrimination …”

Held that the Clamant was entitled to recover for any injury to feelings and personal injury attributable to the act complained of, namely, the dismissal, without the need to attribute the injury specifically to knowledge of the element of discrimination, and that Skyrail was not authority to the contrary.

Sheffield Health and Social Care NHS Foundation Trust v Mr J Crabtree UKEAT/0331/09

Thu, 31 Dec 2009 11:29:51 GMT

Unfair Dismissal - Reasonableness of dismissal

Burden of proof neutral under s.98(4) of the Employment Rights Act. Employment Tribunal wrong to apply burden on employer, applying Burchell as originally decided before Employment Act 1980 s.6 (see Boys & Girls v McDonald).

Reasonable investigation does not require employer to gather all available evidence. Range of reasonable responses test; Employment Tribunal substituted own view for that of employer as to appropriateness of sanction of dismissal. Appeal allowed. Result not plainly and unarguably right or wrong. Case remitted to fresh Employment Tribunal for rehearing

Mr J V J McGivney v Portman Mansions Management Limited UKEAT/0308/09

Thu, 31 Dec 2009 11:29:02 GMT

Unfair Dismissal

The Appellant sought to argue that the dismissal was outside the band of reasonable responses by relying on medical evidence that neither the employer nor the Employment Tribunal had seen. Appeal dismissed.

Dr E Michalak v University of Leeds Department of NHS Postgraduate Mental and Dental Education UKEAT/0319/09

Thu, 31 Dec 2009 11:28:20 GMT

Practice and Procedure - Costs

An award of costs against a Claimant whose claims were struck out was set aside as the Employment Tribunal did not make express findings linking her conduct to any provision in Rule 40, failing also to comply with Rule 30.

Mrs P K Sahota v (1) The Home Office (2) Mr R Pipkin UKEAT/0342/09

Thu, 31 Dec 2009 11:27:35 GMT

Sex Discrimination - Pregnancy and discrimination

Sex discrimination/harassment claims by claimant undergoing IVF treatment – Held that the Tribunal was entitled to find that the acts complained of either, in some cases, did not amount to a detriment/harassment or, in the remainder, even if they arose out of it or of circumstances connected with it were not done on the grounds that the Claimant was undergoing IVF treatment – Discussion of extent to which discrimination on the ground that an employee is receiving IVF treatment is to be regarded as discrimination on the ground of her sex or of pregnancy – London Borough of Greenwich v Robinson (unreported; EAT/745/94) and Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] IRLR 387.

Mr C Ververt v B&Q Plc UKEAT/0109/09

Thu, 31 Dec 2009 11:26:57 GMT

Unfair Dismissal - Reasonableness of dismissal

The Appellant and a manager were involved in a fight on the shop floor. Each alleges the other started it. The Appellant was suspended. After a disciplinary process he was dismissed. The manager was suspended but only for interview purposes. At the conclusion of his interview he was reinstated. Employment Tribunal in error in regarding the investigation as within the band of reasonable responses. Case remitted to the same Tribunal.

Mr G Darnton v Bournemouth University UKEAT/0058/09/RN

Thu, 31 Dec 2009 11:26:18 GMT

Central Arbitration Committee (CAC)

The obligations of an employer under reg. 14 (1) of the Information and Consultation of Employees Regulations 2004 are not required to be performed within the period of three months referred to at reg. 14 (3) but only as soon as reasonably practicable.

Ms K MacCulloch v Imperial Chemical Industries Limited UKEAT/0275/09

Thu, 31 Dec 2009 11:25:41 GMT

Unfair Dismissal - Compensation

In accordance with Employment Rights Act 1996 Section 123(7) the excess of an enhanced redundancy payment over the amount of a basic award reduces the compensatory award arrived at in accordance with Section 123(1). The Employment Tribunal erred in deducting an enhanced redundancy payment twice. Once from loss of entitlement or potential entitlement to an enhanced redundancy payment to be included by reason of Section 123(3) in the calculation of the compensatory award, and secondly by reducing the compensatory award by that amount under Section 123(7).

The Prison Officers Association & Others v (1) Mr S J Gough (2) Mr S R Cox UKEAT/0405/09

Thu, 31 Dec 2009 11:24:23 GMT

Contract of Employment

The Claimants were employed by the Prison Service. They were also officials of the Prison Officers Association (“the Respondents”).

The issue was whether the Employment Tribunal was entitled to hold that the Claimants were employees of the Prison Service as well as being at the same time employees of the Respondents.

The EAT held that the Employment Tribunal was entitled to reach that conclusion as:- an individual can at the same time have two jobs with two different employers provided that they are compatible with each other (Statement of Rix LJ in Viasystems (Tyneside) Limited v Thermal Transfer (Northern) Limited [2005] IRLR 983 considered); the proper test as set out in 102 Social Club & Institute Ltd v Bickerton [1977] ICR 911 at 918 was applied to the Claimants’ work with the respondents; and there was no error of law in the Employment Tribunal’s reasoning.

Mr P Barnes v (1) Martello Professional Risks Limited & Others (2) Parabis Law LLP UKEAT/0121/09 & UKEAT/0122/09

Thu, 31 Dec 2009 11:23:28 GMT

Practice and Procedure - Review

The Employment Judge correctly held a review when he and the Respondents were under a misapprehension as to the nature of the hearing. On review with full evidence the Employment Judge was entitled to hold that as AMICUS was recognised by the Respondent to any extent, the Claimant as an affected employee did not have the right to make the kind of complaint he did under TUPE 2006 Reg 15 as to the consultation which occurred.

Industrious Limited v (1) Horizon Recruitment Limited (in liquidation) (2) Mrs J Vincent UKEAT/0478/09

Thu, 31 Dec 2009 11:22:41 GMT

Practice and Procedure - Compromise

Section 203(1) of the Employment Rights Act 1996 (“ERA”) deems as void provisions, which preclude a party from bringing proceedings before an Employment Tribunal, save in respect of agreements which satisfy certain specific requirements, which are set out in section 203(3) of ERA. Does that Employment Tribunal have jurisdiction to determine whether a compromise agreement is unenforceable because of misrepresentation?

The Employment Tribunal held that it did. On appeal, it was held that the Employment Tribunal does have jurisdiction to determine if a compromise is unenforceable.

Dr G Igboaka v The Royal College of Pathologists UKEAT/0036/09

Thu, 31 Dec 2009 11:22:02 GMT

Race Discrimination - Discrimination by other bodies

Claims brought under ss12 and 13 Race Relations Act 1976. Properly struck out by Employment Tribunal under Rule 18(7)(b) as having no reasonable prospect of success.

Costs of aborted EAT hearing to be paid by Appellant who was wholly responsible for those wasted costs.

London Metropolitan University v (1) Dr K A Sackur & Others (2) Mr R Thoyts (3) Mr G Roberts UKEAT/0286/06

Mon, 14 Dec 2009 11:07:23 GMT

Transfer of Undertakings - Dismissal/automatically unfair dismissal

The Employment Tribunal adopted the test of “what was the sole reason for the dismissal and was it related to the TUPE transfer”, as jointly put to it. It answered it as a matter of fact that the harmonization of contracts 2 years after a transfer was the sole reason for the dismissal of university staff, and this related to the transfer. The Employment Tribunal was entitled to make that decision which was correct on the findings.

For the Rule 3: the Judgment of the CA in Berriman is not “wrong”. On the contrary it is correct and was correctly applied in Crawford not just where there was no reduction in the workforce but also where there was no change in the functions performed. Harmonization did not come under either description. The ETO point fell with it.

The decision to dismiss the Claimants and offer new contracts was to effect harmonization of all the academic staff conditions, and was related to the relevant transfer in 2002. The Employment Tribunal so found as a matter of fact and there was no basis for interfering.
There was no basis for saying, even if the EAT had power, that Berriman and Crawford are wrongly decided. They are correct and were correctly applied.

Ms C Short (Appeal no. 2) v PJ Hayman & Co. Limited UKEAT/0379/08

Mon, 14 Dec 2009 11:06:42 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

The Employment Tribunal failed to include in its written reasons a number of matters including a concise statement of the applicable law, contrary to the requirements of Rule 30(6) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. Nevertheless it was apparent that the relevant law was uncontroversial and that the Employment Tribunal had it in mind when considering the facts and applying them to the law; in the circumstances the decision would be upheld; dicta of Buxton LJ in Balfour Beatty Power Network Ltd v Wilcox [2007] IRLR 63 paragraph 25 applied.

Cable Realisations Limited v GMB Northern UKEAT/0538/08

Mon, 14 Dec 2009 11:06:04 GMT

Transfer of Undertakings - Consultation and other information

This is an appeal regarding the duty to consult under Reg. 13(2) TUPE 2006. The case involved a consideration of IPCS (1987) IRLR 373 and assessed the quantum of award for failure to consult. Appeal and cross-appeal dismissed as the EAT found the ET had assessed the level of award correctly.

Old Buckenham Park (Brettenham Educational Trust Limited t/a Buckenham Hall (OBH)) v Ms J Parker UKEAT/0110/09

Mon, 14 Dec 2009 11:05:27 GMT

Part Time Workers

The Employment Tribunal did not err when it held the Claimant was Head of Art and so appointment of another constituted constructive unfair dismissal, and since the employer required the new Head to be full-time and the Claimant was not, it discriminated against her as a part-time worker and failed to make reasonable adjustments for her need as a disabled person not to work full-time.

Mr A Musa v Royal Mail Group Limited UKEAT/0215/09

Mon, 14 Dec 2009 11:00:31 GMT

Practice and Procedure - Striking-out/dismissal

A claim disclosing a clearly arguable case of an act of discrimination extending over a period ending with the Claimant’s dismissal should not have been rejected at a pre-hearing review as being out of time.

Ms C Nowicka-Price v The Chief Constable of Gwent Constabulary UKEAT/0268/08

Mon, 14 Dec 2009 10:59:35 GMT

Practice and Procedure - Amendment

The Employment Judge erred in failing to construe the Respondent’s response as a blanket admission of the Claimant’s claims. His secondary judgment that, if wrong, he would allow the response to be amended to withdraw most of the admissions was nevertheless correct. CPR PD14 applied since Employment Tribunal Rules are silent on withdrawal of admissions. It would be exceptional to remove a dispute about discrimination or, effectively, to strike out a response, by forming a view as to its merits at an interim stage.

Miss I Girvan v Humberside Probation Trust UKEAT/0197/09 & UKEAT/0198/09

Mon, 14 Dec 2009 10:58:50 GMT

Practice and Procedure - Striking-out/dismissal

An Employment Judge failed to consider relevant explanations offered by a Claimant in response to a strikeout application, and wrongly rejected her application for a review. The judge did not consider less drastic coercive measures, as were suggested by the Respondent itself. Appeal allowed, Employment Tribunal judgments set aside and remitted to a different judge for hearing of Respondent’s strikeout application. Parties to report to Employment Tribunal on ADR steps taken within 28 days.

Yorkshire Maintenance Company Limited v Mr S Farr UKEAT/0084/09

Mon, 14 Dec 2009 10:58:14 GMT

Unlawful Deduction from Wages

This is an issue as to whether the judgment properly calculated the wages due. The more substantial issue is whether a clause in the contract requiring employees to obtain the signature of the client for the worksheets and stipulating that the failure to do so meant the employee would not be paid if enforceable as is a penalty. We remitted the case because we believed there were issues of fact to be resolved.

RG Bespoke Joinery Limited v Mr J M Dobson UKEATS/0068/08

Mon, 14 Dec 2009 10:57:37 GMT

Transfer of Undertakings - Pensions and other terms

This is an appeal regarding unpaid wages and PILON and involved the question of whether such wages were due to the director of an insolvent company by new company via TUPE.

Ministry of Defence v Dr P Guellard UKEAT/0210/09 & UKEAT/0337/09

Mon, 14 Dec 2009 10:56:59 GMT

Unfair Dismissal - Constructive dismissal

The Employment Tribunal did not err in assessing the last straw in a series of events leading to a constructive unfair dismissal. It did not err when it refused as a matter of case management on a remedy hearing to allow the admission of evidence which could have been brought when the tribunal decided contribution and Polkey issues. But it wrongly used prediction in assessing (past) contribution and the matter was remitted to the same Employment Tribunal.

It did not err in fixing the uplift at the entry point of 10 per cent, rejecting the Respondent’s argument that it should be “modest”.

Salford Royal NHS Foundation Trust v Ms V Roldan UKEAT/0154/09 & UKEAT/0323/09

Mon, 14 Dec 2009 10:50:23 GMT

Unfair Dismissal - S.98A(2) ERA

The Employment Tribunal erred when it found procedural defects in the investigation by the Respondent of the allegations of the Claimant’s misconduct. In any event it ought to have allowed evidence and considered Employment Rights Act 1996 s 98A(2).

It wrongly awarded compensation beyond the 6 weeks it found it would take the Claimant to find work, attributing the Claimant’s loss to the Respondent’s act of dismissal when it was attributable to proceedings brought before the Crown Court and the professional regulator.

Mr G G McFarlane v Relate Avon Limited UKEAT/0106/09

Mon, 14 Dec 2009 10:49:25 GMT

Religion or Belief Discrimination

Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.

Held: Tribunal right to dismiss claims of discrimination (direct and indirect) contrary to the Employment Equality (Religion or Belief) Regulations 2003 and of unfair dismissal – London Borough of Islington v Ladele [2009] ICR 387 followed

Mr H Fredericks v Kingston University UKEAT/0239 & UKEAT/0240/09

Mon, 14 Dec 2009 10:48:46 GMT

Practice and Procedure - Case Management

Following non-compliance with an unless order a party in breach would have to apply for relief by way of review. It is permissible to permit questions to be put to an expert witness under case management powers.

Ms L Johnson v The Governing Body of Coopers Lane Primary School UKEAT/0248/09

Mon, 14 Dec 2009 10:48:09 GMT

Race Discrimination - Inferring discrimination

The majority of the Tribunal were correct in their rejection of the submission that the majority of white employers held the stereotypical view that black people are more likely to have mental health issues and that this should constitute a prima facie case of discrimination shifting the burden of proof to the other side.

Secretary of State for the Department of Work and Pensions v Mr S Alam UKEAT/0242/09

Mon, 14 Dec 2009 10:46:10 GMT

Disability Discrimination - Reasonable adjustments

This is an appeal regarding section 4A(1) and (3) of the Disability Discrimination Act 1995.
The Tribunal found that the employer had failed to make a reasonable adjustment when it gave the Claimant a 12 month written warning for leaving work early without asking for or obtaining permission. On appeal, the Employment Appeal Tribunal held: no basis in fact for the Tribunal’s conclusion that difficulty in asking for such permission was an effect of the Claimant’s disability, no basis for holding that the Respondent should have known that it was and, further, the Tribunal ought to have found that the Respondent came within the provisions of section 4A(3) of the DDA so no duty to make reasonable adjustments was imposed. Eastern and Coastal Kent PCT v Grey [2009] IRLR 429, discussed.

Miss L Kennedy v Ormonde Terrace Limited UKEATPA/0477/09

Mon, 14 Dec 2009 10:45:24 GMT

Jurisdictional Points - Worker, employee or neither

An Employment Tribunal was entitled to decide that an owner-resident in a block of flats, who was a shareholder and director of its management company and acted as its secretary, was not its employee.

Mr W A Harris v Tennis Together Limited UKEAT/0358/08

Mon, 14 Dec 2009 10:44:45 GMT

Contract of Employment - Damages for breach of contract

This case proceeded on the amended Grounds of Appeal, drafted by Ms Karon Monaghan QC. The issue was whether the Employment Tribunal was correct in finding that the Claimant had failed to mitigate his loss by refusing an offer of alternative employment when the terms offered were materially different from the original contract. Remitted to a differently constituted tribunal to reconsider the issue and to make further findings.

Mrs D Da'Bell v National Society for Prevention of Cruelty to Children UKEAT/0227/09

Mon, 14 Dec 2009 10:44:09 GMT

Unfair Dismissal - Constructive dismissal

In a claim for constructive unfair dismissal where the last straw doctrine was not relied on, the Employment Tribunal was entitled to hold that the Claimant’s reason for resignation 12 weeks after the relevant breach was not that breach.

The Employment Tribunal did not err when it placed the injury to feelings award in a successful claim for reasonable adjustments under the Disability Discrimination Act 1995 in the middle of the middle Vento range. The EAT decided that it is appropriate to update the Vento range in line with inflation to replace £5,000, £15,000 and £25,000 with £6,000, £18,000 and £30,000 respectively.

Hamilton House Medical Limited v Mrs R Hillier UKEAT/0246/09

Mon, 14 Dec 2009 10:43:31 GMT

National Minimum Wage

Minimum Wage Regulations must relate to basic rate of pay even if employee normally only works nights or weekends and receives enhanced pay.

Royal West Sussex NHS Trust v Dr A Bhattacharyya UKEAT/0496/08

Mon, 14 Dec 2009 10:39:31 GMT

Practice and Procedure - Striking-out/dismissal

This is an appeal regarding the decision of the Employment Tribunal not to strike out totality of Claimant’s claims, notwithstanding his non-co-operation in the obtaining of a medical report. The EAT upheld the appeal subject to one point of clarification.

Metropolitan Borough Council of Calderdale v Ms P Wells UKEAT/0340/09

Mon, 14 Dec 2009 10:38:57 GMT

Jurisdictional Points - Continuity of employment

No arguable basis for case of perversity by ET in finding that the Claimant was employed for the academic year notwithstanding the wording of a box included in her monthly claim form. Appeal dismissed with costs.

Cartamundi UK Limited v Mrs P Worboyes UKEAT/0096/09

Mon, 14 Dec 2009 10:38:19 GMT

Race Discrimination - Comparison

Relevance of out of time complaints by way of background evidence in determining timeous complaints of discrimination/victimisation. Comparators and the ‘reason why’ question.

Mr Dansie v The Commissioner of Police for the Metropolis UKEAT/0234/09

Mon, 14 Dec 2009 10:37:42 GMT

Sex Discrimination - Direct

This is a case concerning a Dress/appearance policy and whether specifying the hair length for a male police officer in training was discriminatory and whether the threat of disciplinary action constituted harassment. Consideration of Smith v Safeway ; DWP v Thompson. No error of approach by Employment Tribunal in dismissing claim.

(1) ABN Amro Management Services Limited (2) The Royal Bank of Scotland v Mr G Hogben UKEAT/0266/09

Mon, 14 Dec 2009 10:37:01 GMT

Age Discrimination

Appeal against refusal of Employment Judge to strike out three heads of an age discrimination claim; cross-appeal against striking-out of fourth.

(1) Judge wrong not to strike out claim of discriminatory selection of redundancy when claim was prima facie implausible and there were no facts indicative of such discrimination.

(2) Judge wrong not to strike out claim based on a difference of age profile between those made redundant before and after the date of introduction of less generous terms as to payment of bonus to dismissed employees – A change of this character did not constitute a “provision criterion or practice”.

(3) Judge right not to strike out a claim that the length of service element in the Appellants’ redundancy payment scheme was discriminatory.

(4) Judge right to strike out claim that requirement that Respondent sign a compromise agreement as a condition of entitlement to enhanced redundancy pay was age-discriminatory.

Mr Kestutis Kristapaitis v Thistle Seafood Limited UKEATS/0033/09

Mon, 14 Dec 2009 10:36:12 GMT

Unfair Dismissal - Contributory fault

Claimant was a Lithuanian, employed in a fish processing business and dismissed because his hands were heavily contaminated with e-coli bacteria causing his employers to infer that despite factory rules and a prior warning , he had not washed his hands properly after having been to the toilet. Dismissal automatically unfair due to failure to follow the statutory dismissal procedure but no monetary award made because of the extent to which the claimant had contributed to his own dismissal. Appeal on grounds of inadequate interpretation at hearing and contradiction in the tribunal’s judgment , dismissed.

Icon Display Limited v (1) Mr D Paine (2) Mr M Paine UKEAT/0438/09

Mon, 14 Dec 2009 10:35:30 GMT

Practice and Procedure - Case Management

Privileged material contained in pleadings submitted to ET. Parties agree to references to this material being removed from the file but Tribunal reject an application for transfer to different tribunal after its removal. Appeal allowed and directions given as to removal of documents and transfer, based only on the particular facts of this case.

Spectrum Agencies v Mr D Benjamin UKEAT/0220/09

Mon, 14 Dec 2009 10:34:48 GMT

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

This is an appeal regarding the proper construction of a bonus payment term within a contract of employment, made in writing.

Applying the reasonable observer test explained by Lord Hoffmann in ICS Ltd v West Bromwich Building Society the EAT rejected the construction placed on the term by the Employment Tribunal and reversed their decision.

Mr P J Dainty v Ellerton Knight UKEAT/0281/09

Mon, 14 Dec 2009 10:34:10 GMT

Contract of Employment - Whether established

Decision by Employment Tribunal that the Appellant was (by reference to a letter of appointment) and remained (there being no subsequent variation) self-employed upheld. Appeal on perversity grounds dismissed.

Ms D Ross v Micro Focus Limited UKEAT/0304/09

Mon, 14 Dec 2009 10:33:37 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

Appellant complained of the conduct of a lay member at the Tribunal by way of her body language supportive of the Respondent, particularly during the cross-examination of the Respondent’s Chairman. On consideration of the authorities and the evidence no case of pre judgment or closed mind made out and consequently no real possibility of the Tribunal being biased.

P A Haulage Limited v Mr T J Gaffney UKEAT/0297/09 & UKEAT/0298/09

Mon, 14 Dec 2009 10:32:54 GMT

Practice and Procedure - Appearance/Response

Employment Judge refused, on a preliminary consideration under Rule 35, an application under Rule 34 for a review of the rejection of a late-submitted response, in circumstances where there were credible grounds for believing that R had previously submitted a response in time but it had gone astray. The claim was upheld at a hearing at which R was in consequence debarred from participating under Rule 9.

Held that the application should not have been refused summarily - EAT conducted a review itself and directed that the response be accepted and the claim be reheard.

(1) Eagle Place Services Limited (2) Ms C Staples (3) Mr C Dray v Mr N Rudd UKEAT/0497/08

Wed, 21 Oct 2009 17:41:27 GMT

Disability Discrimination - Direct disability discrimination

The Claimant, who was disabled within the meaning of the Disability Discrimination Act 1995, was employed as a solicitor by the Respondent, the service company of a well know firm of solicitors. Reasonable adjustments were agreed to facilitate the Claimant's working. These proved satisfactory and enabled the Claimant to carry out his duties to the complete satisfaction of his clients and without any commercial disadvantage to the Respondent. The Claimant was dismissed because the Respondent erroneously and unreasonably believed that the financial effect of the agreed adjustments made the Claimant a commercial liability. There was ample evidence to support the findings by the Employment Tribunal that the Claimant had been dismissed by reason of his disability or for a reason connected with his disability.

The correct comparator was a fellow lawyer of the same grade and skills as the Claimant who shared a similarly good relationship with the client, who for reasons other than disability required adjustments to be made to enable him to work and in respect of whom reasonable adjustments had been agreed to the satisfaction of both employer and employee, and in respect of whom commercial performance, even having regard to the proposed adjustments was not an issue. It would have been irrational for the Respondent to have dismissed such an employee. The comparator could not be a fellow non-disabled employee whom the Respondent unreasonably believed might inhibit the firm's commercial objectives.

An unreasonable and incorrect belief on the part of an employer that a particular employee might inhibit the firm's commercial objective would not constitute part of the employee's "relevant circumstances" within the meaning of s3A(5) of the Act.

An employer who had agreed reasonable adjustments could not then turn round and dismiss the employee because it unreasonably considered that those reasonable adjustments made him a commercial liability, on the basis that it have unreasonably considered a non-disabled employee in respect of whom similar adjustments had been made, to be a commercial liability. If employers were permitted to act in this way, a coach and horses would be driven through the protection given to employees by the Act and the duty to make reasonable adjustments rendered worthless.

Where there was evidence from which an inference of discrimination might be drawn, and the Employment Tribunal rejected non-discriminatory explanations by the employer, it was proper for the Employment Tribunal to draw the inference that the dismissal of the claimant was for a discriminatory reason.

Ms A Osman v Belstaff International Limited UKEAT/0238/09

Wed, 21 Oct 2009 17:40:45 GMT

Practice and Procedure - Striking-out/dismissal

Employee acting in person, claiming discrimination and unfair dismissal, failed to answer request for particulars, very largely concerned with the discrimination allegations. Striking-out of discrimination claims upheld but striking out of unfair dismissal claim held to be disproportionate.

Ministry of Defence v Ms K Fletcher UKEAT/0044/09/JOJ

Wed, 21 Oct 2009 17:40:09 GMT

Sex Discrimination - Injury to feelings

Where there is overlap between the basis of aggravated damages and compensation for injury to feelings, double counting should be avoided but a reasonable sum may be awarded for uncompensated aggravating elements of the conduct which forms the basis of the awards – Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 paragraph 68 applied. Conduct of proceedings justified part of the award of aggravated damages – Zaiwalla & Co v Walia [2002] IRLR 697 applied. The ET erred in double counting and failing to have regard to the totality of awards for non-pecuniary loss. Aggravated damages reduced to £8,000.

The basis for the award of exemplary damages – the failure of the Army to provide a mechanism for redress of Ms Fletcher’s complaints – did not cross the high threshold of oppressive, arbitrary or contumelious conduct for making such an award – Kuddus v Chief Constable of Leicestershire [2002] AC 122 applied. Further there was no proper basis for the amount of the award of £50,000, arrived at by aggregating the amount awarded in compensation for injury to feelings and aggravated damages. Award of exemplary damages set aside.

(1) Milton Keynes General Hospital NHS Trust (2) Ms I Punchard v Mrs J Maruziva UKEAT/0003/09/DM

Wed, 21 Oct 2009 17:39:21 GMT

Race Discrimination - Direct

This is an appeal regarding numerous complaints of direct discrimination/victimisation under the Race Relations Act 1976 (RRA). Whether the Employment Tribunal reasoning passed the Meek test. With one exception it did not; those matters remitted to fresh Employment Tribunal for rehearing.

On the question of whether s.54A RRA applies to Direct Discrimination on ground of colour affirmative answer in Chagger [2009] IRLR 86 preferred to negative answer in Okonu [2008] ICR 598.

St Christopher's Fellowship v Ms B Walters-Ennis UKEAT/0412/08

Wed, 21 Oct 2009 17:38:30 GMT

Practice and Procedure - Case Management

An Employment Tribunal did not err in law when it upheld the Claimant’s claim in part that she had been discriminated against by being excluded from a recruitment process, in which as a manager she should have been involved, on the ground of her race, and as an aggregate of all the events of which the Claimant complained she was constructively unfairly dismissed. The Tribunal’s refusal to allow a Respondent’s late application to call new witnesses was not an error of law or an unfair procedure but was within its case-management powers.

A v (1) B (2) C UKEAT/0450/08

Wed, 21 Oct 2009 17:37:50 GMT

Practice and Procedure - Striking-out/dismissal

Unless the Claimant’s contentions can be rejected without any evidence being heard, it is an error of law to strike out a case as having no reasonable prospects of success on the basis that it is unarguable. In the instant case, whilst it might be difficult for the Claimant to persuade a full tribunal that she had not been guilty of academic fraud and thus not committed acts of gross misconduct and that her dismissal owed nothing to her allegations of sexual harassment made against a male superior, the employment judge had erred in concluding that giving evidence in support of her allegations could not make the case arguable. Nor was the case sufficiently exceptional to justify the dismissal of allegations of sex discrimination without factual investigation.

(1) B (2) C v A UKEAT/0503/08

Wed, 21 Oct 2009 17:37:09 GMT

Sex Discrimination - Inferring discrimination

Held that there was no sufficient basis in the evidence for the inference of discrimination – Observations about the drawing of inferences.

Held also that parties entitled to anonymisation in order to protect the complainant’s confidentiality – X v Commissioner of Metropolitan Police [2003] ICR 1031 followed.

Ministry of Defence v Miss T DeBique UKEAT/0048/09 & UKEAT/0049/09

Wed, 21 Oct 2009 17:36:30 GMT

Sex Discrimination - Indirect

This is an appeal by the MOD against ET’s findings of indirect sex and race discrimination. Claimant was a female soldier in the army, from St. Vincent & the Grenadines, who was also a single parent with a young daughter. The ET found that two provisions, criteria or practices were applied to her by the MOD, namely that she be a soldier available for deployment on a 24/7 basis; and also that she could not have a member of her extended family (a half-sister) to stay with her in the Service Families Accommodation because she was a foreign national only entitled to stay in the UK for a short period.

The ET found that these PCPs had not been shown to be a proportionate means of achieving a legitimate aim and upheld the claims.

Mr J Liversidge v The Mayor and Burgesses of the London Borough of Haringey & The Governing Body of Woodside High School UKEAT/0091/09

Wed, 21 Oct 2009 17:35:52 GMT

Unfair Dismissal

The Appellant was dismissed from his post as a teacher. The Employment Tribunal held the principal reason for his dismissal was his dishonesty in stating he held Qualified Teacher status. The Employment Tribunal decision failed to give adequate reasons as to why the decision of the dismissing panel was fair and one for which they had adequate grounds for belief and in reaching its own conclusions as to the Appellant’s dishonesty failed to deal with substantial points. The decision was not Meek compliant. Remitted for re-hearing.

Julia Pankhurst t/a Mopdoc's Barbers v Miss E Phillips UKEAT/0040/09

Wed, 21 Oct 2009 17:35:14 GMT

Unfair Dismissal - Automatically unfair reasons

The Appellant employed the Respondent as a hairdresser. Shortly after the Appellant became aware the Respondent was pregnant the Appellant dismissed her. The Respondent asserted, and the Employment Tribunal found, she was dismissed as a result of her pregnancy. The Appellant had asserted that she had dismissed all her staff at the same time and had done so on financial grounds (she was in an IVA). The Employment Tribunal did not deal with the dismissal of the other staff.

Sodexo Health Care Services Limited v Mrs S L Steele UKEAT/0378/08 & UKEAT/0380/08

Wed, 21 Oct 2009 17:34:35 GMT

Practice and Procedure - Perversity

The Claimant, the Respondent’s shop manager, was responsible for bagging takings for collection. She was shown on CCTV turning the CCTV off during that process. There was a substantial cash shortage. The Employment Tribunal held she was unfairly dismissed because it regarded the Respondent’s investigation as inadequate and because of a perceived inequality of treatment compared with another employee who had been present. Held: the decision was perverse. The Tribunal had substituted its own view as to the adequacy of the investigation. There was no disparity of treatment. The Respondent could not bring disciplinary proceedings against the other employee because she had already left the Respondent’s employment.

Ms A Prowse-Piper v Anglian Windows Limited & Others UKEAT/0017/09

Wed, 21 Oct 2009 17:33:55 GMT

Sex Discrimination - Pregnancy and discrimination

The Appellant was discriminated against on the grounds of her pregnancies. She was then made redundant in a way which constituted unfair dismissal. The Employment Tribunal held that the employer had paid only lip service to the possibility of finding her an alternative role. It failed to deal with the question of whether this failure of the employer was itself a further act of discrimination. Remitted to the same Employment Tribunal to make findings on this point.

Mr D Clarkson v Pensher Security Doors Limited UKEAT/0107/09

Wed, 21 Oct 2009 17:33:18 GMT

Working Time Regulations - Worker

The Appellant did work for the Respondent. Was he a worker or did he carry on a business undertaking? The Employment Tribunal held he was not a worker. It did not err in law in so holding.

Beswick Paper Limited v Mr B Britton UKEAT/0104/09/RN

Wed, 21 Oct 2009 17:32:37 GMT

Practice and Procedure - Absence of Party

Employment Tribunal proceeding in absence of a party. Representative had put wrong hearing date in her diary. Review application dismissed.

Appeal allowed by a majority and case remitted for rehearing. Scope of remission circumscribed by guidance as to points of law arising in the case.

E-Freight Limited v Mr J Long UKEAT/0010/09

Wed, 21 Oct 2009 17:31:56 GMT

Unfair Dismissal - Reasonableness of dismissal

The Respondent below employed the Claimant to run its transport business. The business lost its most valuable customer but the Claimant concealed the loss from the directors. Because of the concealment he was dismissed. The Employment Tribunal took the view that it would have conducted further inquiries and that the penalty of dismissal was outside the range of reasonable responses. Held: despite its reference to the appropriate authorities the Tribunal had entered the arena and substituted its own view for that of the employer. Appeal allowed. Claim for unfair dismissal dismissed.

The Mayor and Burgesses of the London Borough of Tower Hamlets v Mr J Wooster UKEAT/0441/08

Wed, 21 Oct 2009 17:30:07 GMT

Age Discrimination

Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and would be entitled to an early retirement pension if retained in employment to age 50 - Council fails to find him alternative employment or to permit an extension of the secondment, notwithstanding an offer by organisation to which he is seconded to fund his continued employment to age 50. The Tribunal found the Council liable for unfair dismissal and age discrimination, on basis that: (a) Council made insufficient effort to redeploy the Claimant; and (b) it was motivated by a wish to avoid the additional costs of him taking early retirement at age 50.

Tribunal also holds, as regards remedy, that it has “little doubt” that if Claimant had not been treated unfairly and discriminated against he would have been found alternative employment. On the Council’s appeals against the finding of age discrimination and as regards remedy, the EAT held that, while the Council was justified in refusing to continue the Claimant’s secondment for the purpose of allowing him to reach age 50 and then take early retirement (which would indeed have been unlawful - Eastbourne Borough Council v. Foster [2002] ICR 234, and Hinckley & Bosworth Borough Council v. Shaw [2000] LGR 9 referred to), to take into account his impending entitlement to a pension in the application of its redundancy and redeployment policy constituted age discrimination (no defence of justification being advanced); and that the Tribunal was entitled on the evidence to conclude that the Council had done so.

Secondly, that the Tribunal was entitled on the evidence to find as a practical certainty that the Claimant would, but for the matters complained of, have been found alternative employment and that the use of the phrase “little doubt” did not mean that it was obliged to make a discount for the chance that he might not have done so.

Unilever UK Plc v (1) Mr G Hickinson (2) Sodexo Limited UKEAT/0192/09

Wed, 21 Oct 2009 17:29:25 GMT

Victimisation Discrimination

The First Respondent was employed by the Second Respondent in security at the premises of the Appellant. The Appellant required the Second Respondent to remove the First Respondent after he was discovered making covert recordings of the Appellant’s staff. The Second Respondent did not have an alternative position for the First Respondent and dismissed him. The First Respondent alleged he had been subjected to a detriment by the Appellant contrary to s.48(1B) of the Employment Rights Act 1996. He made his complaint to the ET more than three months after the Appellant required his removal from site but less than three months after his dismissal by the Second Respondent. Held: his complaint was out of time. The detriment was the requirement of removal and the subsequent dismissal by the Second Respondent could not be said either to be an act or deliberate failure to act by the Appellant or part of a continuing act.

Mr J Lamont v Huntleigh Healthcare Limited UKEATS/0008/09

Wed, 21 Oct 2009 17:28:48 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

This is an appeal where the EAT held that Tribunal had erred in holding that a letter from the Claimant had not constituted a grievance statement under the statutory procedures: Shergold followed.

MBL UK Limited v Mr C Quigley UKEATS/0061/08

Wed, 21 Oct 2009 17:28:04 GMT

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

Tribunal entitled to find that evidence that the employee had undergone a conventional induction on recruitment did not constitute evidence that he had received “training” at a cost of £500 which the employer was entitled to recover under a claw-back clause.

Great Restaurants Limited v Mr P Mizener UKEATS/0003/09

Wed, 21 Oct 2009 17:12:35 GMT

Redundancy

Payment of ‘money in lieu’ on dismissal of Claimant could not be “ascribed”/”appropriated” to an unpaid redundancy payment.

Mr K Tariq v The Home Office UKEAT/0168/09

Wed, 21 Oct 2009 17:11:50 GMT

Practice and Procedure - Disclosure

The procedure sanctioned by rule 54 of the Employment Tribunals Rules of Procedure, and by the Employment Tribunals (National Security) Rules of Procedure, is not incompatible with a claimant’s right under Art. 6 of the European Convention on Human Rights to a fair hearing of his claim for discrimination, or his right under European Community law to an effective judicial remedy for his discrimination. Whether the withholding of materials from a claimant will render the hearing unfair will depend on the facts of each particular case, but Art 6 requires the claimant to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively.

The Employment Tribunal did not err in concluding that it should decide whether it was permissible to hear closed evidence before hearing any of the open evidence: Coles v Barracks distinguished.

In deciding whether to order further materials to be disclosed to the claimant to make the hearing of the claim Art. 6 compliant, the Employment Tribunal should first be informed what the parties’ open cases are, and then be informed in closed session what the respondent’s case is: Farooq v Commissioner of the Police for the Metropolis distinguished.

Beijing Ton Ren Tang (UK) Limited v Ms S P Wang UKEAT/0024/09

Wed, 21 Oct 2009 17:10:59 GMT

Unfair Dismissal - Mitigation of loss

This is an appeal regarding the principles to be applied when considering whether the Respondent has shown that the Claimant had failed to mitigate her loss.

Whether a procedural irregularity occurred below in relation to ‘agreed’ wages figures or whether ET gave sufficient notice of its intention to assess the figures on basis of evidence put before them.

Whether contractual claim for pay in lieu of unused holiday entitlement following termination of the employment offended reg. 35(1)(a) WTR 1998. Appeal dismissed.

Mrs J Abbot & Others v Littlewoods Plc UKEAT/0222/09/ZT

Wed, 21 Oct 2009 17:10:15 GMT

Equal Pay Act - Part-time Pensions

The Employment Judge erred in her assessment that the Claimant’s amendment to contend that it was not necessary for her to show that she would have joined the pension scheme when eligible (the opters’ defence), had no reasonable prospect of success. Discrimination claims should be given a full trial absent a clear defence.

Dr P Evans v (1) Parasol Limited (2) RSA Consulting Limited UKEAT/0536/08/RN

Wed, 21 Oct 2009 17:09:38 GMT

Practice and Procedure - Striking-out/dismissal

Striking out of agency worker’s claim for outstanding wages inappropriate in the light of the legal and factual complexity of such cases; and also of an email from the employer found by the Claimant shortly after the hearing, which the Tribunal ought to have admitted on an application for review.

Ms H Iya-Nya v British Airways Plc UKEATPA/0047/09

Wed, 21 Oct 2009 17:08:55 GMT

Contract of Employment - Damages for breach of contract

On remission by the EAT, the Employment Tribunal did not err when it heard evidence and then struck out the Claimant’s claims of dismissal and detriment contrary to Employment Rights Act 1996 s 44, following her complaints about health and safety. It noted her related claims for £20m against the Respondent and other defendants in the retail sector were struck out in the High Court, from which her appeal had no merit.

Ms S Jabeen v Tower Hamlets Primary Care Trust UKEAT/0177/09/DM

Wed, 21 Oct 2009 17:07:59 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

On the material available at a contested preliminary hearing, there was no prospect that on live evidence the EAT would find that an Employment Judge announced a decision refusing to strike out the Claimant’s case before lunch, and without explanation gave a Judgment to the opposite effect after lunch. The Claimant was not a reliable reporter of her own legal proceedings, her accounts not being supported by respectively her junior and leading Counsel.

Mr A Blitz v Vectone Group Holding Limited UKEAT/0306/09

Wed, 21 Oct 2009 17:07:16 GMT

Practice and Procedure - Striking-out/dismissal

This is an appeal where the EAT held that the Employment Judge was correct in not making a deposit order even when a continuation of contract order has been made.

Nottingham Tram Consortium v Mrs A Cheetham UKEAT/0145/09

Wed, 21 Oct 2009 17:06:05 GMT

Disability Discrimination

The EAT held that the Employment Judge was in error in holding that a letter constituted a valid grievance. The letter had also been sent more than 3 months from the act or omission complained of. Appeal allowed.

Mrs C Hooper v Sherborne School UKEATPA/1375/08/JOJ

Wed, 21 Oct 2009 17:05:25 GMT

Victimisation Discrimination

The Employment Tribunal was right to reject the Claimant’s victimisation claim. It disbelieved her allegation that she saw the solicitor representing her previous employer in her first unsuccessful race discrimination visit her current employer. The Employment Tribunal did not err when it awarded £7000 costs against her, taking into account that she had refused a payment to her in settlement of £5000.

An application to raise a new point based on the Respondent’s suspicion under Race Relations Act 1976 s2(1) that the Claimant had made an earlier claim was refused. This is a disjunctive and separate head from the issue defined at the outset, based on knowledge and would require further investigation by the Employment Tribunal: principles approved in CELTEC v Astley [2006] IRLR 635 HL applied.

Mrs S Saunders v Department for Work and Pensions - Child Support Agency UKEAT/0052/09/JOJ

Wed, 21 Oct 2009 17:04:41 GMT

Unfair Dismissal - Constructive dismissal

In upholding the Claimant’s disability discrimination claim and dismissing her constructive dismissal claim, the Employment Tribunal misconstrued her letter of resignation, which was unequivocal save for invoking, as required, the grievance procedure, and failed to add the preceding conduct to the final straw. Omilaju applied, Norwest Holst distinguished. Appeal allowed and constructive dismissal claim remitted to same Employment Tribunal.

Mrs C E Roberts v Miss T E Carling UKEAT/0183/09

Wed, 21 Oct 2009 15:34:05 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

Rule 37 gives a general discretion to extend time for the doing of any act in the EAT, whether the deadline has passed or not. In deciding whether to grant relief against an unless order, or when a party is in breach of an order, practice direction or rule, in particular when the time limit for complying has expired, the EAT will apply principles analogous to those applied in the High Court, by reference to the guidance in CPR 3.9 for relief from sanctions. This is envisaged by PD1.8 which permits resort to the CPR if appropriate to the unique constitution of the EAT.

Pereda v Madrid Movilidad SA Case C-277/08 ECJ (10 September 2009)

Thu, 15 Oct 2009 21:55:06 GMT

The applicant in this case works for the City of Madrid as a specialist removing illegally parked cars. He had scheduled annual leave. Before this was due to start he was injured in an accident at work. His sick leave then overlapped with his annual leave dates, meaning that he would be off sick and unable to enjoy his holiday. He requested to change his holiday dates, but this request was refused without reason being given.

The applicant challenged that decision in the regional Social Security and Employment Court. The Court used the preliminary reference procedure to refer the question to the European Court of Justice. At issue was a worker’s entitlement to at least four weeks of annual leave under Article 7 of the Working Time Directive (2003/88) – a provision from which no derogation is allowed.

Although the tribunal had referred the specific question of entitlement to sick leave following an accident at work which occurred before the start of the holiday, the ECJ addressed the much wider question of entitlement to sick leave coinciding with previously scheduled annual leave.

The ECJ noted that the entitlement to annual leave is “a particularly important principle of Community social law”. It followed a recent decision of Schultz Hoff v Deutsche Rentenver Sicherung Bund in which it was held that “It is common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill.”

The question of carrying over annual leave into a following year was discussed. Whilst the Directive allows for four weeks of annual leave in a year, there is nothing to prevent this from being lost at the end of the year provided the employee has had the opportunity to exercise that right. This question was addressed in Schultz-Hoff, where it was held that where the worker has not been able to exercise this right due to sickness, then national legislation cannot preclude the entitlement to annual leave being carried over into a subsequent year.

The ECJ followed this approach and applied to the circumstances in the present case, holding that where a worker is sick during the annual leave period, then the worker may request a new period of annual leave. Where it is not possible to accommodate this in the current year, then it can be carried forward beyond the current year.

Whilst the original question referenced to the ECJ concerned absence arising from an accident at work, the decision covers any sickness before or during the holiday, apparently howsoever caused – a much wider question than that originally asked.

Although it clearly seeks to ensure that workers are well rested, and so presumably to work more effectively and more safely during the year, it raises difficult questions, particularly from an employer’s perspective. Employers will now have to reschedule holiday time for their workers’ holiday sicknesses (which may be difficult to assess or monitor) or where workers’ have had a holiday accident. Where the accident has been caused by a third party, it is possible that there would be a rise in actions to recover refundable sick pay – possibly now with an international dimension. The waters have also been muddied for employees who may now, in certain circumstances, find it difficult to claim for loss of enjoyment of holiday as part of their solatium claim in personal injury actions.

It is likely that this will lead to some interesting litigation in future.

Shrewsbury & Teldford Hospital NHS Trust v Dr S K Lairikyengbam UKEAT/0499/08

Tue, 22 Sep 2009 08:51:15 GMT

Jurisdictional Points - Worker, employee or neither

The ET erred in holding that contracts for the employment of a locum consultant entered into in breach of the National Health Service (Appointment of Consultants) Regulations 1996 as amended were not ultra vires. However the ET did not err in holding that even if they were ultra vires, the locum consultant was an employee within the meaning of the Employment Rights Act 1996 and could pursue a claim for unfair dismissal in respect of the non renewal of his contract. Dicta of Rix LJ in Eastbourne Borough Council v Foster [2002] ICR 234 applied and status of workers performing duties under an ultra vires contract considered.

Perversity in holding that a position as a locum consultant was ‘distinct and different from that of the substantive post’ and that dismissal was for redundancy when the locum consultant post was not renewed notwithstanding that the substantive consultant post was vacant.

The ET erred in determining remedy when the Employment Judge had agreed with the parties that there would be a split hearing.

Findings of unfair dismissal and breach of contract set aside. Decision dismissing claim for contractual redundancy payment substituted. Unfair dismissal claim remitted for rehearing to a different ET.

Mr U Edozie v (1) Group 4 Securicor Plc (2) G4S Security Services (UK) Limited UKEAT/0124/09

Tue, 22 Sep 2009 08:50:27 GMT

Race Discrimination - Inferring discrimination

Tribunal wrong to apply test in King v Great Britain-China Centre [1992] ICR 516 instead of applying s.54A of Race Relations Act 1976 on the basis that the Claimant was claiming “colour discrimination” – Chagger v Abbey National plc [2009] ICR 624 followed – but held that there was on the facts no substantive difference between the two approaches and that the Tribunal had been entitled on the evidence not to find race discrimination.

Miss E Manning v Royal Bank of Scotland Plc UKEAT/0079/09

Tue, 22 Sep 2009 08:49:46 GMT

Practice and Procedure - Review

Claimant representative failed to attend review hearing on time and the application was dismissed. This is an appeal seeking relief against that sanction attacking the inadequate reasoning of the Tribunal. Case remitted for review hearing before fresh Employment Tribunal Judge.

Hibiscus Housing Association Limited v Ms J McIntosh UKEAT/0534/08

Tue, 22 Sep 2009 08:48:56 GMT

Unfair Dismissal - Compensation

This is an appeal regarding the Tribunal's findings in respect of the Claimant's efforts to mitigate their loss in an unfair dismissal case. Matter remitted back to the Tribunal to determine this.

OCS Group UK Limited v (1) Mrs S Jones (2) Miss N Ciliza UKEAT/0038/09

Tue, 22 Sep 2009 08:46:12 GMT

Transfer of Undertakings - Transfer

This is an appeal regarding the definition of “activities” under the TUPE Regulations 2006. In this case, the EAT held that the Tribunal was correct in their view that activities had substantially changed for the purposes of Regulation 3(1)(b)(ii) of the TUPE regulations.

Mr N Ayres v Fuel Parts UK UKEATPA/0118/09

Tue, 22 Sep 2009 08:45:17 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

This is an appeal regarding a Notice of Appeal without supporting documents which was lodged on day 41 at the Employment Tribunal and forwarded to the EAT on day 42 with missing documents lodged on day 45. The substantive appeal had no merit. A discretionary extension was refused, no explanation being given for the first 41 days, or the incomplete and mistaken lodging at the Employment Tribunal.

Ms M C Miller v Lambeth Primary Care Trust UKEAT/0181/09

Wed, 16 Sep 2009 11:42:09 GMT

Practice and Procedure - Review

A review was ordered of a strike out for non pursuit of the claim. Notice was not given to the Claimant and she did not know of the review hearing where the strike out was affirmed. A further application for review of the review judgment was dismissed. Held: this was a cogent ground under Rule 34 and the review judgment was set aside and a rehearing ordered.

(1) B (2) C v A UKEAT/0503/08

Wed, 16 Sep 2009 11:41:28 GMT

Sex Discrimination - Inferring discrimination

Held that there was no sufficient basis in the evidence for the inference of discrimination – Observations about the drawing of inferences. Held also that parties entitled to anonymisation in order to protect the complainant’s confidentiality – X v Commissioner of Metropolitan Police [2003] ICR 1031 followed.

Mr M Hakim v (1) Italia Conti Academy of Theatre Arts (2) Ms K M Stephenson UKEATPA/1444/08

Wed, 16 Sep 2009 11:40:46 GMT

Practice and Procedure - Time for appealing

This is an appeal regarding the time limits for lodging an appeal. An appeal from Registrar allowed after evidence heard as to the extent of the Appellant’s disability due to severe dyslexia.

Tim Arrow & Sons (a firm) v Mr E H Onley UKEAT/0527/08

Wed, 16 Sep 2009 11:40:09 GMT

Redundancy - Fairness

The Claimant was the only employee of a family firm. A redundancy situation arose. The Claimant was then unfairly dismissed. He applied to the Employment Tribunal. Three relevant issues arose. (1) Would he have been dismissed if a fair procedure had been adopted? (2) What uplift should the Tribunal award for failure to follow statutory procedures? And (3) to what figures should the uplift be applied? Held: (1) The Tribunal had been wrong to construct a pool comprising a partner and an employee. As the only employee the Claimant would inevitably have been made redundant. (2) The Tribunal was entitled to award the maximum 50 per cent uplift. (3) The uplift could only be applied to awards, so the employer could successfully avoid the uplift by paying sums due shortly before the Tribunal hearing.

Mrs C N Pierre-Davis v The North West London Hospitals NHS Trust UKEATPA/1496/08

Wed, 16 Sep 2009 11:39:26 GMT

Practice and Procedure - Time for appealing

The Claimant’s Notice of Appeal was out of time as she sent it to the Employment Tribunal and not the EAT. On live evidence, no acceptable excuse was found to justify the exercise of discretion under Rule 37(1).

Mr S Johnson v Edwardian International Hotels Limited UKEATPA/1558/08

Wed, 16 Sep 2009 11:38:49 GMT

Practice and Procedure - Case Management

On remission to the Employment Tribunal by the EAT, a CMD set out the issues to be heard. The full range of the Claimant’s 12 strands of discrimination was not to be determined but only considered as background to two claims. There was no appeal against that agreed order so the full hearing could not be criticised when it did not descend into decisions on all the original claims.

AB v Ministry of Defence UKEAT/0101/09

Wed, 16 Sep 2009 11:38:05 GMT

National Security

Order for hearing in private pursuant to rule 54 (2) of the Employment Tribunals Rules of Procedure upheld – Observations as to correct approach to applications for hearings in private in the interests of national security and as to procedure to be followed.

Mr M McFadyen & Others v (1) PB Recovery Limited (2) Brightside Group Plc (3) Synergi Partners Limited (4) Debts.co.uk Plc UKEATS/0072/08

Wed, 16 Sep 2009 11:37:24 GMT

Jurisdictional Points - Claim in time and effective date of termination

This is an appeal regarding the online presentation of claims. The Claim was initially presented to Bristol Tribunal office via the online system. The question here was to determine whether, where intention had actually been to present claims in Scotland and they were received at the Glasgow office after the time bar, they were in fact to be regarded as having been presented there on the same date as the Bristol presentation. The Employment Tribunal held that they were not and the EAT agreed. The Tribunal had not misapplied the principle in Tyne and Wear Autistic Society v Smith [2005] IRLR 336.

Mr T Dhillon v May & Baker Limited t/a Sanofi Aventis UKEAT/0120/09

Wed, 16 Sep 2009 11:36:46 GMT

Race Discrimination - Comparison

Mr Dhillon was dismissed for misconduct after he had received a final written warning in respect of previous conduct. The Employment Tribunal found his dismissal to be unfair. It held that Mr Dhillon’s final written warning was unreasonable and the employers would not have dismissed him for the subsequent incident but for the warning. In any event the Employment Tribunal considered that dismissal for the subsequent incident was outside the range of reasonable responses. It dismissed Mr Dhillon’s complaint of race discrimination. It held that he had failed to identify an actual or hypothetical comparator in that he had failed to show that a white comparator in comparable circumstances would have been treated more favourably. The decision could have been more clearly reasoned but there was no error of law. The appeal was dismissed as was the Company’s appeal from the finding of unfair dismissal.

Mrs J Wells v St Edwards RC Primary School UKEATPA/1339/08

Wed, 16 Sep 2009 11:35:44 GMT

Practice and Procedure - Review

There was no explanation on appeal for the Claimant’s out of time application for a review of the Employment Tribunal’s dismissal of her case when she did not attend. As a matter of substance the Judgment was anyway correct. Application to adduce new evidence dismissed. Ladd v Marshall applied.

Mr M Westmoreland v Renault UK Limited UKEATPA/1571/08

Wed, 16 Sep 2009 11:33:23 GMT

Practice and Procedure - Time for appealing

This is an appeal regarding the time limits for lodging a proper notice of appeal. At 15.12 on day 42, a Claimant did not attach the Judgment and reasons to a Notice of Appeal sent by email. There were no reasons to explain his mistake nor a request to grant an extension. Observations on the EAT’s approach. Reliance on Woodward requiring the Appellant to show it was impossible to lodge the appeal was incorrect but the Registrar correctly refused to register the appeal.

Mr O Akintola v Capita Symonds Limited UKEAT/0261/09

Wed, 16 Sep 2009 11:32:43 GMT

Victimisation Discrimination - Detriment

This is an appeal which held that the Employment Tribunal could not be faulted in making no decision on detriment suffered by the Claimant as a result of an alleged protected disclosure since it was not an issue to be determined. Anyway, the findings of the Employment Tribunal on the relevant issues, upheld by Burton J at a Rule 3 hearing, would have defeated any such claim.

Ms D Merelie v Newcastle Primary Care Trust UKEAT/0203/09

Wed, 16 Sep 2009 11:31:59 GMT

Practice and Procedure - Striking-out/dismissal

The Claimant dentist was dismissed in 2001 after an irreparable breakdown in working relationships from 1998. The Employment Judge struck out her claims as firm findings in her High Court claims at a three week trial in 2006 meant there was no reasonable prospect of her succeeding on unfair dismissal and a fair trial of that and disability discrimination was impossible in 2009. The Respondent operated the correct disciplinary procedure. Application to amend the Notice of Appeal refused: Khudados applied. Appeal dismissed.

Ms M C Miller v Lambeth Primary Care Trust UKEAT/0181/09

Tue, 25 Aug 2009 16:13:58 GMT

Practice and Procedure - Review

(1) Peninsula Business Services Limited (2) Ms J English v (1) Mr I G Rees (2) Mr J McLachlan (3) Mr F Jaffier UKEAT/0333/08, UKEAT/0340/08, UKEAT/0334/08, UKEAT/0335/08.

Tue, 25 Aug 2009 16:13:12 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

The Appellants are a large organisation offering employment advice and representation before Employment Tribunals and the Employment Appeal Tribunal. The same Employment Judge heard the cases of Mr Rees and others and Miss Malik against Peninsula. Shortly before the resumed hearing of the case of Mr Rees and others, the five partner firm of solicitors in which the then part time Employment Judge was an employment law specialist, advertised their employment law expertise and denigrated non-solicitor employment law consultants. Although not named, the Appellants are well-known and perhaps the largest such consultants. A fair-minded and informed observer could not have excluded the possibility of bias against Peninsula by the Employment Judge. (Porter v McGill [2002] 2 AC 357 and Locabail v Bayfield Properties Limited [2000] IRLR 96 applied). The judgment in the case of Mr Rees and others is set aside on grounds of apparent bias. The case is remitted for rehearing before a different Employment Tribunal.

In the case of Miss Malik, after recusal of a lay member, the Appellant’s representative consented to the case continuing with the Employment Judge and the remaining lay member. Although consent was reluctantly given it constituted proper waiver of the apparent bias (Locabail and Jones v Das Legal Expenses Insurance Co Ltd [2004] IRLR 218). The presence of the Employment Judge on the Tribunal in that case did not give rise to the appearance of bias on the grounds it did in Mr Rees’ case. The distance in time between the advertisement and the hearing of Miss Malik’s case and the fact that the by now full-time Employment Judge was no longer a partner in the solicitors’ firm removed any real risk of appearance of bias by the presence of the Employment Judge on the Tribunal in that case (Locabail, para 89). The bias ground of appeal in the case of Miss Malik is dismissed. The appeal will be relisted for determination of other grounds of appeal in that case.

Mr T Gill v Humanware Europe Limited UKEAT/0312/08

Tue, 25 Aug 2009 16:12:32 GMT

Practice and Procedure - Costs

Following the setting aside of the Employment Tribunal Judgment on grounds of apparent bias, a wasted costs order was made in respect of the improper conduct of counsel which contributed to the irregularity in procedure.

DHL Exel Supply Chain Limited v Mr M Davies UKEAT/0035/09

Tue, 25 Aug 2009 16:11:48 GMT

Jurisdictional Points - Extension of time: reasonably practicable

In relation to the Claimant’s application for an extension for an out of time application for unfair dismissal, the Employment Judge (“EJ”) made a finding that the dismissal was on 21 December 2007 but that, although there was uncertainty prior to 8 February, the Claimant was on and after 8 February under the belief that he was dismissed on 8 February. The EJ found that the Claimant had that belief notwithstanding clear statements that he was dismissed on 21 December, by the Appellant to the Claimant and his representative on 8 February, by the Claimant himself on 5 March and in correspondence. EJ made no finding that such belief was and/or continued to be reasonable. Not remitted, because no tribunal could find that it was.

Leeds City Council v (1) Mr M Woodhouse (2) West North West Homes Leeds Limited (3) Mr M Chapman UKEAT/0521/08

Tue, 25 Aug 2009 16:10:57 GMT

Race Discrimination - Contract workers

Leeds contracted with WN for WN to provide housing services. WN contracted with Leeds for a department of Leeds to provide housing services back to WN so that WN could discharge its contractual duty to Leeds. WN employed Claimant. WN supplied Claimant to Leeds. Leeds employed Mr Chapman. Pursuant to section 7 Race Relations Act 1976, Claimant was a contract worker of WN to Leeds as principal. Leeds was liable for any discrimination by Mr Chapman. Leeds’ application to strike out the claim was correctly dismissed by Employment Judge.

Amnesty International v Miss B Ahmed UKEAT/0447/08

Tue, 25 Aug 2009 16:10:10 GMT

Race Discrimination - Direct

Claimant, of (northern) Sudanese ethnic origin, applied for promotion to role of “Sudan researcher” for Amnesty International – Not appointed because Amnesty believed that the appointment of a person of her ethnic origin would compromise its perceived impartiality (and thus its effectiveness) and would expose the Claimant (and those with her) to an increased safety risk when visiting Sudan or the camps in Eastern Chad – Claimant resigned and claimed for race discrimination and unfair (constructive) dismissal

Held: (1) Tribunal right to hold that the Claimant’s non-appointment constituted direct discrimination on the grounds of her national/ethnic origin, contrary to ss. 1 (1) (a) and 4 (2) (b) of the Race Relations Act 1976, notwithstanding Amnesty’s (potentially) justifiable reasons for the decision – James v Eastleigh Borough Council applied – Discussion of relationship between James and Nagarajan/Khan. (2) Tribunal entitled to hold that Amnesty had not proved that appointing the Claimant would have put it in breach of s. 2 (1) of the Health and Safety at Work Act 1974, so as to be able to invoke the defence under s. 41 (1) of the 1976 Act – Discussion of Hampson v DES, Goba v GMC and Page v Freight Hire (Tank Haulage) Ltd. (3) The Tribunal’s alternative finding of indirect discrimination insufficiently reasoned on the justification issue. (4) It did not necessarily follow from the finding of discrimination that Amnesty was in breach of the Malik term, so as to entitle the Claimant to claim constructive dismissal; and in the particular circumstances of the present case no such breach had occurred.

A v (1) B (2) C UKEAT/0450/08

Tue, 25 Aug 2009 16:09:19 GMT

Practice and Procedure - Striking-out/dismissal

Queen's Victoria Seamen's Rest Limited (QVSR) v Mrs D Ward UKEAT/0465/08

Tue, 25 Aug 2009 16:08:37 GMT

Sex Discrimination - Pregnancy and discrimination

The Employment Tribunal upheld complaint of continuing course of conduct amounting to discrimination on grounds of pregnancy. On appeal, the employers sought to argue that the Employment Tribunal had misapplied the statutory requirement that discrimination must be “on the ground of” pregnancy. The Employment Tribunal found to have correctly stated and correctly applied the law to the facts found and appeal dismissed.

Mrs J Haldane v Highland Council UKEATS/0060/08/BI

Tue, 25 Aug 2009 16:07:58 GMT

Practice and Procedure - Amendment

Application to amend claim to add a claim of victimisation was refused by the Employment Tribunal. This is an appeal against refusal on perversity grounds. Appeal refused.

Manor Oak (PMG) Limited v Mr A Kelly UKEATS/0070/08

Tue, 25 Aug 2009 16:07:16 GMT

Unfair Dismissal - Reasonableness of dismissal

The Tribunal erred in application of the Burchell test in a case where the claimant admitted misconduct. Tribunal rightly criticised an aspect of the disciplinary hearing (related to the right to be accompanied by a representative) but failed to take account of the whole circumstances including what happened after the hearing by way of communication between the claimant and respondents and at the appeal hearing.

Ms C Tapere v South London and Maudsley NHS Trust UKEAT/0410/08

Tue, 25 Aug 2009 16:06:37 GMT

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

Construction of term
The Employment Tribunal erred in construing the terms and conditions of employment as permitting the employer to transfer the employee to another location, providing it was reasonable to do so.

Transfer of Undertakings
Where the location of the employee’s place of work is restricted to the geographical area of the employing hospital trust, a transfer of the undertaking or part of the undertaking cannot enlarge the area and the concept of “substantial equivalence” does not apply.

Objection to transfer
Whether or not a “substantial change” is to the “material detriment” of the employee (regulation 4(9) of TUPE 2006) does not fall to be “objectively determined” in the sense of balancing the competing contentions of employee and employer and deciding which position is the most reasonable; the right approach is that suggested by Lord Scott in Shamoon v Royal Ulster Constabulary [2003] IRLR 285 at paragraphs 104 and 105, namely to consider the employee’s position and ask whether it is reasonable in the circumstances for him or her to adopt that position.

The Governors of Birdwell Primary School v Mrs J A Fitzgerald UKEAT/0059/09

Tue, 25 Aug 2009 16:04:16 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

A teacher was given notice to terminate her limited-term contract of employment before a meeting to discuss it. The Employment Tribunal correctly found this was a breach of the 2002 Act regime and automatically unfair contrary to Employment Rights Act 1996 s98A. The correct sequence is this: the employer contemplates dismissal, calls a meeting to discuss it, makes the decision in the light of what was discussed and gives notice to terminate on a given date. The Step 2 meeting precedes the decision, the carrying into effect of the decision by giving notice, and its expiry. Employer’s appeal dismissed.

GMB Union & Others v (1) Mr A Hughes (2) Mr M Beaumont (3) Mr P F Hoggarth UKEAT/0528/08

Tue, 25 Aug 2009 16:03:32 GMT

Practice and Procedure - Case Management

Specific disclosure orders made at CMD attacked on grounds of relevance, proportionality and confidentiality. No error of law in Employment Judge’s approach to the first two grounds; the third was, on balance, not argued below and was not permitted for the first time on appeal, applying the Kumchyk line of authorities (no exceptional circumstances shown).

Royal Mail Group Limited v Mr K J Hunkin UKEAT/0507/08

Tue, 25 Aug 2009 16:02:48 GMT

Disability Discrimination - Reasonable adjustments

The Claimant suffered from plantar fasciitis and asthma. The Tribunal found disability discrimination in that the employer had failed to make reasonable adjustments in that (1) it did not discount a period of absence caused by plantar fasciitis in 2005 (at a time when neither party realised that the Claimant’s foot condition might amount to a disability) when determining to dismiss him for poor attendance in July 2007 and (2) it did not make further inquiries as to whether his absence in April 2007 might have been caused by an interaction between a flu jab and his asthma (the Respondent’s medical advice then being that the asthma was mild and did not amount to a disability and there being no medical evidence that the flu jab and the asthma might have interacted). The Respondent appealed on the grounds that the decision was not Meek compliant and other grounds. Held: the decision was not Meek compliant. The Respondent could not see why it had lost and the case should be remitted for re hearing before a different panel.

Her Majesty's Attorney-General v Ms A P McCluskey UKEAT/0118/09

Tue, 25 Aug 2009 16:02:02 GMT

Practice and Procedure - Restriction of proceedings order

After 12 unsuccessful applications, numerous review applications, all dismissed, and at least 31 appeals, all dismissed or stayed, and substantial and persistent vexatious correspondence, an indefinite Restriction of Proceedings Order made.

Glasgow City Council v (1) Stefan Cross Claimants (2) Unison Claimants (3) GMB Claimants UKEATS/0007/09

Tue, 25 Aug 2009 16:01:16 GMT

Equal Pay Act

This appeal is about Equal pay claims and the Statutory grievance procedures. Claimants conceding that respondents did not require to raise the issue of their compliance with section 32(2) to (4) of the Employment Act 2002 in their form ET3 at the stage of entering appearance but contending that they did require leave to amend their forms EAT to raise the issue thereafter. Employment Tribunal agreed with claimants and held that the respondents, not having raised the issue in their forms ET3 at the stage of entering appearance, would require leave to amend their ET3’s to do so. On appeal, determination of the Tribunal reversed. On a proper interpretation of s.32(6), whilst indicating in the ET3 that they were raising the issue was one method whereby a respondent could do so, it was not the only method.

Launahurst Limited v Mr N D Larner UKEAT/0188/09

Tue, 25 Aug 2009 16:00:20 GMT

Jurisdictional Points - Worker, employee or neither

For 13 years the Claimant worked installing double glazing for the Respondent. In 2004 he signed a “contract supply agreement” though matters continued as before. On the Respondent ceasing to use his services the Claimant claimed unfair dismissal. The Respondent asserted the Claimant was not an employee but a supplier of services under the agreement which contained an “entire agreement” clause. The Employment Judge characterised the “entire agreement” clause as a sham and looking at all the circumstances held the Claimant was an employee. The Respondent appealed. Held: the Employment Judge was entitled to reach the conclusion that the entire agreement clause was a sham and looking at all the circumstances to hold that the Claimant was an employee. Appeal dismissed.

Northumberland County Council v Mrs R Railton UKEAT/0095/09

Tue, 25 Aug 2009 15:59:34 GMT

Practice and Procedure - Perversity

Perversity appeal against Employment Tribunal findings of direct race discrimination and victimisation by the Claimant’s line manager for whose acts the employer (Respondent) was responsible. High threshold required for such an appeal not crossed. Appeal dismissed.

Lomond Motors Limited v Mr Robert Clark UKEATS/0019/09/BI

Tue, 25 Aug 2009 15:58:54 GMT

Unfair Dismissal - Reasonableness of dismissal

This is an appeal regarding the pool for selection in a redundancy situation. The Employment Appeal Tribunal held that the Tribunal had erred and substituted its own view for that of the reasonable employee. The claimant agreed that there was a redundancy and that all aspects of the procedure adopted other than the selection of the pool had been fair. Appeal upheld and judgment of the Tribunal set aside. If they had not done so, the Employment Appeal Tribunal would, in any event, have set aside the award in respect of future loss of earnings insofar as it was based on an assumption of continuing payment of bonus (an assumption which was made without any basis in findings in fact and relating to the car industry in a recession).

Dunedin Canmore Housing Association Limited v Mrs Margaret Donaldson (debarred) UKEATS/0014/09

Tue, 25 Aug 2009 15:58:10 GMT

Practice and Procedure - Costs

Tribunal refused to award expenses where it dismissed claimant’s contractual claim. Claim was based on the claimant’s assertion that she had not breached the confidentiality clause in a compromise agreement, an assertion repeated by her in evidence before the Tribunal but which was not accepted. In rejecting her evidence it found that, notwithstanding her denials, she had made prohibited disclosures to two separate people. In these circumstances the Tribunal was in error in failing to find that the claimant acted unreasonably in bringing and conducting the proceedings and should have made an award of expenses against her.

Scottish Ministers v (1) Mrs M Docherty (2) Greater Glasgow Health Board UKEATS/0053/08

Tue, 25 Aug 2009 15:57:21 GMT

Equal Pay Act - Part-time Pensions

Part-time pensions. NHS employee did not join a voluntary scheme after having become eligible to do so. Circumstances in which Tribunal was found to have erred in law, not having addressed (a) the question of whether the claimant would have joined the scheme in 1988 if she had been eligible to do so; and (b) whether the claimant’s ignorance of her entitlement to join the scheme after 1991 (from which time she was eligible to do so) was attributable to a policy or campaign of the dissemination of misinformation about her rights.

Sodexo Health Care Services Limited v Miss R Harmer UKEATS/0079/08

Tue, 25 Aug 2009 15:56:37 GMT

Jurisdictional Points - Extension of time: reasonably practicable

Unfair dismissal, time limits. Procedure. Claim 23 days late. Whether reasonably practicable to have presented it within the three months period. Procedure adopted by Tribunal not appropriate. Tribunal judgment that it was not reasonably practicable for the complaint to be presented within the three month period set aside and claim dismissed.

Mrs J Bowers v William Hill Organisation Limited UKEAT/0046/09

Tue, 25 Aug 2009 15:55:45 GMT

Disability Discrimination

On a pre-hearing concession by the Respondent that the Claimant was disabled, it was not relevant to consider whether the Respondent knew the condition was likely to last 12 months, the only issue being whether the Respondent knew she was disabled, as to which the Employment Tribunal found that it was artificial to say one department did and another did not, this being a composite employer. Judgment reversed and remitted to the same Employment Tribunal for remedy.

Mr P Evershed v New Star Asset Management UKEAT/0249/09

Tue, 25 Aug 2009 15:54:40 GMT

Practice and Procedure - Amendment

Judge refused permission to Claimant to amend claim form to include claim under s. 103A of Employment Rights Act 1996

Held that Judge erred in law by failing properly to analyse the extent to which the proposed amendment would extend the scope of the issues and the evidence – Amendment permitted, applying the approach in Selkent – observations on relevance of fact that claim under s. 103A had not been explicitly covered by a grievance under the statutory procedure.

Bells Food Group Limited v Ms M J Latimer UKEATS/0021/09

Tue, 25 Aug 2009 15:53:48 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

The Tribunal had erred in applying an uplift against the Appellants for a failure to follow the Statutory Grievance Procedure. The Tribunal had based the uplift upon factors which had no correlation to the limited requirements of the statutory procedure. Appeal allowed.

Chief Constable of Lothian and Borders Police v Ms K A Cumming UKEATS/0077/08

Tue, 25 Aug 2009 15:53:00 GMT

Disability Discrimination - Disability

The Employment Tribunal found that the claimant, an applicant for appointment as a regular constable, was a disabled person. She failed the screening for the requisite vision standard. Employment Tribunal erred in finding that the respondent’s refusal to allow the claimant to go forward in her professional life amounted to a substantial adverse effect. Further, Employment Tribunal’s alternative conclusion that the claimant suffered from a visual impairment which had a substantial adverse affect on her ability to carry out normal day to day activities was perverse.

Fiona Davidson v. Dallas McMillan [2009] CSIH NO.70

Wed, 05 Aug 2009 15:53:54 GMT

In this action the claimant presented a claim against the respondents and an individual employed there alleging that she had been discriminated against by them including allegations of sexual misconduct contrary to the Sex Discrimination Act 1975. The respondents, and the individual, applied in writing and at the start of the evidential hearing on 8 May 2006 for a restricted reporting order ("RRO") and the application was granted. On the fifth day of the hearing the claimant withdrew her complaint and, as a result, the proceedings were brought to an end against the respondents in terms of rule 25(3) of the 2004 Rules. In this appeal the appellant, a freelance journalist who has experience of reporting on employment tribunals, sought to have the RRO revoked. The issues which arose here were:- (1) whether a journalist, who is not a party to the proceedings, may apply for revocation of an RRO; and (2) the point at which the jurisdiction of the employment tribunal to consider such an application comes to an end. Here the court considered whether a person who does not have "an interest in the outcome of the proceedings" (rule 10(2)(r)) but "a legitimate interest in whether or not the [RRO] is made" (rule 50(7)) is entitled, despite the absence of express provision in the 2004 Rules, to be allowed to make representations to have an RRO revoked. Further, the court considered that once withdrawal of the claim had been intimated to the employment tribunal, whether the tribunal became functus and had no power to revoke the RRO.

Network Rail Infrastructure Limited v Ms L Booth UKEAT/0071/06

Thu, 16 Jul 2009 15:02:10 GMT

Sex Discrimination - Other losses

Compensation for sex discrimination. Tribunal assessed future pension loss using the substantial loss method but without giving any credit in the overall loss assessment for pension benefits likely to be acquired in future employment. In addition there was a challenge to the loss referable to loss of private health insurance. Was the Tribunal entitled to use the method it did, and did it err in failing to give credit to future benefits? The EAT answered both questions in the affirmative.

Department for Work and Pensions v Miss C E Sutcliffe UKEAT/0319/07

Thu, 16 Jul 2009 15:01:28 GMT

Unlawful Deduction from Wages

Whether Maternity Leave policy incorporated into contract of employment. Whether sick pay is ‘remuneration’ s71 ERA. Whether entitled to sick pay whilst on maternity leave.

Jarretts Motors Limited v Mr H Wells (debarred) UKEAT/0327/08

Thu, 16 Jul 2009 15:00:47 GMT

Practice and Procedure - Striking-out/dismissal

Respondent failed to present response in time and was accordingly debarred under rule 9 – Judgment given following Hearing at which Respondent not permitted to participate – Application for review disallowed because made purportedly under rule 33 not rule 34

Held: application should have been considered as an application under rule 34 - D & H Travel [2006] ICR 1537 followed - Observations on Chowles v West (UKEAT/0473/08)

Metropolitan Resources Limited v (1) Churchill Dulwich Limited - in liquidation (2) Martin Cambridge & Others UKEAT/0286/08

Thu, 16 Jul 2009 14:59:59 GMT

Transfer of Undertakings - Transfer

Migrant Helpline, on behalf of the Home Office; had a contract with Churchill Dulwich Ltd – in Liquidation (‘CD’) by which CD provided accommodation to asylum seekers. Before that contract expired the Migrant Helpline entered into a replacement contract with Metropolitan Resources Centre Ltd (‘MRL) for such provision at a different location; CD received no more asylum seekers and had only a small number of asylum seekers who because of ill-health could not be moved on immediately; all other asylum seekers were from 26.1.07 allocated to MRL. When CD’s contract expired on 02.4.07 CD’s employees claimed that there had been a transfer to MRL of their employment under Reg 3(1)(b) of TUPE 2006 i.e. a service provision change. The Employment Tribunal on a preliminary issue held that there had been such a transfer.

Held (1) That the approach in Cheeseman did not apply to the question – Was there a service provision charge; the concept of service provision change is a new statutory concept. (2) in considering that question the Employment Tribunal had to consider whether the service provided after the change was fundamentally or essentially the same as that provided before the change. (3) the answer to that was a matter of fact. (4) The fact that the transfer did not wholly take place on one day, that the employees did not leave CD on the date identified as the date of transfer and that the providers used different locations were not individually or collectively fatal to the existence of a service provision charge; the Employment Tribunal had considered these matters in reaching its factual conclusion. (5) The Tribunal had correctly directed themselves and reached a factual conclusion which was open to them.

The Royal Bank of Scotland Group Plc v Mr P Wilso UKEAT/0363/08

Thu, 16 Jul 2009 14:58:35 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

Appeal allowed. The Tribunal erred in law in its approach to the questions to be determined for the purposes of section 98(4) of the Employment Rights Act 1996, effectively substituting its own views. The Tribunal did not, however, evince apparent bias.

Mr I T Farr v Ryefell Limited UKEAT/0019/09

Thu, 16 Jul 2009 14:56:42 GMT

Jurisdictional Points

The timeliness of a claim is logically prior to the ability to make a claim by reason of length of service. Thus it should be determined first and separately.

Mr G A Mitchell v Barratt Homes (Leeds) Limited UKEATPA/0903/08

Thu, 16 Jul 2009 14:55:55 GMT

Practice and Procedure - Time for appealing

The Claimant was 2 months late in applying for a Rule 3(10) hearing expressing dissatisfaction with a Rule 3 opinion and the Registrar refused to extend time. He had instead applied to the Court of Appeal which rejected his application as he had not exhausted the EAT procedure. His appeal against the Registrar was exceptionally allowed in. His application to adduce fresh evidence was refused. His Notice of Appeal under Rule 3(10) had no prospect of success.

(1) Mr P McAvoy (2) Mr P Llewellyn & Others (3) Mr P McAvoy & Others v (1) South Tyneside Borough Council (2) Hartlepool Borough Council (3) Middlesbrough Borough Council UKEAT/0276/08

Thu, 16 Jul 2009 14:55:13 GMT

Equal Pay Act - Material factor defence and justification

Male colleagues of female equal pay claimants may bring “piggyback” contingent claims using the female claimants as comparators and may recover sums equivalent to those awarded to such comparators by way of arrears.

Middlesbrough Borough Council v Mr R Ashcroft & Others UKEAT/0168/08

Thu, 16 Jul 2009 14:54:32 GMT

Equal Pay Act - Material factor defence and justification

South Tyneside Borough Council v Mr P McAvoy & Others UKEAT/0058/08

Thu, 16 Jul 2009 14:53:49 GMT

Equal Pay Act - Material factor defence and justification

Middlesbrough Borough Council v Mr A Matthews & Others UKEAT/0057/08

Thu, 16 Jul 2009 14:53:06 GMT

Equal Pay Act - Material factor defence and justification

Hartlepool Borough Council v Mr P Llewellyn & Others UKEAT/0006/08

Thu, 16 Jul 2009 14:52:19 GMT

Equal Pay Act - Material factor defence and justification

Nationwide Building Society v Mr D M Niblett UKEAT/0524/08

Thu, 16 Jul 2009 14:51:35 GMT

Unfair Dismissal - Constructive dismissal

The Tribunal erred in law in its approach to the question of constructive unfair dismissal, misapplying the judgment of the Employment Appeal Tribunal in Abbey National plc v Fairbrother [2007] IRLR 320. Discussion of Abbey National plc v Fairbrother and Claridge v Daler Rowney Limited [2008] IRLR 672.

Note: shortly before this judgment was to be handed down, a different division of the Appeal Tribunal handed down judgment in Bournemouth University Higher Education Corporation v Buckland [2009] UKEAT/0492/08. That division of the Appeal Tribunal, declined to follow Abbey National plc v Fairbrother and Claridge v Daler Rowney Limited. We have incorporated references to Bournemouth University Higher Education Corporation v Buckland in this judgment and explained why we have not considered it necessary for the purposes of this appeal to call for any further argument or to express any concluded view as to the effect of the Bournemouth case.

Mr D Joao v Mesh Computers Plc UKEAT/0529/08

Thu, 16 Jul 2009 14:50:52 GMT

Practice and Procedure - Amendment

Employment Tribunal refused Claimant’s late application to amend to add the “label” of unfair dismissal to the facts already pleaded and when both parties had prepared evidentially to deal with an unfair dismissal claim. Claimant’s appeal allowed.

Employment Tribunal’s dismissal of Claimant’s complaints of race discrimination and victimisation held not to be Meek compliant, given the extensive factual disputes and the brief, inadequately reasoned decision on a crucial issue in the case. Claimant’s appeal allowed. Claims all remitted for a fresh hearing.

Wansbeck District Council v Mr N L Fisher UKEAT/0461/08

Thu, 16 Jul 2009 14:50:06 GMT

Practice and Procedure - Perversity

The decision of the Employment Tribunal was based on a clear failure to understand undisputed facts that were central to its decision. The failure was so clear and fundamental as to give rise to an error of law. British Telecommunications v Sheridan [1990] IRLR 27 (CA) applied.

Archer-Hoblin Contractors Limited v Mr G MacGettigan UKEAT/0037/09

Thu, 16 Jul 2009 14:48:21 GMT

Working Time Regulations - Worker

In determining whether the Claimant was a worker within the meaning of the Working Time Regulations 1998. The Employment Judge erred in taking into account whether the Claimant actually performed work or services personally rather than determining the issue by reference to the terms of the substitution clause. The substitution clause gave an unqualified right to the claimant to delegate and so was inconsistent with a contract to perform personally any work or services within the meaning of WTR Regulation 2(1). Consistent Group Ltd v Kalwak [2007] IRLR 367 and Premier Groundworks v Sozsa [2009] UKEAT/0494/08 applied. Autoclenz Ltd v Belcher and others [2008] UKEAT/0160/08 distinguished.

The Employment Judge erred in failing to consider whether the substitution clause reflected the intention of the parties when deciding whether it was a sham. Applying Protectacoat Firthglow Ltd v Szilaghyi [2009] IRLR 365.

Appeal and cross appeal allowed. Case remitted to the Employment Judge to determine whether the substitution clause was a sham and in the light of that whether the Claimant was a worker within the meaning of the WTR.

Mr E Ho v The University of Manchester UKEAT/0509/08

Thu, 16 Jul 2009 14:47:19 GMT

Unfair Dismissal - Procedural fairness/automatically unfair dismissal

The Employment Tribunal was wrong to hold that the statutory disciplinary procedures did not apply in a case where the employer believed that the Claimant was not an employee.

Mrs H El-Megrisi v Azad University (IR) in Oxford UKEAT/0448/08

Thu, 16 Jul 2009 14:46:32 GMT

Victimisation Discrimination - Whistleblowing

Appellant raised concerns with employer about immigration status of staff and students, and other alleged irregularities – Dismissed shortly afterwards – Claim of ‘ordinary’ unfair dismissal but also of detriment and dismissal for making a protected disclosure contrary to ss 47B and 103A of the Employment Rights Act 1996.

Held: (1) Tribunal failed to deal with claim under s. 47B. (2) On its factual findings as to the reason for the dismissal the Tribunal should have found unfair dismissal contrary to s. 103A – It wrongly focused only on the Appellant’s most recent disclosure, and held that that was not the principal reason for her dismissal, having regard to her previous history of difficulties with the Respondent – That approach failed to take into account that that history itself largely consisted of other protected disclosures.

(1) Ironopolis Film Co Limited (2) Mr M McCarthy (3) Mr J Stalker (4) Mr C Stangoe UKEAT/0314/08

Thu, 16 Jul 2009 12:05:10 GMT

Practice and Procedure - Striking-out/dismissal

The Employment Judge through the Tribunal Office wrongly informed the second, third and fourth Respondents that they could not take any action in the proceedings other than to seek a review. When striking out the responses under the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 Schedule I Rule 18(7) he erred in proceeding as if Rule 9 applied. Those Respondents were deprived of the opportunity of making representations at the hearing. Judgment on liability of the Second, Third and Fourth Respondents was set aside and the case against them remitted to a differently constituted Employment Tribunal. Judgment on liability of the First Respondent remains in place. The case against the First Respondent is remitted to a differently constituted Employment Tribunal to determine remedy.

Islam Channel Limited v Ms V Ridley UKEAT/0083/09

Thu, 16 Jul 2009 12:03:57 GMT

Unfair Dismissal - Compensation

The Claimant was unfairly dismissed. She found work, which paid more than the old job but then it paid less and this lesser rate was paid at the date of the remedy assessment. The Employment Tribunal found the new job was inherently insecure and awarded the sum claimed of one year’s forward loss at the mitigated rate. Between dismissal and assessment she earned more in total than in the old job. The Employment Tribunal did not err when it did not give the employer credit for this sum toward the forward loss. Dench principles considered.

Mr A Smith v Oxfordshire Learning Disability NHS Trust UKEAT/0176/09

Thu, 16 Jul 2009 12:02:32 GMT

National Minimum Wage

The Appellant, a care worker in a residential home, was required on occasion to “sleep in” at the home, in return for a flat-rate payment (“the sleep-in payment”) which equated to an hourly payment of £2.70. It was conceded by the employer that his time doing so was “time work” within the meaning of the National Minimum Wage Regulations 1999 and accordingly fell to be taken into account in calculating whether the national minimum wage had been paid. The Appellant argued, however that the sleep-in payment fell to be excluded because it constituted an “allowance”: see reg. 31 (1) (d).

Held (by a majority) that the sleep-in payment was not an allowance within the meaning of the Regulations (Burrow Down [2008] ICR 1172 referred to) and accordingly ought to be taken into account. (However, if the payment had been an allowance it would not have been “attributable to the performance of the worker in carrying out his work” so as to fall within the words of exclusion in reg. 31 (1) (d) – Bellfield (UKEAT/0194/00) followed.)

Burnley Borough Council v Mrs K A Davies & Others UKEAT/0522/08 & UKEAT/0523/08 & UKEAT/0033/09

Thu, 16 Jul 2009 12:01:18 GMT

Unfair Dismissal - Reasonableness of Dismissal

Change of terms and conditions of employment. Dismissal on notice with offer of re engagement. Whether inadequate consultation rendered dismissals unfair under s98(4). Application of s98A(2). Approach to Polkey question in assessing financial compensation.

Mr R Evans v Barclays Bank Plc UKEAT/0137/09

Thu, 16 Jul 2009 12:00:18 GMT

Unfair Dismissal - Compensation

The Employment Tribunal made no error in assessing pension loss by reference to the Ogden Tables. The Employment Appeal Tribunal will not readily interfere with the assessment of compensation.

Mrs J Y Martin v (1) Essex County Council & Others (2) Secretary of State for Education and Employment UKEAT/0138/09

Thu, 16 Jul 2009 11:58:28 GMT

Equal Pay Act - Article 141/European law

Since Slack a claim for equal access based on a stable employment relationship cannot be struck out, as being out of time, when the series of short term contracts of employment is succeeded by a permanent contract.

(1) Sumukan (UK) Limited (2) Sumukan (BVI) Limited v Mr B Raghavan UKEAT/0087/09

Thu, 16 Jul 2009 11:57:30 GMT

Practice and Procedure - Perversity

The judgment of the Employment Tribunal was not perverse notwithstanding the fact that two out of the three reasons advanced by the Employment Tribunal for regarding the evidence of the managing director of the first appellant as not reliable were unsound. The third reason was supported by evidence. There was an error of law by the Employment Tribunal on the question of compensation by not crediting the sums actually received by the Respondent against the award of compensation wrong; this was so even if the point had not been argued below because it was obvious. It was not an error, however, to fail to give credit in respect of benefits in kind where this had not been argued below; the point was not obvious. The award of £500.00 costs was not adequately reasoned. Counterclaims, which have previously been revoked, cannot be dismissed.

Mr B E Saunders v OCS Group Limited UKEAT/0051/09

Thu, 16 Jul 2009 11:55:58 GMT

Unfair Dismissal - Compensation

Whether a nil award of compensation under section 123(1) of the ERA 1996 could have been made without misdirection as to the correct approach to the section? The fact that a third party had withdrawn a licence for the employee to be on its premises under the erroneous impression that he had caused damage to its property was regarded by the Employment Tribunal as requiring a nil award without any consideration as to the “what if” scenario, which should have included consideration as to the reasonable employer asking for the licence to be reinstated. Remitted to Employment Tribunal.

London Probation Board v Mr D Lee UKEAT/0493/08

Fri, 03 Jul 2009 10:44:00 GMT

Contract of Employment - Disciplinary and grievance procedure

The Employment Tribunal had not erred in construing the terms and conditions of employment as not permitting the employer to transfer the employee to other duties; in any event, the use of any power to transfer as a disciplinary sanction was unlawful.

There was no error of law when the Employment Tribunal expressed the view that there was no contributory fault on the part of the employee.

Miss S C Eagles v Rugged Systems Limited UKEAT/0018/09

Mon, 15 Jun 2009 07:16:00 GMT

Jurisdictional Points

Regulation 15 of the 2004 Regulations extends from three to six months the deadline under the Employment Rights Act 1996 s 111. The Claimant relied on negotiations over a compromise agreement to invoke Regulation 15. The Employment Judge wrongly focused on whether she had an internal appeal. Towergate applied, Piscitelli distinguished. In this case where the Claimant was raising money and substantive issues on unfair dismissal, she was entitled to rely on the negotiations legally funded by the Respondent over a compromise as a dismissal procedure. A compromise under the Employment Rights Act 1996 s 203 is a (statutory) procedure about a dismissal designed to resolve a dispute without issuing a claim, within Shergold paragraph 26. Remitted to same Employment Judge to determine.

Mr D R Barwick v Avon & Somerset Constabulary UKEAT/0009/09

Fri, 12 Jun 2009 07:30:00 GMT

Unfair Dismissal - Constructive dismissal

The substance of the claim brought by the Claimant, a police officer, was that he had been forced to resign as a result of racially instituted discrimination and had then been constructively dismissed. He had, however, incorrectly completed the boxes in his ET1 as he completed the box for dismissal rather than for discrimination. Police officers are only permitted to claim for unfair dismissal if the dismissal is on discriminatory grounds. The Employment Judge was wrong to refuse the Claimant permission to amend. He was not seeking to add a new cause of action but to correctly label his existing claim. Appeal allowed.

GBM Services Limited v Mr M Taj UKEAT/0063/09

Thu, 11 Jun 2009 07:27:00 GMT

Practice and Procedure - Case Management

Permissible case management decision by Employment Tribunal hearing substantive case to add two issues, pleaded in Form ET1, to list of issues formulated at earlier Case Management Discussion, having raised the matter on its own initiative and heard representations from both parties. Whether reasons Meek compliant in relation to finding that the Claimant had passed stage 2 of Igen v Wong test. Whether Employment Tribunal correctly directed themselves as to stage 1 of Igen. Appeal dismissed.

Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants), [2009] UKHL 31

Wed, 10 Jun 2009 12:05:00 GMT

This summary has been taken from Daniel Barnett’s Employment Law Bulletin and has been prepared by Michael Ford of Old Square Chambers who was instructed by Thompsons on behalf of the employees.

The House of Lords has decided in favour of the workers in the long-running litigation in Stringer v. HMRC (sometimes referred to as Ainsworth v HMRC), overturning the Court of Appeal.

Their Lordships have now unanimously held that a claim for (i) unpaid holiday under regulations 13 and 16 of the Working Time Regulations or (ii) a payment on termination under regulation 14 can be pursued as unauthorised deduction claims as well as under the Working Time Regulations. The important practical effect is that a worker can take advantage of the more generous time limits which apply to unlawful deduction claims. A claim for unlawful deduction from wages can be brought within three months of the last in a series of deductions, so allowing a claim to go back more than three months if the underpayments form part of a series.

The ECJ had previously decided that a member state (i) could allow a worker off sick to take annual leave; or (ii) could prevent a worker taking leave while off sick but - and this is the critical point - only if the worker has the right to carry over annual leave to subsequent leave years if he or she was unable to take leave because of illness. It also held that compensation payments on termination should not be discounted on account of sickness.

Mr G Briggs & Others v Nottingham University Hospitals NHS Trust UKEAT/0483/08

Wed, 10 Jun 2009 07:21:00 GMT

Contract of Employment - Written particulars

The Claimants are maintenance supervisors of craftspersons in the NHS. As a matter of construction, AFC as incorporated into the Claimants’ contracts in the context of a desire to create gender-free pay systems did not entitle them to the Recruitment and Retention Payments made to the craftspersons they supervised, even though all were required to have the same qualifications and the Claimants did do some work “on the tools”. Majority Employment Tribunal Judgment (Employment Judge dissenting) upheld.

Central & North West London NHS Foundation Trust v Mr B Abimbola UKEAT/0542/08

Tue, 09 Jun 2009 07:30:00 GMT

Unfair Dismissal - Reinstatement/re-engagement

Order for reinstatement made. The Employment Tribunal failed to take into account relevant factors in the exercise of their discretion. Appeal allowed; reinstatement order set aside.

Dr S P Verma v (1) Harrogate & District NHS Foundation Trust (2) Mrs J Mockford UKEAT/0155/09

Tue, 09 Jun 2009 07:15:00 GMT

Practice and Procedure - Costs

Partial costs order by Employment Tribunal. Illogical to award Counsel’s fee but not solicitors’ costs. Appeal allowed.

Mrs J H Knight v Treherne Care & Consultancy Limited UKEAT/0384/08

Mon, 08 Jun 2009 07:29:00 GMT

Unfair Dismissal

The Employment Tribunal erred when it found the employee was not unfairly dismissed. There was no disciplinary hearing. In the light of London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 the Employment Tribunal concentrated wrongly on the conduct of the Claimant and not upon the conduct of the Respondent. In the light of Strouthos v London Underground Limited [2004] IRLR 402 CA a charge of deliberate falsification or lying has to be put squarely. Remitted for rehearing.

Dumfries and Galloway Council v Mrs E North & Others UKEATS/0047/08

Mon, 08 Jun 2009 07:25:00 GMT

Equal Pay Act - Work rated equivalent

244 Equal Pay claims by classroom assistants, support for learning assistants and nursery nurses employed by local authority. They sought to compare themselves with male manual workers based elsewhere, at depots and at a swimming pool, and employed as road workers, groundsmen, refuse collectors, refuse drivers and a leisure attendant. There were also male manual workers employed by the local authority at schools (i.e. the same establishments as them), as janitors, but the claimants did not seek to compare themselves with them. The issue was whether or not the claimants and their chosen comparators were in the same employment for the purposes of section 1(2)(c) of the Equal Pay Act 1970. The Employment Tribunal found that they were. Judgment reversed on appeal. On a proper construction of section 1(6) of the 1970 Act, the claimants and comparators were not in the same employment. It had not been established that the comparators would or could have worked, in their comparator jobs, at schools. Even if it was possible to hypothesise that they could have been so employed, it had not been established that their terms and conditions would have been broadly similar to those on which they were employed when not based at schools.

Mr M Hussain v Mitie Security Limited UKEAT/0342/08

Fri, 05 Jun 2009 07:32:00 GMT

Practice and Procedure - New evidence on appeal

Witness before Tribunal changed his evidence concerning a critical date from that which was in his witness statement. Tribunal made critical finding on that basis.

Application on appeal to adduce fresh evidence – Ladd v Marshall principles applied – evidence could not have been obtained with reasonable diligence for use at the Tribunal hearing – evidence would probably have had an important bearing on the hearing – evidence accepted to be credible. Appeal allowed.

Mr E McBride v Standards Board for England UKEAT/0092/09

Fri, 05 Jun 2009 07:20:00 GMT

Practice and Procedure - Case Management

Powers of Employment Judge at CMD. Whether she could (a) rule witnesses’ evidence irrelevant and inadmissible at trial (b) direct that certain evidence should be heard in private at trial; whether right to a fair trial under Art 6 infringed impermissibly at CMD contrary to Employment Tribunals Rule 17(2).

On appeal, no procedural irregularity upheld. Agreed variation of Employment Judge order endorsed.

Mr N Ahunanya v Scottish & Southern Energy Plc UKEAT/0540/08

Thu, 04 Jun 2009 07:34:00 GMT

Unfair Dismissal - Mitigation of loss

Various decisions in remedy appealed unsuccessfully.

Euro Hotels (Thornton Heath) Limited v Mr M Alam UKEAT/0006/09

Wed, 03 Jun 2009 07:28:00 GMT

Practice and Procedure - Postponement or stay

Employment Tribunal gave Judgment at a hearing in the absence of the Respondent. It held a review and refused to vary the Judgment. It erred in taking account of the Respondent’s ability to recover from its insurers, and in not accepting that the office had not made a call to the Respondent, the Respondent had made a diary error and sought a postponement before Judgment was made, and shortly thereafter a representative and the Respondent attended.

Substantive and review Judgments set aside, save for costs orders, and full hearing ordered. Observations on Rule 35 (review).

Mr J Lambden v (1) Henley Rugby Football Club (2) Henley Rugby Football Club Limited UKEAT/0505/08

Fri, 29 May 2009 07:35:00 GMT

Contract of Employment - Whether established

The Claimant was a part time Rugby Coach. The Employment Tribunal found that he had freely elected to be paid as an independent contractor though a limited company he acquired for the purpose, rather than on a PAYE basis. He rendered invoices subject to VAT for a gross fee for coaching services rendered by him. The E.T. found that certain factors in the relationship between the Claimant and Respondents were more consistent with employment as opposed to self employment or were neutral; these included the following; (a) the provision of a car and credit card; (b) the Claimant’s autonomy in playing matters; (c) the Claimant was found to be under the Respondents’ control; (d) the Claimant received holiday pay; (e) the Claimant was paid a fixed sum regardless of the number of hours he worked; (f) the Claimant worked a substantial number of hours.

The ET correctly directed itself as to the law and concluded that the Claimant’s course of conduct during the period in question was incompatible with his being in an employment relationship, because he had freely chosen to conduct the relationship on the basis that he was an independent contractor. The Employment Tribunal had not made an error of law and its characterisation of the relationship between the parties as not being an employment relationship could not be faulted.

Mr S Little v BMI Chiltern Hospital UKEAT/0021/09

Thu, 28 May 2009 07:25:00 GMT

Jurisdictional Points - Worker, employee or neither

Hospital bank porter. Whether an employee? Absence of mutuality of obligations. Prater (CA) and N.W. Probation v Edwards (EAT) distinguished. Employment Tribunal entitled to find he was not employed under a succession of short engagements. He could, on the facts, be sent home during a shift if no longer required to work, without pay, for the remainder of the shift.

HCA International Limited v Ms J May-Bheemul UKEAT/0173/09

Thu, 28 May 2009 07:19:00 GMT

Practice and Procedure - Postponement or stay

General stay of Employment Tribunal proceedings; Employment Tribunal Rules 11 & 12 – application for order “ex parte”; Employment Tribunal intention not to serve order on other party. Third Party confidentiality and possible P.1.1. Joinder of Third Party. Right to have application for original application to be revoked heard. Appeal allowed; matter remitted for revocation application to be heard.

Dolphin Drilling Personnel PTE Limited v (1) Mr Alan Winks (2) Dolphin Drilling Limited UKEATS/0049/08

Wed, 27 May 2009 07:27:00 GMT

Jurisdictional Points - Working outside the jurisdiction

This is an appeal on jurisdiction in an unfair dismissal claim. Claimant was employed by the respondents, a Singapore company, as a storeman working in the offshore industry. He worked on an oil rig registered in Singapore operated by a company registered in the UK when it was in the Gulf of Mexico and, latterly, when it was off the coast of Nigeria. He was dismissed and sought to pursue a claim of unfair dismissal before the Employment Tribunal in Aberdeen. Tribunal found that it had jurisdiction on the basis that there was a substantial connection between Great Britain and the employee/his employment. On appeal, the EAT found that the Tribunal had applied the wrong test, under reference to Lawson v Serco Ltd [2006] ICR 250. It had erred in concluding that it had jurisdiction. Claim dismissed.

Mr C W Parsons v Burworth Estates (a firm) UKEAT/0547/08

Wed, 27 May 2009 07:21:00 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

Constructive dismissal – Tribunal wrong to have held that the complaints relied on by the Claimant had not been the subject of a prior grievance – Cyprus Airways Ltd v Lambrou UKEAT/0526/06 considered.

European Wellcare Scotland (11) Limited v Mrs A Lucas UKEAT/0444/08

Fri, 22 May 2009 07:31:00 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

Appeal dismissed. No error of law in the Tribunal’s reasoning and no bias or procedural irregularity. Appeal misconceived; costs awarded.

Dr R Benveniste v Kingston University UKEAT0176/08

Mon, 18 May 2009 07:36:00 GMT

Contract of Employment - Notice and pay in lieu

The employer dismissed the employee with immediate effect but notwithstanding this paid her six months notice. The Claimant argued that by this payment the employer had waived the dismissal without notice and that she was entitled to be compensated for the loss of pension right for that period. The EAT dismissed the appeal and accepted that the test was whether the employer was entitled to dismiss the employee and that there was copious evidence upon which the Employment Tribunal could reach their conclusion.

Compass Group UK & Ireland Limited t/a Eurest v Miss N Okoro UKEAT/0055/08

Mon, 18 May 2009 07:33:00 GMT

Statutory Discipline and Grievance Procedures - Whether infringed

The Tribunal erred in law in finding that the Appellant had not complied with the requirements of step 2 of the Standard Dismissal and Disciplinary Procedure (Schedule 3 to the Employment Act 2002). Finding of automatic unfair dismissal, and consequential increase in award by virtue of section 31(3) set aside.

The Tribunal did not err in law in finding the dismissal to be substantively unfair. Nor did it err in law in its assessment of contributory fault and decrease in award by virtue of section 31(2).

Remploy Limited v Ms G A Shaw UKEAT/0452/08

Mon, 18 May 2009 07:32:00 GMT

Jurisdictional Points - Extension of time: reasonably practicable

An Employment Tribunal is entitled to hold that it is not reasonably practicable for a Claimant to present a dismissal claim while an internal procedure is ongoing, anticipating reliance on Regulation 15 of the 2004 Regulations. Such a finding can also cover a short period of time before the deadline expires: see Ashcroft.

Separately, Regulation 15 is directly applicable only when the Claimant reasonably believes, up to the expiry of the three month deadline, that a procedure is ongoing. The deadline is then extended to six months. It has no application except to give the one-off extension from three to six months.

When an internal appeal failed eight months after dismissal, reliance could not be placed on Reg 15 itself, or indirectly to say it was not reasonably practicable to present the claim in the first three months. Case remitted.

Ms A Osborne v Royal Brompton & Harefield NHS Trust UKEAT/0549/08

Tue, 12 May 2009 10:33:00 GMT

Jurisdictional Points - Extension of time: just and equitable

This is an appeal regarding the adequacy of the Tribunal’s reasoning for finding that it was not just and equitable to extend time for the Claimant to bring a claim of disability discrimination.

Given the factual findings and the paucity of reasoning in the conclusions, the appeal was allowed and the matter remitted.

Miss D Sadare v London Borough of Lambeth UKEAT/0116/09 & UKEAT/0117/09

Tue, 12 May 2009 10:32:00 GMT

Practice and Procedure - Review

The Tribunal held (a) that Appellant’s unfair dismissal claim was out of time and (b) that she had not previously lodged a grievance relating to her disability discrimination claim, so that the Tribunal had no jurisdiction by virtue of s.32 of the Employment Act 2002. As to (a), appeal dismissed because the decision had been varied on review. As to (b), held that although the acts complained of had been the subject of a grievance it was necessary for the purposes of s.32 that the employer should have been enabled to understand the legal character of the complaint being made; and that since the acts in question had been explicitly characterised as complaints of race and sex discrimination and there were no indications of a complaint of disability discrimination that requirement was not satisfied.

North Tyneside Primary Care Trust v Ms S Aynsley & Others UKEAT/0489/08

Mon, 11 May 2009 10:48:00 GMT

Practice and Procedure - Striking-out/dismissal

Equal pay claims constituting one of the multiples in the Newcastle proceedings – Respondent’s response struck out for non-compliance with an unless order – Strike-out reviewed by Employment Tribunal purportedly under rule 34 but allowed to stand.

Held that rule 34 has no application to the strike-out of a response as opposed to a claim form (Uyanwa-Odu v Schools Office Services Ltd. and Neary v St. Alban’s Girls School distinguished); but held that substantially the same exercise fell to be carried out under rule 10 (2) (n): Hart v English Heritage followed.

Held that in the circumstances of the particular case, and having regard to CPR 3.9, the Judge was wrong to maintain the strike-out, notwithstanding the Respondent’s breach of an unless order, since it had subsequently substantially remedied its breach - Stolzenberg v CIBC Mellon Trust followed.

Mrs H Johns v ISS Mediclean Limited UKEAT/0355/08

Mon, 11 May 2009 10:46:00 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

The Employment Tribunal conflated the requirements placed on employers under Part 1 of Schedule 2 of the Employment Act 2002 with the duty to conduct a fair and proper disciplinary process. The statute placed minimum requirements only on employers; the sanction for failure to comply with those minimum requirements was a finding of automatic unfair dismissal with uplifted compensation. The standard required of an employer was to show that a dismissal was not unfair under s.98(4) of the Employment Rights Act 1996.

Cambridge and Peterborough Foundation NHS Trust v Mr N Crouchman UKEAT/0108/09

Mon, 11 May 2009 10:37:00 GMT

Jurisdictional Points - Extension of time: reasonably practicable

Claimant dismissed for misconduct – Internal appeal panel decision announced orally without reasons two days before expiry of three-month limit under s. 111 (2) of Employment Rights Act 1996 – On basis of oral decision, Claimant believes “hopeless” to bring unfair dismissal claim – On receipt of written decision received after expiry of time limit, Claimant believes that he does after all have grounds for bringing claim – Tribunal holds not reasonably practicable to present claim until receipt of written reasons - Appellant employer accepts (in light of Ashcroft [2008] ICR 613 and Bevan [2008] ICR 682) that Claimant was entitled to wait until outcome of appeal known but contends that at that point he knew all that he needed to bring the claim and that the written reasons gave him no new grounds.

Held, dismissing appeal, that the Tribunal was entitled to hold that the appeal panel’s written reasons genuinely changed Claimant’s belief in the viability of his claim and that that change was reasonable - Machine Tool Industry Research Association v Simpson [1998] ICR 558 applied – Consideration of effect of Machine Tool, Churchill v A Yeates & Sons Ltd. [1983] ICR 531, and Marley (UK) Ltd. v Anderson [1996] ICR 728.

Steve Wynne, Pat Wynne & Sid Wynne t/a Deja Vu v Mr C Dey UKEAT/0428/08

Fri, 08 May 2009 10:45:00 GMT

Contract of Employment - Whether established

The Employment Tribunal held that the Claimant was an employee and not a casual worker. This finding was open to the Employment Tribunal on the facts.

One of the Respondents asserted that he had been excluded from the Tribunal without good cause, but adduced no evidence to support this contention. Appeal dismissed.

Mr A Carter v (1) London Underground Limited (2) Transport for London UKEAT/0292/08

Fri, 08 May 2009 10:44:00 GMT

Disability Discrimination - Disability related discrimination

Employee dismissed after being off sick for two years suffering from depression – Claims for disability discrimination and unfair dismissal

Disability discrimination claims held to be unsustainable in the light of London Borough of Lewisham v Malcolm, Child Support Agency v Truman, Stockton-on-Tees Borough Council v Aylott and Hose Express Thurrock Ltd. v Jacomb followed

Part of disability discrimination claim prima facie out of time – Employment Tribunal wrong to hold that reg. 15 of Employment Act 2002 (Dispute Resolution) Regulations 2004 excluded the jurisdiction to extend time on “just and equitable” grounds – Time should have been extended if claim had otherwise been viable. No inconsistency between Tribunal’s reasoning on discrimination and unfair dismissal claims.

Remploy Limited v Ms G A Shaw UKEAT/0452/08

Fri, 08 May 2009 10:43:00 GMT

Practice and Procedure - Costs

Chief Constable of Lincolnshire Police v Ms N Caston UKEAT/0530/08

Fri, 08 May 2009 10:39:00 GMT

Jurisdictional Points - Extension of time: just and equitable

Disability discrimination claim brought outside primary time limit. Judge entitled to hold that misleading instructions given by Claimant to her solicitors as a result of mental ill-health constituted an exceptional circumstance entitling him to extend time – Robertson v Bexley Community Centre [2003] IRLR 434 discussed – passage in “Employment Law Practice 2007” disapproved.

MPG Contracts Limited v (1) Mr A England (Junior) (2) Mr A England (Senior) UKEAT/0488/08

Fri, 08 May 2009 10:36:00 GMT

Jurisdictional Points - Worker, employee or neither

This is an appeal regarding whether individuals were workers and whether they were on contracts for personal services. The case also considered the contractual right to use substitute labour – Protectacoat; Buckborough; Kalwak and earlier cases considered. Appeal allowed. The Claimants not engaged under contracts to work/provide services personally.

Bournemouth University Higher Education v Professor P Buckland UKEAT/0492/08

Fri, 08 May 2009 10:35:00 GMT

Unfair Dismissal - Constructive dismissal

This is an appeal regarding whether a fundamental breach of the implied term of trust and confidence was cured, so that the Claimant’s resignation did not amount to constructive dismissal.

Whether the range of reasonable responses test has any place in the question as to whether an employee has been constructively dismissed. Fairbrother and Claridge considered and not followed. General observations on approach to constructive unfair dismissal.

Wishaw and District Housing Association v MR G Moncrieff UKEATS/0066/08

Wed, 06 May 2009 10:31:00 GMT

Unfair Dismissal - Constructive dismissal

The case of Wishaw and District Housing Association Limited -v- Moncrieff (EAT), is authority for the proposition that the Tribunal must clearly identify what the last straw is when determining whether a Claimant is entitled to resign or not. Furthermore it provides a good summary and useful authority in identifying what types of conduct by a Respondent are not capable (or not) of constituting a final straw and reaffirms the law in Omilaju that any conduct or written correspondence from the Respondent must be viewed objectively by the Tribunal when determining whether the Claimant was entitled to resign. In this case the EAT held that (1) a letter from the Respondent threatening to consider the possible dismissal of the Claimant because of his long term absence and (2) a letter from the Respondent's representative offering to deal with his grievance internally when he had previously been offered external mediation, could not objectively be considered as a last straw entitling the Claimant to resign.

Sandsfield Gravel Co. Limited v Mrs S Loving UKEAT/0415/08

Tue, 28 Apr 2009 10:49:00 GMT

Unfair Dismissal - Reasonableness of dismissal

An Employment Tribunal had correctly held that the failure of an employer to provide adequate details of the complaints against an employee vitiated the disciplinary proceedings so that the dismissal was automatically unfair by virtue of Section 98A Employment Rights Act 1996.

The Employment Tribunal had however, inadmissibly substituted its own views of the evidence for those of the Employer when finding that the Employer could not properly have regarded as gross misconduct, the actions of the employee. The employee had driven a company van in an area frequented by children having drunk a small quantity of wine while holding the glass out of the window of the van.

The Employment Tribunal had correctly found that the termination of a subsequent contract of employment [where the Claimant lacked qualifying service to protect her against unfair dismissal] did not break the chain of causation of the original unfair dismissal.

Mrs E Sunley v HMP Durham UKEAT/0047/09

Tue, 28 Apr 2009 10:41:00 GMT

Practice and Procedure - Striking-out/dismissal

Review of strike-out decision. Employment Tribunal misunderstanding of agreed fact on material to exercise of discretion. EAT allowed appeal and exercised s35(1) Employment Tribunals Act 1996 powers. Application of CPR 3.9(1) factors, so far as material. Strike-out set aside. Remitted to Employment Tribunal for substantive determination.

Teva (UK) Limited v Mr A Goubatchev UKEAT/0490/08

Mon, 27 Apr 2009 10:38:00 GMT

Race Discrimination - Direct

Claim for discrimination on grounds of nationality and ethnic origin by Claimant against his erstwhile employers, the Respondent. It succeeded before the Employment Tribunal. The alleged discrimination related to the failure of the Respondent to appoint the Claimant to a post he applied for.

The Respondent appealed. Appeal allowed and remitted because the Employment Tribunal erred when it:- 1. Drew inference of racial discrimination from the respondent’s failure to comply with a Code of Practice without considering whether there was another reason unconnected with the claimant’s race or ethnic origin for its failure to comply with the Code. Alternatively no reason given for inference of racial discrimination from the respondent’s failure to comply with a Code of Practice; 2. Inferred that there was a prima facie case of racial discrimination without explaining why it did not regard as decisive or of substantial significance that the successful candidate obtained higher scores than the claimant; 3. Assumed that an “inadequate or unsatisfactory “ explanation for prima facie discriminatory conduct could entitle the Employment Tribunal to conclude that there was discrimination with out considering whether any explanation for the conduct which was not indicative of racial discrimination; 4. Concluded that there had been stereotyping of the claimant without considering the context in which the successful candidate referred to “nationalism” and “multicultural issues”.

Mr S Cooper t/a S & J Transport v Mr D Green UKEATPA/1261/08

Fri, 24 Apr 2009 11:04:00 GMT

Practice and Procedure - Time for appealing

The Respondent who did not lodge a response in time was the subject of a default Judgment. He did not appear on his application for a Review. He did not appeal the substantive order against him. His appeal against a further review was four days out of time and on his acceptance that there was no excuse, there was no reason to extend time or to review the compensation and costs orders against him. Appeal dismissed with costs.

Mrs S Potter & Others v (1) North Cumbria Acute Hospitals NHS Trust (2) The Classon Claimants UKEAT/0385/08

Fri, 24 Apr 2009 10:50:00 GMT

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

The addition of new comparators to equal pay claims constitutes the addition of new causes of action. The Employment Tribunal erred in law in holding that in these cases the change from Whitley Council agreements to Agenda for Change terms and conditions of employment was a termination of contracts of employment and their replacement with new contracts.

Daleside Nursing Home Limited v Mrs C Mathew UKEAT/0519/09

Fri, 24 Apr 2009 10:42:00 GMT

Practice and Procedure - Costs

Where at the heart of a claim is an explicit lie alleging racial abuse, the Employment Tribunal was in error failing to find that the Claimant acted unreasonably in bringing or conducting the claim and should have made an order for costs against her.

Mr E Muschett v Parkwood Healthcare UKEAT/0361/08

Fri, 24 Apr 2009 10:40:00 GMT

Unfair Dismissal - Constructive dismissal

The Employment Tribunal did not approach the question of constructive unfair dismissal in a last straw case by reference to the steps in Omilaju. To take an analytic approach and ask of each event whether the Claimant had proved a breach or fundamental breach of contract was an error. Appeal allowed. Remitted to a fresh Employment Tribunal. ACAS recommended.

Smith Knight Fay Limited v Mr N McCoy UKEAT/0245/08

Thu, 23 Apr 2009 11:03:00 GMT

Unfair Dismissal - Procedural fairness/automatically unfair dismissal

The employee was told at a meeting that he or his post would be made redundant at a meeting; but he was not then made redundant; further meetings followed before he was given notice of dismissal. The Employment Tribunal found (1) that the dismissal was automatically unfair because that meeting did not comply with the Step 2 requirements and there had not been a Step 1 complaint letter (2) that the dismissal was substantively unfair (3) that there was no evidence and only assertion that the employer would have been dismissed anyway.

Held on appeal: (1) (i) The ET erred in law in failing to consider the subsequent meetings prior to the dismissal in deciding that Step 2 was not complied with; no action was taken before these meetings; the Employment Tribunal was bound to pay heed to them. The meaning of “action taken” discussed and decided. (ii) The ET erred in setting too high a standard for the requirements of a Step 1 letter; they failed to consider the guidance on that topic in Alexander v Bridgen. (2) The Employment Tribunal were entitled to find the dismissal substantively unfair; there was no error of law. (3) There was evidence, oral and documentary to support the employer’s case that the employee was not suitable for the only post in which he was interested. The Tribunal erred in law in concluding to the contrary. Claim remitted on issues (1) and (3) to a fresh Employment Tribunal.

Accurist Watches Ltd v Mr D Wadher UKEAT/0102/09

Thu, 23 Apr 2009 10:34:00 GMT

Jurisdictional Points - Extension of time: just and equitable

This is an appeal regarding a claim for age discrimination that was presented five weeks out of time. The Claimant did not give evidence as to the reason for delay but relied on medical reports and other documentary material.

Held that the Judge was entitled to find that it was just and equitable to extend time notwithstanding certain deficiencies in the material before him. Observations on the nature of the evidence which should be put before Tribunals hearing preliminary or interlocutory matters, particularly applications for extensions.

Mr R Khan v Vignette Europe Limited UKEAT/0350/08 & UKEAT/0351/08

Wed, 22 Apr 2009 10:51:00 GMT

Practice and Procedure - Costs

Decision by an Employment Judge to award the costs thrown away by an adjournment held to be unreasonable for various reasons. Observations on the Rule 3 procedure made as Respondent unsuccessfully challenged the jurisdiction of the EAT to hear the appeal.

Network Rail Infrastructures Limited v Ms Patricia Gammie UKEATS/0044/08

Wed, 22 Apr 2009 10:41:00 GMT

Sex Discrimination

The Tribunal found that the claimant had been constructively unfairly dismissed in circumstances where she was discriminated against on grounds of sex. Appeal upheld and case remitted to a freshly constituted tribunal. In concluding that there had been unlawful discrimination the tribunal had speculated as to the reasons why there appeared to be an imbalance in the workforce as between men and women.

Mr M Kovats v (1) TFO Management LLP (2) The Family Group of Companies UKEAT/0357/08

Tue, 21 Apr 2009 10:52:00 GMT

Jurisdictional Points - Worker, employee or neither

Can a partner in a limited liability partnership be an employee? The EAT decided that on the facts of the case the Appellant was a partner in a limited liability partnership and not an employee. Appeal dismissed.

Mr M Kovats v (1) TFO Management LLP (2) The Family Group of Companies UKEAT/0357/08

Tue, 21 Apr 2009 10:51:00 GMT

Jurisdictional Points - Worker, employee or neither

Netintelligence Limited v Ms J S McNaught UKEATS/0057/08

Fri, 17 Apr 2009 16:51:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Tribunal’s judgment set aside where they had accepted the claimant’s evidence on an essential matter despite her solicitor’s failure to cross-examine the relevant employers’ witness on it, despite other conflicts in her evidence and despite there being matters which called her reliability into question as well as her credibility. Not, though, an error of law for the tribunal to refrain from recalling the respondents’ witness of its own motion. Remit to a fresh tribunal.

Ms H M Calder v The Secretary of State for Work and Pensions UKEAT/0512/08

Fri, 17 Apr 2009 16:38:00 GMT

Time Off - Trade union activities

Appeal in respect of the alleged failure to permit the Appellant to take time off in accordance with Regulation 4(2) of the Safety Representatives and Safety Committees Regulations 1977 dismissed since although there was a dispute about the reasonableness of the request, the course was not “in working hours” since it fell on a day when the Appellant was not required to work.

Appeal in respect of the Appellant’s claim that she was treated less favourably on the grounds of being a part-time worker contrary to Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 allowed and the Employment Tribunal Judgment set aside and remitted to the same Employment Tribunal. The Employment Tribunal did not make findings on the aptness of the comparators or give reasons for its finding that management’s decision was not made on the grounds of the Appellant’s part-time status.

Chief Constable of Dumfries and Galloway v Mr C Adams UKEATS/0046/08

Fri, 17 Apr 2009 14:28:00 GMT

Disability Discrimination - Disability

Employment Tribunal found that a police constable who suffered from ME and had mobility problems between about 2am and 4am when working night shift was disabled. On appeal, the Respondent argued that the Tribunal should have determined that the Claimant was not carrying out normal day–to-day to activities when he experienced mobility problems. Appeal refused and case passed back to the Tribunal to proceed further.

Grampian Health Board v Mrs S Hewage UKEATS/0016/08

Thu, 16 Apr 2009 16:57:00 GMT

Sex Discrimination - Inferring discrimination

Tribunal found Claimant to have suffered both sex and race discrimination in course of her employment as a consultant orthodontist. On appeal, Tribunal found to have failed to carry out a like for like comparison with chosen comparators and to have, wrongly, only considered Appellants’ submissions anent inappropriateness of comparators at the second stage of the ‘Igen’ test. There was no material on which the Tribunal could properly have inferred that there was a like for like comparison being relied on by the Claimant and so no basis for inferring discrimination. Appeal upheld and claims of discrimination dismissed.

Unison v Mr A Staunton UKEAT/0376/08

Thu, 16 Apr 2009 16:56:00 GMT

Certification Officer

Appellant, a UNISON member, who was the subject of a disciplinary investigation, was prevented by the Union from standing in elections to the NEC on the basis that he was suspended from holding office

Held: (1) that the Union’s rules did not on their true construction prevent members who had been suspended pending disciplinary investigation from standing for office; and accordingly the Appellant was not part of a class all members of which were excluded within the meaning of s. 47 (3) of the 1992 Act; (2) that the suspension of the Appellant was unreasonable within the meaning of s. 47 (1).

Unison v Mr Y Bakhsh UKEAT/0375/08

Thu, 16 Apr 2009 16:56:00 GMT

Certification Officer

Appellant, a UNISON member who was the subject of a disciplinary investigation which had not resulted in formal charges, was suspended from office by decisions dated 16.1.07 and 12.3.07 on the basis that he was “facing charges” – On 12.11.07 he complained to the Certification Officer that his suspension was contrary to the Union’s Rules.

Held: (1) that the complaint was out of time by reference to s.108B (6) of the Trade Union and Labour Relations (Consolidation) Act 1992 and that informal correspondence following the suspensions did not constitute the invocation of an internal complaints procedure within the meaning of s-s (6) (b); (2) that a member could be “facing charges” within the meaning of the relevant rules notwithstanding that charges had not yet been notified.

Mr T Gill v Humanware Europe Limited UKEAT/0312/08

Thu, 16 Apr 2009 16:52:00 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

The EAT, as the tribunal of fact, found that a three-person Employment Tribunal showed apparent bias. The Employment Judge twice allowed private access to himself by counsel for the Respondent, without reference to the Claimant in person, to raise case management issues, and matters very personal to the Claimant or the Respondent’s manager.

Further, the Employment Tribunal wrongly excluded the Claimant’s evidence of two grievances the handling of which he alleged contributed to the final straw causing his resignation. Judgment set aside and remitted to a fresh Tribunal.

Mr J Stanley v Capital Law LLP UKEAT/0417/08

Tue, 14 Apr 2009 17:01:00 GMT

Practice and Procedure - Compromise

Appeal from an Employment Judge who held that the Claimant could not pursue his claims by reason of a Compromise Agreement and that the Respondent was entitled to refuse to pay the termination payment under the Compromise Agreement because of the Claimant’s fundamental breach. The Claimant sought to argue a variation of perversity based on CPR Part 52.11(3) and Assicurazioni Generali SpA v Arab Insurance Group [2003] 1WLR 577. Submission rejected. The jurisdiction of the EAT was narrower than that of the Court of Appeal . Yeboah v Crofton [2002] IRLR 634 applied.

Mr C G Bright v Group Taxibus Limited UKEAT/0462/08

Tue, 14 Apr 2009 17:00:00 GMT

Practice and Procedure - Costs

No evidence or submissions were addressed to the Employment Judge as to any considerations to be taken into account under Rule 41(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 in considering whether to and if so in what amount to make a costs order. Such points cannot now be taken on appeal. Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 applied.

Mr A Unegbu v Dimension Data Network Services Limited UKEAT/0391/08

Thu, 09 Apr 2009 16:59:00 GMT

Race Discrimination - Direct

The Employment Tribunal erred in treating the motive of the Respondent as ‘the nub of the issue’ in a claim of direct race discrimination. It further erred in considering the fact that all non-British nationals would have been treated in the same way as the appellant to be relevant to such a claim. The claim of direct discrimination was remitted to a different Employment Tribunal. The Tribunal had made a finding of indirect discrimination which was not appealed by the Respondents. Jaffrey v Department of Environment Transport & Regions [2002] IRLR 688 considered.

Renfrewshire Council v Mr R Ferguson UKEATS/0054/08

Wed, 08 Apr 2009 16:49:00 GMT

Unfair Dismissal - Procedural fairness/automatically unfair dismissal

Appeal upheld. It was not open to the Tribunal to find that the employers had failed to comply with step 3 of the statutory dismissal procedure. Claim dismissed.

R (On the application of "G") v The Governors of "X" School and "Y" Council [2009] EWHC 504 (Admin)

Wed, 08 Apr 2009 10:49:00 GMT

The High Court in England and Wales has recently held that employees may be entitled to legal representation during the disciplinary process.

The Facts

The employee in this case was employed as a music assistant at a school. Following allegations of an abuse of trust with an underage male pupil, disciplinary procedures were instigated against the employee and he was summarily dismissed. The employee was also told that he would be reported to the Secretary Of State for Children, Schools and Families on the basis that he may be deemed unsuitable to work with children.

During the disciplinary process, the school informed the employee that he was not entitled to legal representation and the employee challenged their decision under both the Education Act 2002 and the Human Rights Act 1998.

East Riding of Yorkshire Council v Mrs S Cowton UKEAT/0432/08

Tue, 07 Apr 2009 16:55:00 GMT

Unfair Dismissal - Reason for dismissal including substantial other reason

Unfair dismissal – majority decision – majority found dismissal to be unfair only because employer treated other employees in a different way. Held that the majority substituted their own judgment on this issue instead of applying “reasonable responses” test. Finding that dismissal was not unfair substituted.

Mr T Jones v Northumberland County Council UKEAT/0482/08

Tue, 07 Apr 2009 16:53:00 GMT

Unfair Dismissal - Procedural fairness/automatically unfair dismissal

This is an appeal regarding unfair dismissal and redundancy and whether there was an automatically unfair dismissal. The question concerns whether the Appellant is raising a new point of law. Jones v Governing Body of Burdett Coutts School (1998) IRLR 521 applied – Venneri v Autodex (2007) UKEAT/0436/07 distinguished.

Exeter Flying Club v Mr P Little UKEAT/0466/08

Tue, 07 Apr 2009 16:50:00 GMT

Unfair Dismissal - Reason for dismissal including substantial other reason

The Tribunal’s reasoning in respect of the Air Navigation Order issue did not make requisite findings and in particular did not consider adequately whether the employer’s stated reasons was or were not reasonable. The Tribunal’s findings in respect of reason for dismissal unclear and unsatisfactory.

(1) London Borough of Hackney (2) Mr H Sindu v Ms S Distant UKEAT/0487/08

Tue, 07 Apr 2009 16:35:00 GMT

Race Discrimination - Direct

The Employment Tribunal in a race discrimination claim failed to identify the particular acts on which it based its finding of discrimination. Had it done so, it would have been clear that the only acts potentially covered by its finding had not been pleaded and/or were incapable of justifying an inference of discrimination.

Mr S M Elhaeres v Chubb Security Personnel Limited UKEAT/0050/09

Tue, 07 Apr 2009 16:34:00 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

The Employment Judge erred in law in holding that the claims were barred by section 32(2) of the Employment Act 2002.

Mr B Abbey v (1) Associated Foreign Exchange Limited (2) Associated Foreign Exchange UKEAT/1518/08

Tue, 07 Apr 2009 16:33:00 GMT

Jurisdictional Points - Claim in time and effective date of termination

A contract of employment provided for notice in writing. The Employment Judge did not err when he found the effective date of termination for Employment Rights Act 1996 s 111 was on the day oral communication of dismissal was given and received. Statement of the law in Harvey approved.

Asda Stores Limited v Mr R L Green UKEAT/0437/08

Tue, 07 Apr 2009 16:32:00 GMT

Unfair Dismissal - Reasonableness of dismissal

This is an appeal which found that the Tribunal had mis-stated the correct test and reasons in a way indicative of substituting its own judgment rather than considering whether the employer has acted reasonably.

EPI Coaches Limited v Mr B Lafferty UKEAT/0065/09

Tue, 07 Apr 2009 16:31:00 GMT

Practice and Procedure - Striking-out/dismissal

Review of striking out orders – principles summarised in Neary v Governing Body of St Albans School [2009] UKEAT/0281/08 (9 January 2009) applied – appeal allowed – application for review and linked matters remitted for re-hearing by a different Employment Judge.

Accurist Watches Ltd v Mr D Wadher UKEAT/0102/09

Tue, 07 Apr 2009 16:30:00 GMT

Jurisdictional Points - Extension of time: just and equitable

Claim for age discrimination presented five weeks out of time – Claimant not giving evidence as to reason for delay but relying on medical reports and other documentary material – Held that Judge entitled to find that it was just and equitable to extend time notwithstanding certain deficiencies in the material before him. Observations on the nature of the evidence which should be put before Tribunals hearing preliminary or interlocutory matters, particularly applications for extensions.

Mr D J Hazelwood v Mr A J Eagle EAT/0011/09

Tue, 07 Apr 2009 16:29:00 GMT

Practice and Procedure - Striking-out/dismissal

This is a case regarding the issues to be taken into account when considering striking out a claim. The principles in Blockbuster Entertainments v James [2006] IRLR 630 were applied and the appeal allowed.

Mr B Aryeetey v Tuntum Housing Association UKEAT/0324/08

Tue, 07 Apr 2009 15:36:00 GMT

Unfair Dismissal - Compensation

The Claimant was dismissed from his post as the Respondent’s Finance Director by its Chief Executive. The Claimant brought a number of claims including one for unfair dismissal which was based on the allegation that the principle reason for his dismissal was the fact that he had made protected disclosures. The Employment Tribunal held in the liability decision that the Claimant’s dismissal was unfair pursuant to the whistle-blowing provisions. The Employment Tribunal held that the Polkey principle did not apply but it reduced the Claimant’s compensatory award by 25% on account of the Claimant’s contributory fault.

At the time of the subsequent remedies hearing, the Claimant had engaged in a sustained campaign to show that the Respondent’s Chief Executive was dishonest. The Housing Corporation had found that there was no evidence of dishonesty. On 16 April 2007, the Claimant wrote to Nottingham Police with copies to other bodies alleging that the Chief Executive was guilty of not only fraudulent accounting but also possibly theft. The police subsequently carried out investigations and found that there was no case for the Chief Executive to answer as his innocence had been proved. The Employment Tribunal held that the Claimant’s motive was a vendetta and that the Claimant could not have had a reasonable belief in the truth of the accusation that the Chief Executive was dishonest. Therefore they considered that if the Claimant had remained in the employ of the Respondent then certainly by the time of his letter to the Police of 16 April 2007, the respondents would not have been acting unfairly in dismissing him for persisting in making the disclosures. So the cut-off point for the claim for compensation was 16 April 2007.
The Claimant appealed and the Appeal Tribunal unanimously held that: (i) the Employment Tribunal was not precluded from the findings at the liability hearing (and in particular that the Polkey doctrine did not apply) from deciding in the light of developments after the liability hearing that the Claimant could have been fairly dismissed when he sent the letter of 16 April 2007 to Nottingham Police; (ii) There was nothing unfair in the procedure adopted by the Employment Tribunal in reaching that decision especially as the complainant did not complain at the time of the remedies hearing;(iii) The findings of the Employment Tribunal that (a) the Claimant’s complaint to the police was motivated by vendetta and an obsession to destroy the Chief Executive and (b) that by the time the complainant complained to the police he could not have a reasonable belief in the truth of the accusation that the Chief Executive was dishonest meant that the Claimant could not rely on Darnton v The University of Surrey [2003] IRLR nd Street v Derbyshire Unemployed Workers Centre [2005] ICR 97;(iv) There was no error of law in the decision of the Employment Tribunal in not finding the Chief Executive guilty of dishonesty; and (v) Many of the challenges by the Claimant were to factual conclusions which the Employment Tribunal as the designated fact-finder was entitled to reach.

Mr M Shirmardi v Capital Limo Limited UKEAT/0225/08

Fri, 03 Apr 2009 17:00:00 GMT

Unfair Dismissal - Contributory fault

The Employment Tribunal erred in its finding as to the number of occasions on which the Appellant worked days in addition to Fridays and Saturdays. This error is likely to have led to a miscalculation of the number of hours worked each week and of whether the National minimum wage had been paid. An error in the calculation of the number of hours worked would also affect the Appellant’s claim under the Employment Rights Act 1996 in respect of deductions from this weekly wage. Minimum wage and deduction from weekly wage claims were remitted to an Employment Tribunal. The appeal against nil basic and compensatory awards for unfair dismissal was dismissed.

Mrs C Burns v Killgerm Group Limited UKEAT/0548/08

Fri, 03 Apr 2009 16:58:00 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

Raising a complaint in a County Court pleading does not constitute the making of a complaint for the purpose of the statutory grievance procedure.

Mr W Hiero v Changework Now Limited UKEAT/0474/08

Fri, 03 Apr 2009 16:51:00 GMT

Disability Discrimination - Disability

When evidence was adduced in a disability case as to the effect of medication on the Claimant, an Employment Tribunal erred in failing to make a finding under DDA Sch 1 para 6(1) as to the impairment which would be present but for the medication ie deduced disability. Case remitted to fresh Employment Tribunal.

West Coast Trains Limited (t/a Virgin Trains) v Ms R L Tombling UKEAT/0295/08

Thu, 02 Apr 2009 17:04:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Employee dismissed for deliberately breaking the IRIS screen in her buffet car on one of the Appellant’s trains. The Employment Tribunal found that the Appellant had failed to satisfy two of the limbs of Burchell [1978] IRLR 379. Various grounds of appeal affecting the Tribunal’s reasoning. Appeal dismissed on the basis that the Tribunal was entitled to come to the conclusions it did on the evidence before it.

Mrs M Bourne v ECT Bus CIC UKEAT/0288/08

Tue, 31 Mar 2009 17:03:00 GMT

Disability Discrimination - Disability

The Employment Tribunal found as a fact that the Claimant was not disabled. That conclusion was challenged on various grounds including perversity. Appeal dismissed on the basis that there was adequate material before the Tribunal which permitted it to come to that conclusion.

Marriott Motor Group & Others v Ms L Cottington UKEAT/0319/08

Tue, 31 Mar 2009 17:02:00 GMT

Sex Discrimination - Jurisdiction

Employment Tribunal made a finding of sex discrimination and that the employer was unable to justify it. The EAT held reasoning of Tribunal inadequate and failed to properly apply the burden of proof. The Employment Tribunal also made an order for costs when there was no basis to do so. Appeal allowed and case remitted to a fresh Tribunal. Costs order vacated.

Virgin Media Limited v (1) Mr G Seddington (2) Mr J Eland UKEAT/0539/08

Tue, 31 Mar 2009 16:54:00 GMT

Unfair Dismissal - Polkey deduction

This is a case regarding unfair dismissal for redundancy by reason of non-compliance with statutory procedure. Jobs found to have genuinely disappeared, but employer found to have made no proper attempt to find alternative employment. Issue whether Claimants would have found/accepted alternative employment even if the employer had acted fairly. Tribunal declined to consider making “Polkey” deduction on basis of the inadequacy of the evidence and awarded an uplift of 40%

On the Polkey issue, held that Tribunal not entitled to decline to consider making a deduction – Software 2000 v Andrews [2007] ICR 825 considered – Discussion of burden of proof in alternative employment cases

On the uplift issue, held that the Tribunal had failed to assess the culpability of the non-compliance and had approached the issue too mechanistically - McKindless Group v. McLaughlin [2008] IRLR 678 applied.

Hose Express Thurrock Limited v Mr J Jacomb UKEAT/0389/08

Tue, 31 Mar 2009 16:33:00 GMT

Disability Discrimination - Disability related discrimination

The Claimant who is a disabled man claimed that his former employer discriminated against him on grounds of disability and the claim succeeded in front of the Employment Tribunal. So in identifying the appropriate comparator, it applied the test in Clark v Novacold [1999] ICR 951 which was not followed in the later decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] 1 AC 1399, which was not an employment discrimination case. It was agreed by counsel that following the decisions of the Employment Appeal Tribunal in Child Support Agency v Truman [2009] IRLR 277 and in Stockton on Tees Borough Council v Aylott [2009] UKEAT0401/08/1103 that the case of Malcolm applied to employment discrimination cases and that this case had to be remitted to a different Employment Tribunal because the Employment Tribunal had selected the appropriate comparator on the wrong basis.

West London Mental Health NHS Trust v Dr S Sarkar UKEAT/0479/08

Fri, 27 Mar 2009 09:03:00 GMT

Unfair Dismissal - Reasonableness of dismissal

An Employment Tribunal erred as it focussed upon a decision made by the employer to negotiate a settlement under a procedure leading to a lesser penalty than dismissal. The procedure broke down and at a fair and reasonable hearing the disciplinary panel decided to dismiss the Claimant. The Employment Tribunal wrongly substituted its view for the employer’s in deciding the matters put against the Claimant did not justify dismissal. The Employment Tribunal while misdirecting itself on the burden of proof under ERA s98(4) did not actually apply that misdirection when it made the decision on the reasonableness of the dismissal.

Henry Convy & 9 others v (1) Saltire Press Limited (2) Anderson Quay Printers Limited EAT/1269/99

Wed, 25 Mar 2009 09:08:00 GMT

Transfer of Undertakings - Economic technical or organisational reason

This is an appeal relating to the unfair dismissal claims of ten employees. Appeal against unfair dismissal claim dismissed. Second respondents substituted as being responsible for the payment of redundancy payments.

Mr L Edwards v (1) Beacon Care Group Limited (2) Beacon Care Holdings Plc (3) Ashview House Limited UKEAT/0431/08

Fri, 20 Mar 2009 09:04:00 GMT

Race Discrimination - Direct

This is an appeal regarding direct racial discrimination and who the correct comparator is. There was an issue regarding whether an earlier CMD ruling was misinterpreted by the Employment Tribunal at substantive hearing. The case was remitted for further consideration to the same Employment Tribunal.

Swallow Security Services Limited v Mrs Rosemary Millicent UKEAT/0297/08

Thu, 19 Mar 2009 09:05:00 GMT

Unfair Dismissal - Contributory fault

The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to apologise. The Tribunal found that she had been unfairly dismissed, of its own volition raised Polkey but did not raise or consider contributory fault which the employers, who were unrepresented, did not raise themselves.

The Employment Tribunal, having found that there was conduct on the part of the employee that was or could be regarded as blameworthy, were bound by s123 of the Employment Rights Act 1996 (ERA) to consider contributory fault. Were that not so, the employers would not be permitted, following the principles in Rance, to raise the issue for the first time on appeal. Appeal allowed; remitted to same Tribunal for consideration of contributory fault.

Premier Groundworks Limited v Mr V Jozsa UKEAT/0494/08

Wed, 18 Mar 2009 09:02:00 GMT

Working Time Regulations - Worker

The Claimant entered into a written agreement dated 1 January 2006 with Premier Groundworks Ltd (“the respondent”) to provide groundwork services. The Employment Tribunal found that the agreement was not a sham and held that the claimant was a “worker” within the meaning of Regulation 2(1) of the Working Time Regulations 1998 (“WTR”) and was entitled to holiday pay.

The Employment Appeal Tribunal allowed the appeal. It held that:- (1) where as in this case a party has an unfettered right not to personally perform the contractual obligations under contract but can delegate them for any reason to 7omeone else, he cannot be a “worker” as defined in the WTR even though the person actually performing the contractual obligations has to meet certain conditions (Express and Echo Publications Ltd v Tanton [1999] IRLR 367 applies); (2) The position would be different if the right not to perform the contractual obligations depended on some other event such as whether that party was unable to perform his or her obligations (MacFarlane and Another v Glasgow City Council [2001] IRLR 7 and James v Redcats (Brands) Ltd [2007] IRLR 296). (3) An additional reason why the claimant was not a “worker” as defined in the WTR was that the respondent was not an entity “whose status is not by virtue of that contract that of a ..customer of a …business undertaking carried on by the individual [namely the claimant]”. The reasons for that were that the claimant was obliged to send invoices to the respondents, the claimant was referred to throughout the agreement as the “supplier” and the preamble stated that the claimant “carries on business as a groundworker... and in the course of business provides services to other building concerns”.

Mr A F Slingsby v Griffith Smith Solicitors UKEAT/0619/07

Thu, 12 Mar 2009 09:07:00 GMT

Practice and Procedure

This is an appeal regarding the Registrar's decision to grant an extension of time for the lodging of an appeal and cross appeal. The appeal was allowed to be lodged but the cross appeal dismissed.

Stockton on Tees Borough Council v Mr R Aylott UKEAT/0401/08

Wed, 11 Mar 2009 18:30:00 GMT

Jurisdictional Points - Extension of time: just and equitable

This case raises issues of legal and practical importance for discrimination cases. It is one of a number of cases in which the Employment Appeal Tribunal is considering whether the judgment in Malcolm v Lewisham Borough Council [2008] IRLR 700 on the correct comparator in disability related discrimination cases applies to employment cases and in effect overrules Clark v Novacold Ltd [1999] IRLR 318. In this case the Employment Appeal Tribunal holds that the Employment Tribunal erred in failing to apply Malcolm.

The Employment Tribunal erred in finding direct discrimination by simply finding that the employers had a ‘stereotypical’ view of disabled persons.

Comments on the need for Tribunals to identify in discrimination cases the complaints which are justiciable and are subject to the statutory conditions relating to limitation periods and statutory grievances, and those which are relied on as evidence of such complaints.

The complaints under the Disability Discrimination Act 1995 are remitted to an Employment Tribunal.

Miss M McLean v (1) TLC Marketing Plc (2) Mr N True (3) Mr R Paul (4) Mr B Million UKEAT/0429/08 & UKEAT/0430/08

Wed, 11 Mar 2009 18:29:00 GMT

Practice and Procedure - Compromise

Clear language is needed for an agreement in a COT3 to preclude claims arising from events after it is entered into. Dicta in Royal National Orthopaedic Hospital Trust v Howard [2002] IRLR 849 applied.

(1) Stafford and Rural Homes Limited (2) Ms K Armitage v Mr D Hughes UKEAT/0360/08

Mon, 09 Mar 2009 18:28:00 GMT

Disability Discrimination - Reasonable adjustments

This is an appeal regarding the effect of the House of Lords decision in Malcolm. On the facts of the case, the decision in Malcolm did not make any difference to the conclusion. There is no requirement in law to set out a decision by reference to Berriman when dealing with failure to make reasonable adjustments so long as the statutory requirements are met. On the facts the decision was Meek compliant.

(1) Mr M Craig (2) Ms M Taylor v Transocean International Resources Limited UKEATS/0029/08 & UKEATS/0030/08

Mon, 09 Mar 2009 18:27:00 GMT

Working Time Regulations

This is an appeal regarding the annual leave of offshore workers and considers whether employers had given regulation 15 notices. The question is whether annual leave could be taken during periods where workers were not rostered to be offshore.

The appeal was allowed and claims under regulation 30 of WTR dismissed. Regulation 15 notices had been given by employers in response to requests for annual leave. The EAT also held that annual leave can be accommodated within an established work/rest pattern and does not have to be taken during time that would otherwise be working time.

Lewes Associates Limited t/a Guido's Restaurant v Mr M W Little (Debarred) UKEAT/0460/08

Mon, 09 Mar 2009 18:26:00 GMT

Practice and Procedure - Postponement or stay

This is an appeal regarding the duty of parties to keep the EAT informed of their new address. An application to postpone an EAT hearing was refused. An appeal was lodged against the Employment Tribunal’s refusal (a) to postpone the substantive hearing or (b) hold a review hearing.

Postponement request properly refused; as was review application. No medical evidence (even on appeal) party was unfit to attend Employment Tribunal hearing.

Smith Knight Fay Limited v Mr N McCoy UKEAT/0245/08

Thu, 05 Mar 2009 18:30:00 GMT

Unfair Dismissal - Procedural fairness/automatically unfair dismissal

The employee was told at a meeting that he or his post would be made redundant at a meeting; but he was not then made redundant; further meetings followed before he was given notice of dismissal. The Employment Tribunal found that the dismissal was automatically unfair because that meeting did not comply with the Step 2 requirements and there had not been a Step 1 complaint letter; that the dismissal was substantively unfair; and that there was no evidence and only assertion that the employer would have been dismissed anyway.

Held on appeal that the ET erred in law in failing to consider the subsequent meetings prior to the dismissal in deciding that Step 2 was not complied with; no action was taken before these meetings; the Employment Tribunal was bound to pay heed to them. The meaning of “action taken” discussed and decided. Also, the ET erred in setting too high a standard for the requirements of a Step 1 letter; they failed to consider the guidance on that topic in Alexander v Bridgen. The Employment Tribunal were entitled to find the dismissal substantively unfair; there was no error of law. There was evidence, oral and documentary to support the employer’s case that the employee was not suitable for the only post in which he was interested. The Tribunal erred in law in concluding to the contrary.

Willow Oak Developments Limited t/a Windsor Recruitment v Silverwood & Others UKEAT/0339/05

Wed, 04 Mar 2009 18:31:00 GMT

Unfair Dismissal - Reason for dismissal including substantial other reason

Where employees are dismissed for refusal to sign a new contract containing proposed covenants in restraint of trade, the test is no different from that in respect of dismissal for refusing to sign a fresh contract in any other case, namely that, in respect of the proposed terms said to be unreasonable, it is not that the defence of some other substantial reason is not available, but that the reasonableness of the terms falls to be considered under s98(4), in accordance with the line of authorities recently summarised in Scott v Richardson EATS/0074/04: Forshaw v Archcraft Ltd [2005] IRLR 600 not followed. However, the Tribunal’s alternative decision that there was an unfair procedure and that Polkey did not apply meant that the finding of unfair dismissal stood and/or that there was no ground for remission.

Sheffield City Council v Mrs L Crosby & Others UKEAT/0304/08

Fri, 27 Feb 2009 15:40:00 GMT

Equal Pay Act - Material factor defence and justification

These appeals relate to the Genuine Material Factor defence in Equal Pay claims and whether objective justification required from employer. ET distinguished permissibly between 2 groups of (predominantly female) workers, finding that in relation to one group the defence was made out and in relation to the other it was not.

Both findings permissible and upheld. No error of law. Surtees [2008] IRLR 776 (CA) and earlier cases considered. Appeals dismissed.

Coventry City Council v (1) Mrs M Nicholls & Others (Unison union Claimants) (2) Mrs M Nicholls & Others (Unite) UKEAT/0162/08, UKEAT/0387/08 & UKEAT/ 0388/08

Fri, 27 Feb 2009 15:40:00 GMT

Equal Pay Act

The claimants brought various equal pay claims naming refuse collectors as comparators. The claimants were in predominantly female jobs and the comparators in an almost exclusively male job. The council advanced three genuine material factor (GMF) defences. They lost on two and succeeded on the third. They succeeded on the basis that they were justified in limiting a pay protection scheme to those who actually suffered a reduction in income when a new job evaluation scheme was introduced. The council appealed the two GMFs that it lost and the claimants cross appealed the successful GMF.

The EAT held that the Tribunal had been entitled to find that the council had failed to establish the two GMFs on which they failed. They allowed the cross appeal on the grounds that the Employment Tribunal had placed significant emphasis on the EAT decision in Middlesbrough City Council v Surtees [2007] IRLR 869 but that had been overturned by the Court of Appeal in Redcar and Cleveland Borough Council v Bainbridge [2008] IRLR 776. The issue remitted to the same Tribunal to consider the protected pay GMF afresh.

Mrs L Gibson & Others v Sheffield City Council UKEAT/0303/08

Fri, 27 Feb 2009 15:39:00 GMT

Equal Pay Act - Material factor defence and justification

Both findings permissible and upheld. No error of law. Surtees [2008] IRLR 776 (CA) and earlier cases considered. Appeals dismissed.

Scotch Premier Meat Limited v Stuart Burns & Others EAT/1151/99

Thu, 26 Feb 2009 15:42:00 GMT

Redundancy - Definition

This is an appeal regarding protective awards made in a collective redundancy situation.

Mr M Alemo-Herron & 23 others v Parkwood Leisure Limited UKEAT/0456/08

Thu, 26 Feb 2009 15:36:00 GMT

Transfer of Undertakings - Acquired rights directive

As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to pay “in accordance with collective agreements negotiated from time to time by [the NJC]” is protected on a TUPE transfer to the private sector so as to give a right to pay increases negotiated post-transfer. See Whent v Cartledge. This construction is unaffected by the subsequent construction of the Business Transfers Directive by the ECJ in Werhof holding that the Directive did not require such protection. The limitation to one year, or the earlier expiry of the relevant collective agreement, in Art 3(2) #f the Directive was not transposed into TUPE Reg 6 and so UK treatment is, as is permitted by Art 7, more favourable than that in the Directive. Employment Tribunal reversed. Permission to appeal.

Mr K Train v (1) DTE Business Advisory Associated Companies t/a DTE Chartered Accountants & Others (2) Mr Stephen Rosen UKEAT/0201/08

Wed, 25 Feb 2009 15:38:00 GMT

Jurisdictional Points - Worker, employee or neither

Whether an accountant was a partner or employee in circumstances where a former partnership traded through limited companies under the terms of a Shareholders Agreement, itself said not to constitute a partnership.

On the particular facts the Employment Tribunal were entitled to find that he was a partner and not an employee. Thus his Age Discrimination claim could proceed (see reg. 17 Employment Equality (Age) Regulations 2006) but not that of Unfair Dismissal.

Mr M Potter v Sound Control Modern Music Stores Limited (in administration) UKEAT/0543/08

Wed, 25 Feb 2009 15:36:00 GMT

Practice and Procedure - Appearance/Response

This is an appeal regarding a Default Judgment where no response was entered by Respondent company (in administration) within 28 day period. Judgment entered on liability finding part of the Claimant’s claim not well-founded.

Appeal allowed. Default judgment procedure designed to allow judgment to be entered in favour of Claimant, in an appropriate case; not in favour of Respondent who is in default. That part of default judgment set aside and case remitted for hearing on its merits.

Clearsprings Management Limited v (1) Mrs M Ankers & Others (2) Angel Services UK Limited (3) H Elaby t/a United Property Management (4) Priority Properties (NW) Limited (5) Happy Homes UK Limited UKEAT/0054/08

Tue, 24 Feb 2009 15:41:00 GMT

Transfer of Undertakings

This is an appeal regarding whether there was a relevant transfer by way of the Service Provision Change provisions of TUPE 2006 (reg 3(1)(b) and (3)). The Employment Tribunal entitled to find that service provided by putative transferor too fragmented to give rise to transfer.

Abbey National Plc v Ms E Bascetta UKEAT/0478/08

Tue, 24 Feb 2009 15:38:00 GMT

Practice and Procedure - Postponement or stay

Employment Tribunal refused to postpone remedy hearing until after appeals by both parties heard at full hearing by the Employment Appeal Tribunal. Material factor not brought to Employment Judge by party opposing postponement application. Applying Wednesbury principles Judge was thereby led into error. Exercising powers of Employment Tribunal under s35(1) Employment Tribunals Act 1996 appeal allowed and postponement granted.

Ms M J Moult v East Sussex County Council UKEAT/0329/07

Fri, 20 Feb 2009 10:43:00 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

This is an appeal regarding a dismissal for misconduct which the ET found to be a fair dismissal. The appeal questioned whether this decision was perverse and whether the ET’s reasons were Meek-compliant. The appeal also questioned whether the ET was entitled to find that employer had reasonable grounds for his belief in misconduct alleged. EAT held that ET findings were not perverse and the appeal was dismissed.

Abbey National Plc v Ms E Bascetta UKEAT/0402/08 & UKEAT/0403/08

Fri, 20 Feb 2009 10:41:00 GMT

Disability Discrimination

Where the ET relied, crucially on material in coming to its decision which did not form part of the explicitly pleaded case with which the appellant's relevant witness had not been given the opportunity in evidence to deal, the conclusions of the ET could not stand and the matter had to be remitted to a different ET for these issues to be properly adjudicated upon.

Mrs L Gibson & Others v Sheffield City Council UKEAT/0303/08

Wed, 18 Feb 2009 10:45:00 GMT

Equal Pay Act - Material factor defence and justification

GMF defence- whether objective justification required from employer. ET distinguished permissibly between 2 groups of (predominantly female) workers, finding that in relation to one group the defence was made out and in relation to the other it was not.

Both findings permissible and upheld. No error of law. Surtees [2008] IRLR 776 (CA) and earlier cases considered. Appeals dismissed.

Sheffield City Council v Mrs L Crosby & Others UKEAT/0304/08

Wed, 18 Feb 2009 10:44:00 GMT

Equal Pay Act - Material factor defence and justification

Both findings permissible and upheld. No error of law. Surtees [2008] IRLR 776 (CA) and earlier cases considered. Appeals dismissed.

Mrs D Tomlinson v (1) Computer Software Group Limited (2) Mr N Roberts (3) Iris Software Group Limited UKEAT/0352/08

Tue, 17 Feb 2009 10:43:00 GMT

Jurisdictional Points - Claim in time and effective date of termination

This is an appeal regarding the determination of the effective date of termination and the pre-action requirements set out in the 2002 Act.

(1) Unite (2) Mrs D Fitzpatrick & Others (3) Ms C Perry v Sayers Confectioners Limited (in administration) UKEAT/0514/08 & UKEAT/0513/08

Mon, 16 Feb 2009 10:35:00 GMT

Practice and Procedure - Application/Claim

Tribunal wrong to refuse to accept complaint presented against company in administration – correct course to accept the complaint but stay it – Carr v British International Helicopter [1994] ICR18 followed.

Mr J Drummond v (1) Babcock Naval Services Limited (2) Ministry of Defence (Navy) UKEATS/0025/08

Fri, 13 Feb 2009 10:46:00 GMT

Practice and Procedure - Striking-out/dismissal

Claim dismissed at pre hearing review when claimant did not appear and provided no justification for failing to do so. Review refused. Claimant appealed against both original and review decisions. On appeal; although there was, in the circumstances, a strong case for striking out the claimant’s claim as his unjustified non-attendance could be seen as a failure to actively pursue it and his conduct had been unreasonable, since the procedure required by rules 18(7) and 19 of the ET rules had not been followed, the appeal had to be allowed. Claim remitted to the Employment Tribunal to fix a further pre-hearing review.

Miss B Chaplin v Howard Kennedy Solicitors UKEAT/0469/08

Fri, 13 Feb 2009 10:37:00 GMT

Unfair Dismissal - Reasonableness of dismissal

This is an appeal regarding an Employee’s refusal to consent to the disclosure of their medical records for the purpose of a medical examination by the OHS doctor. When considering whether the dismissal was fair, the Employment Tribunal held that the internal appeal corrected the earlier procedural defect. The EAT agreed that the dismissal was fair and the Appeal was therefore dismissed.

Mr N T Chondol v Liverpool City Council UKEAT/0298/08

Fri, 13 Feb 2009 10:35:00 GMT

Religion or Belief Discrimination

Social worker dismissed on charges which included inappropriate promotion of his religious beliefs and arranging a visit to his home by a service user in a manner which blurred the distinction between client and friend. Claims for unfair dismissal and religious discrimination.

Tribunal found that evidence did not justify any finding of inappropriate promotion of religious beliefs but that dismissal justified on other charge – Dismissal did not constitute religious discrimination because it was on grounds of inappropriate proselytisation rather than of Appellant’s religion as such.

Brian Welsh v. Cowdenbeath Football Club Limited [2009] CSOH 16

Thu, 12 Feb 2009 13:32:00 GMT

Motion for Summary Decree:- At the conclusion of the 2007-2008 football season the defenders were relegated to the Scottish Third Division and, as a result, the pursuer lost his job managing the defenders. The pursuer raised this action against the defenders seeking damages of £90,000 for breach of contract, that sum representing the balance of the wages due under the remainder of the contract. It was averred on behalf of the pursuer that there was no basis upon which the defenders were entitled to terminate the pursuer's employment and they did not comply with the terms of clause (vi) of the contract of employment. Skeletal defences were lodged on behalf of the defenders, however, in response to the intimation of a motion for summary decree the defences were substantially adjusted. It was submitted on behalf of the pursuer that the court had to be satisfied that in respect of all, or in respect of the relevant part of the action, the defenders must fail, and that test was satisfied here. On behalf of the defenders it was submitted that a relevant and substantive defence had been set out in the defences as adjusted. Here the court considered whether the line of defence presented to the merits of the action would inevitably fail.

Miss S A Miller v Governing Body of the Ridings High School UKEAT/0204/08

Thu, 12 Feb 2009 11:10:00 GMT

Unfair Dismissal - Constructive dismissal

The Claimant claimed constructive unfair dismissal and disability discrimination, taking the form of direct discrimination, disability related discrimination and the failure to make reasonable adjustments. The Respondent contended it did not dismiss her, for she took early retirement and she was treated no differently from any other person within its employ. Deposit and corresponding costs orders were made. Employment Tribunal Judgment upheld. Retirement which terminates a contract of employment by mutual consent does not fall within the Employment Rights Act 1996 s95(1)(c). Malcolm would be followed in preference to Clark v Novacold although full argument on a new point of appeal was not advanced.

Aegon UK Corporate Services Limited v Mr S Roberts UKEAT/0278/08 & UKEAT/0277/08

Thu, 12 Feb 2009 11:09:00 GMT

Unfair Dismissal - Compensation

Loss of pension rights can continue beyond loss of earnings. Tribunal entitled to differentiate between a final salary pension scheme and a money purchase scheme.

Richmond Pharmacology v Miss A Dhaliwal UKEAT/0458/08

Thu, 12 Feb 2009 10:38:00 GMT

Harassment - Purpose

Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being “married off in India” had the effect of violating her dignity and constituted harassment within the meaning of s. 3A of the Race Relations Act 1976

Observations on the approach to be taken by Tribunals in considering claims of harassment under the 1976 Act and the equivalent provisions of cognate legislation.

Allied Distillers Limited v (1) Mr K S Handley (2) Mr A C Pursey (3) Mr S Graham UKEATS/0020/08 & UKEATS/0021/08

Wed, 11 Feb 2009 11:08:00 GMT

Contract of Employment - Damages for breach of contract

Claimants all dismissed for redundancy in circumstances which respondents accepted amounted to unfair dismissal due to lack of consultation. Appeal by respondent employers re: (a) award to second claimant of a sum in respect of his breach of contract claim in excess of that which parties had agreed was due, and (b) a sum of £5000 awarded to each claimant in respect of a “valuable expectation that if they were threatened with redundancy they would be generously compensated”. Cross appeal re: (a) Polkey deduction, and (b) periods in respect of which loss of earnings awarded. Appeal upheld and cross appeal (restricted to Polkey deduction) refused.

Shaw & Co. Solicitors v Miss K Atkins UKEAT/0224/08

Wed, 11 Feb 2009 10:43:00 GMT

Disability Discrimination - Reasonable adjustments

The Claimant suffered from ME. The Tribunal found disability discrimination in that her employer had failed to make reasonable adjustments in that (1) over a short period it had failed to offer her the adjusted hours of work she wanted; (2) it had not installed a stair lift to enable her to access the employer’s first and second floor offices; (3) (alternatively) permitted some home working; and (4) (in the further alternative) rented adjoining ground floor accommodation for her use. There was no appeal in relation to (1). Held: in relation to (2), the matter should be remitted to the Tribunal for further consideration in the liht of the Tribunal’s apparent failure to take a number of important matters into account: in relation to (3), there was no evidentiary basis for finding that home working was a realistic possibility, and as to (4), assuming that renting further office space could in certain circumstances amount to a reasonable adjustment, there was no evidentiary basis for holding such office space was available.

Anita Downing t/a Downing Private Nursing Homes v Mr D McAllister UKEATS/0040/08

Wed, 11 Feb 2009 10:39:00 GMT

Contract of Employment - Whether established

Tribunal, having issued an order dismissing the claim against a respondent on 5 November 2007, made an order at a case management discussion on 14 December 2007, sisting them as the respondent in the case. On appeal by the respondent, it was held that the tribunal had no power to sist the respondent as a party to the case after it had pronounced the order of dismissal. Claim dismissed.

Mr I M Stewart v Drumbow Homes Limited UKEATS/0045/08

Tue, 10 Feb 2009 16:36:00 GMT

Unfair Dismissal - Compensation

This is an appeal where the issues were (i) the extent of any Polkey deduction and (ii) compensation. Tribunal found that there was a 51% chance of the claimant retaining his employment had the appropriate procedures been followed but that that would have been on the basis of a lower salary. Compensation assessed on the basis of the lower salary not on the basis of the higher, pre dismissal salary. On appeal in which the only issue was the approach to the assessment of compensation, held that the tribunal had not erred in proceeding on the basis of the lower salary.

Mr I M Stewart v Drumbow Homes Limited UKEATS/0045/08

Tue, 10 Feb 2009 10:41:00 GMT

Unfair Dismissal - Compensation

Only issues were (i) the extent of any Polkey deduction and (ii) compensation. Tribunal found that there was a 51% chance of the claimant retaining his employment had the appropriate procedures been followed but that that would have been on the basis of a lower salary. Compensation assessed on the basis of the lower salary not on the basis of the higher, pre dismissal salary. On appeal in which the only issue was the approach to the assessment of compensation, held that the tribunal had not erred in proceeding on the basis of the lower salary.

Bridal Fashions Limited v Mrs M Burke UKEATS/0038/08

Tue, 10 Feb 2009 10:40:00 GMT

Unfair Dismissal - Constructive dismissal

This is an appeal regarding the application of a Grievance procedure and whether it was reasonable for the employer to refrain from progressing it whilst employee off work due to ill health in circumstances where employee in fact fully recovered but GP signing certificates finding the employee unfit for work on a diagnosis of stress. Parties also agreed that resignation letter not received by employers. Tribunal found that the claimant was unfairly constructively dismissed. On appeal, held that the tribunal had erred. There had been no effective dismissal, the Tribunal had not addressed the correct question in law when considering whether or not the claimant had been constructively dismissed and proceeded on the basis of assumptions that were not founded in fact.

Osborne Clarke Services v Mr A Purohit UKEAT/0305/08

Mon, 09 Feb 2009 16:48:00 GMT

Race Discrimination - Direct

Tribunal correct that the employers could not justify their policy of not accepting applications for training contracts from non EEA nationals.

Zimmer Limited v Mr N Brezan UKEAT/0294/08

Fri, 06 Feb 2009 16:47:00 GMT

Unfair Dismissal - Procedural fairness/automatically unfair dismissal

This judgment addresses only the issue as to whether the Employment Tribunal’s finding of automatically unfair dismissal was wrong in law. All other issues were adjourned. he Employment Tribunal found that the Step 1 letter was insufficient because it did not inform the employee that he was at risk of dismissal. It was argued that the statutory procedure did not so require and that the conclusion to the opposite effect in Alexandra v Brigden 2006 ICR1277 and HomeServe v Dixon 0122/07/CEA were obiter. The court held that the conclusions, albeit obiter at least in Alexander, were correct and should be followed. The Tribunal’s decision was upheld.

Mr L Coutinho v Rank Nemo (DMS) Limited UKEAT/0315/08

Thu, 05 Feb 2009 16:49:00 GMT

Practice and Procedure - Striking-out/dismissal

The Employment Judge wrongly struck out the Claimant’s claim of victimisation under the Race Relations Act 1976 when, post-termination of employment, the Claimant contended the Respondent took steps to avoid paying a sum awarded by the Employment Tribunal and ordered by the County Court.

Mr V Anderson v Hilton International UK Limited UKEAT/0214/08

Thu, 05 Feb 2009 16:46:00 GMT

Practice and Procedure - Striking-out/dismissal

This is an appeal against an order of the Registrar allowing Respondent’s response to be validated albeit a day out of time. Hearing adjourned for Appellant and Respondent to make submissions as to which Section 30(3) allows the EAT to stay an appeal when claimant failed to pay costs of earlier hearing.

The Child Support Agency (Dudley) v Mrs R Truman UKEAT/0293/08

Thu, 05 Feb 2009 16:40:00 GMT

Disability Discrimination - Disability related discrimination

Whether the Novacold comparator in cases of disability-related discrimination must be replaced in employment cases by the Malcolm comparator. Answer, yes. Application to facts of this pre-Malcolm case. Effect on compensation. Appeal allowed; case remitted to same Employment Tribunal for further consideration.

Bedhampton Dental Surgery v Miss M Henderson UKEAT/0171/08

Wed, 04 Feb 2009 16:46:00 GMT

Practice and Procedure - Review

Appeal against a refusal of a review. The Appellant did not appear at the Full Hearing and produced no medical evidence in support of his application by email for an adjournment. Neither did he appear at the Preliminary Hearing. His appeal was on the ground of perversity. No evidence was submitted at any time to support his case that the refusal of a review was perverse. Appeal dismissed.

Ms C E Bone v (1) The Mayor & Burgess of The London Borough of Newham (2) Mr M Dawes (3) Mr A Qureshi (4) Mr E Abu (5) Ms P Maddison UKEAT/0075/08

Wed, 04 Feb 2009 16:45:00 GMT

Sex Discrimination - Other losses

Appeal allowed on various issues of calculation of remedy where the Employment Tribunal did not set out the relevant evidence to justify its conclusions.

Mr D Grimshaw v (1) Griffin Signs Limited (2) Ryan Callanan (3) Barry Gunner (4) Neil Bailey (5) Joe Newton UKEAT/0299/08

Wed, 04 Feb 2009 16:44:00 GMT

Sex Discrimination - Continuing act

There was no error of law or perversity in the judgment of the Employment Tribunal that the dismissal of Mr Grimshaw was not part of a continuing act of discrimination and that, apart from that relating to dismissal, his complaints of discrimination on grounds of sexual orientation, harassment and victimisation were out of time. Nor did the Tribunal err in concluding that this was not a case where it should exercise its discretion under Regulation 34(4) of the Employment Equality (Sexual Orientation) Regulations 2003 to consider the claims.

(1) Countrywide Estate Agents (Unlimited) (2) Countrywide Financial Services v Mr R Rice UKEAT/0392/08

Wed, 04 Feb 2009 16:42:00 GMT

Disability Discrimination - Disability related discrimination

The Employment Tribunal confused the relevant tests for disability discrimination under s.3A of the Disability Discrimination Act 1995 as amended. Case remitted to the Employment Tribunal to consider the issue of disability discrimination in the light of the judgment and London Borough of Lewisham v Malcolm [2008] IRLR 700 (HL).

Mr C Small & Others v (1) The Boots Co Plc (2) Boots UK Limited UKEAT/0248/08

Wed, 04 Feb 2009 16:41:00 GMT

Contract of Employment - Written particulars

In determining claims under a discretionary bonus scheme the Employment Judge erred in failing to decide whether the scheme had any contractual content and, if so, what. (Horkulak v Cantor Fitzgerald [2005] ICR 402.) A claim for a bonus under a ‘substantially equivalent’ scheme on a TUPE transfer is for an unquantified amount and cannot be brought under the Employment Relations Act 1996 Section 23, unless Article 3(c) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 applies.

Mr P Diggins v Condor Marine Crewing Services Limited UKEAT/0083/08

Tue, 03 Feb 2009 16:50:00 GMT

Jurisdictional Points - Working outside the jurisdiction

The employee was employed by the Respondents, a Guernsey corporation, as chief officer on a vessel plying between Portsmouth and the Channel Islands. He lived in Portsmouth and joined and left his vessel in Portsmouth each working day. The vessel was registered in the Bahamas. The Employment Tribunal dismissed his unfair dismissal claim on the basis that the employee could not bring himself within s199(7) of the 1996 Act.

Held on the employee’s appeal that: (1) the employee was not excluded from jurisdiction under s199(2); (2) he did not fall within s199(7); but (3) he did not have to bring himself within s199(7) to establish jurisdiction; he was a peripatetic employee to whom the appropriate Lawson v Serco test applied; and (4) applying that test the employee was plainly based in the United Kingdom; there was no need for a remission; the primary facts were clear.

HSBC Bank Plc v Mr M A Da Gama UKEAT/0532/08 & UKEAT/0533/08

Thu, 29 Jan 2009 16:37:00 GMT

Practice and Procedure - Postponement or stay

Appeal allowed against the refusal of an Employment Judge to postpone a two day hearing of a claim of unfair dismissal and race discrimination. The Employment Judge has failed to take into account that the reason for the request for a postponement was the absence abroad of the Respondent’s two key witnesses. Their absence might fatally harm the Respondent’s case.

Mr A Sawyer v Secretary of State for the Department of Work and Pensions (Job Centre Plus) UKEAT/0133/08

Wed, 28 Jan 2009 15:34:00 GMT

Disability Discrimination - Disability

The Employment Judge correctly struck out the Claimant’s case as it was not reasonably arguable, on the evidence at a PHR, that the Claimant’s intolerance to temperatures below 27oC was a disability within the DDA 1995.

Mr N Patel v Marquette Partners (UK) Limited UKEAT/0190/08

Wed, 28 Jan 2009 15:31:00 GMT

Unlawful Deduction from Wages

A deduction of £65,000 from untaxed bonus earnings of a trader indicated by the HMRC under threat of enforcement is an excepted deduction under Employment Rights Act 1996 s14(3), which applies not simply to formal determinations under PAYE Regulation 80 but to other decisions. The employer was bound to make the deduction which was authorised.

Stuart Peters Limited v Ms E L Bell UKEAT/0272/08

Wed, 28 Jan 2009 15:28:00 GMT

Unfair Dismissal - Compensation

The employee was unfairly constructively dismissed. She was entitled to a 6 month notice period that was not paid by the employees in that period, during some of which she received payments for temporary work from a different employer. The ET, applying Norton Tool and Burlo, did not give credit for those payments against compensation for loss of earnings in this notice period. The employers argued on appeal that the principle in Norton Tool had never been held to apply and should not now be held to apply a case of constructive dismissal.

Held that (i) the principle in Norton Tool, however controversial and despite Dunnachie, had been approved in Burlo; (ii) there was no reason why that principle should not apply to constructive dismissal. The assessment of compensation, irrespective of the type of dismissal, is to be made under section 123 of ERA: and that principle goes to how compensation under 123 is assessed.

Mr C Small & Others v (1) The Boots Co Plc (2) Boots UK Limited UKEAT/0248/08

Wed, 28 Jan 2009 15:27:00 GMT

Contract of Employment - Written particulars

In determining claims under a discretionary bonus scheme the Employment Judge erred in failing to decide whether the scheme had any contractual content and, if so, what. A claim for a bonus under a ‘substantially equivalent’ scheme on a TUPE transfer is for an unquantified amount and cannot be brought under the Employment Relations Act 1996 Section 23, unless Article 3(c) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 applies.

Mrs C A Luff v Cobsen-Davies Roofing (Surrey) Limited UKEAT/0526/08

Wed, 28 Jan 2009 15:21:00 GMT

Statutory Discipline and Grievance Procedures

A letter claiming redundancy payment and holiday pay as a contractual entitlement constitutes a grievance and a claim form seeking both should have been accepted.

Kerry Foods Limited v Mr A Creber & Others EAT/1379/97 EAT/939/98

Tue, 27 Jan 2009 15:38:00 GMT

Transfer of Undertakings - Transfer

This is a case regarding the application of the TUPE regulations and upon which party liability for a protective award should fall.

Mr L J Seldon v Clarkson Wright & Jakes UKEAT/0063/08

Tue, 27 Jan 2009 15:36:00 GMT

Age Discrimination

A partnership had a provision in the Partnership Agreement which required partners to resign at 65 (although they could be kept on by agreement). The claimant alleged that this was age discrimination. The Employment Tribunal found that although the provision constituted direct age discrimination, it was justified. In part this was found on an assumption that performance tails off at around this age. The claimant appealed on various grounds, and the Equality & Human Rights Commission was permitted to make representations as interveners.

The EAT dismissed all the grounds save one, namely that the assumption that performance dropped off at 65 was not supported by any evidence and involved stereotyping. In principle, such a rule could be justified, but it was not justified in this case. Matter remitted to the same Tribunal to consider whether the need to achieve the other legitimate aims was sufficient to justify the rule. Observations on the test for justification in direct age discrimination.

Anthony Charles t/a Granary Pine v Mr A West UKEAT/0473/08

Tue, 27 Jan 2009 15:17:00 GMT

Practice and Procedure - Appearance/Response

A claim sent to Mr Anthony Charles (incorrect name of the Respondent) with two errors in the address was not pursuant to Rule 2 “sent to the Respondent” Mr Anthony Chowles. It is unlikely that a telephone call from an ACAS officer would constitute the sending of a claim form or notice of proceedings. A default Judgment cannot be reviewed under rule 34 and 35 but only under the less rigorous rule 33. Default and review judgments and award of £18,310 set aside. Response form accepted. Hearing ordered.

London Borough of Camden v Mr S Miah UKEAT/0031/08

Mon, 26 Jan 2009 15:26:00 GMT

Race Discrimination - Inferring discrimination

The Claimant was made redundant after being placed in a pool of one. He brought proceedings alleging race discrimination and victimisation. In finding for him the Tribunal assumed a hypothetical comparator of a different race but did not consider how such a comparator would have been treated. It merely assumed that because there was a hypothetical comparator the onus of proof had passed and then found the onus had not discharged. The Tribunal also assumed the ‘reverse burden’ applied to the victimisation claim. Appeal against finding of discrimination allowed.

Eastern and Coastal Kent PCT v Mrs Jocelyn Grey UKEAT/0454/08

Mon, 26 Jan 2009 15:25:00 GMT

Disability Discrimination - Reasonable adjustments

The claimant suffers from dyslexia and was therefore “disabled” as defined in the Disability Discrimination Act 1995 (“the Act”). The issue on the appeal is whether the respondent employer was exempted from making adjustments for the claimant during the interviews process when the claimant applied for a job with the respondent. The Employment Tribunal held that the respondent was not exempt in the light of section 4 A (3) (b) of the Act.

Held by the Employment Appeal Tribunal that: The Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Act which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:- (a) does not know that the disabled person has a disability; (b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled; (c) could not reasonably be expected to know that the disabled person had a disability; and (d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

Mr S P House v Chief Constable of Avon and Somerset UKEAT/0061/08

Fri, 23 Jan 2009 15:30:00 GMT

Sex Discrimination - Burden of proof

The Tribunal in applying Igen and Madarassy were correct in their approach to primary findings and inference, particularly in relation to knowledge of the protected acts and reasons for the detriment.

Compass Group UK & Ireland Limited t/a Scolarest v Ms L Celebi UKEAT/0152/08 & UKEAT/0251/08

Thu, 22 Jan 2009 15:29:00 GMT

Unfair Dismissal - Reasonableness of dismissal

The Tribunal were incorrect in imposing their own view of the fairness of dismissal and failed to consider how a reasonable employer would have acted.

Fitness First Clubs Limited v Ms C Drysdale UKEAT/0195/08

Wed, 21 Jan 2009 15:35:00 GMT

Sex Discrimination - Burden of proof

The Employment Tribunal made findings of fact that an Equal Pay Act questionnaire was linked to earlier dissatisfaction and so played a part in the Respondent’s decision to dismiss. This was a protected act. The Employment Tribunal correctly applied the burden of proof.

McKechnie Plastic Components v Mrs E Grant UKEAT/0284/08

Tue, 20 Jan 2009 15:30:00 GMT

Disability Discrimination

This case discussed the issue of whether the Claimant’s mental impairment was long term within the meaning of the DDA and whether an Employment Tribunal is free to reach a finding of discrimination when an agreed expert’s medical report does not support such a finding. Case remitted to a Tribunal.

J P Garrett Electrical Limited v Craig Cotton UKEATPA/0030/05

Mon, 19 Jan 2009 15:37:00 GMT

Practice and Procedure - Time for appealing

Unlike in Midland Packaging v Clark [2005] 2 AER 66, the EAT fax receipt log was made available, by reference to which para 1.8.2. of the EAT Practice Direction can and should be operated. Midland Packaging not followed and disapproved, so that a Notice of Appeal (and all required documents) must be received complete by the EAT, as recorded by its fax receipt log, by 4pm on the relevant day if to be in time. Both appeals consequently were out of time, but the exceptional circumstances of (i) the parties’ reliance upon Midland Packaging (ii) the change in the law justified an extension and, as with the Practice Statement 7 February 2005, litigants represented and unrepresented are now on notice.

Diana Woodward v Abbey National Plc UKEATPA/0534/05

Mon, 19 Jan 2009 15:36:00 GMT

Practice and Procedure - Time for appealing

Blackford Farms Limited v Mr C Mulqueeny UKEATS/0032/08

Fri, 16 Jan 2009 15:46:00 GMT

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

Head Gamekeeper dismissed in circumstances where Tribunal found that true reason for dismissal was that employers wanted to get rid of him because he had claimed a bonus and raised a grievance about it. The Tribunal found that the claimant had contributed to his dismissal on account of misconduct in remaining in a cottage on the estate, drinking with friends and subordinates, after the ‘guns’ had departed, consuming his employer’s alcohol in so doing. The basic and compensatory awards were, accordingly, to be reduced by 20%. Issues raised on appeal were (1) whether the employee was contractually entitled to a bonus; and (2) whether the Tribunal had erred in providing for only a 20% reduction.

The EAT held that the Tribunal had erred in both respects. They were not entitled, on the findings in fact, to conclude that there was a contractual right to bonus. As regards the 20% reduction, the Tribunal had erred in concluding that the employee would not have been dismissed in respect of the misconduct alone; there was no basis in their findings on which they could properly so conclude. The EAT accordingly set aside the 20% finding. Further, there being sufficient findings for the EAT properly to reach a view on the matter, it ordered that there should be a 50% reduction.

UCATT v (1) Amicus (2) TGWU (3) Glasgow City Council (4) City Building (Glasgow) LLP UKEATS/0007/08 & UKEATS/0014/08

Fri, 16 Jan 2009 15:45:00 GMT

Transfer of Undertakings - Consultation and other information

This is an appeal regarding the application of the 2006 TUPE Regulations. (1) Whether Tribunal had erred in refusing to allow UCATT to amend its claim to add an allegation of failure to inform in accordance with reg.13(2) in addition to its existing allegation of failure to consult. (2) Whether regulations require a transferee employer to consult with transferred employees post transfer regarding measures it envisages in relation to them.

On appeal, EAT found that the Tribunal had not erred in refusing to allow UCATT to amend its claim. Further, it agreed with the Tribunal that the transferee employers were not obliged to consult with the transferred employees post transfer. Proposal that there should be a reference to the ECJ rejected.

ADI (UK) Limited v Mr J Willer & Others EAT/11/99

Tue, 13 Jan 2009 15:49:00 GMT

Transfer of Undertakings - Dismissal/automatically unfair dismissal

Appeal against ET's finding that there was no TUPE transfer. EAT in agreement that TUPE did not apply here.

Mr J F Kerrigan v Rover Group Limited EAT/1185/98

Tue, 13 Jan 2009 15:49:00 GMT

Disability Discrimination - Disability

EAT substitutes the ET's decision insofar as it relates to remedy as ET had misdirected itself in law regarding the issue of pension payments.

Mrs P Lucy & Others UKEAT/0033/08

Tue, 13 Jan 2009 15:48:00 GMT

Unlawful Deduction from Wages

The 78 Claimants were cabin crew employed by BA at their Manchester base. In October 2006 BA closed that base; they did not dismiss the Claimants; but they did not roster them for flying duties. If they had flown, the Claimants could have become entitled, depending on differing criteria, to payment of one or more of a number of allowances. They claimed payment of the allowances they would, but for the closure, have earned as wages under Part II of ERA 1996. Held that the Tribunal had correctly concluded that there was no jurisdiction to hear the claims; albeit for reasons which were not entirely the same as the Tribunal’s. The absence of jurisdiction arose not because the claims were not quantifiable but because they were not claims for wages as defined by section 27 of ERA; they were claims for damages for loss of a chance and would not be brought before the Tribunal while employment continued.

Mr G Cafagna v ISS Mediclean Limited UKEAT/0318/08

Tue, 13 Jan 2009 15:47:00 GMT

Unlawful Deduction from Wages

This is an appeal regarding an unlawful deductions claim (sick pay). The Claimant put in written representations under Employment Tribunal Rule 14(5). The Respondent changed factual basis of defence 3 days before hearing. Whether procedural unfairness in proceeding with hearing. If so, whether result plainly and unarguably correct since no factual issue then arose. Appeal dismissed.

Flintshire County Council v Mr C Michaelides UKEAT/0189/08

Fri, 09 Jan 2009 15:52:00 GMT

Unfair Dismissal - Constructive dismissal

The Claimant was found to have been unfairly dismissed. The case was remitted to a different Tribunal in the light of the decision of the Employment Tribunal concentrating their attention on the fact of the particular incident rather than whether the Respondent was in breach of the term of mutual trust and confidence.