Employment Appeal Tribunal judgments, 2011

A completed repudiatory breach of the implied term of mutual trust and confidence cannot be cured by the employer. However, a prompt and fair investigatory or…

An appellate tribunal should read an employment tribunal’s reasons as a whole. Reasons are sufficient if they identify the issues, material findings…

Withdrawal of a trade union's legal assistance because proceedings against the union create a reasonable conflict of interest is not victimisation merely…

An employment tribunal’s jurisdiction is statutory. Its jurisdiction to determine a discrimination complaint does not carry an implied jurisdiction to…

A regulatory rule requiring barristers’ chambers to fund pupillages was not a provision, criterion or practice imposed upon an applicant for pupillage. It…

A trained and senior employee may be summarily dismissed for serious procedural breaches without a specific prior warning where the employer was reasonably…

In a direct discrimination claim, a tribunal may infer discrimination only from the whole evidential picture. A difference in status and treatment alone is…

An employer’s legitimate decision on the allocation of financial resources may constitute a real need for the purpose of objectively justifying indirect…

A clear resignation takes effect according to the ordinary meaning of its terms. It cannot be unilaterally withdrawn, although the employer may consent to its…

An insult may constitute a detriment in discrimination law where, taking all the circumstances into account, a reasonable worker would or might regard the…

A distinction must be drawn between failing to plead a discrimination complaint and failing to provide adequate particulars. The former limits the Employment…

In unfair dismissal cases, the tribunal must identify and characterise the employer’s actual reason for dismissal. It must not substitute its own view of the…

An adjournment decision is generally reviewable only for legal error. Where refusal of an adjournment may imperil the fairness of the proceedings as a whole…

An unless order for further and better particulars is breached only where the replies, considered individually or as a whole, are plainly incomplete or…

In misconduct dismissals, the question under Employment Rights Act 1996, section 98(4), is whether dismissal fell within the range of reasonable responses open…

Under section 98(4) of the Employment Rights Act 1996, the tribunal must assess whether dismissal fell within the range of reasonable responses open to a…

In misconduct dismissals, the tribunal must assess whether the employer acted reasonably under section 98(4) of the Employment Rights Act 1996. It must not…

In misconduct dismissals, the tribunal must assess whether dismissal fell within the range of reasonable responses open to a reasonable employer. It must not…

For a service provision change under the TUPE Regulations 2006, the tribunal must first identify the activities carried out by the original contractor. It must…

A complaint under Employment Rights Act 1996, section 45A, requires the tribunal to determine the reason why the employer acted. The protected act need not be…

The Service Provision Change (SPC) exclusion in regulation 3(3)(b) of the TUPE Regulations 2006 applies where the contractor's activities consist wholly or…

For a service provision change under regulation 3(1)(b) of the TUPE Regulations 2006, the relevant activities must not consist wholly or mainly of supplying…

For a service provision change under regulation 3(1)(b) of the TUPE Regulations 2006, the activities must satisfy the statutory conditions, including that they…

An Employment Tribunal may order recovery only within the statutory powers conferred on it. Under rule 10, an order for documents must be no wider than an…

An employment tribunal must determine the issues fixed by an appellate remittal, even if it considers the remittal order or the underlying analysis…

In a mixed-motive dismissal, a prior wish to remove an employee does not automatically prevent subsequent misconduct from being the operative reason. The…

In a mixed-motive dismissal, a prior desire or decision to remove an employee does not by itself prevent subsequent misconduct from being the operative reason…

When assessing whether to reduce unfair-dismissal compensation for a claimant’s conduct, the tribunal must focus on the claimant’s own conduct. Under sections…

An appellate tribunal may interfere with a case-management discretion where the decision-maker has taken an irrelevant factor into account, including a…

An exemption from the national minimum wage for live-in domestic workers must be construed narrowly. Whether a worker is treated as a member of the employer’s…

The family-household exemption from the national minimum wage is construed narrowly. Whether a domestic worker is treated as a member of the employer’s family…

Under the repealed statutory grievance regime, a complaint must be identified by construing the relevant documents in their factual context. The question is…

The family-household exemption from the national minimum wage is construed narrowly. Whether a live-in domestic worker is treated as a member of the employer’s…

The family-household exemption from the National Minimum Wage applies only where the worker is genuinely treated as a member of the family. The assessment is…

When considering a deposit order, an Employment Tribunal should adopt the same approach as when considering striking out a claim. Where the central facts are…

Under section 141 of the Employment Rights Act 1996, suitability of alternative employment and the reasonableness of refusing it are separate questions.…

An Employment Appeal Tribunal may interfere with an employment judge’s findings of fact only on a point of law. An employee who remains employed while…

When deciding whether a preliminary hearing should be private under rule 16(1)(b), the Employment Tribunal must identify the evidence or representations to be…

In a misconduct dismissal, an employment tribunal must determine the employer’s actual reason by reference to the case advanced and the evidence. It should not…

Under section 1(3) of the Equal Pay Act 1970, an employer may rely on a material factor unrelated to sex where it explains the pay difference. Where a…

Under section 1(3) of the Equal Pay Act 1970, an employer may rely on a non-discriminatory material factor that explains a pay difference. Where a…

An Employment Tribunal may distinguish between a protected disclosure and the manner in which it is made. Employers may act on genuinely separable misconduct…

An appeal notice sent by email is served when it reaches the Employment Appeal Tribunal’s server. It need not appear in an individual inbox or be acknowledged…

An employment tribunal must keep the statutory tests for direct disability discrimination, disability-related discrimination and the duty to make reasonable…

An Employment Tribunal may make a costs order under rule 40(1) where an application for postponement or adjournment causes the other party to incur costs. That…

An Employment Tribunal’s factual findings and reasons should not be disturbed on appeal where it directed itself correctly in law and its conclusions were…

Race discrimination under the Race Relations Act 1976 is assessed by reference to whether conduct is on racial grounds, not only by reference to the claimant’s…

In an unfair dismissal case, the tribunal must apply the objective reasonable-employer test. It must determine whether the employer genuinely believed in the…

An appeal to the Employment Appeal Tribunal under Employment Tribunals Act 1996, section 21(1), is not confined to a formal judicial decision. It may concern…

An appeal against an Employment Tribunal judgment must be lodged within 42 days of the date on which the judgment is sent to the parties. A party pursuing a…

Police officers may act as agents of a chief officer for discrimination purposes when exercising employment functions with the chief officer’s express or…

An employee may be undertaking independent trade union activities when expressing opposition to workplace changes during a workforce presentation, particularly…

A contract must be characterised by its principal object, assessed from the relationship as a whole. Where its primary purpose is training or education, it is…

In assessing compensation for disability discrimination and unfair dismissal, an Employment Tribunal must address any continuing earnings loss after the…

An Employment Judge sitting alone has no jurisdiction to determine complaints for a protective award under section 189 of the Trade Union and Labour Relations…

An Employment Judge sitting alone has jurisdiction only over the complaints specified in section 4(3) of the Employment Tribunals Act 1996. A complaint for a…

Strike-out is a draconian power and should be exercised sparingly in discrimination claims. A claim should not ordinarily be struck out where central facts…

For the purposes of Employment Rights Act 1996, s.98(2), conduct need not be reprehensible. Any act or omission may constitute conduct, leaving the tribunal to…

A discrimination claim should rarely be struck out before evidence has been heard. Where the pleadings disclose a reasonably arguable case that separate acts…

An employer must have a reasonable opportunity to investigate an allegation before an employment claim alleging failure to investigate can properly…

For disability status, the claimant must establish, at the relevant date, both a substantial adverse effect on normal day-to-day activities and a likelihood…

The unreasonable initiation or conduct of disciplinary proceedings may amount to a fundamental breach of the implied term of mutual trust and confidence, even…

Whether expiry of a fixed-term contract constitutes dismissal as redundant depends on the reason for dismissal in the particular circumstances. A fixed-term…

Race-discrimination claims concerning separate recruitment advertisements are ordinarily separate acts, so time runs from each act unless the evidence…

Section 12(1A) of the Race Relations Act 1976 does not import the specific acts in section 12(1)(a) to (c) directly into the harassment provision. The…

Section 12(1A) of the Race Relations Act 1976 does not import the specific acts listed in section 12(1)(a) to (c). It nevertheless requires three constituent…

At a preliminary hearing, an appearance of bias may be reasonably arguable where lay members of an Employment Tribunal have relevant personal or professional…

Where circumstances objectively suggest that tribunal members may have had relevant personal or professional connections with parties or witnesses, the…

In a direct discrimination claim, an Employment Tribunal must first identify and establish less favourable treatment as a comparative matter. Only then does it…

Whether conduct breaches the implied term of mutual trust and confidence is principally a factual question for the Employment Tribunal, assessed objectively by…

An Employment Tribunal must give sufficient reasons to show how it resolved the issues before it. In an unfair dismissal case involving several allegations, it…

A repudiatory breach of the implied term of trust and confidence is assessed objectively, from the perspective of a reasonable person in the position of the…

In an unfair dismissal case based on alleged misconduct, the tribunal must apply the statutory test in Employment Rights Act 1996, section 98(4). It should…

Under the statutory time-limit extension, reasonable practicability and the reasonableness of the further period are distinct inquiries. The first concerns the…

Where a representative assures a claimant that a hearing will be postponed, and then fails to communicate the refusal of postponement or withdraws while the…

The effective date of termination is a statutory construct. It is determined by what happened between the parties under the statutory provisions, rather than…

Claims of disability discrimination, victimisation and constructive dismissal involve distinct legal inquiries. The absence of direct discrimination, failure…

In constructive dismissal cases, separate incidents of misconduct may form part of a continuing breach of the implied term of mutual trust and confidence. A…

In a reasonable-adjustment claim, an employment tribunal must identify the disability’s relevant functional effects and explain how they caused the substantial…

In an unfair redundancy appeal, it was reasonably arguable that an employee should have been retained where another employee in the same team was leaving, and…

Under section 139 of the Trade Union and Labour Relations (Consolidation) Act 1992, a tribunal must first decide whether it was not reasonably practicable to…

Conduct forming part of an employer’s grievance process may constitute part of a continuing discriminatory act where it directly concerns, and continues, the…

An employment tribunal finding unfair dismissal must explain the possible remedies of reinstatement and re-engagement and ask whether the claimant seeks such…

Where employees allege that their dismissals occurred by reason of a relevant transfer, the transferee may be liable under TUPE even though the dismissals were…

An Employment Appeal Tribunal appeal must be properly instituted within the prescribed time. A notice lodged shortly before the deadline is defective where…

An employment tribunal must determine the discrimination case actually advanced, including pleaded background matters capable of supporting an inference of…

Rule 61(4)(h) of the Employment Tribunal Rules of Procedure concerns service on an existing party. It does not govern the initiation of proceedings against a…

A Polkey deduction is available only where unfairness arises from a procedural defect, such as failure to give an employee an opportunity to answer allegations…

In a redundancy dismissal, fairness under section 98(4) requires an assessment of the whole process. A procedural omission does not automatically make the…

An Employment Appeal Tribunal may dismiss an appeal at a preliminary hearing where the grounds have no reasonable prospect of success. A one-off act does not…

An Employment Appeal Tribunal will rarely interfere with an Employment Judge’s discretionary costs order where the judge directed himself correctly, considered…

Disadvantage suffered during maternity leave is not automatically direct sex discrimination. A claim under section 1 of the Sex Discrimination Act 1975…

Documentary evidence first produced after the close of evidence may properly be refused where its admission would require an adjournment, the claim remains…

For automatic unfair dismissal under Employment Rights Act 1996, the fact that working arrangements are legally permissible does not prevent an employee from…

In a long-term ill-health dismissal, fairness is not determined by whether the employer omitted a possible further enquiry or followed a particular procedure.…

An Employment Appeal Tribunal may allow arguable protected-disclosure detriment grounds to proceed where the employment tribunal disposed of them solely on a…

Where an agreed list of issues is reasonably capable of competing interpretations, an Employment Tribunal must resolve the procedural position fairly and in…

An Employment Tribunal must determine the issues identified at case management, unless additional issues emerge during the hearing and the parties understand…

An employment tribunal must determine a properly made application for review before treating a respondent as excluded from proceedings. Evidence informally…

Unfair dismissal and wrongful dismissal involve different questions. In an unfair dismissal claim, the tribunal examines the employer’s reason, the…

In assessing unfair dismissal for conduct, the question under section 98(4) of the Employment Rights Act 1996 is whether dismissal fell within the range of…

In an unfair dismissal claim, a genuine belief in misconduct, supported by reasonable grounds and a reasonable investigation, may make dismissal substantively…

Where an employee resigns on notice, the effective date of termination is ordinarily the date on which the notice expires. During the notice period, the…

Directors or office-holders may be agents for discrimination purposes where they exercise authority to manage an organisation, even though they were not…

For limb (b) worker status, the client-or-customer exception is not determined simply by asking whether the individual is self-employed or works under a…

In an unfair dismissal case involving alleged negligence or incompetence, the tribunal must apply the Burchell framework. It must decide whether the employer…

The Employment Appeal Tribunal’s exceptional costs jurisdiction may be exercised where proceedings are misconceived, vexatious or unreasonably conducted. A…

In an unfair dismissal case involving allegedly inconsistent disciplinary treatment, the question is whether a reasonable employer could properly dismiss the…

A claim is presented in writing when a fixed-form written complaint is successfully transmitted through a channel held out by an employment tribunal for…

Where the Employment Appeal Tribunal makes, or varies, an order under regulation 15(8) of the Transfer of Undertakings (Protection of Employment) Regulations…

An employment tribunal must give a party a fair and reasonable opportunity to answer a wholly new point raised by the tribunal itself. It must not criticise a…

Where an Employment Appeal Tribunal makes or varies an order under regulation 15(8) of the Transfer of Undertakings (Protection of Employment) Regulations…

An employment tribunal must first determine whether rule 49 applies. Where proceedings involve an allegation of a sexual offence, anonymisation of the tribunal…

An employee’s persistent and deliberate refusal to comply with a reasonable management instruction may amount to gross misconduct justifying summary dismissal…

A claimant cannot reopen concluded employment proceedings merely because a settlement or compensation award later proves less advantageous than expected. Where…

A tribunal need not follow a formal two-stage burden-of-proof analysis in an age-discrimination claim. However, where the burden of proof is central to the…

A tribunal may dismiss an ordinary unfair dismissal claim while upholding a claim of automatically unfair dismissal for whistleblowing. The two inquiries are…

In redundancy selection, an Employment Tribunal must apply the range of reasonable responses test. It must not substitute its own view about the appropriate…

In assessing mitigation of loss, the question is whether it was unreasonable for the claimant to refuse the employer’s offer, not whether the offer was…

An Employment Tribunal does not err in law merely because an employer used imprecise language to describe the ending of a fixed-term contract. The tribunal…

A non-EEA family member of an EEA national derives a right to reside and work from that status. The right does not depend on possession of a residence card or…

In assessing the fairness of dismissal for a contractual change, the tribunal must consider all relevant circumstances. Where dismissal is linked to an offer…

In whistleblowing claims, the belief required by section 43B of the Employment Rights Act 1996 is subjective but must also be objectively reasonable in light…

In an unfair dismissal claim, the tribunal must determine whether dismissal was reasonable in the circumstances under section 98(4) of the Employment Rights…

An Employment Tribunal should ordinarily stay proceedings where a proposed High Court claim substantially overlaps with the Tribunal claim and the Tribunal’s…

An Employment Appeal Tribunal should interfere with an Employment Tribunal’s factual decision only where an overwhelming case shows that no reasonable…

A full Employment Tribunal must involve all members of the panel in case-management decisions made after the tribunal has been constituted for a full hearing.…

On an appeal against a case-management decision, the Employment Appeal Tribunal intervenes only where the tribunal applied an incorrect legal principle…

At a rule 3(10) hearing, permission to amend a Notice of Appeal should generally be granted where the proposed new ground is reasonably arguable, particularly…

An employment tribunal may infer that a dismissal was motivated by trade union activities from the cumulative effect of its factual findings. The evidence must…

In a redundancy unfair-dismissal case, an Employment Tribunal may find procedural unfairness because suitable alternative work was not offered, even where…

An Employment Appeal Tribunal should interfere with an Employment Tribunal’s factual findings only where a clear error of law, perversity or inadequate…

A worker’s entitlement to the national minimum wage depends on whether the relevant periods constitute work under the National Minimum Wage Regulations 1999.…

When assessing compensation for unfair dismissal, a tribunal may consider whether the claimant would have lost employment in any event. That issue must be…

Reasonable adjustments must address the substantial disadvantage caused by the relevant provision, criterion or practice. They are primarily directed to…

Where a person with limited leave to enter or remain makes an in-time application to vary that leave, Immigration Act 1971, section 3C extends the existing…

An alleged continuing consequence of a decision does not, without a later review or a fresh omission arising when a decision should have been made, restart the…

An Employment Tribunal’s decision should be read fairly and as a whole. An appellate tribunal should avoid microscopic criticism, appellate re-trial and…

An Employment Tribunal directed to determine a costs application must do so, even where it lacks first-hand knowledge of the earlier hearing. The application…

An employee’s protected disclosure may form part of the factual chain leading to a detriment or dismissal without being the reason for it. The statutory…

A disclosure may be protected where, in the worker’s reasonable belief, it tends to show that a person is likely to fail to comply with a legal obligation. An…

In a constructive dismissal claim, an employer’s introduction of additional disciplinary matters at a hearing may constitute a breach of the implied term of…

An employment tribunal must make clear findings on the employer’s pleaded reason for dismissal where that reason is relevant to whether the treatment was…

Where an employee is dismissed on notice and is summarily dismissed before the notice expires, the summary dismissal ordinarily displaces the earlier notice.…

Striking out discrimination claims is an extreme and rare measure. It is nevertheless proper where the claims are abusive, scandalous or vexatious, or have no…

A qualifying protected disclosure requires the communication of information tending to show a relevant wrongdoing. It is distinct from a bare allegation, but a…

In a redundancy dismissal, fairness is assessed under section 98(4) of the Employment Rights Act 1996. An Employment Tribunal must not substitute its own…

Case management may require a discrimination claimant to identify and particularise the complaints advanced, so that the issues are clear to the parties and…

An employer must give an employee sufficient information at the second statutory disciplinary step to understand and answer the case. Where the allegations…

In an unfair-dismissal case, the Employment Tribunal must assess the employer’s conduct under section 98(4) of the Employment Rights Act 1996. It must not…

The Employment Appeal Tribunal has jurisdiction to grant relief from sanctions. Where helpful, it may apply Civil Procedure Rules 1998, rule 3.9, by analogy.…

A litigant in person may use “wrongful dismissal” interchangeably with “unfair dismissal”. The claim must be construed from the claim form and supporting…

An employee may establish constructive dismissal where several acts, viewed cumulatively, amount to a fundamental breach of the implied term of mutual trust…

Compensation for unlawful discrimination extends to loss which directly and naturally flows from the discriminatory act. A factual but for connection alone…

An employment tribunal must determine the issues identified by the parties and must not decide a material issue adversely to a party without giving that party…

An employee’s repudiatory conduct does not, without acceptance by the employer, terminate the contract of employment or amount to a resignation. The employer…

Section 13 of the Employment Rights Act 1996 requires a two-stage analysis. First, the worker must have a legal entitlement to the sum said to be wages…

Affirmation of an employment contract may be express or implied. Mere delay does not itself amount to affirmation, but prolonged delay may provide evidence of…

In an unfair dismissal case, an employment tribunal must consider whether dismissal fell within the range of reasonable responses available to a reasonable…

At a preliminary hearing, a claim should not be rejected as out of time where the pleaded facts arguably disclose a continuing act, an act extending over a…

An employer establishes redundancy as the reason for dismissal by showing, on the balance of probabilities, that the dismissal was wholly or mainly…

For unfair dismissal, the reason for dismissal and the fairness of that dismissal are separate questions. An employer’s mistaken belief that an employee has…

An unless order takes effect automatically on non-compliance, but the resulting strike-out is a judgment and may be reviewed under rule 34 of the Employment…

For an employer company to be treated as insolvent for the purposes of statutory notice-pay protection, there must be direct evidence of an event specified in…

Strike-out powers in discrimination proceedings must be exercised cautiously. Claims involving disputed facts should ordinarily be determined after the…

An employment tribunal may hear a claim for wages earned and due but unpaid under section 13 of the Employment Rights Act 1996. Section 13 does not provide a…

For a TUPE transfer, an economic entity must retain its identity. The fact that the same service users continue to receive care, or that some employees…

An employment tribunal must determine a recusal application according to the established bias principles. A party’s loss of confidence is insufficient without…

In assessing unfair dismissal, an Employment Tribunal must determine whether dismissal fell within the range of reasonable responses. It must consider the…

For wrongful dismissal, an employee’s dishonesty may justify summary dismissal where the contract expressly permits dismissal for dishonesty, or where it…

An Employment Tribunal may consider a paying party’s ability to pay when making a costs or expenses order, but it is not required to do so. Where the party’s…

When the identity of an employee’s employer is disputed, the tribunal must determine the contractual position from the circumstances in which employment was…

An employment tribunal may strike out a claim for non-compliance with orders or scandalous, unreasonable or vexatious conduct where the claimant’s conduct…

Whether dismissal is fair depends on all the circumstances and the objective range of reasonable responses under Employment Rights Act 1996, section 98(4). A…

Where a dismissal is already unfair because a statutory dismissal procedure was not followed, the tribunal must still assess matters that could affect…

Fairness must be assessed by considering the dismissal process as a whole. An Employment Tribunal must consider relevant events occurring between notice being…

A contract of service or a contract for services may exist even where the parties have not agreed the amount of remuneration. The absence of an agreed sum is…

For indirect discrimination, a claimant must show that the relevant provision, criterion or practice disadvantages more than the individual claimant. The…

For the purposes of establishing worker status, mutuality of obligation may arise from an agreed rota. Once work dates have been agreed, the employer may be…

For a complaint under section 47B of the Employment Rights Act 1996, the three-month period runs from the relevant detriment, or from the last act in a series…

An Employment Tribunal has broad case-management discretion to take witness statements as read, exclude irrelevant or without-prejudice material, and refuse an…

A worker absent through sickness for the whole of a leave year does not lose accrued paid annual leave merely because no request was made before the year…

The Employment Appeal Tribunal has a broad discretion to extend time for instituting an appeal. The discretion is governed by clear principles and requires a…

Illegality in the performance of an employment contract requires more than an erroneous classification of an employment relationship or the employee’s…

Continuity of employment for calculating an unfair-dismissal basic award is a statutory construct. General service within the NHS does not, by itself, count as…

Employment Tribunal jurisdiction under Part II of the Race Relations Act 1976 is confined to discrimination in the employment field. A public authority’s…

An employer is not required to know the precise medical diagnosis before the duty to make reasonable adjustments arises. It must, however, know or reasonably…

An Employment Appeal Tribunal should interfere with a costs decision only where the tribunal applied wrong legal principles, omitted a legally required…

In a misconduct dismissal, the employer’s belief, reasonable grounds and investigation must be assessed by applying the objective standards of the reasonable…

Where a respondent fails to lodge an ET3 in time, rule 9 operates automatically to prevent further participation. The proper procedure is to lodge the late…

An exceptionally long delay in promulgating an Employment Tribunal judgment may be inexcusable without amounting to an error of law. The appellate question is…

For the purposes of collective redundancy consultation, an election of employee representatives occurs where, following fair arrangements, the number of…

An employer cannot unilaterally remove a fundamental aspect of an employee’s contractual role unless the contract permits the change or the employee agrees to…

The territorial scope of unfair-dismissal protection under Employment Rights Act 1996, section 94(1), is assessed by reference to the employee’s position at…

An employment tribunal must give sufficient reasons to show how it identified the issues, found the relevant facts, applied the law and reached its…

Apparent bias is assessed by asking whether, in all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility of…

An Employment Tribunal may strike out a claim under rule 18(7) where the claimant has not actively pursued it and a fair hearing is no longer possible.…

A civilian employee of a Scottish police authority may owe duties to the police force whose constables he is employed to assist, even though he is not employed…

For a reasonable adjustment to satisfy the duty under the Disability Discrimination Act 1995, it is sufficient that the adjustment offered a prospect of…

An employment tribunal should not strike out unfair- or wrongful-dismissal claims where material facts are disputed and require evaluation at a hearing. A…

An employer may be liable for third-party racial harassment where, having sufficient notice of continuing conduct, it fails to take reasonable and identifiable…

When assessing compensation for procedurally unfair dismissal, an Employment Tribunal must assess the chance that the employee would have been dismissed fairly…

An order for electronic disclosure of underlying computer data requires a demonstrated need connected with the fair disposal of the proceedings. A broad…

An employer’s statutory defence to vicarious liability for discriminatory acts depends on reasonable preventive steps taken before the discrimination occurs.…

An Employment Tribunal is ordinarily the primary fact-finder. However, it errs in law where it makes a material finding unsupported by evidence, including a…

In a discrimination claim, a tribunal may find that the employer has discharged the burden of proof where, having examined the evidence, it concludes that the…

A wasted costs order may be made only against a representative acting in pursuit of profit, including under a conditional fee arrangement. A representative’s…

In an unfair dismissal case based on misconduct, an Employment Tribunal must assess the employer’s decision within the statutory range of reasonable responses.…

Where a respondent has failed to lodge an accepted response in time, and no extension has been granted, rule 9 prevents participation in the proceedings. That…

A payment described as ex gratia will ordinarily be understood as a payment made freely, rather than in satisfaction of a contractual entitlement. Construction…

Victimisation requires a protected act. A claimant must have done something under or by reference to the Sex Discrimination Act 1975, or alleged facts…

Strike-out at a pre-hearing review is a draconian measure requiring a high hurdle. Where the pleaded case raises factual issues that cannot be resolved from…

For dismissal for some other substantial reason, establishing a substantial reason under section 98(1)(b) does not determine whether dismissal is fair. The…

Whether an act is one extending over a period under section 68(7)(b) of the Race Relations Act 1976 is a question of fact for the Employment Tribunal. The…

For unfair-dismissal purposes, the reason for dismissal is the set of facts known to, or beliefs held by, the employer which caused the dismissal. The employer…

An Employment Tribunal cannot confer jurisdiction by agreement, waiver or estoppel. Where a final determination of a particular issue has been made under rule…

In an equal-value claim, an employer establishes the Equal Pay Act 1970 material-factor defence by proving a genuine, causative and gender-neutral explanation…

An employment tribunal must make a coherent link between its factual findings, the applicable law and its conclusions on each allegation of discrimination or…

Indirect discrimination requires a provision, criterion or practice which places the claimant and the relevant religious group at a particular disadvantage…

Indirect discrimination requires a provision, criterion or practice which disadvantages persons sharing the claimant’s religion or belief, places the claimant…

In a misconduct dismissal case, fairness requires a reasonable investigation, not an investigation meeting a standard of perfection or necessarily the standard…

An employment tribunal must address each distinct discrimination complaint, make findings on the relevant evidence and comparators, and explain how those…

An extension of time may be granted exceptionally where the applicant gives a full and honest explanation which amounts to a good excuse for default. The…

Where a collective agreement incorporated into an employment contract prescribes a procedure for poor artistic performance, the employer must comply with that…

An application for review must be considered under every potentially applicable ground. An Employment Tribunal errs in law by treating an application solely as…

In an unfair dismissal appeal, an employer must investigate the particular misconduct alleged, with sufficient clarity about the conduct under examination. An…

An employer’s duty to notify an employee of the statutory right to request continuation of employment beyond compulsory retirement includes informing the…

In a direct race-discrimination claim, a tribunal must apply the statutory burden of proof in Race Relations Act 1976, section 54A(2). It must assess the…

An agency worker is an employee of the employment agency only where the evidence establishes a contract of employment with that agency. The essential…

An employer need not devise selection criteria where the relevant business decision removes all posts within a discrete category and no choice is required…

Where an employment agreement defines payable working time by reference to planned hours and provides that specified breaks are included within those planned…

Under section 98(4) of the Employment Rights Act 1996, an employment tribunal must review the employer’s investigation, beliefs and decision by applying the…

For a retirement dismissal, the operative termination date is determined by what was communicated between the parties. Subsequent payroll records or a P45 do…

When assessing a Polkey reduction, an employment tribunal must consider all relevant circumstances affecting the chance that dismissal would have occurred…

An Employment Tribunal has a broad discretion under rule 41(2) whether to take the paying party’s means into account when making or assessing a costs order.…

A preparation time order may compensate only for time spent carrying out preparatory work directly relating to proceedings, up to but excluding time spent at…

In assessing unfair dismissal, a tribunal must distinguish whether misconduct occurred from the separate question of the appropriate sanction. An employee’s…

An Employment Tribunal must explain how its factual findings and the applicable law resolve the issues. Detailed factual findings do not compensate for a…

In a redundancy dismissal, the tribunal must assess the overall fairness of the employer’s procedure under Employment Rights Act 1996, section 98(4). It must…

Affirmation of a repudiatory breach and the statutory question whether it was reasonably practicable to present an unfair dismissal claim in time are distinct…

For a detriment claim under section 47B of the Employment Rights Act 1996, the claimant must establish both the act and the resulting detriment. The act must…

For a detriment claim under Employment Rights Act 1996 section 47B, the act must be done because the worker made a protected disclosure. The connection between…

When deciding whether it is just and equitable to extend time for an out-of-time discrimination claim, the tribunal must consider the justice of extending time…

An application to review an Employment Tribunal judgment must be made within the prescribed period. In deciding whether to extend time, the tribunal may…

An employment tribunal deciding whether work was rated as equivalent must give adequate reasons for its factual and inferential conclusions. It must explain…

In a wrongful-dismissal appeal, the employer must establish on the balance of probabilities that summary dismissal was contractually justified. Conduct…

Section 98A(2) of the Employment Rights Act 1996 can cure a dismissal that would otherwise be unfair because of a failure to follow a fair procedure, provided…

For the statutory dismissal procedure, an employer must provide information sufficient for the employee to understand the basis of the proposed redundancy and…

An Employment Tribunal has a broad case-management discretion when deciding whether to permit a late amendment. The relevant question is the balance of…

An Employment Tribunal must give sufficient reasons to explain why a claim has succeeded or failed. It must address the material issues identified for decision…

An Employment Tribunal must assess whether the employer acted reasonably, rather than substitute its own view of the evidence or the appropriate response. In a…

In discrimination proceedings, a claimant must prove facts from which a reasonable tribunal could properly conclude, in the absence of an adequate explanation…

In a discrimination claim, the burden of proof does not shift merely because the claimant establishes a difference in race and a difference in treatment. Those…

A restricted reporting order under rule 50 of the Employment Tribunals Rules of Procedure is discretionary and should be made only where necessary to protect…

An appeal to the Court of Appeal under section 37 of the Employment Tribunals Act 1996 is not barred merely because the appellant has not exhausted the EAT’s…

An appeal on a question of law may succeed where an employment tribunal makes an important factual finding unsupported by the evidence or contrary to…

Under sections 188–189 of the Trade Union and Labour Relations (Consolidation) Act 1992, a protective award is confined to employees in respect of whom the…

The Igen v Wong burden-of-proof guidance is not a mechanical 13-stage procedure, but a tribunal must identify whether the claimant has proved facts capable of…

Where an employee admits misconduct, the reasonable-investigation limb of the Burchell test may require little or no further investigation into whether the…

An employment tribunal must identify and apply the statutory duty to make reasonable adjustments. Where a provision, criterion or practice places a disabled…

Mutuality of obligation is not a necessary condition of a contract personally to do work under section 68(1) of the Disability Discrimination Act 1995.…

For an extension of time, the claimant must show that it was not reasonably practicable to present the complaint within the statutory period and that it was…

In pregnancy and maternity discrimination cases, the claimant need only provide evidence from which discrimination could be inferred. The burden then passes to…

A discrimination claim should be struck out only where it has no reasonable prospect of success. The fact-sensitive nature of discrimination litigation…

An Employment Tribunal may join a respondent on its own initiative. However, procedural fairness requires the proposed respondent to receive notice of the…

In a constructive dismissal claim based on breach of the implied term of mutual trust and confidence, the correct question is whether the employer, without…

Under Employment Rights Act 1996, section 98(4), an employment tribunal must not substitute its own view for the employer’s decision. The question is whether…

For a transfer to fall within regulation 3(1)(a) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal must make findings…

An employment tribunal has a very wide discretion to recommend practical action following a finding of discrimination. Practicability is assessed by reference…

On an appeal limited to questions of law, the Employment Appeal Tribunal will not reargue factual findings or interfere with an Employment Tribunal’s…

Under section 139(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, extension of time involves two distinct stages. The tribunal must…

An Employment Tribunal has no power to award interest as such on a compensatory award for unfair dismissal. An allowance for delayed receipt may, in principle…

Knowingly participating in illegal performance of an employment arrangement may bar contractual claims. It does not automatically bar a statutory…

An amendment to an employment claim is not a mere re-labelling exercise where the pleaded primary facts lack a causative link to the legal consequences…

An Employment Tribunal deciding that a dismissal was unfair must still determine properly any pleaded issue concerning a reduction in compensation. A finding…

Ignorance of the time limit for an unfair dismissal claim may make it not reasonably practicable to present the claim within time, provided the ignorance was…

Under a contract of employment, wages may remain payable where a worker is ready and willing to work but is prevented by sickness, injury or another…

An Employment Tribunal must first consider a costs order where a circumstance in rule 40(3) applies. It then retains a discretion whether an order is…

For the three-month limitation period in an unfair dismissal claim, time runs from the effective date of termination. Where an employee has received skilled…

An unfair-dismissal claim based on asserting a statutory right is not among the proceedings that an Employment Judge may hear sitting alone under Employment…

An employer may dismiss an employee where it genuinely believes that the employee cannot lawfully continue working, provided that belief supplies a potentially…

Under discrimination legislation, an employer is liable for discriminatory acts by an agency worker only if the worker was its employee within the statutory…

An appeal to the Employment Appeal Tribunal must be instituted within the prescriptive 42-day period running from the date on which the Employment Tribunal’s…

An employment tribunal may make a 100 per cent reduction in compensation for unfair dismissal where the employee’s conduct wholly caused the dismissal, even…

A pay differential following restructuring is not indirectly discriminatory merely because men occupy the higher-paid positions. Where the differential results…

Fresh evidence may be admitted on appeal where it could not reasonably have been adduced earlier, is relevant and would probably have materially influenced the…

An issue can create an estoppel in later proceedings only where it was a necessary ingredient of the earlier cause of action and was determined by a tribunal…

A contract of employment requires the irreducible minimum of mutual obligations. The individual must be obliged to provide work, and the putative employer must…

A minister’s spiritual vocation does not, without more, prevent an employment contract from arising with a religious organisation. The question is assessed…

The Employment Appeal Tribunal may extend the 42-day time limit for appealing in exceptional circumstances. Relevant considerations include the appellant’s…

An Employment Appeal Tribunal may extend the time for appealing where the delay is short and the appellant gives a reasonable, cogent explanation for it.…

In an unfair dismissal claim arising from redundancy, an employment tribunal must assess whether the employer’s selection process fell within the range of…

At the first stage of the statutory burden of proof, a difference in age and treatment does not automatically establish a prima facie case. The question is…

An Employment Tribunal must determine issues only after giving the parties a fair opportunity to make submissions on them. A Tribunal acts contrary to natural…

For a compromise agreement to settle an equality complaint, the complaint need not have been presented to an employment tribunal or articulated before the…

A tribunal must give proper reasons before finding that a witness has lied, including addressing the witness’s explanation and allowing a fair opportunity to…

For unfair dismissal purposes, an employer’s mistaken application of an absence procedure does not automatically make dismissal unfair. The error is relevant…

For qualification bodies, a requirement that an examination tests the ability to work under time pressure may be a competence standard. The duty to make…

An Employment Appeal Tribunal may interfere with a costs assessment only for an error of law or principle. Costs thrown away by an adjournment may include…

In unfair-dismissal proceedings, the Employment Tribunal must assess the employer’s conduct and decision, rather than substitute its own view of the facts or…

For continuity of employment, a week without a contract of employment will ordinarily break continuity under Employment Rights Act 1996, section 212(1).…

For the purposes of extending the time limit for an unfair dismissal claim, the question under Employment Rights Act 1996, section 111 is whether presentation…

Judicial proceedings immunity applies to claims of discrimination by way of victimisation where the alleged detriment consists of evidence or witness…

For disability discrimination, the comparator must reflect the disadvantage caused by the relevant provision, criterion or practice. Where the arrangement is…

Fresh evidence may be admitted on appeal where it is credible, could reasonably not have been adduced at the original hearing, and could significantly affect…

An Employment Tribunal may treat a single ET3 and accompanying grounds of resistance as a response by more than one respondent where, read as a whole, the…

For limitation purposes, the tribunal must identify the substance of the act complained of. It must distinguish that act from its continuing consequences. An…

An employment tribunal must determine only the reasonable adjustments identified as issues in the case. A tribunal cannot establish breach by reference to…

Harassment on grounds of sexual orientation requires unwanted conduct, a connection with sexual orientation, and conduct having the statutory purpose or effect…

Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 imposes mandatory requirements on the form and substance of…

In deciding whether a proposed reasonable adjustment is required, an employment tribunal must have regard to the extent to which it would prevent the…

An employment tribunal may exercise its discretion to allow an amendment joining a new respondent even where the relevant limitation period has expired. There…

In a redundancy dismissal, an Employment Tribunal must assess whether the employer acted reasonably within the statutory band of reasonable responses. It must…

In a constructive dismissal case, the tribunal must ask whether the employee resigned in response to the employer’s repudiatory breach. The breach need not be…

In conduct unfair-dismissal cases, the tribunal must assess whether dismissal fell within the range of reasonable responses open to a reasonable employer. It…

An application to adjourn must be determined by asking whether refusing it would make the hearing unfair. The appellate court reviews fairness directly, while…

In a redundancy dismissal, an Employment Tribunal must review whether the employer’s selection procedure fell within the range of reasonable responses. It must…

When disability is disputed under the Disability Discrimination Act 1995, the tribunal must focus on what the claimant cannot do, or can do only with…

For interim relief in an alleged whistleblowing dismissal, “likely” requires a significantly higher degree of likelihood than a bare balance of probabilities.…

An employment tribunal must decide clearly whether an employee’s departure was a redundancy dismissal or a consensual termination, particularly where the…

Fresh evidence may be admitted on an employment appeal where it could not reasonably have been obtained for the tribunal hearing, would probably have…

In an unfair dismissal claim, the Employment Tribunal must first determine the employer’s reason, or principal reason, for dismissal under section 98(1) of the…

In a conduct dismissal, the tribunal must determine whether the employer held a genuine belief in misconduct, reached it after a reasonable investigation, and…

For a misconduct dismissal to be fair, the employer must apply its disciplinary rules consistently and communicate the relevant prohibition clearly enough for…

For dismissal before or after a relevant transfer to fall within regulation 7 of TUPE, the transfer need not have been specifically identified when dismissal…

An Employment Tribunal’s factual conclusion will not be disturbed on appeal merely because the appellate tribunal might have evaluated documents differently.…

An employee is entitled to a fair grievance procedure, including a fair appeal hearing. Apparent bias may render the procedure unfair even where actual bias is…

Under section 1(3) of the Equal Pay Act 1970, an employer need only identify a factual explanation for a pay differential at the first stage. The explanation…

The statutory safeguarding framework did not make it unlawful to employ a person in a nursery without an enhanced Criminal Records Bureau certificate during…

Illegality in the performance of an employment contract requires careful analysis of both the employer’s conduct and the claimant’s participation. A failure to…

Whether employment has ended by dismissal or agreement depends on the reality and substance of the parties’ communications and conduct. An agreed termination…

A breach of contract claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 falls within Regulation 15 of the Employment…

A breach of contract claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 falls within the jurisdictions listed in…

A person cannot qualify as a worker under section 230(3) of the Employment Rights Act 1996 unless the relationship with the putative respondent is contractual.…

Under section 111(2) of the Employment Rights Act 1996, the questions whether it was reasonably practicable to present an unfair-dismissal complaint within…

A unilateral change to an employee’s work away from the contractual department, without the employee’s agreement where agreement is required, may amount to a…

In a direct race-discrimination claim, the reverse burden requires the claimant first to establish facts from which discrimination could be inferred.…

A mobile road-transport worker cannot be required to remain at the employer’s depot during a period of availability. Under the Road Transport (Working Time)…

Continued employment does not, by itself, establish acceptance of a unilateral contractual variation. The relevant question is whether the employee’s conduct…

An employment tribunal may look behind a final warning only in exceptional circumstances. The warning may be treated as valid where it was issued in good…

Compliance with the standard statutory grievance procedure requires the grievance and the later tribunal complaint to concern essentially the same complaint.…

A legitimate commercial policy to broaden a venue’s clientele does not justify discriminatory implementation. The tribunal must assess the overall factual…

An individual is not liable for redundancy pay or breach of contract unless the evidence establishes that he was the claimant’s employer. Ownership or…

In a redundancy arising from reorganisation, selection for a newly created role is not governed by the selection principles applicable to choosing employees…

For the purposes of Sex Discrimination Act 1975 s 6(6), a payment or benefit is regulated by the contract of employment only where the contract governs…

Section 106 of the Employment Rights Act 1996 applies only where its cumulative conditions are satisfied. The written information given on engagement must…

For interim relief in an automatically unfair dismissal claim, the statutory requirement that it appear likely that the complaint will succeed demands more…

Employee status depends on the true nature of the contractual relationship, assessed by applying the ordinary legal tests to all the facts. A person may…

Direct discrimination requires attention to the relevant decision-maker’s mental processes. An unexplained stereotypical assumption that a black employee…

An employee dismissed because working relationships with colleagues have irretrievably broken down is not necessarily dismissed for a reason relating to…

Under regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the question is the employer’s principal reason for changing…

Under regulation 4(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, a consensual variation of employment terms is void only…

In redundancy cases, the suitability of alternative employment and the reasonableness of refusing it are separate questions. Suitability requires an objective…