Employment Appeal Tribunal judgments, 2012

A claim under section 3A(1) of the Disability Discrimination Act 1995 requires proof of less favourable treatment by comparison with an actual or properly…

An appellate tribunal may not set aside an Employment Tribunal’s inferential finding merely because a different conclusion was available. The question is…

An appellate tribunal may not interfere merely because it would have drawn different inferences from the evidence. It may intervene where an inference of…

A difference in race and less favourable treatment do not, without more, shift the burden of proof in a direct discrimination claim. Migrant status and…

Recognition of a trade union for collective bargaining requires clear evidence of an express or implied agreement. Collective bargaining under Trade Union and…

Where a qualifying body’s act falls within section 12(1)(c) of the Race Relations Act 1976, an Employment Tribunal has no jurisdiction if a statutory appeal or…

A claimant may withdraw a claim orally at a hearing, and the withdrawal ordinarily ends the proceedings immediately. The Employment Appeal Tribunal may…

An Employment Tribunal may strike out as an abuse of process a substantially identical claim brought after the claimant voluntarily withdrew earlier claims at…

In deciding whether to reduce a basic award for contributory conduct under Employment Rights Act 1996, section 122(2), a tribunal may reach a percentage…

An employer may have actual or constructive knowledge of disability where the information available identifies a longstanding mental impairment, even if its…

An appeal on a point of law cannot challenge an Employment Tribunal’s permissible findings of fact merely because the appellant prefers a different view of the…

For direct race discrimination, the question whether treatment was on racial grounds differs from the question whether it caused a detriment. A detriment is…

An Employment Tribunal may find that a claimant was not disabled at the material date where contemporaneous evidence and the medical prognosis support that…

An Employment Tribunal must make sufficient findings of primary fact and give reasons which explain why it found that a protected act caused the alleged…

Where a contractual disciplinary procedure makes an alternative sanction conditional on the employee’s agreement, the employee may reject that sanction.…

Compensation for disability discrimination is recoverable only for loss caused by the discriminatory act. A claimant cannot recover a benefit merely because a…

Where a response has been struck out for non-compliance with an unless order, an Employment Tribunal must give reasons before revoking that order. A later…

Where dismissal follows a third party’s demand that an employee be removed from its premises, fairness requires the employer to take all reasonable steps to…

A tribunal decision must be set aside where the fair-minded and informed observer would conclude that there was a real possibility of bias. A lengthy passage…

Whether it is just and equitable to extend the limitation period for a race-discrimination claim is a broad evaluative judgment. The tribunal may have regard…

An appellate tribunal must not decide whether it regards a dismissal as fair or harsh. Where the Employment Tribunal has directed itself correctly, the…

A contractual term may be inferred from custom and practice where the evidence, viewed objectively and as a whole, establishes agreement between employer and…

An Employment Tribunal may control cross-examination to secure fairness and justice. It may prevent a party from putting a positive factual case which was…

Where proceedings under section 146 require a finding that a trade union was independent, and no certificate of independence is in force and no refusal…

Whether a person is a joint employer is ordinarily a question of fact. Where the evidence shows that both spouses gave instructions to a domestic worker…

A tribunal may find that two individuals jointly employed a domestic worker where the evidence shows that each gave instructions, directed work for their own…

An appellate tribunal may not overturn an Employment Tribunal’s finding of constructive dismissal merely because it would have reached a different conclusion.…

A mental impairment does not establish disability unless, at the relevant time, it has a substantial adverse effect on normal day-to-day activities. The…

An Employment Tribunal must decide whether the employer acted within the range of reasonable responses. It must not substitute its own assessment of a…

Where a contractual pay-protection clause requires an average of payments earned in the three months immediately preceding The calculation must use the…

In a redundancy selection case, the tribunal must decide whether the employer's choice of pool fell within the range of approaches open to a reasonable…

Whether an employment contract is concluded orally depends on the parties’ objectively ascertained intention. An indication that the terms will be confirmed in…

A contractual entitlement may arise from an employer’s enhanced redundancy practice only where an objective assessment of all the circumstances supports an…

A provision, criterion or practice is applied to a disabled employee when the employer repeatedly requires the employee to return to a specified post. Actual…

An Employment Tribunal commits an error of law where material findings central to its unfair-dismissal decision are demonstrably contrary to, or founded on a…

An appellate court will rarely interfere with an Employment Tribunal’s case-management discretion. Intervention is confined to Wednesbury grounds, including an…

An Employment Tribunal may award costs under rule 40 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 where a party has…

In assessing compensation for unfair dismissal, an Employment Tribunal may make predictions about what would have occurred had a fair procedure been followed.…

Where additional claimants are clearly identified in a prescribed ET1 and accompanying schedule, minor formal defects, such as using a schedule rather than an…

For the ETO exception to apply to a transfer-connected dismissal, the purpose must be to change the workforce while continuing to conduct the business. It does…

An Employment Tribunal must give sufficient reasons to show how it resolved each material issue argued before it. Reasons are inadequate where they omit any…

An employment tribunal considering an amendment to add a respondent must balance the injustice and hardship of allowing it against those of refusing it, in the…

Where a party seeks a postponement on medical grounds, an Employment Tribunal must fairly investigate significant new information bearing on that party’s…

In assessing a Polkey reduction for a hypothetical fair redundancy dismissal, a tribunal must apply the likely selection criteria in the light of all of its…

An individual who is genuinely in business on his own account is neither an employee nor a worker under section 230 of the Employment Rights Act 1996. The…

An employer’s disciplinary decision engages article 6 only where it determines, or is sufficiently linked to a determination of, a civil right to practise a…

An implied term cannot negate an express contractual term. A permanent health insurance arrangement will not justify implying a restriction on dismissal where…

In deciding whether to extend time on a just and equitable basis, an Employment Tribunal may give substantial weight to an unexplained delay and to the…

An employment tribunal's decision whether it is just and equitable to extend time is discretionary. Where the tribunal has directed itself by reference to the…

In a misconduct dismissal, the Burchell requirement of a reasonable investigation is assessed by the objective standards of a reasonable employer and falls…

A compensatory award for unfair dismissal under section 123 of the Employment Rights Act 1996 must compensate actual loss and must not overcompensate the…

A claim under section 13 of the Employment Rights Act 1996 must concern wages to which the worker has a legal entitlement and which are a specific, quantified…

A written employment contract is construed objectively, by asking what its words would convey to a reasonable person with the relevant background knowledge.…

A signed employment contract remains binding according to its objectively construed terms unless a recognised basis for setting it aside is established.…

Where a fixed-term contract expires without renewal, its expiry is the statutory mechanism of dismissal. It is not, without more, the employer’s reason for…

A party may waive an objection based on apparent bias if, knowing the material circumstances and the consequences of the choice, the party has a clear and…

Employment status depends on the relationship established by the facts as a whole. A person initially engaged on a self-employed basis may become an employee…

A respondent does not require permission to amend its ET3 merely to dispute an averment which it has not admitted. A prior preliminary hearing does not…

Where an employee is dismissed because the employer’s requirement for employees to carry out work of a particular kind has diminished, the dismissal is one for…

An Employment Tribunal must decide the issues put before it. If it proposes to determine a material issue which neither party has raised, it must first give…

An extension of the 42-day appeal period may be granted where a late filing resulted from an administrative error of the Employment Appeal Tribunal and the…

An impairment may affect normal day-to-day activities through an intermediate causal step. A direct causal link is not required. However, under Equality Act…

A collective agreement may be incorporated into an individual contract only to the extent that its particular terms are apt for contractual enforcement. A…

An Employment Tribunal must consider the overall factual picture when deciding whether an inference of direct racial discrimination may properly be drawn. A…

Where refusal of an adjournment may prevent a party from participating in proceedings determining civil rights, the decisive question is whether the refusal…

Where a respondent states that it will not resist a claim, the Employment Tribunal may give a default judgment determining liability and remedy on the…

An employer cannot rely solely on an employee’s contractual duty to notify a change of address where an important recorded-delivery letter has been returned…

In a misconduct dismissal case, the Employment Tribunal must assess the employer’s conduct by the objective standard of the reasonable employer. It must not…

A redundancy situation does not itself establish that redundancy was the reason for a particular dismissal. The tribunal must determine, on all the evidence…

In an unfair-dismissal case, the fairness of an employer’s investigation is assessed by reference to the material available to the employer and to whether it…

An employer relying on some other substantial reason must establish its actual reason for dismissal. A dispute about contractual pay, bonus or share…

An unfair-dismissal claim should be struck out for having no reasonable prospect of success only with great caution. Where central facts are disputed…

An Employment Tribunal considering an amendment must first identify whether it merely relabels substantially the same facts or introduces genuinely new claims.…

For a service provision change under Transfer of Employment (Protection of Undertakings) Regulations 2006, the tribunal must first identify the activities…

An Employment Tribunal unless order under rule 13(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 is a conditional…

An appellate tribunal should not substitute its own assessment of the employee’s conduct or of the reasonable employer’s response for that of an Employment…

A body is a qualifications body under sections 53 and 54 of the Equality Act 2010 only if it can confer a formal relevant qualification. The listed forms of…

In a misconduct dismissal appeal, an appellate tribunal must not substitute its own view for that of either the employer or the Employment Tribunal. Where the…

In deciding fairness, an Employment Tribunal must assess the employer’s actual reason for dismissal. It may not remove an unproved or procedurally unfair…

An Employment Tribunal must determine the employer’s actual reason for dismissal in a pregnancy-discrimination claim. A causal sequence connecting pregnancy…

An appeal may be dismissed under rule 26 where an appellant fails to comply with clear directions for the conduct of the hearing and thereby makes a fair…

An Employment Tribunal determining an unlawful-deduction claim must make sufficient findings about the contractual terms, the basis on which those terms are…

For the exclusion in regulation 3(3)(a)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, a single specific event stands…

An Employment Tribunal must give reasons which identify the legal test applied and explain how its findings of fact led to its conclusion. Reasons need not be…

At a pre-hearing review, an Employment Tribunal may receive oral and documentary evidence and resolve material factual disputes before deciding whether a claim…

A reasonable-adjustments claim requires identification of a provision, criterion or practice (PCP) which causes a disabled person a substantial comparative…

For a protected-disclosure detriment claim, the limitation period runs from the employer’s causative act or deliberate failure to act, not from the continuing…

An employer can rely on the economic, technical or organisational exception only where the changes in workforce numbers or functions form part of the reason…

For the purpose of determining the reason for dismissal, the tribunal must identify the facts known or beliefs held by the employer which caused the dismissal.…

An appellate tribunal will ordinarily refuse to permit a party to withdraw a clear concession and raise a new point which would require further factual…

A person is not a limb (b) worker under section 230(3)(b) of the Employment Rights Act 1996 where the contract gives an unfettered and genuine right to have…

A service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 may occur where a client takes a service in-house…

A written agreement by which an employee consents in advance to deductions from wages for a loan is a complete answer to an unauthorised-deduction claim under…

An employee need not expressly plead an act extending over a period. However, the ET1, read as a whole, must plead facts capable of establishing a linked…

Where an employer establishes a real chance that an employee would have been dismissed even if a fair redundancy procedure had been followed, compensation may…

In assessing compensation for unfair dismissal, a tribunal may reduce the award for the chance that dismissal would have occurred despite a fair procedure. It…

An Employment Tribunal considering an amendment must apply the Selkent approach. It must assess the nature of the proposed amendment, the relevance of time…

In a conduct dismissal case, the tribunal does not determine whether the employee in fact committed the alleged misconduct. It determines whether the employer…

An Employment Tribunal may refuse an adjournment where the party seeking it could already have called the material witnesses and suffers no substantial…

In assessing compensation for unfair dismissal where a fair procedure might have led to retention or alternative employment, an Employment Tribunal must…

In a redundancy dismissal, an employer will normally be expected to give reasonable warning and consultation. The question under section 98(4) of the…

A claimant need not expressly state a personal belief that treatment was discriminatory before a tribunal may draw an inference of race discrimination. The…

At a preliminary hearing, a claimant need show a good arguable or prima facie case that alleged discriminatory acts formed a continuing act; the claimant need…

Under section 98(4) of the Employment Rights Act 1996, the objective range of reasonable responses test applies to procedural fairness as well as investigation…

Where an Employment Tribunal invites a party to show cause why a costs order should not be made, it must consider the reasons advanced in response and give…

Where a self-represented party seeks an adjournment for ill-health, an Employment Tribunal must decide the application fairly in light of the available medical…

A service member may pursue an employment tribunal discrimination claim only after complying with the statutory service-complaint procedure. A complaint is…

A settlement agreement must be construed objectively from its words and context. An agreement that clearly settles proceedings against one named respondent…

An Employment Tribunal has a wide discretion whether, and how, to take a party’s means into account when making a costs order. However, in deciding whether to…

Under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess the employer’s decision by the objective standard of the reasonable…

A claimant need not make a formal application before an employer’s refusal to consider a proposed part-time job-share can found an indirect sex-discrimination…

An allegation of judicial bias, once withdrawn, may be dismissed. Such allegations are serious and should be supported by proper particulars and evidence. On a…

An Employment Tribunal must determine direct-discrimination complaints as clearly defined by the claimant. It must not recast background material, narrative or…

An Employment Tribunal may refuse a review where a party has not proved that a properly posted hearing notice was not received. A decision made in a party’s…

An appeal to the Employment Appeal Tribunal is not instituted in time merely by lodging a notice of appeal within 42 days. It must also include the prescribed…

Whether an employee has unreasonably failed to mitigate loss by refusing alternative work is a fact-sensitive question. The employer must show that the…

For an equal pay claim, the six-month limitation period runs from the end of the employment to which the claim relates. Employment with a transferor and…

For an equal pay claim based on a transferor’s pre-transfer breach of an equality clause, the six-month limitation period runs from the end of the employment…

Where a claimant unreasonably refuses a medical examination required by the respondent, the decisive question is not simply whether the tribunal could…

A short period of subsequent work does not automatically end loss attributable to an unfair dismissal. Under section 123(1) of the Employment Rights Act 1996…

A written zero-hours agreement does not determine the parties’ true legal relationship where the evidence establishes a continuing agreement to provide and…

A complaint may allege a continuing act where it is reasonably arguable that apparently disparate incidents form an ongoing situation or state of affairs. A…

A claim under Part II of the Employment Rights Act 1996 may include substantial factual and quantification disputes. It remains within the Employment…

For an individual assignment, the mutual obligations to perform work and to pay for it establish a contract while the assignment continues. This remains so…

An employment tribunal may assess compensation for loss flowing from an established protected-disclosure detriment by considering what would probably have…

An Employment Tribunal’s decision to grant or refuse an adjournment is a case-management discretion. An appellate tribunal may intervene only for an error of…

An adjournment is a discretionary case-management decision. An appellate court will interfere where the tribunal gives inadequate reasons, fails to assess…

For an unfair-dismissal claim presented after the primary time limit, the tribunal must decide first whether timely presentation was reasonably practicable and…

An Employment Tribunal may consider oral or written evidence at a pre-hearing review when deciding whether to impose a deposit order. Rule 18(2) of the…

An extension of time for an Employment Appeal Tribunal appeal is exceptional. The 42-day limit applies equally to represented and self-represented litigants.…

Unsuccessful compromise-agreement negotiations are privileged. An Employment Tribunal must not enquire into them, or admit evidence about them, unless both…

An agreement is not unenforceable merely because a future payment is determined by reference to an external figure not yet fixed, or because it gives one party…

Where the transitional provisions preserve section 98A of the Employment Rights Act 1996, an Employment Tribunal must consider its application in an unfair…

Under Employment Rights Act 1996, section 98(4), fairness depends on the circumstances and substantial merits of the individual dismissal. There is no absolute…

Where an employer has committed a repudiatory breach, an employee establishes constructive dismissal if the resignation was in response to that breach in part.…

Under section 136 of the Equality Act 2010, a claimant must prove facts from which discrimination could properly be inferred before the evidential burden…

Victimisation under the Race Relations Act 1976 requires a comparison between the treatment of the person who carried out a protected act and that of a person…

Unreasonable or inadequate handling of a discrimination complaint does not, without more, establish direct discrimination. The tribunal must determine whether…

An employee must receive fair notice of the disciplinary allegations to be met. An employer cannot fairly dismiss for a different and more serious reason which…

An employment contract may be varied by implied agreement established through the parties’ conduct. That principle extends to the identity of the employer.…

For time-limit purposes, alleged discriminatory acts amount to conduct extending over a period only where the facts establish a link between them which…

For the purposes of section 212(3)(b) of the Employment Rights Act 1996, a temporary cessation of work is assessed by asking whether the employee’s job ceased…

An Employment Tribunal must not refuse an amendment solely because it introduces new causes of action. Where the proposed amendment is arguable and…

In a misconduct dismissal, an Employment Tribunal must determine whether the employer had a proper basis for its belief in misconduct following a reasonable…

In an ill-health dismissal, the statutory question under section 98(4) is whether the employer acted within the range of reasonable responses. The tribunal…

An Employment Tribunal's credibility findings cannot stand where it wrongly treats central, disputed facts as undisputed and thereby treats a claimant's…

Under Transfer of Undertakings (Protection of Employment) Regulations 2006, assignment is an individual and fact-sensitive inquiry. A service provision change…

In a redundancy dismissal, Employment Rights Act 1996, section 98(4), requires the tribunal to decide whether the employer acted within the range of reasonable…

An umbrella contract is not a contract of employment unless the individual is obliged to accept and perform at least some minimum or reasonable amount of work.…

An appeal tribunal may not rehear disputed facts. A perversity appeal succeeds only where the tribunal reached a conclusion that no reasonable tribunal…

For the ETO defence under Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal must identify the reason for dismissing the…

A strike-out for having no reasonable prospect of success is exceptional, particularly in discrimination claims where central facts are disputed. It may…

An Employment Tribunal has no jurisdiction over a discrimination complaint against a qualifications body where the impugned act may be challenged by statutory…

A difference in racial status and less favourable treatment do not, without more, permit an inference of direct discrimination or shift the statutory burden of…

An employer’s duty to make reasonable adjustments does not automatically end because a disabled employee begins sick leave. Where it is alleged that the…

An Employment Judge has no power under rule 10 of the Employment Tribunal (Constitution and Rules of Procedure) Rules 2004 to join as a respondent an…

An Employment Tribunal must provide adequate reasons for its decision. Its duty under rule 30 cannot be confined to a particular issue raised in a party’s…

A transferee alleging breach of the employee-liability-information duty must identify information that was not provided and show loss attributable to that…

An Employment Tribunal may raise a legally relevant issue which the parties have not advanced, but it must determine the issues before it fairly. Where the new…

An appellate tribunal need not research and formulate unadvanced grounds of appeal, particularly where neither party attends or makes adequate submissions. An…

In a redundancy dismissal, the tribunal must apply the broad evaluative test in section 98(4) of the Employment Rights Act 1996. It must assess the employer’s…

An employment tribunal commits a material procedural irregularity where it determines an issue capable of materially affecting an absent party without giving…

An Employment Appeal Tribunal notice of appeal must be lodged with all required documents within the prescribed six-week period. The period applies equally to…

In an unfair-dismissal case based on alleged disparity of treatment, the question under section 98(4) of the Employment Rights Act 1996 is whether dismissal…

A dismissal on expiry of a fixed-term contract is not, without more, a redundancy dismissal. The tribunal must determine, on all the facts, whether the reason…

A document required for an Employment Appeal Tribunal appeal is not validly lodged merely because the appellant emails a link to a third-party website from…

An uplift for an employer’s unreasonable failure to comply with the ACAS Code under section 207A is available only to an employee. It is unavailable to a…

A communicated and settled intention to implement a material reduction in contractual pay is capable of being an anticipatory fundamental breach. An employer's…

Contractual pay-protection provisions must be construed in their factual and contractual context. A court may depart from a strict literal reading where the…

A constructive dismissal may arise from an employer’s fundamental contractual breach, including an attempted material variation of contractual hours. That…

An employer may be liable for a site manager’s trade-union-motivated withdrawal of an employment offer where the manager had actual or ostensible authority to…

An unfair-dismissal compensatory award must reflect loss which is attributable to the dismissal and is just and equitable under Employment Rights Act 1996…

Where an employment claim is struck out because a fair trial is no longer possible, the tribunal must assess the medical evidence, the likely prospect of the…

In an unfair-dismissal appeal, the appellate tribunal must not retry factual issues merely because another inference was available. Where the Employment…

An Employment Judge may summarily reject a review application under rule 35(3) only where that process can fairly resolve the application. A material factual…

Failure to comply with an employment tribunal unless order results in automatic strike-out under rule 13(2) of the Employment Tribunals (Constitution and Rules…

In an appeal under Employment Rights Act 1996, section 98(4), the Employment Appeal Tribunal must respect the Employment Tribunal’s evaluative judgment and may…

A payment which originated as a travel allowance may become a contractual emolument if, as a matter of fact and degree, it has ceased to depend on travel…

An Employment Tribunal has jurisdiction under Disability Discrimination Act 1995 section 17A(1)(b) to determine a victimisation complaint against a fellow…

For the purposes of Employment Rights Act 1996 section 98(4), the relevant reason for dismissal is the reason actually operative in the employer’s mind. A…

In a redundancy selection exercise among senior managers, criteria requiring commercial judgment are not unfair merely because they are subjective, unscored…

Where evidence shows that counselling or other treatment would probably have made an impairment less severe, an Employment Tribunal determining disability must…

An appellate court will not interfere with a discretionary refusal of relief from an unless-order sanction merely because it might have reached a different…

Internal disciplinary proceedings conducted by an employer’s manager under a simplified contractual procedure are not judicial determinations capable of…

An Employment Tribunal must determine whether the conduct which an employer reasonably believed had occurred was, as a matter of law, capable of constituting…

An Employment Tribunal may refuse to postpone a preliminary hearing where its limited issues do not overlap with an impending criminal trial and do not create…

An employee claiming constructive dismissal must prove both a fundamental contractual breach and that the breach was the effective cause of resignation. A…

An Employment Tribunal has power in principle to require a witness to attend of its own initiative. That power must be exercised consistently with the…

Fairness requires a party to have a proper and reasonable opportunity to prepare and present its case. That opportunity is assessed objectively. A party’s…

In assessing the fairness of a dismissal, an Employment Tribunal must assess the whole disciplinary process under section 98(4) of the Employment Rights Act…

For a service provision change under regulation 3(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the activities before and…

In a capability dismissal, the question is whether the employer's belief and decision fell within the band of reasonable responses. The tribunal must not…

When assessing mitigation of loss, an employment tribunal must decide whether the employee took the steps that a reasonable employee would have taken to obtain…

Where a respondent’s accepted response is struck out under an unless order, the procedural rules should be construed purposively. The respondent is ordinarily…

An Employment Tribunal must substantially comply with the requirement to identify the issues, but need not use a rigid form where its reasons make clear that…

Where an equal-pay claimant establishes disparate adverse impact, an employer may in principle show that the pay difference has no sex taint. That defence is…

In an equal-pay claim, an employer may in principle rebut a statistical presumption of sex discrimination by proving that the pay disparity has no sex taint.…

Under section 98(4) of the Employment Rights Act 1996, fairness in selecting a redundant employee for an alternative role depends on the particular procedure…

In a wrongful-dismissal claim, an employer seeking to justify summary dismissal must prove that the employee actually committed a repudiatory breach of…

An Employment Tribunal costs order will only be disturbed on appeal for an error of legal principle. Although costs orders remain exceptional, a tribunal may…

A tribunal must determine employment status objectively from the parties’ true legal relationship. A contractual label of self-employment does not prevail…

An Employment Judge considering a review application on paper under rule 35(3) must decide whether the application discloses a ground for review and whether…

A transfer of a commercial lease does not, without more, establish a relevant transfer under the Transfer of Undertakings (Protection of Employment)…

Under regulation 30(1) of the Working Time Regulations 1998, a complaint concerning daily or weekly rest requires an actual refusal by the employer to permit…

For a complaint under regulation 30(1) of the Working Time Regulations 1998, a worker must have exercised, attempted to exercise, requested, or complained of…

In determining whether a capability dismissal was reasonable under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess the…

Where dismissal is procedurally unfair, the Polkey assessment does not ask whether, on the balance of probabilities, the employee would have been dismissed…

In an unfair-dismissal appeal based on perversity, the appellate tribunal will intervene only where the employment tribunal’s decision was plainly wrong or one…

An appellate tribunal may interfere with a discretionary case-management decision only for legal error, disregard of principle, factual misapprehension, an…

A tribunal must determine employment status from the practical reality of the relationship. A contractual label of consultant or self-employed person…

An employer may establish some other substantial reason for dismissal where it imposes contractual change for genuine, sound and non-arbitrary business…

Whether unwanted sex-related conduct creates the statutory proscribed environment is a fact-sensitive question. The tribunal must consider all the…

An Employment Appeal Tribunal may make an indefinite restriction of proceedings order under Employment Tribunals Act 1996, section 33 where a person habitually…

A party who deliberately deploys material referring to a without-prejudice settlement offer waives the privilege attaching to that offer. The opposing party…

Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, regulation 18(1), excludes the Regulations only in relation to an employee who…

The test for apparent bias is whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of…

Under regulation 9(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, substitution of an Employment Judge or lay member…

When assessing compensation for a procedurally unfair dismissal, an employment tribunal must make a just and equitable assessment of loss under Employment…

A paid suspension will generally not amount to harassment under Disability Discrimination Act 1995 where it is reasonably necessary, carefully considered, kept…

An equity member of an LLP may be a limb (b) worker under section 230(3) of the Employment Rights Act 1996. The question is not resolved merely by profit…

An equity member of an LLP may be a limb (b) worker under section 230(3) of the Employment Rights Act 1996. The decisive question is whether the statutory…

Where an individual is engaged for a particular period, personal service, a bargain involving work or availability for work and a sufficient degree of control…

An Employment Tribunal considering an amendment must apply the Selkent balancing exercise in all the circumstances. It may refuse an amendment which is utterly…

In a dismissal for some other substantial reason based on a breakdown of trust and confidence, an Employment Tribunal may consider the history which produced…

In national-security Employment Tribunal proceedings, the communication restriction in rule 8(4)(a) of Schedule 2 applies to all written grounds on which the…

In assessing a Polkey reduction, a tribunal must assume that the employer would have adopted and carried out a fair procedure. It must then make a practical…

An employer may deduct wages only where the deduction is required or authorised by statute, authorised by a relevant contractual provision, or previously…

An Employment Tribunal has a discretion to award the whole of a party’s costs where unreasonable or misconceived conduct has affected the proceedings. It need…

An Employment Tribunal may strike out a claim for lack of reasonable prospects only where, after careful consideration of the available material, there are no…

For a service provision change under Transfer of Undertakings (Protection of Employment) Regulations 2006, an organised grouping must have been deliberately…

Under the Employment Tribunal Rules 2004, an Employment Judge may seek a respondent’s written comments when conducting the preliminary consideration of a…

Withdrawal of an employment tribunal claim ends the proceedings for the purposes of a costs or expenses application. A respondent need not first obtain…

An extension of time to lodge an Employment Appeal Tribunal appeal requires a sufficient explanation for the delay. A self-represented litigant’s location…

For a constructive dismissal, the effective date of termination under Employment Rights Act 1996 is a statutory and objective question. It must be decided…

For discrimination legislation defining employment to include a contract personally to do work, the dominant purpose of the contract is not the sole test. The…

In a misconduct dismissal, the employer bears the burden under section 98(1) of showing the reason for dismissal, but not the burden of proving the…

An Employment Tribunal’s costs jurisdiction under rule 40 is discretionary and costs remain exceptional. The threshold tests apply equally to represented…

A person engaged through an agency may be employed under a contract personally to do work for the extended definition of employment in Disability…

An Employment Tribunal’s reasons are legally adequate where, read as a whole, they identify the material instruction, state the essential factual findings and…

A claim may be struck out for having no reasonable prospect of success only in the clearest case. The applicant must show no reasonable prospect, not merely…

Under rule 40 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, an Employment Judge must first decide whether a party acted…

An appeal to the Employment Appeal Tribunal requires an arguable error of law. Once the substantive claims have been determined, earlier interlocutory…

An Employment Judge may determine a confined factual issue at a pre-hearing review where a prior case-management direction requires it and the Tribunal rules…

In assessing misconduct dismissal under Employment Rights Act 1996, section 98(4), a tribunal must determine whether the employer’s decision fell within the…

In a constructive dismissal claim, a series of incidents may be assessed cumulatively. Individual incidents, including the final incident, need not each amount…

An Employment Tribunal may find unreasonable conduct under rule 40(3) where a represented party continues a costly claim after a reasoned costs warning without…

A discrimination complaint concerning an overseas post falls outside section 4 of the Race Relations Act 1976 where the post requires residence outside Great…

An employee who resigns with immediate effect fixes the effective date of termination when the resignation is effectively communicated to the employer. For a…

Where an employee resigns without notice, the effective date of termination is fixed when the resignation is effectively communicated to the employer.…

For a reduction for contributory conduct under section 123(6) of the Employment Rights Act 1996, the conduct must be blameworthy and must have caused or…

An appeal to the Employment Appeal Tribunal must be validly instituted within the prescribed time, with all documents required by the rules and Practice…

A tribunal must determine claims which remain extant and have not been withdrawn or abandoned. Where a limitation defence is raised, it may properly be…

For a reduction for contributory conduct in an unfair-dismissal award, the tribunal must identify culpable conduct and find a causal link between that conduct…

A reasonable-adjustments claim requires precise identification of an employer’s provision, criterion or practice, a substantial disadvantage caused by that…

A decision whether to review and revoke a strike-out is a discretionary decision under Employment Tribunals (Constitution and Rules of Procedure) Regulations…

Where an employee's conduct appears to have caused or contributed to dismissal, an Employment Tribunal must consider whether it was blameworthy and whether…

Under section 98(4) of the Employment Rights Act 1996, the fairness of a dismissal must be assessed by reference to the employer’s actual reason for treating…

In a conduct dismissal, the statutory range of reasonable responses applies equally to the employer’s investigation and to the decision to dismiss. An…

A strike-out because a fair hearing is no longer possible is a last-resort and proportionate measure. The Employment Tribunal must determine whether a fair…

An Employment Judge has no power to require a claimant to replace an accepted ET1 with a one-page concise statement where that direction may curtail the claims…

An Employment Tribunal has no power to require a claimant to reduce an accepted claim form to a prescribed length where doing so may curtail the claims…

Where a worker’s contracted and normal duties are performed separately from a period spent at or near the workplace awaiting a possible call, the latter is an…

An Employment Tribunal may award costs where proceedings are misconceived, including where they have no reasonable prospect of success, or have been conducted…

An ET1 must be construed as a whole. A claim for automatic unfair dismissal based on protected disclosure must nevertheless emerge from the claim form or its…

For an allegation to be treated as an act extending over a period under section 68 of the Race Relations Act 1976, the claimant must show a reasonably arguable…

A claim under Part II of the Employment Rights Act 1996 is confined to unpaid, quantified or quantifiable contractual sums. It cannot be used to obtain damages…

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

In a misconduct dismissal, a tribunal must address each element of the Burchell inquiry. It must determine whether the employer had reasonable grounds for its…

The Employment Appeal Tribunal held that an employment tribunal lacks jurisdiction to hear a breach of contract claim while the claimant remains employed.…

A tribunal may exercise its strike-out power during a hearing, but a strike-out for no reasonable prospect of success is principally a pre-hearing remedy. It…

An Employment Tribunal may assess the period of compensable loss by reference to the evidence of available work, the employee’s mitigation efforts and its…

An appeal to the Employment Appeal Tribunal must identify an arguable error of law. Where no such point is disclosed, the Tribunal has no jurisdiction under…

An employee suspended pending investigation remains entitled to contractual salary unless the contract authorises suspension without pay. Arrest, charge or…

An extension of time for an Employment Appeal Tribunal appeal requires a persuasive and supported explanation for the delay. A medical condition will not…

In a misconduct dismissal, the employer establishes the potentially fair reason by showing the facts or beliefs which caused the dismissal. Where misconduct is…

Where a withdrawn employment tribunal claim has been dismissed under rule 25(4), a claimant cannot bring a later claim founded on the same or substantially the…

Where an employer and individual employees are concurrent wrongdoers in a discrimination claim, they are jointly and severally liable to the claimant for an…

An Employment Tribunal need consider the grounds for aggravated damages that a claimant has advanced in the schedule of loss and written or oral submissions.…

An appellant seeking an extension of time for an appeal from a Registrar’s order must provide a good reason for the whole delay. The EAT’s time limits and…

In a redundancy dismissal, fairness requires an assessment of the process as a whole under section 98(4) of the Employment Rights Act 1996. Consultation may be…

Fairness of a redundancy dismissal under Employment Rights Act 1996 depends on the overall reasonableness of the process. Consultation is unfair where an…

For the purposes of Regulation 7(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, a transferee’s workforce does not include…

For the purposes of regulation 7(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, a transferee’s workforce does not include…

Where a contract provides a shorter notice period during an employee’s probationary period, that specific term governs dismissal occurring within that period.…

An employer may fairly dismiss a senior, trained employee for gross misconduct without a specific prior warning where the employee knew, or should have known…

An appellate tribunal will rarely interfere with an employment tribunal's case-management discretion. It may do so where the decision rests on an erroneous…

A transfer under Transfer Undertakings (Protection Employment) Regulations 2006 may occur before contractual completion where the transferee has assumed…

Where compensation for an automatically unfair dismissal is assessed on a just and equitable basis, an Employment Tribunal must give adequate reasons for…

It is not correct that an employment contract transfers by operation of law without the employee's assent. Rather, at common law a contract of service cannot…

A tribunal may strike out a party’s claim for conduct connected with the proceedings where that conduct makes a fair trial impossible and no lesser…

An employment tribunal's discretion to adjourn is constrained by judicial fairness and the overriding objective. Where a self-represented litigant produces…

At common law, a contract of employment cannot be transferred to a new employer without the employee’s real consent, whether express or implied. A change in…

A tribunal may strike out a discrimination claim where the undisputed facts show that it has no reasonable prospect of success. Although strike-out is a…

A trade union member is protected from unjustifiable discipline for a good-faith assertion that the union or its officials have breached union rules or the…

An appellant seeking an extension of time for an Employment Appeal Tribunal notice of appeal must provide an acceptable explanation for the delay. A delay of…

Striking out for breach of an unless order is an extreme step, but it may be proportionate where there is a sustained history of non-compliance, material…

The reverse burden of proof in section 17A(1)(c) of the Disability Discrimination Act 1995 applies to a complaint of victimisation under section 55.…

Where a dismissal is automatically unfair under section 98A(1) of the Employment Rights Act 1996, the reverse- Polkey provision in section 98A(2) does not…

An Employment Tribunal may order costs where a party has conducted proceedings unreasonably. A solicitor and officer of the court should not exploit an…

An Employment Tribunal may award costs or preparation time costs where a party’s conduct unreasonably frustrates the efficient resolution of the real dispute.…

Under Transfer of Undertakings (Protection of Employment) Regulations 2006, proof of a service provision change does not itself establish that an individual…

For worker status under section 54(3)(b) of the National Minimum Wage Act 1998, mutuality concerns whether an agreement is capable of amounting to a contract…

For a service provision change, the tribunal must identify the relevant activity and decide whether the activity carried on afterwards is fundamentally or…

An Employment Tribunal may accept a party’s withdrawal or concession only where it is clear, unambiguous and unequivocal. It must take particular care where…

A later notice of dismissal may validly supersede an earlier notice by bringing forward the effective date of termination. This is so even if the employer's…

An ET1 must be construed as a whole to identify the claims actually presented. References to race discrimination, a tick in a discrimination box, or later…

An employment tribunal must make findings on factual issues that are significant in its reasoning and explain whether it accepts or rejects material evidence.…

An Employment Tribunal’s decision to award costs for unreasonable conduct is primarily a factual and discretionary decision. An appellate tribunal should…

In redundancy cases, the choice of selection pool is primarily a management decision. An Employment Tribunal must not substitute its own view merely because it…

In a victimisation claim, the tribunal must identify the discriminator’s actual reason for the impugned act. It is a question of fact, but the tribunal cannot…

Direct race discrimination may be established through a series of connected acts extending over a period. A racial insult may itself be race-specific, without…

An employee’s grievance need only indicate the nature of the complaint and need not reproduce the later tribunal pleading. Whether a document raises a…

Conduct referring to pregnancy or miscarriage is not necessarily harassment or direct sex discrimination merely because it concerns a sex-specific…

Whether an employment relationship continues after a material change in duties depends on the whole factual circumstances. Written contractual arrangements…

Whether wages have been unlawfully deducted depends on the sum properly payable under the employment contract. Contractual terms must be construed objectively…

When assessing compensation for procedurally unfair dismissal, an Employment Tribunal must consider both the chance of dismissal following a fair procedure and…

When a litigant cannot attend an Employment Tribunal hearing for a genuine reason beyond his control, the Tribunal must consider the effect of proceeding in…

For the reasonable-adjustments duty, a provision, criterion or practice may place a disabled employee at a substantial disadvantage even where it is not…

Reductions of compensation for contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996 are principally factual questions. The…

Appellate interference with a discretionary review decision is justified where the Employment Judge applied the wrong legal approach or failed to consider…

An appeal against a remedy judgment cannot be used to reopen liability conclusively determined by an earlier default judgment where the time for appealing that…

In an appeal concerning limitation in a discrimination claim, the Employment Appeal Tribunal must assess whether the Employment Tribunal was entitled, on the…

Whether a discrimination complaint is in time depends on identifying the act complained of and its latest date. An Employment Tribunal is entitled to determine…

Before making a deduction for contributory fault in an unfair dismissal case, an Employment Tribunal must raise the issue with the parties and give them an…

Where a contract states that overtime is voluntary, an employee becomes entitled to treat additional hours as overtime only when the employer gives notice…

Under regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, “working conditions” extend beyond contractual terms and…

Under regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, “working conditions” are wider than contractual terms and…

For a continuing entitlement to daily or compensatory rest, time under regulation 30(2) of the Working Time Regulations 1998 runs separately from each occasion…

In an unfair-dismissal case concerning admitted misconduct, the tribunal must apply the statutory test in section 98(4) of the Employment Rights Act 1996. The…

There is no prescribed method for calculating a deposit order under rule 20. The amount must be reasonable in all the circumstances and is appealable only…

For a detriment complaint arising from a protected disclosure, time runs from the act or failure to act identified in the claim. A later description of the…

Where an Employment Tribunal receives further written submissions after a remedies hearing, the practicability of reinstatement or re-engagement must be…

In redundancy selection, an employment tribunal must assess whether the employer’s method fell within the range of reasonable responses, without substituting…

An appellate tribunal should not substitute its own view for that of the employer when reviewing a conduct dismissal. It may intervene only where the…