Employment Appeal Tribunal judgments, 2013

Under rule 35(3) of the Employment Tribunal Rules of Procedure 2004, “not practicable” means not feasible, rather than inconvenient. An unfounded allegation of…

It is not enough for an employer to be unaware of a legal characterisation of an impairment; rather, before direct disability discrimination under Equality Act…

A sole shareholder and managing director may be an employee of the company. The issue is one of fact, including whether an apparent contract of employment…

An Employment Tribunal must assess whether dismissal falls within the range of reasonable responses open to a reasonable employer. It must not substitute its…

In deciding whether a conduct dismissal was fair under Employment Rights Act 1996, an Employment Tribunal must assess whether the employer acted within the…

In assessing compensation for unfair dismissal, an Employment Tribunal must estimate the chance that the actual employer, acting fairly, would have dismissed…

An Employment Tribunal considering a review based on new evidence must exercise its broad discretion by balancing the interests of justice. It should not apply…

For a detriment claim under section 47B of the Employment Rights Act 1996, it is insufficient that the protected disclosure and the employer’s treatment…

An employment tribunal exercising its broad review jurisdiction in the interests of justice must balance the finality of litigation against all relevant…

An express contractual term permitting summary dismissal for breach of security rules must be construed in its commercial and contractual context. It will not…

A complaint or grievance is not excluded from whistleblowing protection merely because it is framed as an allegation. The essential question under section 43B…

In fixing a protective award or compensation for failures of collective redundancy consultation or TUPE information duties, the tribunal must focus on the…

A deposit order requires more than a statement that the tribunal considered the party’s ability to pay. Under Employment Tribunal’s (Constitution Rules of…

A tribunal may not dismiss proceedings under a settlement-related stay unless the express condition for dismissal in its order has occurred. Compliance with a…

For the purposes of the Agency Workers Regulations 2010, an individual must be supplied to work temporarily. In this context, “temporary” means not permanent…

An incorporated collective pay agreement must be construed objectively in its factual and industrial context. Industrial common sense may assist in choosing…

For the purposes of the Agency Workers Regulations 2010, a worker is supplied to work temporarily where the placement is not permanent. “Temporary” does not…

Contractual pay terms must be construed in their agreed textual and practical context. A clause heading may legitimately assist construction where it forms…

An Employment Tribunal must not treat a claimant’s untruthfulness as automatically establishing unreasonable conduct for the purpose of a costs order. Under…

An appellate tribunal will interfere with an Employment Tribunal’s case-management decision only for an error of legal principle, a material failure to…

Employment status depends on a qualitative assessment of the whole relationship. The tribunal must consider mutual obligations, contractual control and whether…

A procedural defect in a dismissal or internal appeal does not of itself make a dismissal unfair under section 98(4) of the Employment Rights Act 1996. The…

For an extension under section 111(2) of the Employment Rights Act 1996, reasonable ignorance of tribunal rights or time limits requires the claimant to have…

A tribunal may decline to make a Polkey deduction where a fair-dismissal outcome cannot sensibly be predicted from the evidence. A degree of uncertainty is…

An unsubstantiated allegation of historic sexual abuse does not automatically constitute some other substantial reason justifying dismissal. Under Employment…

An allegation of historic sexual abuse may amount to some other substantial reason, but it does not make dismissal automatically fair. Under Employment Rights…

An allegation of historic sexual abuse may be capable of constituting some other substantial reason for dismissal, but it does not make dismissal inevitably…

An allegation of historic child abuse may constitute a potentially fair some other substantial reason for dismissal, but it does not make dismissal inevitably…

A rejected Calderbank -type settlement offer may be relevant to whether a party has conducted Employment Tribunal proceedings unreasonably for the purposes of…

A claimant seeking holiday pay bears the burden of proving the holiday days for which payment is claimed. The civil standard is the balance of probabilities…

An Employment Tribunal may properly assist an unrepresented party by explaining the issues to be determined and the consequences of choosing not to give…

Where the available medical evidence does not establish that an impairment is likely to recur, an Employment Tribunal may find that there is no recurring or…

Under section 54A of the Race Relations Act 1976, an Employment Tribunal must consider whether the proved facts could support an inference of race…

A dismissal remains by reason of redundancy where that was the genuine reason when notice was given and a later offer to renew employment is made before…

A reduction in the number of employees required to perform management work may amount to redundancy even where the duties formerly performed by a dismissed…

A trade union rulebook may contain an implied term arising from the union’s custom and practice. Such a term may permit proportionate intervention in the…

A duty to make reasonable adjustments is a continuing duty throughout employment while the relevant disadvantage and duty remain. A refusal of a proposed…

In a redundancy dismissal, selection criteria should, so far as practicable, be objectively capable of assessment. Some criteria may properly require personal…

Under Maternity and Parental Leave Regulations 1999, an employee’s contractual job title does not conclusively determine either the job from which she returns…

An Employment Tribunal gives adequate reasons where, read fairly and as a whole, they identify the material issues and sufficiently explain why a full…

A tribunal may recuse itself only on objectively reasonable grounds. A perceived conflict arising from criticism of, or a possible challenge to, a tribunal…

An employment tribunal deciding the identity of an employer must determine which entity was in truth the employer. It must not decide the issue merely by…

For liability under section 32(2) of the Race Relations Act 1976, it is insufficient to find that an end user had implied consent to manage a supplied worker…

An appellate tribunal may seek specified clarification from an employment tribunal when considering whether its reasons adequately address material issues.…

An Employment Tribunal should address the matters identified in Rowan when determining a reasonable-adjustments claim. The guidance is not a rigid formula. A…

In an unfair-dismissal case, an Employment Tribunal must assess whether the employer’s decision fell within the range of reasonable responses. It must not…

In an unfair-dismissal appeal, the Employment Appeal Tribunal must decide whether the Employment Tribunal erred in law. It must not re-evaluate the evidence or…

An Employment Judge may refuse a review application at the preliminary stage where, even assuming an arguable review ground, there is no reasonable prospect…

An Employment Tribunal must produce a valid judgment and written reasons after a remitted hearing. Under the applicable procedural rules, the Employment Judge…

For the exception in Regulation 3(3)(a)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal’s primary factual finding…

For a claim based on a transfer of an undertaking, whether the claimant was employed by the alleged transferee is an essential preliminary fact. If the…

In a redundancy dismissal, fairness requires a proper assessment of consultation and of the employer’s attempts to identify alternative employment. A tribunal…

In assessing fairness under section 98(4) of the Employment Rights Act 1996, an employer may take account of a valid final written warning which is live when…

Where a claimant withdraws an Employment Tribunal claim, a dismissal under rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure)…

In a conduct-dismissal case, an Employment Tribunal must apply the Burchell requirements and determine whether dismissal fell within the range of reasonable…

An employer may not determine dismissal before giving the employee a real opportunity to answer the allegations. A tribunal may infer pre-judgment from the…

Written terms which describe an individual as an independent subcontractor do not conclusively determine worker status. A tribunal must examine the true…

Where an appeal succeeds in full or in part, rule 34A(2)(a) of the Employment Appeal Tribunal Rules gives the Employment Appeal Tribunal a broad discretion to…

There is no clear dividing line between holding a religious belief and manifesting it. Unjustified unfavourable treatment because an employee manifests…

An unprofessionally drafted ET1 should be read generously. Where its factual allegations are capable of disclosing that the claimant supplied information…

A governing body of a community school may determine that a teacher should cease to work at the school, but it does not thereby terminate the teacher’s…

Victimisation under section 27 of the Equality Act 2010 turns on the reason for the detrimental treatment. It does not require a comparator or a finding of…

The statutory-authority exception for age discrimination applies only where an enactment directly requires the discriminatory act. A local authority does not…

Where an ET1 pleads a physical condition and describes mental effects flowing from that condition, the claim may encompass evidence of those effects even…

An appeal may be dismissed where an appellant persistently fails to comply with procedural directions, including an unless order, despite repeated extensions…

An employer’s duty to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995 does not arise where it neither knew, nor could…

An appeal tribunal will interfere with an employment tribunal's discretionary case-management decision to refuse a stay only where the tribunal took account of…

Following the repeal of section 98A, the former statutory dismissal procedure continues to apply only if the conditions in the transitional Order are met. An…

A tribunal considering an application to review a decision must consider whether the application, read fairly, raises a challenge to the substance or fairness…

An employer is not required, as a reasonable adjustment, to impose a lesser disciplinary sanction merely because dismissal will adversely affect an employee’s…

In determining whether a dismissal was fair under section 98 of the Employment Rights Act 1996, the tribunal must assess the employer’s reasons and conduct…

An Employment Tribunal cannot, without a material change of circumstances, direct a pre-hearing review after it has refused an application for that form of…

An appellate court should read an Employment Tribunal's reasons fairly and as a whole. Where the tribunal has correctly directed itself on the burden of proof…

An Employment Tribunal may not, without a material change of circumstances, direct a pre-hearing review after it has already refused an application for that…

A review of an Appeal Tribunal sift decision should be exceptionally rare. Ordinarily, an inter partes hearing on a review application is better used to…

A constructive-dismissal claim may properly be struck out where, after careful evaluation of the available material, it has no reasonable prospect of success.…

Under the equal-terms provisions of the Equality Act 2010, a woman undertaking equal work who receives less favourable terms than a male comparator has a prima…

Where an employee is unfairly dismissed for redundancy following inadequate consultation, compensation under section 123 of the Employment Rights Act 1996 may…

An employee entitled to work under flexible-hours arrangements need not alter her chosen contractual start time to avoid a disability-related disadvantage. A…

In a misconduct dismissal, the question under section 98(4) of the Employment Rights Act 1996 remains whether the employer acted reasonably in treating the…

For the exception in Regulation 8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 to apply, the transferor must be under the…

An Employment Tribunal must determine pleaded time-limit issues which go to its jurisdiction, even where the respondent does not attend the hearing. It must…

Under Schedule 8 paragraph 20(1)(b) of the Equality Act 2010, an employer’s actual knowledge of disability and the knowledge it could reasonably have acquired…

In assessing the fairness of a conduct dismissal, an employment tribunal must apply the objective test in section 98(4) of the Employment Rights Act 1996 and…

In a redundancy reorganisation involving competitive appointment to a new role, fairness remains governed by Employment Rights Act 1996, section 98(4). An…

An employer cannot treat an undifferentiated period of non-payment as resolved merely because an employee was later unwilling to perform any duties. Where the…

An appellate tribunal may interfere with an Employment Tribunal’s assessment of injury-to-feelings compensation only where the tribunal applied a wrong…

An Employment Tribunal may reject a reasonable-adjustments complaint where it permissibly finds that a requirement to attend meetings in person did not place…

An Employment Appeal Tribunal costs order is discretionary even where the conditions in rule 34A are met. The rule extends to unreasonable conduct in…

The duty to make reasonable adjustments under Disability Discrimination Act 1995 requires an objective assessment of the steps which it is reasonable for the…

For discrimination protection under section 83 of the Equality Act 2010, a claimant relying on a contract personally to do work must establish both a contract…

Where an employment claim against a foreign state falls within the material scope of EU law, a tribunal must disapply domestic state-immunity provisions that…

An employer’s reasonable-adjustment duty may require payment for specific private psychiatric support or counselling where it is directed to overcoming a…

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

In determining the fairness of a misconduct dismissal, an Employment Tribunal must ask whether dismissal fell within the band of reasonable responses open to a…

A certificate of independence under section 8(1) of the 1992 Act is conclusive while in force, but it does not retrospectively establish that a union was…

An Employment Tribunal's assessment of future earnings and pension loss is a fact-sensitive exercise. It may adopt a structured period-by-period approach to…

In a victimisation claim, the tribunal must first compare the treatment of the claimant with the treatment that would have been given to a person in materially…

A claimant may recover loss flowing directly and naturally from disability discrimination, including psychiatric injury and, where proved, a labour-market…

In a direct religion-or-belief discrimination claim, the hypothetical comparator must share the claimant’s relevant circumstances apart from the protected…

A communication may be a qualifying disclosure where it conveys sufficiently specific facts, including facts about omissions. It need not be confined to…

An employer’s clear written contractual term may be disapplied where, before agreement, it gives an employee an express oral assurance inconsistent with that…

For redundancy under section 139(1)(b) of the Employment Rights Act 1996, the tribunal must distinguish between a reduction in work and a reduction in the…

A label of zero-hours contract does not itself determine whether an individual remains employed under a contract of employment. The tribunal must make…

An Employment Tribunal's decision to review and revoke a default judgment must rest on an accurate factual basis. An application made outside the 14-day period…

A tribunal may not strike out a claim for unreasonable conduct or failure actively to pursue it without giving effective notice of the proposed order, its…

Wrongful dismissal and unfair dismissal require distinct inquiries. For wrongful dismissal, the tribunal determines for itself whether the employee committed a…

An Employment Tribunal considering an adjournment must apply the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 overriding…

Permission for a further appeal may be granted where the statutory requirement of a question of law is met and there is either a reasonable prospect of success…

Permission to appeal from the Employment Appeal Tribunal is available only on a question of law. Applying the ordinary permission criteria, permission may be…

An appeal to the Employment Appeal Tribunal must identify an error of law. It cannot succeed merely by challenging a tribunal’s fact-sensitive assessment of…

An Employment Tribunal must follow a relevant Employment Appeal Tribunal decision unless it can properly distinguish it. Insignificant factual differences, or…

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

A final tribunal determination that it lacks jurisdiction to entertain a claim is binding between the parties where jurisdiction was a necessary ingredient of…

An Employment Tribunal must construe an unrepresented claimant’s claim form as a whole and in its context. A discrimination claim may be sufficiently pleaded…

Whether an impairment has a long-term effect must be determined by reference to the evidence available at the relevant date. Later events cannot establish…

Where a claimant has consulted a skilled adviser, a failure to meet the primary unfair-dismissal time limit caused by the adviser’s negligence will ordinarily…

For time-limit purposes under Equality Act 2010, an act extending over a period is not confined to a policy, rule or practice. The inquiry is whether the…

Under section 98(4) of the Employment Rights Act 1996, the assessment of dismissal fairness is a neutral inquiry. The employer bears the burden of showing its…

At a preliminary appeal hearing, it was reasonably arguable that a dismissal process was unfair where the manager deciding the internal appeal conducted…

An Employment Tribunal may determine discrimination allegations individually and then assess the evidence cumulatively. Isolated, time-barred acts do not…

An employer victimises an employee where dismissal is, to a significant extent, because the employee has done a protected act. The statutory question is the…

An Employment Tribunal deciding racial-harassment allegations under Race Relations Act 1976, section 3A, must make clear findings on contested words and…

On a costs or wasted-costs application, procedural fairness may require each side to have an opportunity to address substantial material relevant to ability to…

Disclosure requires more than relevance. A document may be ordered only where its disclosure is necessary for the fair disposal of the proceedings.…

An employer’s duty to make reasonable adjustments under Disability Discrimination Act 1995 section 4A depends on actual or constructive knowledge both that the…

An Employment Tribunal may consider the case as it develops at the hearing. It need not adhere rigidly to an agreed list of issues where doing so would prevent…

When assessing compensation for unfair dismissal, a tribunal must predict the loss flowing from the dismissal. It must consider reliable evidence that…

Documents arising after the events in issue are not irrelevant merely because of their date. Their relevance must be assessed by reference to whether they may…

An employee who lacks the qualifying service for ordinary unfair dismissal and alleges automatic unfair dismissal for making protected disclosures under…

Whether an employment communication creates or varies contractual rights depends on an objective assessment of what the employer’s words and conduct would…

An Employment Tribunal deciding whether a transfer-related dismissal is automatically unfair must first identify the actual reason or principal reason for…

On an appeal from an award of costs or expenses, intervention requires an error of law. The Employment Tribunal has a broad discretion. An appellate court will…

An appellate court will rarely interfere with an Employment Judge’s procedural discretion. Intervention requires an error of law, assessed only by reference to…

A contractual entitlement for transferred employees’ terms to mirror those of another employer for the duration of their employment is not cut down by a…

An Employment Tribunal must read an ET1 and attached particulars fairly and as a whole, particularly where the claimant is unrepresented. A claim need not be…

Under section 111(2) of the Employment Rights Act 1996, the tribunal must first decide whether presentation within three months was not reasonably practicable…

For unfair-dismissal compensation, where concurrent medical conditions may have caused an employee’s inability to work, the tribunal must determine whether the…

An Employment Tribunal may infer that dismissal was victimisation where the employer’s inadequate investigation, disciplinary process and appeal support an…

An unambiguous communication of resignation ordinarily takes effect according to its objective and ordinary meaning. Words stating that the employee has no…

An appellate court may interfere with a discretionary employment tribunal case-management decision only where the discretion was exercised under an error of…

An appellate court may set aside a discretionary case-management decision where the tribunal acted under a material misapprehension of fact, overlooked a…

For the extended definition of employment in the discrimination Regulations, the decisive inquiry is whether the individual performs personal services for and…

For the extended definition of employment in the discrimination Regulations, the decisive inquiry is whether the individual works personally for and under…

For jurisdiction under the Brussels 1 Regulation, an employee may sue an employer domiciled in a Member State either in that State or, where article 19…

A costs order does not follow automatically because an Employment Tribunal has jurisdiction to award costs for a misconceived claim. The tribunal must…

For the basic award following unfair dismissal, a week’s pay must be calculated under the mandatory statutory formula in Part XIV, Chapter II of the Employment…

Employment status requires a multifactorial assessment of the reality of the working relationship. Relevant indicators include mutual obligations, the…

In an unfair-dismissal claim, the tribunal must assess whether the employer had reasonable grounds for its honestly held belief in misconduct, on the material…

Where an unrepresented party faces an unnotified application for substantial employment tribunal costs, fairness will usually require the costs hearing to be…

An Employment Tribunal may strike out discrimination claims where a fair hearing is no longer possible, the claimant has conducted proceedings scandalously…

An Employment Tribunal must give a party facing a costs order a fair and reasonable opportunity to explain why no order should be made. Raising costs briefly…

An accrued flexi-hours balance does not, without an express or necessary implied contractual term, create a right to payment in money on termination. A term…

Whether an employee has a contractual entitlement to guaranteed work cannot be determined from a general term allowing a manager to specify working hours…

The duty to make reasonable accommodation under Article 5 of Directive 2000/78/EC is directed to disabled persons in an employment or potential employment…

An Employment Tribunal must make findings on disputed facts material to a TUPE transfer and give adequate reasons for concluding that an employee objected to…

Whether a person is an employee cannot be determined solely from contractual wording which denies an employment relationship or mutual obligations. The…

Whether presentation of an unfair-dismissal complaint was reasonably practicable must be assessed over the relevant three-month period. Illness arising only…

A tribunal may strike out a claim for want of active pursuit where delay is inordinate and inexcusable and creates a substantial risk of an unfair resolution…

An employment tribunal must give sufficient reasons to identify its primary findings, explain its legal analysis, and show why the statutory tests are met. A…

In a physical-feature reasonable-adjustments claim, the tribunal should determine whether the feature placed the disabled person at a substantial disadvantage…

An employer cannot make an otherwise procedurally unfair dismissal fair by offering an appeal which would not be meaningful or result in reinstatement. The…

Constructive dismissal depends on a fundamental contractual breach, not merely on unreasonable treatment. Where the alleged breach is the implied term of trust…

Where an employer relies on misconduct as the reason for dismissal, an employment tribunal must distinguish the fairness inquiry into the employer’s reasonable…

A contractual discretion does not ordinarily remove an employee’s right to have that discretion genuinely considered. Where its factual preconditions are…

Where the burden of proof has shifted in a direct discrimination claim, the employer must give an adequate explanation for the treatment. An Employment…

For a claim under Equality Act 2010 section 58, the alleged discriminatory act must be in relation to the local-authority member’s carrying-out of official…

In an unfair-dismissal case, once the employer has established the reason for dismissal, there is no further burden upon it to prove that dismissal was fair.…

An Employment Tribunal may strike out further victimisation claims where a claimant withheld an alternative case during earlier case-management and merits…

An Employment Tribunal considering an unlawful-deduction complaint under sections 13 and 27 of the Employment Rights Act 1996 may determine incidentally…

For a conduct dismissal, an employer’s loss of trust and confidence may relate to the employee’s conduct where it results from the employer’s belief that the…

For certification as a trade union, an organisation’s principal purposes must in reality include the collective regulation of relations between workers and…

A redundancy dismissal may be unfair where an employer rejects a volunteer for redundancy and instead dismisses a closely comparable employee, but only if the…

An Employment Tribunal may strike out a claim under rule 18(7)(b) only where it has no reasonable prospect of success. It errs by asking whether the claimant…

On a remission concerning reasonable adjustments, the tribunal must determine the functional effects of the disability, whether the relevant provision…

An employment tribunal may determine an issue that has emerged during the hearing without a formal amendment to the claim where the issue is sufficiently…

For a just and equitable extension of time, an Employment Tribunal must consider all relevant circumstances. It need not mechanically address every factor in…

An employee entitled to resign for a fundamental breach must elect whether to do so within a reasonable time. Affirmation cannot arise from delay alone.…

A tribunal determining a reasonable-adjustments claim under section 4A of the Disability Discrimination Act 1995 must apply the statutory test in a structured…

A later Employment Tribunal complaint may be struck out as an abuse of process where the claimant had a proper opportunity to advance it in earlier related…

Where a default judgment records liability on alternative bases without deciding between them, the tribunal determining remedy may hear evidence and decide…

An Employment Tribunal may strike out a response for failure to comply with a case-management disclosure order where the evidence permits the inference of a…

In a redundancy dismissal appeal, the Employment Appeal Tribunal will not overturn an Employment Tribunal’s factual findings merely because the employee…

In a constructive-dismissal claim, a repudiatory breach need not be the sole, principal or predominant cause of resignation. Where there are concurrent…

Where misconduct is discovered after an unfair dismissal, compensation under section 123(1) of the Employment Rights Act 1996 does not require the tribunal to…

An Employment Tribunal may determine only claims that have been properly made and placed before it. A pleading alleging indirect sex discrimination and…

An Employment Tribunal may award costs after finding that a party acted unreasonably in bringing or conducting proceedings. Once that threshold is met, the…

For unfair-dismissal purposes, the question under section 95(1)(a) of the Employment Rights Act 1996 is whether the contract under which the employee is…

In a misconduct dismissal, the employer must have a genuine belief in guilt, reasonable grounds for that belief, and an investigation that is reasonable in the…

Where an employee faces a disputed allegation of conduct amounting to theft or another criminal offence, the employer must carry out a careful and…

Where an Employment Tribunal is remitted to reassess compensation on the facts already found, it must not make fresh findings that contradict its original…

Whether a claimant is disabled is a question of fact for the tribunal. Medical evidence is important but must be assessed with all the evidence bearing on the…

An Employment Tribunal must give sufficient reasons for a finding that an asserted redundancy was a contrivance to dismiss an employee. A finding that…

An Employment Tribunal must give sufficient reasons for a finding that an asserted redundancy was a contrived device to dismiss an employee. A finding that…

An amendment which introduces distinct statutory discrimination claims is substantive, even where it relies on an existing factual narrative. It is not…

A claim of pregnancy discrimination under section 3A(1) of the Sex Discrimination Act 1975 requires proof of adverse or unfavourable treatment on the…

An Employment Tribunal may determine a discrimination complaint by asking why the claimant received the treatment complained of. It must examine the…

Where anonymity and restricted reporting orders engage ECHR Articles 8 and 10, the tribunal must conduct a balancing exercise. Protection of the Article 8…

Where a discrimination claimant seeks to join an end user as an alleged undisclosed principal in a triangular agency arrangement, an Employment Tribunal must…

For unfair-dismissal purposes, the reason for dismissal is the employer’s set of operative facts or beliefs, rather than an emotive label such as fraud. A…

An Employment Tribunal deciding unfair-dismissal claims must give sufficient reasons to identify material conflicts in the evidence, state its essential…

A retirement notice which does not comply with paragraph 2 of Schedule 6 to the Employment Equality (Age) Regulations 2006 cannot satisfy the notification…

An appellate court will not interfere with discretionary employment tribunal case-management decisions unless the judge made an error of legal principle or…

An employee who accepts a voluntary exit scheme available only to continuing employees affirms the contract and leaves by mutual agreement. That method of…

An allegation is a protected act under section 2(1)(d) of the Race Relations Act 1976 only if its language and context sufficiently indicate a complaint…

A claimant may pursue a sexual-harassment complaint against a fellow employee without also bringing proceedings against the employer. Under the pre-2010…

An Employment Tribunal may answer a Burns/Barke question by correcting a mistaken premise and explaining the evidence and findings on which its reasons rested.…

In an ordinary unfair-dismissal claim, the tribunal must apply the range of reasonable responses test without substituting its own view for that of the…

Under Employment Tribunal Rules, a costs jurisdiction requires a two-stage approach. The tribunal must first decide whether the claim was misconceived or the…

Continuity of employment is preserved under the Employment Protection (Continuity of Employment) Regulations 1996 where a dismissed employee presents a…

Under section 27 of the Equality Act 2010, victimisation turns on whether the claimant suffered a detriment because of a protected act. It does not require…

In a direct race-discrimination claim, an Employment Tribunal must assess the totality of the primary facts. It should not determine each complaint in…

In assessing compensation for future loss, an Employment Tribunal must determine the likely counterfactual course of employment had there been no unlawful…

Where the United Kingdom chose the 90-day threshold in article 1(1)(a)(ii) of Directive 98/59/EC, the duty to consult is triggered by a proposal to dismiss 20…

Where a member state has adopted the 90-day threshold in Article 1(1)(a)(ii) of Directive 98/59/EC, collective-consultation rights arise when an employer…

An appeal to the Employment Appeal Tribunal must identify an error of law. Findings of fact, including assessments of credibility and the preference for one…

An appeal to the Employment Appeal Tribunal must identify an arguable error of law. Under section 21 of the Employment Tribunals Act, the Tribunal has no…

An appeal to the Employment Appeal Tribunal must identify an error of law. It cannot be used to reargue findings of fact, credibility assessments, or a…

A dismissal may be automatically unfair where the principal reason is a protected disclosure made in obtaining legal advice. The existence of other…

A retirement dismissal regulated by the former statutory age-dismissal procedure was unfair where the employer's notice did not expressly identify the…

An allegation of apparent bias requires sufficient evidential material. The burden lies on the party alleging bias. In the absence of such material, the…

An Employment Tribunal may not award compensation for injury to feelings without some material evidence of that injury. Although the Tribunal need not apply…

An Employment Tribunal does not commit an error of law merely because its written reasons do not expressly follow every item in rule 30(6). The question is…

An employment tribunal must identify the pleaded provision, criterion or practice (PCP), or fairly redefine it after giving the parties an opportunity to…

Under section 10 of the Employment Relations Act 1999, the requirement that a worker make a reasonable request qualifies the request to be accompanied, not the…

Where facts permit an inference of disability victimisation, the burden shifts to the employer to prove a wholly non-discriminatory reason for the impugned…

In determining whether a dismissal is fair, an employment tribunal must identify the employer’s real, operative reason as the facts and beliefs which caused…

An employment tribunal must consider reinstatement and re-engagement before compensation where an unfairly dismissed employee seeks either remedy. Its…

An employment tribunal must consider reinstatement and re-engagement before compensation where an unfairly dismissed employee seeks either remedy. Its…

Before striking out discrimination proceedings for scandalous, unreasonable or vexatious conduct, an Employment Tribunal must address whether the conduct means…

In an unfair-dismissal appeal, the Employment Appeal Tribunal must decide whether the Employment Tribunal made an error of law. It must not substitute its own…

Harassment based on sexual orientation requires consideration of both the purpose and the effect of unwanted conduct. A tribunal must not treat a claimant’s…

The statutory meaning of theft applies equally in employment. Theft requires dishonest appropriation of another’s property with an intention permanently to…

A compromise agreement is construed narrowly where it restricts access to legal remedies. A term settling claims arising before the agreement does not, without…

In a misconduct dismissal case, the Employment Tribunal must assess the employer’s decision without substituting its own view. It must decide whether the…

In deciding whether dismissal for misconduct fell within the range of reasonable responses, an employer had to give genuine consideration to relevant…

An employer may act outside the range of reasonable responses where it treats mitigation as irrelevant unless it wholly excuses misconduct, and fails to…

An employment tribunal need not mechanically repeat the two-stage burden-of-proof analysis for every discrimination allegation. It must, however, determine the…

An Employment Tribunal may find a dismissal unfair because of inconsistent sanctions only where the employer's distinction between comparators in truly…

The standard required of Employment Tribunal reasons does not change because an Employment Judge sits alone. Reasons must enable the unsuccessful party to…

In assessing reasonable adjustments for disability-related sickness absence, a tribunal may adopt more than one permissible method. It may analyse particular…

An appellant seeking more time to challenge a Registrar’s procedural order must comply with the five-day limit or provide a satisfactory explanation for delay.…

Where disability has caused an employee to occupy a lower-graded role, a redundancy redeployment rule that prevents an application for a role at the employee’s…

In an unfair-dismissal case, an Employment Tribunal may find that an employer reasonably relied on factual findings from a prior grievance investigation where…

In a constructive-dismissal claim, the tribunal must determine whether the employer committed a repudiatory breach and whether the employee resigned in…

A dismissal may be unfair because of serious procedural defects even where there were proper grounds to investigate misconduct. An employee may legitimately…

Where an Employment Tribunal's reasons on Polkey and contributory conduct are unclear, particularly where those issues were not fully argued, its remedy…

For the purposes of Disability Discrimination Act 1995, normal day-to-day activities must be construed consistently with European Union law. They include…

An appellate tribunal cannot allow an appeal solely because the parties agree that the underlying decision should be set aside. A judicial decision may be…

An appellate tribunal cannot allow an appeal merely because the parties agree that it should be allowed. Setting aside a judicial decision requires the…

An Employment Tribunal is not required, of its own motion, to determine every allegation pleaded in an ET1 where the claimant has not pursued that allegation…

An Employment Tribunal has no jurisdiction to apportion between liable respondents an award of compensation for breach of TUPE where the applicable provision…

An employment tribunal may direct a detailed assessment of costs on the indemnity basis. In the employment tribunal context, that exceptional basis is…

An Employment Tribunal gives sufficient reasons where it identifies the applicable legal principles, makes the essential factual findings, and explains why…

In assessing compensation for future earnings loss, an Employment Tribunal may use the Ogden tables or another just and equitable method. It does not err…

An Employment Tribunal assessing compensation for unfair dismissal and disability discrimination is not required to use the Ogden tables. It may instead adopt…

Where an employee’s contract imposes a direct duty to report financial matters to a governing board, disclosure to individual chairmen does not, without more…

For discrimination arising from disability under section 15 of the Equality Act 2010, the relevant consequence of disability must have operated, consciously or…

Employment status must be determined from the objective reality of the parties’ contractual relationship. Mutuality of obligation does not require agreed…

An Employment Tribunal may determine only claims that have been properly articulated. A pleading alleging indirect sex discrimination and unfavourable…

An Employment Tribunal may permit a new jurisdictional point on appeal where it is a hard-edged point of law, requires no further evidence and may be…

Where a contractual appeal procedure empowers an employer to replace a dismissal with a lesser outcome, a decision on appeal to reinstate the employee…

Employees are not “affected employees” for the purposes of regulation 13 merely because the transfer of one part of an undertaking leaves another part less…

A dismissal is by reason of redundancy where the employer’s requirements for employees to perform one or more particular kinds of work have diminished and the…

An employment tribunal on a limited remission may reconsider only the matters within the appellate order. Findings that were open to challenge in the first…

Apparent bias in a trade union disciplinary process must be assessed contextually by applying the fair-minded and informed observer test to all the…

For collective redundancies, an employer consulting pre-existing employee representatives must prove that the representatives had authority from the affected…

In assessing a Polkey deduction, an Employment Tribunal must make its counterfactual assessment on evidence. An employer seeking a reduction must provide…

Compliance with an unless order is assessed qualitatively. The question is whether any non-compliance is material to the purpose of the order, including…

The Employment Appeal Tribunal may intervene only for an error of law. A perversity appeal must meet the high threshold identified in [2002] IRLR 634; it…

Where an Employment Tribunal grants a review in order to consider an argument omitted at an earlier preliminary hearing, it must determine the procedural…

An employment tribunal determining a reasonable-adjustments claim must make clear findings on the relevant provision, criterion or practice, the substantial…

For the purposes of section 98(4) of the Employment Rights Act 1996, an employment tribunal must assess the fairness of the decision to dismiss. Criticism of…

In a misconduct dismissal, an employer need not establish proven misconduct. The relevant standard is whether the employer had a reasonable belief in the…

An employment tribunal may refuse an amendment which is, in substance, an attempt to advance an ordinary unfair dismissal claim under the label of wrongful…

A duty to make reasonable adjustments may be engaged where a disabled employee is substantially disadvantaged by a competitive interview process. The employer…

A contract of employment ends when an employee’s contractual notice of resignation expires. A purported disciplinary dismissal imposed after that employment…

A complaint is a protected act for victimisation only if, viewed in its context, it is capable of being understood as alleging conduct prohibited by the…

Without-prejudice protection depends on the substance and context of communications, not on whether they are labelled “without prejudice” or “off the record”.…

An Employment Tribunal should strike out a discrimination allegation for having no reasonable prospect of success only in an exceptional case where the central…

A dismissal is properly characterised as redundancy where the employer reasonably expects a diminution in the need for employees to perform work of a…

A protective award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 is a sanction for breach of collective redundancy…

An appeal on perversity is confined to the exceptional case where an Employment Tribunal has reached a conclusion that no reasonable tribunal, properly…

Unless orders operate automatically when their terms are not complied with. Partial compliance with an otherwise clear unless order does not avert automatic…

An appeal under rule 3(10) should proceed only where it discloses reasonable grounds raising an error of law. The EAT must form its own view on the material…

When deciding whether it is just and equitable to permit a late amendment adding discrimination claims, an Employment Tribunal must take account of material…

For the duty to make reasonable adjustments, a tribunal must identify the effects of the claimant’s disability. It need not investigate its causes. Anxiety or…

A tribunal may reduce a compensatory award for contributory conduct to nil only where the employee’s conduct was the sole cause of the dismissal. Procedural…

For limitation purposes, conduct extending over a period is determined by the substance of the complaint. The issue is whether the allegations disclose an…

A retirement letter can amount to notice terminating employment on a specified date where, objectively construed, it notifies the employee of retirement on…

On an application for interim relief for trade-union-related automatic unfair dismissal, the Employment Tribunal must make an expeditious summary assessment of…

Where an employee has retained a solicitor to act in relation to a dismissal, the solicitor’s failure to advise on, or meet, the time limit for an…

Under Transfer of Undertakings (Protection of Employment) Regulations 2006, the fairness required by Regulation 14 concerns the election process itself, not…

On an appeal from an Employment Tribunal’s discretionary decision on amendment, the Employment Appeal Tribunal may intervene only for an error of law, such as…

An Employment Tribunal's exercise of the just and equitable discretion to extend time must rest on findings of primary fact which support its assessment of…

A negligent failure to make reasonable adjustments is subject to the limitation regime for omissions in Schedule 3 to the Disability Discrimination Act 1995.…

In a misconduct dismissal case, an Employment Tribunal must assess the employer’s genuine belief, the reasonableness of its grounds and investigation, and the…

When deciding an application to amend an employment claim, the tribunal must consider all relevant circumstances and balance the injustice and hardship of…

For disability-related discrimination under section 3A(1)(a) of the Disability Discrimination Act 1995, the comparator must have all the claimant’s relevant…

Whether there has been a relevant transfer requires a multi-factorial assessment of whether an economic entity retained its identity under regulation 3(1)(a)…

Where a worker has been prevented by sickness from taking the four weeks’ annual leave protected by Article 7, the Working Time Regulations 1998 must, so far…

A summary dismissal normally terminates employment immediately. A pending internal appeal does not preserve employment for transfer purposes. If the appeal…

In an unfair-dismissal claim confined to the reasonableness question under Employment Rights Act 1996, section 98(4), an Employment Tribunal must determine…

In deciding whether an impairment has a substantial adverse effect on normal day-to-day activities, an Employment Tribunal must focus on what the claimant…

For liability under section 32(2) of the Race Relations Act 1976, common-law principles of agency apply. A contractual supply chain and day-to-day operational…

For the purposes of Employment Rights Act 1996 section 211, continuous employment begins when the individual starts work under a contract of employment. It…

Where the statutory notice-payment provisions apply, an employee who is incapable of work through sickness is entitled under Employment Rights Act 1996 section…

An Employment Tribunal does not commit a serious procedural irregularity by accepting an explanation advanced in closing submissions where the opposing…

An Employment Tribunal must give reasons sufficient to show why each material basis of an unfair-dismissal claim has failed. Where the reason or principal…

In an ordinary unfair-dismissal redundancy case, the choice of selection pool is primarily for the employer. The Employment Tribunal must scrutinise whether…

An order for reinstatement or re-engagement precludes an award of compensation for unfair dismissal. Under sections 112(4) and 118(1) of the Employment Rights…

Where an employer’s managing-attendance policy applies only to sickness absence, the proper comparator for a disabled employee subject to that policy is an…

In calculating the loss-of-earnings element of compensation for unfair dismissal, incapacity benefit received during the relevant period is deductible in full…

Where an employer has established an honest belief in misconduct, an Employment Tribunal deciding whether that belief rested on reasonable grounds must engage…

A remission must be construed objectively from its wording and context. A direction for a complete rehearing will ordinarily concern the subject matter of the…

Where an employee is dismissed because a third party’s stance prevents continued employment, unfairness to the employee does not itself make the dismissal…

Under section 7(3) of the Rehabilitation of Offenders Act 1974, evidence of a spent conviction may be admitted only where justice cannot be done without it.…

In an unfair-dismissal conduct case, an Employment Tribunal must decide whether dismissal, as well as the procedure and the employer’s belief, fell within the…

Where serious complaints of racial harassment are not investigated or addressed with appropriate speed, diligence and effective management action, an…

For victimisation under Race Relations Act 1976, it is insufficient to make a simple comparison between a claimant who has done a protected act and others who…

On a review application seeking to set aside a default judgment, an Employment Judge must not treat an inadequate explanation for delay as determinative. The…

Where an employer enters a company voluntary arrangement and remains insolvent until liquidation, it becomes insolvent only once for the purposes of Part XII…

An Employment Tribunal is excluded by Equality Act 2010 section 120(7) only insofar as the particular discriminatory or harassing act complained of is subject…

An Employment Tribunal need not give elaborate reasons, but it must give sufficient reasons to explain to the losing party why the claim failed and to permit…

When assessing compensation for unfair dismissal, an Employment Tribunal must consider not only whether the employer has proved on the balance of probabilities…

A failure to exercise care in a particular transaction, or to progress a disciplinary process efficiently, is not without more a provision, criterion or…

An Employment Tribunal does not adopt an impermissible substitution approach merely because it concludes that dismissal was outside the range of reasonable…

For national minimum wage purposes, remuneration is determined by the statutory scheme rather than by contractual labels. A payment calculated by reference to…

An expressly incorporated term from a collective agreement remains a term of the individual contract unless it is varied by the agreement required for…

A tribunal’s reasons must be read fairly and in their full factual and procedural context. In particular, infelicitous references to a claimant being clearly…

For disability discrimination, the relevant question is whether the claimant has a physical or mental impairment with the statutory effects. The tribunal must…

Procedural defects in a disciplinary process do not of themselves make a dismissal unfair. The question under section 98(4) of the Employment Rights Act 1996…

Entitlement to contractual sick pay for an infectious illness contracted “in the course of” employment depends on the proper construction of the employment…

An appellate court should not interfere with an award for injury to feelings unless it is manifestly excessive or wrong in principle. The assessment must…

An Employment Tribunal may strike out a discrimination claim with no reasonable prospect of success, even though discrimination claims are fact-sensitive and…

A reduction of the basic or compensatory award for contributory conduct requires conduct by the employee which is blameworthy and which caused or contributed…

In direct age-discrimination claims, the comparator exercise requires an assessment of whether the age-related differences are material for the purpose of the…

Covertly made workplace recordings are not inadmissible merely because they were obtained covertly. Their admission depends on demonstrated relevance and…

An employee working abroad falls within section 94(1) only exceptionally. The employment relationship must have a much stronger connection with Great Britain…

An Employment Tribunal must determine a disability-discrimination claim on the legal basis pleaded and addressed by the parties. It is an error of law, and may…

A strike-out remains an exceptional remedy, especially once a merits hearing has begun. It may nevertheless be proportionate where a party’s conduct has made a…

A redundancy exists under section 139 of the Employment Rights Act 1996 where an employer has two employees effectively performing one role and reduces that…

In assessing compensation for unfair dismissal, a tribunal should determine how long the employee would probably have remained employed but for the dismissal.…

An appellate tribunal will not upset fact-sensitive Employment Tribunal findings unless the decision was one that no reasonable tribunal, properly directing…

An appeal against a procedural decision should be dismissed where subsequent events have removed any practical significance from the issue raised. The…

A contract of employment is assessed by the multi-factorial test in Ready Mixed Concrete. The essential control inquiry is whether the putative employer…

For religious-harassment claims, unwanted conduct must have the purpose or effect of violating dignity or creating an adverse environment, and must be on the…

A business reorganisation does not itself establish redundancy. It may do so where it causes, or is expected to cause, a diminished requirement for employees…

A tribunal may identify the actual provision, criterion or practice relied on in a reasonable-adjustments claim. A claimant is not confined to one PCP, but…

On an application under Employment Tribunals Rules of Procedure rule 25(4), withdrawal of Employment Tribunal proceedings does not automatically justify their…

Where a claimant withdraws proceedings in order to commence fresh proceedings, an Employment Tribunal may dismiss the withdrawn proceedings under unknown, rule…

A Polkey assessment is a predictive exercise directed to the likelihood that the actual employer, after a fair procedure, would have dismissed the employee. It…

In a dismissal and re-engagement case, the fairness of a dismissal for some other substantial reason is assessed under section 98(4) at the effective date of…

An unless order which purports to impose automatic strike-out must state clearly and precisely what will occur on non-compliance. Wording that a claim will be…

An application to amend an Employment Tribunal claim must ordinarily be decided by reference to the actual proposed amendment. Where the amendment introduces…

Compliance with an unless order is sufficient only where it is material, assessed qualitatively by reference to the order’s purpose. Where particulars are…