Employment Appeal Tribunal judgments, 2016

Where an Employment Tribunal treats the merits of a proposed response as relevant to an application to extend time, it must address each materially distinct…

A later Employment Tribunal claim may be a Henderson v Henderson abuse where the matters could and should have been advanced, including by amendment, before…

In a constructive-dismissal claim based on a course of conduct and a final incident, the tribunal must assess the cumulative effect of the conduct. It is not…

For the progressive-conditions deeming provision, the tribunal must assess whether the condition is likely to lead to a substantial adverse effect in the…

Where an Employment Tribunal decides to have regard to a paying party’s ability to pay when making a costs order, it must assess present means and any…

Protection against automatic unfair dismissal for trade union activities under Trade Union and Labour Relations (Consolidation) Act 1992 section 152 does not…

A tribunal may make a limited factual inquiry into whether an asserted religious belief or its asserted manifestation is genuine and made in good faith. The…

For a complaint concerning a series of deductions, section 23(3) of the Employment Rights Act 1996 requires both a factual link and a sufficient temporal link…

An Employment Tribunal must determine each pleaded discrimination claim by reference to its distinct statutory ingredients and make sufficient findings of fact…

For a service provision change under regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the question whether activities…

An Employment Tribunal considering whether refusal of a flexible-working application was based on incorrect facts must investigate the factual basis for the…

An application to reconsider an Employment Tribunal decision must identify a reason why the decision may be revised or revoked. An Employment Judge is not…

For discrimination arising from disability under Equality Act 2010, section 15(1)(a), a tribunal must identify separately, for each act of unfavourable…

An Employment Appeal Tribunal may award costs under Rule 34A(1) where a party’s conduct of an appeal has unreasonably caused unnecessary expense, even though…

Constructive dismissal is determined by the contractual test. Where the alleged breach is of trust and confidence, the question is objectively whether the…

A workplace closure may create a redundancy situation, but it does not itself establish the employer’s reason for dismissal. Under section 98 of the Employment…

Where an employer closes a workplace but invokes a contractual mobility clause, the existence of a statutory redundancy situation does not itself determine the…

A contractual release in a COT3 of claims “arising from the facts of the Proceedings” extends to claims arising from the specific factual matrix of the settled…

Where agreed medical evidence establishes that an employee has no real prospect of regaining equivalent employment and remuneration, future loss is ordinarily…

An Employment Tribunal has a wide discretion under section 123 of the Equality Act 2010 to extend time where it is just and equitable. The claimant bears the…

A contractual disciplinary provision stating that an employee will normally be summarily dismissed for gross misconduct preserves an employer’s discretion.…

Where a conduct dismissal relies on an extant final written warning, the tribunal must assess fairness under section 98(4) of the Employment Rights Act 1996.…

An Employment Tribunal must give reasons which identify the issues and findings, identify the relevant law, and explain how that law produces the result. A…

In assessing compensation for unfair dismissal, the employer bears the burden of proving that the claimant acted unreasonably in mitigating loss. A tribunal…

An Employment Tribunal may strike out an indirect discrimination claim where the parties agree that the material facts are undisputed, no oral or further…

For constructive dismissal, a repudiatory breach need not be the employee’s sole or predominant reason for resigning. It is sufficient that the employee…

Where an employee agrees to defer payment of earned wages without waiving the entitlement, an implied contractual term may require the arrears to crystallise…

An appellate court will ordinarily determine only the grounds advanced by the parties. It should not construct an unpleaded legal argument, even where the…

For discrimination arising from disability under section 15 of the Equality Act 2010, a tribunal must identify the something which caused the employer to treat…

Under Employment Rights Act 1996, section 122(2) permits a just and equitable reduction of the basic award for an employee’s blameworthy pre-dismissal conduct…

Under section 98(4) of the Employment Rights Act 1996, an expired disciplinary warning may be considered when deciding whether a misconduct dismissal was fair.…

For section 123 of the Equality Act 2010, an employer's continuing application of a discriminatory pay policy may be conduct extending over a period. It is…

Compensation under Regulation 11(3) of the Safety Representatives and Safety Committees Regulations 1977 is discretionary. An Employment Tribunal may award…

In a misconduct dismissal involving grave and disputed allegations, the investigation required by section 98(4) of the Employment Rights Act 1996 must be…

In determining whether dismissal was for protected disclosures, a tribunal must identify the employer’s actual reason or principal reason. It must assess the…

A claimant may recover compensation for physical or psychiatric injury caused or materially contributed to by unlawful discrimination. Where there are…

In assessing mitigation after unfair dismissal, the employer bears the burden of proving that the employee acted unreasonably in refusing proposed steps to…

An Employment Tribunal may exclude oral evidence about other employees’ grievances where documentary records of those grievances, their handling and their…

An unlawful-deduction or contractual-pay claim requires findings on the employee’s contractual entitlement and on the sums properly payable by reference to the…

Under section 98(4) of the Employment Rights Act 1996, the fairness of a dismissal depends materially on the employer’s actual decision-making process. An…

When determining whether two impairments have a combined effect amounting to a disability, an Employment Tribunal must assess them holistically. It must add…

Where a tribunal finds that redundancy consultation was conducted perfunctorily and without sensitivity, it must explain why those findings do not make the…

Victimisation may be motivated by both a protected act and another motive. However, a claim fails where the Employment Tribunal finds as fact that the sole…

An elected trade-union officer does not, merely by accepting office under a union rule book, make a contract personally to do work for the union within section…

A general practitioner’s certificate that a person is unfit for work is capable of evidencing a substantial adverse effect on normal day-to-day activities for…

For the purposes of section 98(1) of the Employment Rights Act 1996, the tribunal must identify the relevant decision-maker and determine the facts or beliefs…

For the extension in section 111(2)(b) of the Employment Rights Act 1996, a claimant’s ignorance of the need to lodge a claim is not a reasonable impediment…

In assessing unfair dismissal under section 98(4) of the Employment Rights Act 1996, the Employment Tribunal must assess the fairness of the dismissal process…

Under section 111 of the Employment Rights Act 1996, a tribunal must address separately whether timely presentation was reasonably practicable and, if not…

For a transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006, an intention to transfer an undertaking is insufficient. The…

For a service provision change under Transfer of Undertakings (Protection of Employment) Regulations 2006, the relevant activities must be identified…

A part-time worker’s right under Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 depends on proof that the…

A reasonable adjustment under section 20(3) of the Equality Act 2010 may, in principle, include protecting a disabled employee’s existing pay when transferring…

A truly expatriate employee may fall within British employment legislation where the employment relationship has an overwhelmingly closer connection with Great…

An employment tribunal may properly warn a party about the risks of continuing weak claims, including a possible costs order. Such case-management guidance…

An Employment Tribunal considering an amendment which introduces a fresh claim must decide, as part of a single discretionary exercise, whether the claim would…

Whether an employee has resigned for the purposes of constructive dismissal must be assessed in the light of all the surrounding circumstances. Where a notice…

An extension of time for a late Employment Appeal Tribunal appeal is exceptional. The applicant must provide a full, honest and acceptable explanation for the…

For whistleblowing detriment under Employment Rights Act 1996, a protected disclosure need only be a material, rather than trivial, influence on the employer's…

A service provision change under regulation 3(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 requires the same client…

An Employment Tribunal is ordinarily entitled, and bound, to determine discrimination claims by reference to properly pleaded and particularised allegations.…

For indirect sex discrimination, the comparative exercise under section 19 of the Equality Act 2010 may compare the proportions of women and men in the…

Direct discrimination requires less favourable treatment because of the protected characteristic. The comparison may be actual or hypothetical. Evidence about…

Under section 98(4) of the Employment Rights Act 1996, an employee’s contractual entitlement to long-term disability benefits, and an implied term protecting…

An appeal on perversity succeeds only where an overwhelming case shows that no reasonable Employment Tribunal, properly appreciating the evidence and law…

A reconsideration application may properly be dismissed where the party’s representative knew of the hearing but did not participate, and where reconsideration…

A strike-out for scandalous, unreasonable or vexatious conduct under Rule 37(1)(b) is exceptional. The tribunal must exercise its discretion judicially. It…

Under section 98(4) of the Employment Rights Act 1996, the question is whether the employer acted within the band of reasonable responses. The tribunal must…

A rejection for non-payment of an employment tribunal fee under Rule 11(3) is a judicial act of the Tribunal, although it may be communicated through…

Under Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, an Employment Tribunal may treat a party's unexplained…

A strike-out for no reasonable prospect of success is a draconian step. In discrimination and whistleblowing claims, it will rarely be appropriate where the…

A teacher on the upper pay scale who meets the eligibility requirements is entitled to be considered for further pay progression without making a further…

A protected disclosure may materially influence detrimental treatment through an organisational chain of command even where the final decision-maker lacks…

For a reasonable-adjustments claim, the tribunal must ask whether a provision, criterion or practice places the disabled person at a substantial disadvantage…

An Employment Tribunal may find a litigant in person has conducted proceedings unreasonably where, despite repeated opportunities and clear guidance, the…

A litigant in person is not held to the standard of a lawyer. However, after repeated opportunities and clear guidance, a failure to state in lay terms the…

For a direct dismissal under section 95(1)(a) of the Employment Rights Act 1996, the employer’s unequivocal intention to end the employment contract must be…

An Employment Tribunal may adjust the Vento bands for injury to feelings where cogent evidence establishes a change in the value of money. It need not await…

Under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 37 requires a party to receive an adequate and reasonable opportunity…

When deciding whether an Employment Tribunal determined a reasonable-adjustments claim on an unpleaded basis, its Reasons must be read fairly and as a whole.…

Where an employer has omitted a normally appropriate procedural step, an Employment Tribunal must not decide fairness by asking whether the employee could have…

For the exception in Regulation 7 of Transfer of Undertakings (Protection of Employment) Regulations 2006 to apply, the tribunal must identify the employee’s…

A finding that an employee committed gross misconduct does not itself determine whether dismissal was fair. The tribunal must decide, under the statutory test…

An Employment Tribunal must decide separately whether dismissal fell within the range of reasonable responses. A fair procedure and a reasonable finding of…

For a detriment claim under Employment Rights Act 1996, the employer must show the ground for its act or deliberate omission. A protected disclosure need only…

Where dismissal for misconduct follows a final written warning, the Employment Tribunal must apply the objective test in section 98(4) of the Employment Rights…

For a service provision change, an organised grouping must have the principal purpose, immediately before the transfer, of carrying out the relevant activities…

A tribunal must determine the claims defined by the pleadings. Clarifications may assist, but any amendment must be clearly recorded. A claimant who personally…

A claim for unfair dismissal should not be struck out where there is a crucial core of disputed fact requiring assessment of credibility. Striking out is a…

Whether an employee who is required to remain overnight at a workplace is performing salaried hours work under regulation 4 of the National Minimum Wage…

A contractual disciplinary appeal ordinarily carries an implied power to reverse a dismissal. Unless the contract provides otherwise, a successful appeal…

Under section 136 of the Equality Act 2010, a tribunal may proceed directly to the respondent’s explanation, rather than follow a rigid two-stage sequence. If…

The transitional provisions in the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 distinguish proceedings before an Employment…

Where an appeal succeeds wholly or partly, the discretion to reimburse fees under Employment Appeal Tribunal Rules 1993 rule 34A(2A) principally turns on the…

Under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993, a costs order for appeal fees requires that the appeal has been allowed wholly or partly. The…

A dismissal for some other substantial reason based on an alleged irretrievable breakdown of working relationships is unfair where a reasonable employer would…

Where an agreed issue in an unfair-dismissal claim concerns whether an employer’s decision to end employment immediately deprived the employee of a…

An Employment Tribunal may determine an issue where, viewed practically, it has been sufficiently raised in the pleaded narrative and the identified issues. It…

An Employment Tribunal considering constructive dismissal must first decide whether the employer committed a repudiatory breach of contract. It must keep that…

An Employment Tribunal must determine whether a purported qualifying settlement agreement is valid in both form and substance before treating it as excluding…

A fundamentally defective first-stage disciplinary process does not inevitably make a dismissal unfair. The tribunal must assess the fairness of the process as…

A valuable contractual entitlement in an employment contract is not removed by obscure or indirect language. Contractual variation must be construed…

Under section 123(1) of the Equality Act 2010, the just-and-equitable test gives the Employment Tribunal a broad discretion. It is not a…

An Employment Tribunal must not reject a discrimination claim as incapable of sensible response where the claim form sets out facts capable of disclosing the…

An Employment Tribunal may permit an amendment adding a constructive unfair-dismissal claim which accrued after presentation of the original claim. This…

A tribunal which has already determined at a preliminary hearing that it is just and equitable to extend time cannot revisit that determination at the merits…

An Employment Tribunal may strike out a claim only where it has no reasonable prospect of success. This is an exceptional and draconian step, particularly…

Fresh evidence on reconsideration must satisfy the three conditions in Ladd v Marshall, including that it would probably have an important influence on the…

An unsigned contractual document binds the parties only if, objectively, the offeree has given a final and unqualified assent to the offer. Acceptance may be…

Where a party facing strike-out requests a hearing, Rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires the…

In assessing compensation for unfair dismissal, an Employment Tribunal must address separately the statutory tests for reduction of the basic and compensatory…

Where a tribunal judge becomes aware of circumstances which would lead the fair-minded and informed observer to conclude that there is a real possibility of…

A tribunal decision must be read fairly and as a whole. An infelicitous expression does not establish an error of law where the reasoning shows that the…

In an indirect discrimination claim, justification requires an objective proportionality assessment. The employer must establish a real need for the measure…

An employer’s expectation or assumption that an employee will work particular hours may constitute a provision, criterion or practice for the…

For indirect discrimination under Equality Act 2010, a provision, criterion or practice must be assessed by its comparative effect, not merely by its neutral…

For contributory fault under section 123(6) of the Employment Rights Act 1996, the question is whether the employee’s culpable conduct caused or contributed to…

Compliance with statutory early-conciliation requirements is assessed in relation to the matter before proceedings are instituted. Where early conciliation has…

For discrimination arising from disability under section 15(1) of the Equality Act 2010, the disability need not be the sole, main or direct cause of the…

An Employment Tribunal may order specific disclosure only where the documents are sufficiently relevant and disclosure is necessary for the fair disposal of…

For a reasonable-adjustments claim, the tribunal must identify the provision, criterion or practice ( PCP) actually relied upon. It must then assess the…

The discretion under Regulation 8(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is wide, but limitation periods are…

Under regulation 8(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the just and equitable extension is a broad…

A Polkey reduction requires an assessment of the loss caused by procedural unfairness. The tribunal must assess the likelihood that the actual employer would…

A childcare-voucher arrangement funded by salary sacrifice is, in substance, a diversion of earned salary to purchase vouchers. The vouchers therefore form…

Where a defective claim is rejected and a corrected second claim is late, the reasonably-practicable inquiry must address the second claim. A timely but…

For limitation under section 123 of the Equality Act 2010, the date on which time starts to run is conceptually distinct from the date on which an employer…

An employment tribunal may strike out a claim only where it has no reasonable prospect of success. It must proceed cautiously, especially where material facts…

An Employment Tribunal cannot reach irreconcilable conclusions about the reason or principal reason for a dismissal. A finding that a protected disclosure was…

For direct discrimination by a sole decision-maker, the material inquiry is that decision-maker’s actual knowledge, intention and motivation. Knowledge held…

On an application for interim relief for alleged whistleblowing dismissal, the tribunal must make a summary assessment of whether the claimant has a pretty…

Where an employee continues to work after an employer’s repudiatory breach, affirmation must be assessed by reference to all relevant conduct and evidence.…

Article 8 is engaged in an unfair-dismissal case only if the circumstances fall within its ambit. Whether workplace communications or personal material attract…

An Employment Tribunal must comply with the procedural safeguards governing reconsideration. A party affected by an application must be given the required…

An initial contractual pay error does not establish an equal-pay or continuing wages claim where it made no difference to the employee’s assimilation and pay…

An Employment Tribunal should not strike out a discrimination claim under Rule 37 where the reasons for the alleged treatment and the inferences to be drawn…

An Employment Tribunal should not strike out a discrimination claim under Rule 37 where the reasons for the alleged less favourable treatment form part of a…

An employee who is unwilling to return to work in any available role has no entitlement to wages for that period, so that non-payment is not an unlawful…

An appellate court may uphold a tribunal’s decision despite a misdirection where the tribunal’s unchallenged findings make the correct result inevitable. A…

Domestic legislation implementing an EU directive must, so far as possible, be interpreted conformingly. The obligation is broad and may permit words to be…

An Employment Tribunal considering re-engagement must give both parties a fair opportunity to address any wider form of re-engagement that has not been…

In assessing compensation for unlawful discrimination, an Employment Tribunal must determine whether the claimant’s alleged loss flowed from the discriminatory…

In a victimisation dismissal claim, the tribunal must decide whether the protected act itself, namely the allegation of discrimination, significantly…

An employer may fairly dismiss for some other substantial reason where it holds a genuine and reasonable belief that an employee has lost the right to work in…

In assessing fairness under Employment Rights Act section 98(4), a tribunal must address whether the employer held a reasonable belief in the employee’s…

Where an employee resigns in response to a proposed contractual variation following a successful disciplinary appeal, any assumed constructive dismissal must…

For direct discrimination, any actual comparator and the hypothetical comparator constructed from evidential comparators must involve a like-for-like…

A finding that a part-time worker has suffered unlawful less favourable treatment does not itself determine the particular remedy. Under the Part-Time Workers…

On a strike-out application in a discrimination case, where material facts are disputed, the tribunal must take the claimant’s case at its highest. It should…

A claim dismissed following withdrawal is ordinarily subject to an absolute bar on revival under Rules 51 and 52 of the Employment Tribunals (Constitution and…

An appeal should not be pursued once the dispute it raises has become academic. A party who continues to prosecute such an appeal, despite being told that the…

Under section 98(4) of the Employment Rights Act 1996, no fixed procedure is required in every dismissal. However, a tribunal which finds a dismissal unfair…

Assessment of compensation for future earnings loss requires an evaluation of chances, rather than proof on the balance of probabilities of a hypothetical…

For time-limit purposes under section 123 of the Equality Act 2010, a tribunal must identify a factual basis for treating conduct as extending over a period.…

Where a claimant requests a hearing on an application to reconsider rejection of an Employment Tribunal claim, Rule 13(3) requires the application to be…

In a direct race-discrimination claim, an Employment Tribunal may determine the reason why the claimant was treated as she was before resolving questions about…

An employee does not have an absolute right to an appeal against dismissal. Under section 98(4) of the Employment Rights Act 1996, the tribunal must assess the…

An Employment Tribunal's reasons must be read as a whole. Reasons are adequate where they make clear why applications failed, even if the decision does not…

Where alleged discriminatory conduct or information precedes a later employment decision, the tribunal must determine what really informed that decision.…

For employment claims, the definition of disability under Equality Act 2010 must give effect to EU law. A long-term impairment need only hinder, rather than…

A finding that an adjustment would give an employee a real prospect of being put sufficiently on the road to recovery addresses whether the adjustment is…

A discrimination claim should be struck out for having no reasonable prospect of success only after careful consideration of all available material. The…

In an indirect age-discrimination claim, justification is assessed objectively. The tribunal must balance the discriminatory effect of the provision, criterion…

A temporary suspension of an undertaking’s activities does not, without more, prevent a transfer under the Transfer of Undertakings (Protection of Employment)…

An appellate tribunal should not disturb an Employment Tribunal’s factual findings merely because another view of the evidence is possible. It must assess…

On a claim under section 15 of the Equality Act 2010, an Employment Tribunal must determine for itself whether the relevant conduct arose in consequence of…

A protected disclosure must meet the statutory requirements. The question is whether the worker disclosed information tending to show a relevant failure. An…

An employment tribunal deciding whether to permit an amendment which adds an otherwise time-barred claim must apply the discretionary approach in Selkent. The…

For the short-term-task exception in regulation 3(3)(a)(ii) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal must…

A protected-disclosure claim should not be struck out where the worker’s asserted belief that disclosure was made in the public interest raises disputed…

For a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006, activities has its ordinary and unqualified…

Under section 98(4) of the Employment Rights Act 1996, the statutory question is whether the employer reasonably treated the established misconduct as…

An Employment Tribunal does not invariably err by deciding the real reason for impugned treatment without expressly working through the two stages of the…

In an unfair-dismissal claim, contractual gross misconduct and statutory fairness are distinct questions. A tribunal need not first decide whether conduct was…

In a whistleblowing dismissal claim, the tribunal must determine the facts known, or beliefs held, by the employer which caused the dismissal. It must not…

Detriment in disability discrimination is a broad concept. It may include physical disadvantage, such as an exacerbation of a medical condition, as well as…

For National Minimum Wage purposes, whether a period of availability counts as work depends on a realistic construction of the employment contract in its…

For discrimination arising from disability under section 15 of the Equality Act 2010, an Employment Tribunal must identify a real disadvantage and apply the…

Where an employee is engaged to perform a particular job, an employer’s proposal no longer to provide that work will usually be a fundamental breach of…

A claimant who proves that an impairment has lasted at least 12 months satisfies the long-term limb of disability. The tribunal need not retrospectively…

A contractual or statutory entitlement to a trial period in alternative employment does not make a redundancy dismissal automatically unfair when it is denied.…

Under section 98(4) of the Employment Rights Act 1996, the fairness of a second disciplinary process depends on whether instituting it was fair in the…

A claimant need not share a protected characteristic in order to be harassed because of it. An Employment Tribunal therefore errs if it rejects racial…

A contractual conduct procedure must be construed objectively in its context. Where it requires that decisions be made by an officer not directly associated…

Where an impairment has not yet lasted 12 months at the date of the alleged discriminatory act, whether its effects are long-term must be assessed…

An unless order must be construed from its language and procedural context. A party must be able to identify what compliance requires, and the order should not…