Employment Appeal Tribunal judgments, 2017

An Employment Tribunal determining interim relief must make a prompt, summary assessment of whether the claimant has a pretty good chance of succeeding. Its…

A contract of employment is terminated only where clear and unambiguous words or conduct, assessed objectively, notify the employee that termination is being…

A discrimination claim should be struck out for having no reasonable prospect of success only with particular caution. The tribunal must identify the…

Contrary to a common misperception, a tribunal must first find that the employer ommitted the act complained of before the statutory shifting of the burden of…

A cross-appeal has the same juridical character as an appeal because each seeks to undo part of the tribunal’s decision. Applications to extend the time for…

Section 111A of the Employment Rights Act 1996 cannot be applied until any dispute about the effective date of termination has been determined. Where competing…

An Employment Tribunal has a wide discretion in case management. On an application to introduce further witness evidence, it must fairly balance prejudice to…

An Employment Tribunal may award costs incurred while the receiving party was legally represented before service of the employer’s ET3, and before proceedings…

An Employment Tribunal may properly characterise the reason for dismissal as conduct where it accepts that the employer treated the relevant failures as…

Confidentiality does not itself make documents immune from disclosure. Relevance alone is also insufficient. The decisive question is whether disclosure of a…

For victimisation, detriment is assessed objectively: the question is whether a reasonable worker would or might regard the treatment as a disadvantage. Where…

Under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 76 requires a three-stage approach to costs. First, the tribunal must…

A discriminatory decision to begin disciplinary proceedings may create an ongoing state of affairs, rather than a completed act with continuing consequences…

In a commercial work arrangement, the existence of a contract must be assessed objectively from all the circumstances. A tribunal errs if it treats one…

Employment status depends on the parties’ actual contractual relationship. In informal arrangements, day-to-day practice may evidence implied terms, but the…

An Employment Tribunal should rarely strike out a race-discrimination claim where the decisive issue is whether treatment was because of race. That issue will…

An Employment Tribunal must give adequate and intelligible reasons when resolving a material conflict of evidence in a discrimination claim. It is insufficient…

Legal professional privilege protects confidential lawyer-client communications made for legal advice. It is absolute unless waived, and the iniquity exception…

An Employment Tribunal amendment that introduces a new claim takes effect for limitation purposes when permission to amend is granted. It does not relate back…

A relevant transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006 is assessed by a multi-factorial inquiry. No single factor is…

Where an Employment Tribunal has been specifically remitted to decide whether a material change of medical circumstances made a capability dismissal unfair…

Where an employee has agreed temporarily to continue working on existing terms while proposed new terms are discussed, a tribunal must consider whether any…

An Employment Tribunal must address all material acts and omissions relied on as capable, alone or cumulatively, of amounting to a repudiatory breach of the…

An Employment Tribunal must make findings on a proper evidential basis and give reasons which address material issues necessary to determine the dispute. A…

For the purposes of section 98 of the Employment Rights Act 1996, the tribunal must identify the facts known or beliefs genuinely held by the decision-maker…

A tribunal’s decision on an application to strike out a claim is a judgment. Its reasons must therefore comply with rule 62(5) of the Employment Tribunals…

An Employment Tribunal should strike out a discrimination claim for having no reasonable prospect of success only in a clear and exceptional case. It must…

A tribunal’s extensive use of one party’s written submissions is bad practice and may create an appearance of unfairness. It does not, however, automatically…

In a misconduct dismissal, procedural fairness is assessed under the range of reasonable responses and by examining the disciplinary process as a whole. An…

On an application to stay or continue a stay of Employment Tribunal proceedings, the starting point is that a claimant is entitled to determination without…

An application to reopen a concluded tribunal judgment using evidence already relied upon in an earlier unsuccessful reconsideration application is an abuse of…

For an automatically unfair dismissal under regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the transfer must be…

An employment tribunal must determine whether a worker made a qualifying disclosure by reference to the information actually disclosed and the worker’s…

Section 111A of the Employment Rights Act 1996 operates alongside, rather than replaces, the common law without prejudice rule. Pre-termination negotiations…

Where a claimant pleads a contractual claim on the basis that the applicable foreign law produces the same result as the law of England and Wales, a respondent…

Where the Employment Appeal Tribunal exercises the Employment Tribunal’s powers and finally disposes of the tribunal proceedings, its judgment is the judgment…

An employee cannot establish a contractual entitlement through custom and practice where the asserted term is inconsistent with an applicable express term…

An employer cannot rely on Employment Rights Act 1996 section 98(2)(d) where continued employment was not in fact prohibited by an enactment. Under…

Direct discrimination because of marriage under sections 8 and 13 of the Equality Act 2010 is engaged where married status forms an operative part of the…

Affirmation after an employer’s repudiatory breach is a question of the employee’s conduct in its full context. Delay alone does not establish affirmation, and…

An Employment Tribunal may permit an amendment which adds an unfair-dismissal complaint arising after the original claim form was presented. The amendment must…

In a misconduct dismissal case, an Employment Tribunal must apply the band of reasonable responses test. It must assess whether the employer could reasonably…

An Employment Tribunal is entitled to find a capability dismissal procedurally fair where an employee declines to attend the dismissal hearing pending…

Direct discrimination may be established where the protected characteristic is an effective cause of less favourable treatment, even though other factors also…

An Employment Tribunal considering an amendment must take account of all relevant circumstances and balance the relative injustice and hardship of granting or…

Where an Employment Tribunal proceeds directly to the second stage of the burden of proof under Equality Act 2010, it must assume that the burden has shifted…

Whether an employment benefit has contractual force depends on the objective meaning of the employer’s communications to employees. That inquiry is not…

Whether an employer knew, or could reasonably have been expected to know, of an employee’s disability is a question of fact. An appellate tribunal may…

When deciding whether it is just and equitable to consider a complaint outside the time limit under regulation 8(3) of the Part-time Workers (Prevention of…

For victimisation under section 27 of the Equality Act 2010, the protected act must be the conscious or subconscious reason why the relevant decision-maker…

In a direct race-discrimination claim, the tribunal must identify each alleged discriminatory act, including any detriment short of dismissal, and identify the…

Clear written employment terms are strong prima facie evidence of the parties’ agreement. A party alleging that the terms no longer reflect that agreement must…

Compensation for victimisation must be confined to loss flowing directly and naturally from the unlawful conduct actually found. The tribunal must ask what…

For indirect discrimination under section 19(2)(b) of the Equality Act 2010, the claimant must show that the relevant provision, criterion or practice puts…

For a contractual term governing a part-time worker’s availability for work, less favourable treatment may be established by comparing the required available…

For the four weeks’ leave protected by Article 7, holiday pay must correspond to the worker’s normal remuneration. The decisive question is whether a payment…

An appellate court may interfere with an Employment Tribunal case-management decision only for an error of legal principle or a perverse outcome. An…

Under the early-conciliation extension provisions, the calculation of time limits was a point requiring appellate clarification. At the Rule 3(10) stage, an…

Whether a sleep-in worker performs time work throughout an overnight shift requires a multifactorial evaluation. The tribunal must begin with the contract…

An Employment Tribunal may determine a grossed-up compensation award using the evidence and calculations properly before it. It need not decide an abstract…

A discrimination or victimisation claim should be struck out for having no reasonable prospect of success only in the clearest case. Where the employer’s…

A relocation policy dealing with specified organisational changes does not, without clear language, confine a wider contractual mobility clause. An employer…

On a relevant transfer, Transfer of Undertakings (Protection of Employment) Regulations 2006 preserve an employee’s existing contractual rights. They do not…

In an unlawful-deduction claim, the tribunal must determine the wages properly payable by construing all relevant express and implied contractual terms. A…

For direct discrimination under Equality Act 2010, a tribunal must identify the less favourable treatment, the relevant actual or hypothetical comparator, and…

A disclosure may contain both information and an allegation. Whether it is a disclosure of information depends on its context. A worker need only hold a…

A serious procedural irregularity is an error of law only where it causes injustice or renders the tribunal’s decision unsafe. The so-called rule in Browne v…

An Employment Tribunal may determine the true reason for dismissal from all the evidence and permissible inferences. The reason need not precisely match either…

An Employment Tribunal's initial consideration under the procedural rules, and a preliminary hearing directed as its consequence, can occur only after…

For disability under Equality Act 2010, an Employment Tribunal must determine the effect of the impairment. It must decide whether that effect on normal…

An Employment Tribunal’s costs jurisdiction under rule 76(1) involves two distinct stages. It must first decide whether the prescribed threshold is met. It…

An Employment Tribunal may make a deposit order only where it has a proper basis for doubting that the party can establish facts essential to the identified…

In deciding whether a misconduct dismissal was fair, an Employment Tribunal may consider the full context known to the employer. It may find dismissal outside…

An Employment Tribunal decision made without a hearing to grant a witness order is a decision which must ordinarily be communicated to both parties under Rule…

A direct dismissal occurs where an employer unequivocally communicates, by words or conduct, that it has withdrawn the employee’s existing contract. This may…

An Employment Tribunal may refuse an out-of-time reconsideration application where the applicant provides no adequate evidence explaining the delay. It is not…

It is not enough that equal pay claims share a broad theme. Two or more claimants may join a single claim form only if the factual elements necessary to…

An Employment Tribunal's case-management decision on whether a non-party has complied with a disclosure order remains subject to appellate intervention where…

Rule 9 permits multiple claimants to use one claim form only when the complaints they make rest on the same set of facts. For equal pay complaints those facts…

In assessing the fairness of a conduct dismissal, an Employment Tribunal must apply the range of reasonable responses test to the employer’s investigation and…

An ET1 is construed generously and as a whole. It contains an effective complaint where it identifies the act complained of and the nature of the complaint.…

For the statutory cap on compensation for unfair dismissal, a week’s pay under Employment Rights Act 1996 section 221(2) includes an employer’s pension…

An extension of time to lodge an Employment Appeal Tribunal appeal requires consideration of the explanation for default, whether it provides a good excuse…

In assessing a Polkey reduction, an Employment Tribunal must predict the chances that the actual employer, acting fairly, would have dismissed. It must not…

In assessing unfair dismissal, an Employment Tribunal must decide whether the disciplinary process was fair as a whole. A procedural defect at an early stage…

Where an employment contract is silent on the timing of a personally negotiated bonus, an implied term may arise from the parties’ established practice. It is…

An Employment Tribunal may consider the merits of a proposed amendment, including whether the claim has reasonable prospects of success. It is not confined to…

For a claim under section 15 of the Equality Act 2010, the tribunal must identify the reason for the unfavourable treatment and determine objectively whether…

An appellant challenging a costs order on the ground that they were denied a fair opportunity to address their means must substantiate that allegation and…

For an employee who works and lives abroad, the territorial scope of statutory employment protection depends on whether the employment has a sufficiently…

An early-conciliation certificate which identifies a prospective respondent by an individual’s name and trading description may be apt to proceedings against…

In a constructive-dismissal case, an Employment Tribunal must determine the alleged repudiatory breaches within the issues which the parties were required to…

Where an Employment Tribunal has granted a review application by express reference to an extended written application, its failure to consider that central…

For a conduct dismissal under Employment Rights Act 1996, section 98(1) and (2) require the employer to establish its actual reason for dismissal and that it…

An Employment Appeal Tribunal appeal must be properly instituted by 4pm on the final day of the 42-day period. Employment Appeal Tribunal Rules 1993, rule…

Procedural fairness in an unfair-dismissal case requires examination of the process as a whole. An Employment Tribunal may infer that an appeal panel upheld a…

For a protected-disclosure detriment claim, the tribunal must determine whether the alleged act or deliberate omission was done on the ground that the worker…

For an employment reasonable-adjustments claim, the relevant duty concerns the individual disabled employee. A tribunal must not apply the service-provider…

Where employment status is disputed, a tribunal must determine the parties’ real agreement from the full factual matrix. It must consider their relative…

For discrimination arising from disability, a tribunal must identify the unfavourable treatment, its effective cause, and whether that cause was something…

In determining employment status, a tribunal should begin with the written agreement and consider whether it was freely made. It must then examine the…

A valid first early-conciliation notification under section 18A of the Employment Tribunals Act 1996 engages the statutory extension of time. A later voluntary…

For national minimum wage purposes, a worker permitted to sleep at the workplace may nevertheless be doing time work throughout the shift. The question is…

For sleep-in shifts, whether a worker is performing time work throughout the shift depends on a realistic and multifactorial evaluation. The tribunal must…

In a misconduct dismissal, the Burchell investigation requirement is principally concerned with whether the employer gathered sufficient material. An…

For constructive dismissal based on the implied term of trust and confidence, the tribunal must assess the employer’s conduct as a whole and objectively. It…

An appellate court should read an Employment Tribunal’s reasons fairly and as a whole, in the context of the cases advanced by the parties. Linguistic…

Fresh evidence on appeal must probably have an important influence on the result, although it need not be decisive. Material which merely records an employee’s…

A tribunal may find that a requirement to undertake and pass a multiple-choice assessment places a disabled applicant at a particular and substantial…

For proceedings relating to the same matter, the mandatory early-conciliation scheme permits one certificate. Once the prospective claimant has complied with…

Compensation for unfair dismissal under section 123 of the Employment Rights Act 1996 covers loss sustained in consequence of the dismissal. It does not…

Under section 136 of the Equality Act 2010, a claimant must establish facts from which a tribunal could conclude that unlawful discrimination occurred. A…

Compensation for unfair dismissal under section 123 of the Employment Rights Act 1996 covers loss sustained in consequence of the dismissal. It does not…

In determining fairness under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess both procedure and substance by reference to…

A trade union member is unreasonably excluded from candidature where the union uses a mistaken interpretation of its election rules to impede efforts to obtain…

For a claim under section 18(4) of the Equality Act 2010, unfavourable treatment must be because of maternity leave. A neutral policy affecting employees…

In a conduct-dismissal case, the tribunal must assess fairness under Employment Rights Act 1996, section 98(4), by reference to the conduct which the employer…

In a redundancy dismissal, the governing question is always whether the employer acted reasonably under section 98(4) of the Employment Rights Act 1996. An…

Under section 141 of the Employment Rights Act 1996, entitlement to a redundancy payment requires a two-stage inquiry. The tribunal must decide objectively…

For constructive dismissal, an employee's loss of trust and confidence is insufficient by itself. The tribunal must objectively decide whether the employer…

An Employment Tribunal errs in law if it dismisses discrimination claims on a substantial factual and legal basis that was not pleaded, identified in the…

Where a tribunal finds that an employer intervened because of a protected act, it must give coherent reasons for any separate finding that the particular means…

When determining the primary limitation period for a discrimination complaint, an Employment Tribunal must consider properly supplied further particulars where…

Under section 98 of the Employment Rights Act 1996, a tribunal should identify whether the employer has established a potentially fair reason before deciding…

An Employment Tribunal's finding that a claim had no reasonable prospect of success engages, but does not determine, its costs jurisdiction under Rule 76(1) of…

An Employment Tribunal considering an amendment application must exercise its discretion by considering all the circumstances and balancing the respective…

An employer’s knowledge of disability requires consideration of both what it actually knew and what it could reasonably have been expected to know. That…

In an unfair-dismissal claim, the employer must prove the actual reason for dismissal. Where consultation or notice intervenes, the tribunal must ensure that…

A compromise of a costs application against a claimant does not, without more, bar a wasted costs application against that claimant’s representative. Issue…

An Employment Tribunal should strike out a claim only on clear grounds, as a last resort, and on an adequate factual basis. Before doing so, it must be…

An appeal against an earlier case-management order will ordinarily serve no purpose where later proceedings and a final merits decision have overtaken it, and…

Where an Employment Tribunal finds that an employee committed gross misconduct which would independently justify summary dismissal, it must give effect to that…

Fresh evidence will justify an appeal only where it could probably have had an important influence on the tribunal hearing. The appellate tribunal should…

An Employment Tribunal may make a Polkey reduction to compensation for constructive unfair dismissal. It may assess a percentage chance that employment would…

In determining whether a worker is an employee under Employment Rights Act 1996, a tribunal must first identify the contractual terms. A term which is…

For direct disability discrimination, unreasonable or incompetent treatment does not, without more, permit an inference of less favourable treatment because of…

For disability claims, an employer and tribunal must focus on the symptoms and effects of the agreed impairment, rather than treating the diagnostic condition…

Under section 98(4) of the Employment Rights Act 1996, the reasonableness of a misconduct dismissal remains a single objective standard. Grave allegations and…

An Employment Tribunal considering numerous alleged discriminatory acts must assess each allegation and also stand back to consider their cumulative effect. A…

An employer's duty to make reasonable adjustments requires a holistic assessment of whether reasonable steps have avoided the substantial disadvantage caused…

In deciding whether unwanted race-related conduct had the prohibited effect under section 26 of the Equality Act 2010, an Employment Tribunal must apply the…

A worker returning from maternity leave within the twelve-month period in regulation 4 of the Part-Time Workers (Prevention of Less Favourable Treatment)…

A withdrawal of an Employment Tribunal claim cannot be inferred merely from an unrecorded discussion at a hearing. Where a claimant has withdrawn all or part…

For discrimination arising from disability under section 15 of the Equality Act 2010, the relevant consequence of disability must be an effective cause of the…

In determining fairness under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess the employer’s decision at the time it was…

An appellate amendment may be permitted late where it raises a substantial, discrete point of law concerning the Employment Tribunal’s jurisdiction. The…