Employment Appeal Tribunal judgments, 2018

For indirect discrimination under section 19(2) of the Equality Act 2010, proportionality requires an objective assessment of the PCP itself in the…

Where a tribunal has found that there is no evidential basis for a factual connection between an employee’s disability and the alleged impairment or…

In a constructive-dismissal claim, the alleged final act must be assessed objectively under the last straw doctrine. A tribunal must determine whether the act…

A tribunal’s erroneous classification of alleged disclosures will not invalidate its decision where it has separately determined, on the assumption that all…

This Practice Direction regulates procedure in the Employment Appeal Tribunal. Appeals lie only on a question of law and are not rehearings of factual…

In deciding whether summary dismissal falls within the range of reasonable responses, a tribunal may assess the employee’s conduct as a whole and in the round.…

In a conduct dismissal, the employer must formulate the charge precisely and conduct a reasonable investigation into the facts and alleged rule breaches. The…

For direct discrimination, a hypothetical comparator must have all circumstances material to the reason for the treatment, save for the protected…

An Employment Tribunal must first identify clearly and consistently the employer’s actual reason for dismissal. Under section 98(4) of the Employment Rights…

Section 3 of the Human Rights Act 1998 permits a Convention-compatible interpretation only where that is possible. It does not authorise a court or tribunal to…

An Employment Tribunal determining remedy for unfair dismissal must give adequate reasons for any Polkey and contributory-fault reductions. A Polkey assessment…

When deciding whether a proposed adjustment is reasonable, an Employment Tribunal must identify the particular substantial disadvantage relied upon and assess…

Where dismissal is based on adverse credibility findings made by an independent tribunal, an employer may reasonably treat those findings as its starting point…

An employee who lives and works abroad will ordinarily fall outside the territorial reach of British employment legislation. Territorial jurisdiction may…

An Employment Tribunal must determine the substance of the claim disclosed by the pleadings, law and evidence. An agreed list of issues is an important…

An employer’s informal conduct procedure must be applied consistently with its own terms. Where the procedure requires a discussion with the employee before an…

Where an employment contract provides long-term disability income until return to work, retirement or death, a general contractual power to terminate on notice…

At a preliminary hearing without evidence on the alleged continuing act, an Employment Tribunal must ask whether the claimant’s case, taken at its highest, is…

Under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must decide whether the employer's response fell within the range of reasonable…

For discrimination under section 18(4) of the Equality Act 2010, it is insufficient that unfavourable treatment would not have occurred but for the woman…

For the purposes of Equality Act 2010, whether an impairment is likely to have a long-term effect requires a realistic, forward-looking assessment of whether…

A party cannot ordinarily advance on appeal a new contractual analysis which was not advanced below, particularly where it would require further factual…

In a reasonable-adjustments claim, the comparison for substantial disadvantage must address whether a practice has a greater adverse impact on persons with the…

On a detailed assessment on the standard basis, an Employment Judge need not make an express finding on every element of the costs test for every allowed item.…

An employer’s actual or constructive knowledge of disability must be assessed by reference to the information it had, or should reasonably have obtained, at…

In a conduct dismissal, the employer’s duty to investigate may continue through an internal appeal. A late disclosure may require further inquiry where a…

A written contract does not conclusively determine worker status where, assessed realistically and with regard to the parties’ relative bargaining power, it…

An Employment Tribunal judgment substantially complies with Rule 62(5) where, read as a whole, it identifies enough of the material evidence and reasoning to…

Whether misconduct by a doctor is professional for the purposes of MHPS depends on the substance of the allegation. The inquiry is whether it arose through…

Conduct and capability may overlap. An employer may reasonably characterise seriously negligent acts or omissions as conduct, even without deliberate…

An Employment Tribunal deciding an application to postpone a remedies hearing must engage with the material grounds advanced for the application. Although…

Trade union rules are contractual and should be read as a whole, reasonably and in light of their purpose. Whether an office-holder has resigned turns on the…

In a protected-disclosure dismissal claim, the employer bears the burden of establishing the reason or principal reason for dismissal. An Employment Tribunal's…

On disposing of an appeal, the Employment Appeal Tribunal may exercise a power available to the Employment Tribunal under section 35(1)(a) of the Employment…

A stable working relationship for equal-pay limitation purposes is not established merely by uninterrupted employment with the same employer. The tribunal must…

In a conduct-dismissal case, the adequacy of an investigation must be assessed in the round. Serious and disputed allegations require a careful and…

An extension of time granted by consent to file a respondent’s answer does not, without clear wording or agreement, extend time for a cross-appeal merely…

A reasonable-adjustments claim requires a comparison between the effect of a PCP on the disabled person and its effect on non-disabled people. It does not…

In assessing unfair dismissal, the tribunal must consider the overall reasonableness of the employer’s investigation and disciplinary process. It need not…

An Employment Tribunal errs in law if it orders disclosure that would require a public body to breach a statutory prohibition on onward disclosure of…

An Employment Tribunal determines the reason for dismissal from the facts or beliefs that caused the employer to terminate employment. It is not confined by…

The test for apparent bias asks whether a fair-minded and informed observer, having considered all relevant facts and their context, would conclude that there…

An employee who completes at least one month’s service remains entitled to a written statement of employment particulars even if employment ends during the…

For an automatic unfair-dismissal claim under section 100(1)(d) of the Employment Rights Act 1996, the tribunal must make findings on the employee’s reasonable…

There is no automatic rule that a successful appeal must be remitted to the same tribunal. Where fairness, the passage of time, the composition of the original…

When assessing remedy for unfair dismissal, an Employment Tribunal must apply separately the statutory regimes for the basic and compensatory awards. Under…

For continuity of employment, the control required by section 231 of the Employment Rights Act 1996 is legal or voting control, rather than mere de facto…

For section 43B(1)(b) of the Employment Rights Act 1996, a legal obligation may include a tortious duty, including the duty not to defame. A worker need not…

A tribunal may proceed in a party’s absence where it has considered the available information and any practicable enquiries about the reason for absence. A…

An Employment Tribunal should not ordinarily reopen the merits of an earlier disciplinary warning when assessing a later dismissal. An earlier warning remains…

In deciding whether a conduct dismissal was fair, an Employment Tribunal must apply Employment Rights Act 1996 section 98(4) in accordance with equity and the…

In a claim under section 15 of the Equality Act 2010, an Employment Tribunal may find that a final written warning for disability-related absence is a…

Whether a person is an employee depends on the reality of the whole working relationship. The Ready Mixed Concrete conditions require personal service…

A mental impairment which manifests as a tendency to steal is an excluded condition under Regulation 4(1)(b) of the Equality Act 2010 (Disability) Regulations…

For the long-term limb of disability under section 6(1) of the Equality Act 2010, an impairment is likely to last 12 months where that outcome could well…

A Polkey assessment is a broad evaluative exercise in fixing the percentage chance that employment would otherwise have ended. A tribunal must identify the…

An Employment Tribunal must address material jointly instructed medical evidence and give adequate reasons where its conclusion appears inconsistent with that…

An entity carries on an economic activity where it offers goods or services on a market. Purchasing or commissioning goods or services is not, by itself, an…

For the victimisation exception in section 27(3) of the Equality Act 2010, an Employment Tribunal must separately determine whether a false allegation was made…

An Employment Tribunal does not err in law by rejecting a discrimination claim concerning promotion where its findings establish that the claimant did not…

For a victimisation claim, an Employment Tribunal must make clear findings on whether each alleged discriminator knew or believed that the claimant had done…

Whether conduct amounts to harassment under section 26 of the Equality Act 2010 is highly fact-sensitive. The tribunal must assess the whole workplace context…

An Employment Tribunal deciding whether an unless order has been complied with must decide whether there has been material, rather than exact or quantitative…

Legal advice privilege does not protect advice sought or given to facilitate iniquity. The party seeking disclosure must establish a strong prima facie case of…

An Employment Tribunal must not treat a clarification of issues as permitting an unpleaded discrimination complaint without first deciding whether the…

Under Employment Rights Act 1996, an employer must first establish the facts or beliefs which caused dismissal and show that they constitute a potentially fair…

An Employment Tribunal must expressly determine a pleaded and potentially relevant disparity-of-treatment argument in an unfair-dismissal claim. It must make…

Victimisation requires a protected act and a causal connection between that act and the alleged detriment. A complaint which does not allege discrimination…

An employer does not breach the implied term of mutual trust and confidence by communicating an honestly held and properly grounded belief that an employee has…

An employer cannot rely on its own failure to obtain adequate medical evidence when assessing its duty to make reasonable adjustments. Compliance is assessed…

A person described as a salaried partner has no legal status determined by that label alone. Whether that person is an employee depends on the true…

A philosophical belief must satisfy the Grainger criteria, including a sufficient level of cogency, seriousness, cohesion and importance. The threshold must…

An amendment to a timely unfair-dismissal complaint which advances protected disclosure as the sole or principal reason for dismissal does not introduce a…

To establish disability under Equality Act 2010, a claimant must prove that an impairment has a substantial and long-term adverse effect on the ability to…

Employment Tribunals Act 1996 section 11 and Rule 50 create a statutory exception to open justice. Before the liability decision is promulgated, a tribunal may…

For a claim under section 15 of the Equality Act 2010, there may be more than one effective reason for unfavourable treatment. The relevant “something” need…

A tribunal considering a deposit order must make reasonable enquiries into the paying party’s ability to pay and must set an amount supported by the…

A proposed reasonable adjustment is not confined to a response to an existing difficulty. Active management support, supervision or monitoring may be a…

For the statutory extension of the effective date of termination, section 97(2) of the Employment Rights Act 1996 incorporates the whole of section 86…

For the purposes of Rule 1(4)(e) of the 2004 ET Rules, a claim form may provide the required details of a claim by a clear written cross-reference to readily…

An employee’s contractual obligation to notify a disqualifying criminal offence within 14 days must be construed according to its express terms. Where the…

Under section 20(3) of the Equality Act 2010, whether a proposed adjustment is reasonable depends on all the circumstances. The effectiveness of the step in…

In an unfair-dismissal claim, the tribunal must identify the employer’s actual reason for dismissal and determine whether it was a statutorily permissible…

A costs order may be made in favour of several parties where legal costs were incurred by a single representative on behalf of them all. Under Rules 74(1) and…

In determining fairness under section 98(4) of the Employment Rights Act 1996, a tribunal must assess whether the employer acted reasonably in treating the…

An unfair-dismissal compensatory award under section 123(1) of the Employment Rights Act 1996 must compensate the employee's actual loss, but cannot permit…

Where misconduct allegations may have career-changing consequences, an employer must conduct a particularly careful and even-handed investigation. The…

An overarching contract of employment requires legal mutual obligations extending beyond individual assignments. An expectation that a person who has declared…

Under the Equal Pay Act 1970, once the statutory conditions for an equality clause are met and no material-factor defence succeeds, the less favourable term in…

An Employment Tribunal may case-manage discrimination proceedings by directing that sample allegations be tried first. It must, however, exercise that power…

An apparently clear notice of resignation ordinarily takes effect according to its objective meaning. However, its meaning must be assessed in the…

An employee may fall within the insurance exception to the rule against recovering avoided loss where the evidence shows an indirect contribution to insurance…

Where an employer refuses an overseas assignment because occupational-health advice identifies a high risk that the employee will need medical assistance…

An employer may reasonably dismiss for a first disciplinary offence where a series of acts, viewed cumulatively, has undermined trust and confidence and…

An Employment Tribunal must give an unrepresented party such assistance as is appropriate in formulating and presenting the case, while remaining impartial.…

Where a collective agreement is incorporated into an employment contract, a term unknown to one party at contracting cannot form part of the shared factual…

In an indirect-discrimination claim, objective justification requires a tribunal to compare the seriousness of the disadvantage caused by the provision…

A tribunal may find mutual legal obligations during periods when an individual is logged into a work-allocation system, even though the individual may choose…

For harassment under Equality Act 2010 section 26, conduct need only be related to a protected characteristic. That is broader than direct discrimination…

Entitlement to a special educational needs allowance under paragraph 25.2(d) of the School Teachers' Pay and Conditions Document 2010 and Guidance on School…

For a dismissal to be justified under section 15 of the Equality Act 2010, it must be an appropriate and reasonably necessary means of achieving the employer’s…

A tribunal’s duty to make reasonable adjustments for a disabled litigant is fact-specific. Evidence that a person is unfit for work does not, without more…

A wasted costs order requires more than proof of negligent, improper or unreasonable conduct. The representative must also have breached a duty to the court or…

A challenge to the statutory rate for shared parental leave may be pursued as indirect sex discrimination where it challenges that shared-leave term, rather…

For the purposes of the Agency Workers Regulations 2010, an individual is supplied to work temporarily where the relevant work is not permanent. The inquiry…

For proceedings relating to the same matter, the early-conciliation scheme requires only one mandatory process and one certificate. A later voluntary…

In deciding whether a dismissal for capability is fair under section 98(4), the tribunal must assess the reasonableness of the decision to dismiss in the…

A claimant alleging a failure to make reasonable adjustments must establish that the relevant provision, criterion or practice placed them at a substantial…

In a disability-related dismissal case, Health and Safety Executive v Cadman [2004] EWCA Civ 1317 does not permit a tribunal assessing justification to rely on…

When assessing dismissal fairness under section 98(4) of the Employment Rights Act 1996, an employer's failure to offer an appeal is ordinarily material. The…

An Employment Tribunal may refuse a late amendment which introduces substantively new causes of action or materially different issues, even where the…

The early-conciliation extensions to Employment Tribunal limitation periods operate sequentially. The "stop the clock" calculation first excludes the period…

A father taking shared parental leave cannot ordinarily compare himself, for direct sex-discrimination purposes, with a birth mother taking maternity leave.…

For the reasonable-practicability exception to the time limit in section 111 of the Employment Rights Act 1996, the tribunal must assess both what the employee…

An Employment Tribunal extending time for an unfair-dismissal complaint must address whether presentation within the primary period was not reasonably…

An appellate tribunal may interfere with an employment tribunal’s discretionary case-management decision only for an error of law. Intervention is confined to…

An Employment Tribunal may strike out a claim for unreasonable conduct only after addressing whether the proceedings have been conducted unreasonably, whether…

On an application for interim relief for alleged protected-disclosure dismissal, the Employment Tribunal must make an urgent, broad assessment of whether the…

The burden under Equality Act 2010 s136 only shifts when the claimant adduces facts from which a tribunal could, in the absence of any explanation, conclude…

Where a disabled employee is subject to a PCP causing substantial disadvantage, the duty under Equality Act 2010 requires objectively reasonable steps to avoid…

For unauthorised-deduction claims, Employment Rights Act 1996 section 23 prescribes a period of limitation. A worker must present a complaint within three…

An Employment Tribunal’s permission to amend a claim does not, without clear wording and a judicial determination, decide whether the amended claims are within…

A fixed-term employment contract ordinarily expires by effluxion of time on its agreed end date. A general contractual notice provision will not be construed…

The categories in Regulation 2(3) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 are broadly defined and set a low…

When deciding whether it is just and equitable to extend time under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, an…

A finding that a dismissal was fair for the purposes of section 98 of the Employment Rights Act 1996 does not determine a distinct claim for wrongful…

An Employment Tribunal’s broad discretion in case management does not permit a process that prevents a party from making submissions on the material at the…

An appellate tribunal will not reopen an Employment Tribunal’s factual findings merely because a party disagrees with them. A challenge requires an arguable…

Compliance with the statutory accompaniment regime in Employment Relations Act 1999 section 10 does not determine whether a dismissal is fair. The tribunal…

A case-management order must be construed objectively from its written terms. Where a written order follows a hearing, it governs in preference to…

For limitation purposes under section 48(3)(a) of the Employment Rights Act 1996, the last act or failure relied on in a series of similar whistleblowing…

A dismissal for conduct falling short of gross misconduct is not automatically unfair merely because it is a first offence and the employee has no live…

An Employment Judge has a discretionary case-management power to adjourn a hearing. An appellate tribunal will not interfere unless the decision involved an…

In a redundancy dismissal, suitable alternative employment must be considered at the material time. A dismissal is not rendered unfair by procedural failures…

An Employment Appeal Tribunal costs order may be warranted where a party’s unreasonable conduct causes an unnecessary hearing. In deciding whether to award…

Under Rule 37, a discrimination, harassment or victimisation claim should not be struck out where, taking the claimant’s case at its highest, a central dispute…

A written service agreement satisfies the requirement for written particulars where it states the employee’s job title. Section 1(4)(f) of the Employment…

For a whistleblowing detriment claim under section 47B of the Employment Rights Act 1996, a protected disclosure need only materially influence the employer’s…

Striking out for failure actively to pursue a claim is a draconian measure of last resort. The tribunal must decide, in the circumstances of the particular…

A part-time worker may establish that treatment was on the ground of part-time status where that status was a significant, material and effective cause; it…

A worker with no normal working hours is entitled to paid annual leave calculated under the clear statutory scheme. A week’s pay is the average weekly…

Where an employer’s asserted fair reason for dismissal is rejected, an Employment Tribunal must still determine the actual reason or principal reason for…

An employee suspended under a zero-hours contract remains entitled to the contractual pay due during the suspension where there is no contractual right to…

Where more than one person owes the duty to make reasonable adjustments, each person’s liability must be assessed separately. The tribunal must identify that…

A claim which has been unconditionally withdrawn and dismissed is barred by res judicata, even though the tribunal did not determine its merits. The…

For Equality Act 2010 section 83(2)(a), the question is whether the individual was employed under a contract personally to do work. A group contract does not…

An employment tribunal considering an amendment must apply the Selkent balance. It must consider all relevant circumstances, including the nature of the…

In an equal-pay claim concerning a contractual basic-pay term, the particular disadvantage required by section 69 of the Equality Act 2010 must concern lower…

An appeal against an Employment Tribunal case-management decision remains an appeal on a question of law. The Employment Appeal Tribunal must not substitute…

In a claim under section 15 of the Equality Act 2010, justification is an objective question of whether the unfavourable treatment was a proportionate means of…

Personal liability under sections 109 and 110 of the Equality Act 2010 requires an act by an employee or agent which is treated as an act of the employer or…

After the qualifying period, Regulation 5(1) of the Agency Workers Regulations 2010 requires comparison of each stipulated term and condition. “The same” means…

A unilateral imposition of a substantial reduction in contractual salary is a repudiatory breach of an important express term. Where that conduct is also…

Under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, a collective-consultation duty may arise where an employer has a…

For a service provision change, the tribunal must identify the pre-transfer activities with clarity and then decide whether the activities carried out…

For an unfair-dismissal limitation extension, reasonable practicability is a fact-sensitive question. A claimant who knew the applicable time limit and…

An Employment Tribunal on remittal must determine the issues specified by the Employment Appeal Tribunal’s order. Its jurisdiction is statutory and cannot be…

Relief from the automatic strike-out imposed by an unless order requires a tribunal to determine whether there has been material compliance with every…

On an application to reconsider a judgment for fresh evidence, the tribunal must decide whether reconsideration is necessary in the interests of justice. Where…

An amendment adding a direct disability discrimination claim under section 13 of the Equality Act 2010 is not a mere relabelling of an existing section 15…

An Employment Tribunal considering a witness order must first assess whether the proposed evidence is relevant to the issues and its likely significance. It…

A Polkey assessment is a counterfactual evaluation of what would or might have occurred had the employer followed a fair procedure. It necessarily involves…

On an appeal alleging perversity, the appellant must show that no reasonable tribunal, properly appreciating the evidence and law, could have reached the…

An Employment Tribunal should not adopt an unduly technical reading of an unrepresented claimant’s pleading where, read fairly, it identifies the essential…

Apparent bias is assessed objectively. The question is whether a fair-minded and informed observer, considering all relevant circumstances, would conclude that…

An Employment Tribunal's reasons satisfy Employment Tribunals Rules 2013, rule 62(5), if, read fairly and as a whole, they identify the decisive issue, make…

In a wrongful-dismissal claim, the tribunal must determine whether the employee was in repudiatory breach of contract. It is not confined to the information…

Under regulation 4(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the decisive inquiry is what caused the employer to vary the…

Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 confers contract jurisdiction only for an employee’s claim…

Where an employee resigns on contractual notice and remains ready, willing and able to work, the contract continues until that notice expires. An employer may…

The reasonable-adjustments duty under sections 20 and 21 of the Equality Act 2010 and discrimination arising from disability under section 15 are separate…

An Employment Tribunal has jurisdiction to disapply domestic subordinate legislation where the legal basis for disapplication under EU law is established. It…

When assessing fairness under section 98(4) of the Employment Rights Act 1996, a tribunal must assess the dismissal procedure as a whole, including any…

Compensation for injury to feelings is potentially available under section 49 of the Employment Rights Act 1996 for every detriment claim in Part V, including…

For direct age discrimination, the asserted objective must be a legitimate public-interest social policy aim. An employment tribunal must identify the aim…

In direct age-discrimination claims concerning public-service pension transition arrangements, a government may pursue legitimate social-policy aims, including…

Where the identity of an employer is disputed, the issue may be the identity of the party to an existing contract rather than whether a further contract should…

For Employment Rights Act 1996 claims arising from work abroad, territorial reach depends on whether the employment has sufficiently strong connections with…

Rule 37(2) requires that an affected party be given a reasonable and proper opportunity to make representations before a strike out is made. The notice may be…

Schedule 1 paragraph 6 of the Equality Act 2010 requires a straightforward inquiry: whether the claimant had cancer. It does not distinguish between invasive…

An Employment Tribunal must give sufficient reasons for a costs or wasted costs order to identify the conduct relied on, why it was unreasonable or negligent…

An Employment Tribunal need determine the pleaded and agreed issues, and give sufficient reasons to explain its decision. It need not address every factual…

Under section 136 of the Equality Act 2010, a tribunal must consider all the evidence when deciding whether facts establish a prima facie inference of…

A tribunal must comply with the scope of a remission, construed in the light of the appellate judgment and order. Where the appellate tribunal has expressly…

Non-renewal of a fixed-term contract may provide a potentially fair reason for dismissal, usually some other substantial reason, but fairness remains governed…

In a redundancy dismissal, whether an employer should consider redeployment into a subordinate role, including by bumping another employee, is a fact-sensitive…

For pregnancy-related automatic unfair dismissal and pregnancy discrimination, the tribunal must identify the employer’s operative reason for dismissal.…

For the extension of time under section 111(2)(b) of the Employment Rights Act 1996, reasonable practicability is a fact-sensitive, objective inquiry. A…