Employment Appeal Tribunal judgments, 2019

Employment status requires a qualitative assessment of the whole contractual relationship. Satisfaction of the first two Ready Mixed Concrete conditions does…

A declaration and enforcement order of the Certification Officer, enforceable as a court declaration or order, may found an estoppel per rem judicatam. Its…

A stable working relationship under sections 129 and 130 of the Equality Act 2010 is assessed broadly and practically. The inquiry concerns the continuing…

An Employment Tribunal must identify a legal basis before making separate companies jointly and severally liable for employment awards. Occasional work at…

For harassment under section 26(1)(a) of the Equality Act 2010, an employer’s unwanted conduct must itself be related to the protected characteristic. An…

For an appeal from an Employment Tribunal case-management order, time ordinarily runs from the date on which the Tribunal sends the parties a written record of…

An Employment Tribunal may make a deposit order only where it has a proper evidential basis for considering that the relevant allegation has little reasonable…

It is not correct that any conditional or limited substitution clause automatically negates limb (b) "worker" status. Instead, the court must ask whether, in…

A finding that there was no obligation of personal service because the individual had an unqualified right of substitution cannot stand with a finding that the…

An Employment Tribunal errs in law where its conclusions on reasonable adjustments and constructive dismissal rest on a material factual premise contradicted…

An Employment Tribunal may take account of a paying party’s ability to pay when making a non-fixed costs order for the whole or a specified part of costs…

The discretion to extend time for a discrimination claim on a just and equitable basis is broad. A tribunal must address the relevant Keeble factors, but it…

A police officer’s statutory entitlement to an allowance continues during maternity leave unless the Police Regulations 2003 or a determination made under them…

A tribunal exercising case-management powers must admit contemporaneous documentary evidence where it is sufficiently relevant to a live issue and any…

For harassment under section 26(1) of the Equality Act 2010, unwanted conduct must be related to the relevant protected characteristic and must also have the…

On an application under Employment Tribunal Rule 38(2), the tribunal must make a broad, fact-sensitive assessment of the interests of justice. Relevant matters…

For disability discrimination claims, disability must be assessed at the date of the alleged discriminatory act. Under paragraph 2(1)(a) of Schedule 1 to the…

An Employment Tribunal may award costs only after it has correctly found a threshold circumstance under rule 76(1) of the Employment Tribunal Rules of…

Where an employment claim arises abroad, United Kingdom employment tribunals may have jurisdiction only if the claim has a sufficiently strong connection with…

An Employment Tribunal should strike out a discrimination claim for having no reasonable prospect of success only in an obvious and plain case. Particular…

In deciding whether it is just and equitable to extend time for a discrimination claim, an Employment Tribunal has a broad, fact-sensitive discretion. A…

At a final hearing, conduct extending over a period under section 123 of the Equality Act 2010 requires proven constituent acts of discrimination over time.…

An Employment Tribunal may determine discrimination claims by making positive findings about the employer’s reasons on the evidence. It need not expressly…

An employee is not designated for the purposes of sections 44(1)(a) and 100(1)(a) merely because ordinary duties, contractual terms, licensing requirements or…

An Employment Tribunal does not err in law by determining remedy in a respondent's absence where the respondent was properly notified of the remedy hearing and…

For the purposes of statutory redundancy pay, notification that an employee’s current role will end does not necessarily communicate termination of the…

A disclosure under section 43B(1) of the Employment Rights Act 1996 must contain sufficiently specific factual information capable of tending to show a listed…

An employee’s entitlement to remain silent about personal wrongdoing, where such an entitlement exists, does not permit the employee to give a dishonest…

It is not necessary to construe the word "employer" in subordinate National Minimum Wage Regulations by ignoring the definition in the National Minimum Wage…

A foster-care arrangement required by statute may nevertheless contain a contract of employment. Terms which merely restate statutory duties or provide…

An employer does not incur liability under section 26(1) of the Equality Act 2010 merely because it failed to prevent racially motivated harassment by a third…

Where an attendance-management requirement places a disabled employee at a substantial disadvantage, an employer must make an effective reasonable adjustment…

A requirement that employees use an employer’s conventional software can be a provision, criterion or practice even where adjustments have been made for a…

Employment tribunals may order costs where a party has acted unreasonably or where a claim has no reasonable prospect of success. Such an award involves a…

The Employment Appeal Tribunal cannot reopen Employment Tribunal orders except through the procedures provided by the applicable rules and case law. An appeal…

An Employment Appeal Tribunal may not re-open Employment Tribunal orders outside the means provided by the applicable procedural rules and case law. New…

For a conduct dismissal, fairness under Employment Rights Act 1996 section 98(4) requires the employer to undertake as much investigation as is reasonable in…

A tribunal hearing is unfair where a member is asleep, or repeatedly gives that appearance, during material evidence and a fair-minded and informed observer…

An employer’s material-factor defence to an equal-pay claim continues to justify an originally lawful pay disparity unless a later decision, or a failure to…

For automatic unfair dismissal based on trade union activities, the statutory question is whether those activities were the reason, or principal reason, for…

An Employment Tribunal may have to consider a non-disclosure order of its own motion under rule 50 where sensitive personal information creates a clear privacy…

An Employment Tribunal deciding whether to permit an amendment must consider all the circumstances and balance the respective injustice and hardship of…

An employment tribunal must construe an equal-pay claim form objectively and in its factual context. General and imperfect drafting may nevertheless include a…

The fairness of a disciplinary hearing may be the operative cause of a constructive dismissal even where an employee's antecedent misconduct prompted the…

In assessing unfair dismissal, the tribunal must decide the objective fairness of the process as a whole. It need not address every detailed submission…

For discrimination arising from disability under section 15 of the Equality Act 2010, the connection between disability and the relevant "something" may be…

A tribunal should not strike out all claims for failure actively to pursue proceedings where the claimant has sufficiently particularised distinct monetary…

An Employment Tribunal may refuse an adjournment where it has considered the relevant circumstances, applied the overriding objective, and given clear reasons.…

An early-conciliation certificate is not invalid merely because the respondent’s address differs from its registered office. The early-conciliation scheme…

For a detriment claim under section 47B of the Employment Rights Act 1996, the issue is whether the protected disclosure materially influenced the treatment…

A notice of resignation may be withdrawn or varied only by agreement between employer and employee. The agreement may be express or implied from words and…

A respondent barred from disputing liability under Rule 21 should generally be permitted to make timely written representations on remedy. Where remedy…

An Employment Tribunal deciding an amendment application must give adequate reasons and conduct the necessary assessment of prejudice and hardship. It must…

An employee will not ordinarily have two concurrent employers for the same employment. A separate shareholders’ agreement does not create a second contract of…

An Employment Tribunal considering a withdrawal by an unrepresented litigant must be satisfied that it is clear, unambiguous and unequivocal. The necessary…

In Employment Tribunals, expert evidence should be permitted where it is reasonably required to resolve the proceedings. The assessment is informed, but not…

For contributory-fault reductions under the Employment Rights Act 1996, conduct need not amount to gross misconduct or a contractual breach. The tribunal must…

Legal advice privilege protects confidential communications made for obtaining or giving legal advice, including an internal communication which conveys that…

For a reduction for contributory conduct under Employment Rights Act 1996, an Employment Tribunal must identify the conduct relied on, decide objectively…

A tribunal may refuse to entertain a new contractual case on appeal where it was not plainly advanced below and would have altered the focus of the evidence…

A party seeking on appeal to deny that it contracted with an individual, by asserting that an undisclosed company was the contracting principal, must have put…

Where a claimant's amended case arguably engages both section 111A(3) and section 111A(4) of the Employment Rights Act 1996, an Employment Tribunal must…

A tribunal may use a prima facie case assessment as shorthand for the no-reasonable-prospect-of-success test when deciding whether an apparently out-of-time…

The exclusion of the right to claim unfair dismissal under Employment Rights Act 1996 s.205A depends on the statutory pre-conditions being satisfied when the…

Rule 43 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 proceeds on the basis that a witness may be present at a hearing…

A single procedural error does not ordinarily constitute a provision, criterion or practice for the reasonable-adjustments duty under section 20 of the…

For protection under sections 45A and 101A of the Employment Rights Act 1996, a worker must communicate an explicit refusal, or proposal to refuse, to comply…

An employment tribunal acting on a limited appellate remission must not revisit matters which the appellate order has preserved. It may, however, order…

The United Nations Convention on the Rights of Persons with Disabilities may inform the interpretation of domestic disability-discrimination legislation within…

A tribunal must determine a properly pleaded and agreed claim. Its failure to address an identified claim for automatic unfair dismissal under section…

An unproven criminal charge may amount to some other substantial reason for dismissal where continued employment presents a genuine and non-trivial…

A disclosure may be protected even where the recipient already knows the information, because section 43L(3) of the Employment Rights Act 1996 treats…

Under Regulation 4 of the Requirements for Teachers (Scotland) Regulations 2005, a local education authority is prohibited from employing an unregistered…

A dismissal may amount to a detriment under the Equality Act 2010 even if the employer later reinstates the employee and restores continuity of employment. The…

An Employment Tribunal has a broad discretion to extend time where it is just and equitable, but the claimant bears the burden. The decision must rest on the…

Where the subsidiary requirements apply, an employer must provide information and, if requested, consult the European Works Council in exceptional…

An Employment Tribunal’s reasons must enable the parties to understand why they won or lost. They need not address every point or display refined drafting.…

An employer must state a disciplinary allegation with sufficient clarity to identify whether it concerns competence, conduct, or both. A dismissal for an…

On an application for interim relief under sections 128 and 129 of the Employment Rights Act 1996, the tribunal must apply the likely to succeed test to every…

For discrimination arising from disability under section 15, the consequence of disability must be an effective cause of the unfavourable treatment. It is…

Confidential medical information given to an occupational-health provider is not imputed to the employer merely because the employee expected it to be…

For Equality Act 2010 purposes, a contract is not one personally to do work where the individual has a substantially unrestricted right to provide a…

For discrimination arising from disability under section 15 of the Equality Act 2010, it is insufficient that, but for the disability and its consequences, the…

A foster carer is not a worker for the purposes of the listing provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 unless the carer…

For the purposes of Equality Act 2010, whether the substantial adverse effect of an impairment was likely to last at least 12 months or recur must be assessed…

A disabled litigant has no automatic entitlement to a procedural adjustment merely by declaring a disability and requesting it in an ET1. The Employment…

A tribunal may make a deposit order where a claim has little reasonable prospect of success because it is out of time. Whether earlier and later events amount…

A constructive dismissal is not automatically unfair. The employer must prove both the reason for the deemed dismissal and that it is a potentially fair reason…

Under section 101(3) of the Employment Rights Act 1996, the question is whether an employee’s giving, or proposal to give, an opting-out notice was the reason…

Under rule 21(2) of the Employment Tribunals Rules of Procedure 2013, an Employment Judge must not enter judgment merely because a claim is undefended.…

A tribunal may make a positive finding on the evidence about the reason for detrimental treatment without relying on statutory burden-of-proof provisions. It…

An Employment Judge considering an out-of-time reconsideration application must address both whether time should be extended and whether the application has a…

On a detailed assessment following a costs order limited to particular claims, the tribunal must correctly identify the overlap between those claims and claims…

An Employment Tribunal must give reasons for a decision on a reconsideration application that are proportionate but sufficient to disclose its reasoning. A…

An express contractual condition cannot be overridden by implying an inconsistent term from custom and practice. Entitlement may instead depend on a…

Where an employee has an established right to work as the family member of an EEA national, an employer’s contractual requirement for evidence of eligibility…

An Employment Tribunal may proceed in a respondent’s absence where a postponement request is made late, the asserted obstacle to attendance was foreseeable…

The Employment Appeal Tribunal may make a restricted reporting order continuing after promulgation where this is required to protect Convention rights. The…

An employer cannot justify age discrimination by cost alone. It may, however, pursue the legitimate aim of operating within constrained resources, allocating…

A disclosure concerning the insecure handling of service users’ sensitive personal data may be a qualifying disclosure under section 43B of the Employment…

An employer must prove both the reason for dismissal and that it is a potentially fair reason under section 98 of the Employment Rights Act 1996. A finding…

A tribunal substantially complies with its duty to give reasons if its judgment, read as a whole, enables the parties to identify the issues, findings…

A contractual redundancy scheme which describes its payment as an enhancement of statutory redundancy pay, with the statutory payment offset against it, does…

For victimisation under section 27 of the Equality Act 2010, a protected act under section 27(2)(d) requires an allegation that another person contravened the…

For direct discrimination, the tribunal must identify the actual reason why the respondent acted. Where it finds non-discriminatory reasons as facts, it need…

A trade union rule requiring the General Secretary to investigate where a complaint is made within a stated period and there are reasonable grounds for…

An Employment Tribunal may assess a percentage chance that a claimant would have returned to work if reasonable adjustments had been made. The assessment is a…

Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, compensation must address loss attributable to the part-time worker’s…

An employee dismissed on contractual notice cannot recover contractual damages exceeding the notice entitlement merely because the employer allegedly failed to…

Whether an employment claim is included in a tribunal’s list of issues depends on its substance, not on whether the correct legal label has been used. Where…

An Employment Tribunal may not reject a claim under Employment Tribunal Rules of Procedure 2013, rule 10(1)(c), where the ET1 contains an early-conciliation…

For the extension in section 111(2) of the Employment Rights Act 1996, reasonable ignorance of the time limit may make timely presentation not reasonably…

For disability under Equality Act 2010, the tribunal must assess the effect of all relevant impairments in combination. It may evaluate evidence concerning the…

Under section 136 of the Equality Act 2010, a claimant must first establish facts from which a tribunal could conclude, absent another explanation, that…

Under section 136 of the Equality Act 2010, a tribunal must first ask whether the proved facts could support an inference that unwanted conduct was related to…

An Employment Tribunal hearing is unfair where, assessed objectively, a fair-minded and informed observer would conclude that there was a real possibility that…

A late Employment Tribunal response must be rejected under rule 18(1) of the Employment Tribunals Rules of Procedure 2013 unless an application for an…

An express incorporation of a collective agreement does not automatically incorporate every provision of that agreement into an individual employment contract.…

For victimisation, detrimental treatment must be because of a protected act. But-for causation alone is insufficient. Where conduct responds to ongoing…

A discrimination claim should be struck out only in the clearest case. The tribunal must take the claimant’s case at its highest and, particularly where the…

A decision to continue, rather than abandon or settle, Equality Act proceedings is capable of being a protected act. A post-employment victimisation complaint…

An Employment Tribunal may ordinarily receive an application for a witness order without notice to the other parties. It may nevertheless require notice or…

Fresh evidence may be admitted on appeal where it meets the three requirements in Ladd v Marshall: it could not reasonably have been obtained for the original…

In a constructive-dismissal claim, the employer must show both the actual reason for dismissal and that it is a reason within section 98(1) of the Employment…

Where an employment tribunal finds that an employee was dismissed because she sent material to her solicitor, and that act is a protected act, it cannot…

On a relevant transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006, employment continues rather than ceases. A transferor is…

For a qualifying disclosure under section 43B(1)(b) of the Employment Rights Act 1996, a worker must communicate a reasonable belief that a person has failed…

On the proper construction of an employment contract, a termination provision requiring holiday entitlement to be calculated pro rata applies according to the…

Under Rule 38, the making of an unless order, the determination whether it has been materially complied with, and an application to set it aside are distinct…

For unfair-dismissal and employment-contract claims, the claimant bears the burden of showing precisely why timely presentation was not reasonably practicable.…

A qualifying disclosure under section 43B(1) of the Employment Rights Act 1996 requires information which, in the worker’s reasonable belief, tends to show a…

For the justification defence under section 15(1)(b) of the Equality Act 2010, proportionality is an objective balancing exercise. The tribunal must decide…

A deposit order under Regulation 39(1) may be made only where a specific allegation has little reasonable prospect of success. It is not appropriate where the…

An Employment Tribunal must consider interest on a discrimination award whether or not a party applies for it. It must do its best to calculate interest from…

An Employment Tribunal has a broad case-management discretion over adjournments. An appellate tribunal will intervene only where the discretion was exercised…

For harassment under section 26 of the Equality Act 2010, a tribunal must consider the claimant’s perception, all other circumstances, and whether it was…

An Employment Tribunal must determine the claims actually advanced. It must not construct an alternative case for a self-represented litigant or enter the…

For the knowledge defence in section 15(2) of the Equality Act 2010, an Employment Tribunal must ask not only what enquiries an employer ought reasonably to…

Where a long-term disability benefits booklet provides that payments continue until an employee’s return to work, that expression means a return to work for…

For unfair and wrongful dismissal claims, a reasonable factual misunderstanding about the communication and date of dismissal may make timely presentation not…

An employee who appeals internally against a repudiatory breach does not, without more, affirm the contract. An appeal may instead preserve the employee’s…

An Employment Tribunal must give proportionate reasons which enable the parties to understand why they have won or lost. Reasons must be read as a whole and in…

Compensation for unfair dismissal must reflect loss caused by the dismissal itself. Where an employee’s illness began before dismissal, the tribunal must…

For age discrimination, an asserted justification must be a true aim, capable of being legitimate and legitimate in the particular circumstances. Evidence that…

An Employment Tribunal may determine a discrimination claim according to the case advanced by the parties. An appeal is not an opportunity to advance an…

For a claim under section 15 of the Equality Act 2010, unfavourable treatment may include the rejection of an appeal against dismissal where that rejection…

Assessment of future loss after a discriminatory dismissal is a predictive and speculative exercise. The tribunal must make its best assessment of the relevant…

It is not correct that an early conciliation certificate is necessarily single-use for all proceedings. Instead, whether a later claim may rely on an earlier…

An Employment Tribunal should not strike out a poorly pleaded automatic unfair constructive dismissal claim where the claimant has a reasonably arguable causal…

In a redundancy dismissal, the controlling question is whether the employer acted reasonably in all the circumstances under section 98(4) of the Employment…

An extension of time for an appeal to the Employment Appeal Tribunal requires a fact-sensitive assessment of the explanation for default, whether it provides a…

An Employment Tribunal must assess injury to feelings by the actual effect of the discriminatory conduct on the individual complainant. An isolated act does…

Bad-leaver provisions governing deferred consideration for the sale of shares do not constitute an unconscionable bargain unless serious disadvantage, morally…

In a protected-disclosure dismissal claim, an Employment Tribunal should identify the particular disclosures relied upon, including their timing, content, form…

A tribunal may strike out a whistleblowing detriment allegation where the documentary material establishes that it has no reasonable prospect of success. The…

An employer’s duty to make reasonable adjustments requires consideration of both its knowledge of disability and whether it knew, or ought reasonably to have…

For an unfair-dismissal complaint under section 111 of the Employment Rights Act 1996, it is reasonably practicable to present the claim in time where the…

An unless order must be construed strictly. A claim may be treated as dismissed under rule 38 only where the party has plainly failed to comply with what the…

An employee claiming an unauthorised deduction for unpaid bonus must establish a legal entitlement to an identifiable sum. An express term making bonus…

An employment tribunal acts unlawfully if, without hearing from an affected party, it makes an indefinite stay which leaves a struck-out claim in limbo at the…

An absence-related dismissal may properly be characterised as dismissal for some other substantial reason where the employer has lost confidence in the…

A worker need not use technical legal language to show a reasonable belief that disclosed information tends to show a breach of a legal obligation or that…

An employer does not directly discriminate on grounds of religion or belief merely because it acts from its own religious belief. Direct discrimination law…

Whether an on-call worker is doing actual time work, rather than merely being available for work, depends on the ordinary use of language and a common-sense…

Where a lay employee pleads that disability discrimination contributed to the fundamental breach which caused resignation, the pleading may include a complaint…

Actual comparators who are materially different from the claimant cannot satisfy the statutory comparison requirement. They may nevertheless have evidential…

Under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, it is insufficient that treatment is connected with, or because of…

An uplift under section 38(3) of the Employment Act 2002 is unavailable unless, when the Employment Tribunal proceedings began, the employer remained in breach…

An Employment Tribunal has a wide procedural discretion when dealing with a litigant in person. An agreed list of issues ordinarily defines the scope of the…

An Employment Tribunal’s case-management order should be varied only where this is necessary in the interests of justice. Applying the approach in Serco Ltd v…

Where a harassment complaint concerns the sending of a communication, the tribunal must address the motivation for sending it to the particular recipients…

Under section 98(4) of the Employment Rights Act 1996, a tribunal must assess the investigation, process, factual conclusions and sanction against the range of…

For the purposes of paragraph 9(2) of Schedule 1 to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254, an…

An Employment Tribunal may not determine a disability-discrimination claim on an impairment which the claimant has not pleaded, where the opposing party…

An Employment Tribunal determining an unlawful-deduction claim must make clear, reasoned findings on the contractual or other basis on which wages were…

An Employment Tribunal must enter every judgment and written reasons in the public Register, subject only to the express exceptions in the Employment Tribunals…

For disability discrimination under section 15 of the Equality Act 2010, the connection between the employee’s disability and the relevant “something” is…

Under section 98(4) of the Employment Rights Act 1996, a tribunal must decide whether dismissal was within the range of reasonable responses open to the…