Employment Appeal Tribunal judgments, 2020

In identifying an employer where more than one entity is involved, a tribunal must start with the written agreement and ask whether it records the parties’…

A remedy of uncapped compensation, with interest to reflect delay, provides an effective EU-law remedy for discriminatory dismissal. The EU principles of…

It is a misconception that a claimant must orally explain an alleged "link" to a protected characteristic before a tribunal may consider a strike-out…

For the extension of time for an unfair-dismissal complaint, the tribunal must ask whether it was reasonably practicable for the claimant to present the…

Under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, the employer’s sole or main purpose is a subjective question directed to…

A tribunal may construe an employee’s grievance in its factual context when deciding whether it contains an allegation of unlawful discrimination and is…

An appellant may abandon grounds of appeal, but cannot use that process to advance a materially different ground for which permission was not granted. A late…

Where a claim is successful following remission, the Employment Tribunal must determine remedy on the findings it makes on liability and the parties’…

Where an Employment Tribunal can make a positive finding of fact as to an employer’s true reason for acting, the burden-shifting provisions of Equality Act…

An Employment Tribunal of equivalent jurisdiction may not revisit an earlier case-management order merely because it takes a different view of its utility.…

Under Rule 37(2), the right to request an oral hearing is a safeguard for the party against whom strike-out is sought. The applicant for strike-out has no…

An Employment Tribunal's decision whether to permit an amendment is a discretionary case-management decision. The governing inquiry is the balance of injustice…

Where an employee has been designated to undertake health and safety activities, section 100(1)(a) of the Employment Rights Act 1996 gives broad protection for…

An appellate challenge to an employment tribunal’s discretionary case-management order succeeds only where the decision falls outside the generous ambit of…

Without prejudice communications may be admitted where a party challenges a COT3 for misrepresentation, relies on an estoppel arising from the negotiations, or…

An Employment Tribunal has a broad procedural discretion to control evidence and hearing arrangements. Expert opinion evidence requires permission and should…

A claim that a dismissal was automatically unfair because of protected disclosures under section 103A of the Employment Rights Act 1996 is a claim for unfair…

Where an Employment Tribunal has set aside its earlier decision and will rehear an issue, finality in litigation does not justify excluding relevant evidence…

An application to amend in Employment Tribunal proceedings requires a balancing of the relative injustice and hardship caused by allowing and refusing the…

Section 120(7) of the Equality Act 2010 excludes Employment Tribunal jurisdiction where the impugned act may be challenged by a statutory appeal that has the…

A claim form which institutes relevant employment tribunal proceedings but does not contain an ACAS early-conciliation number, and does not validly claim an…

An Employment Tribunal considering an application to amend must apply the Selkent balancing exercise to the amendment actually sought. It must consider all…

Under the version of the Employment Tribunal Rules then in force, a claim instituting relevant proceedings which omitted an ACAS early-conciliation number…

In a capability dismissal for prolonged absence, the question is whether dismissal fell within the range of reasonable responses in the particular…

A withdrawal dismissal under Rule 52 may preclude a later equal-pay complaint through cause of action estoppel. In a “like work” claim, the individual…

An Employment Tribunal may reconsider a judgment on its own initiative where this is necessary in the interests of justice. That route is distinct from…

Apparent bias depends on whether a fair-minded and informed observer, considering the particular facts and context, would perceive a real possibility of bias.…

A worker need not expressly identify a particular legal obligation, criminal offence, or health and safety danger for a communication to be capable of being a…

An order for specific disclosure requires more than documents being potentially relevant. The applicant must show that the identified documents or category are…

For indirect discrimination under Equality Act 2010, the individual claimant must suffer a disadvantage corresponding to that suffered by the disadvantaged…

Where the CAC has found a failure to comply with the Transnational Information and Consultation of Employees Regulations 1999, the EAT must issue a penalty…

Fresh evidence may justify setting aside an Employment Tribunal’s determination where it could not reasonably have been obtained for the original hearing…

A tribunal must identify the actual treatment of which a claimant complains when deciding whether conduct is unfavourable under section 18(2) of the Equality…

An impairment may persist while its substantial adverse effect on normal day-to-day activities does not. Whether that effect is substantial remains a question…

For costs under Rule 76(1)(b), no reasonable prospect of success is a high threshold. The tribunal must assess the overall picture known at the outset, without…

For re-engagement, practicable means capable of being carried into effect with success. The tribunal must determine that question prospectively at the remedy…

Whether a person is an employee depends on the parties’ contractual rights and obligations, including whether one party has a right of control to a sufficient…

For constructive dismissal, an Employment Tribunal may find that a series of objectively repudiatory breaches of mutual trust and confidence entitled the…

An Employment Tribunal may determine a discrimination complaint by reference to issues clarified for the final hearing and to evidence adduced on those issues.…

An Employment Tribunal must give reasons which identify the issues decided, the material findings of fact, the relevant law and its application. A conclusory…

An Employment Tribunal must determine whether the employer actually reached its conclusions on reasonable grounds after a reasonable investigation. It must not…

An Employment Tribunal gives adequate reasons when its judgment identifies the critical issues and findings, explains the route to its conclusions, and enables…

For unfair-dismissal purposes, whether a redundancy situation exists under section 139 is an objective factual question. A genuine belief by the employer, or a…

Where a discrimination claim relies on apparently separate incidents as a continuing discriminatory state of affairs, an Employment Tribunal should not strike…

For the purposes of Regulation 3(1)(a) of the Agency Workers Regulations 2010, the question is whether the worker is supplied on each occasion to work…

A constructive dismissal and an unfair dismissal are separate questions. A tribunal must first determine whether the employer committed a repudiatory breach…

Under section 15 of the Equality Act 2010, justification requires an objective proportionality assessment. The tribunal must balance the employer’s real needs…

A post-judgment ACAS conciliation agreement which compromises all causes of action pursued in the Employment Tribunal will ordinarily make an appeal concerning…

When deciding whether to permit an amendment, an employment tribunal must apply the Selkent guidance to the claim actually pleaded and the proposed claim. An…

An unless order concerning particulars must be construed by its ordinary wording. Guidance in a case-management summary does not add obligations where the…

An Employment Tribunal must determine the claims from a fair and objective reading of the ET1 as a whole. A litigant in person need not use legal language or…

A final liability judgment which has not been appealed or reconsidered is res judicata between the parties. A respondent cannot, at a later remedy hearing…

Direct discrimination requires proof that the protected characteristic significantly influenced the decision-maker’s treatment. A characteristic may be an…

In a redundancy dismissal, fairness remains an overall assessment under section 98(4) of the Employment Rights Act 1996. The absence of an appeal…

An effective date of termination may be communicated by an employer’s conduct. The question is objective: whether the conduct, known to the employee, clearly…

In assessing the fairness of dismissal for misconduct, a tribunal must apply the statutory reasonable-employer test. An employer’s disciplinary policy is…

An anonymisation order under Employment Tribunals Rules of Procedure 2013, rule 50, derogates from open justice. The tribunal must therefore identify, on the…

Whether an impairment is long-term and existed when the alleged discrimination occurred is a fact-sensitive question for the Employment Tribunal. Evidence…

Employment status requires a qualitative assessment of the contractual relationship as a whole. The Ready Mixed Concrete requirements remain a useful starting…

For continuity of employment, the period begins when the employee starts work under a contract of employment with the employer concerned. Work which is related…

Under regulation 4(4) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, any contractual variation whose sole or principal reason is…

A contractual discretion to award an annual bonus up to a stated maximum, tied to employee and regional performance, does not ordinarily require the employer…

For limitation purposes, a tribunal must identify the employer’s act or deliberate failure to act, rather than confuse a continuing detriment with a continuing…

Under rule 31 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the words “in Great Britain” identify the place and…

In an unfair-dismissal claim, the tribunal must determine whether the employer genuinely believed that misconduct justified dismissal, whether it had…

A re-engagement order may specify an amount payable for lost benefits and arrears as a term on which re-engagement is to take place. Where re-engagement does…

An employee must receive clear notice of every ground on which dismissal may be based. An investigatory report may assist in interpreting a disciplinary…

A sum withheld from wages at source is a deduction, not a payment, for the purposes of the national minimum wage calculation. The exception in regulation…

An Employment Tribunal may identify decision-makers collectively where a redundancy decision results from a multi-stage, group process. It need not name every…

A worker alleging whistleblowing detriment must establish a qualifying disclosure. A general complaint about defective IT systems, work allocation or workplace…

Under Employment Rights Act 1996, section 98(4) concerns whether dismissal was reasonable and the availability of reasonable alternatives which would avoid…

A case-management decision cannot stand where it materially proceeds on a demonstrable factual error. A later decision made on apparently the same material may…

A failure to make reasonable adjustments may arise from an employer’s established practice of refusing firm undertakings, rather than from a single decision. A…

An Employment Tribunal may reconsider a provisional privacy order at the full merits hearing where a material change of circumstances makes reconsideration…

An Employment Tribunal cannot strike out an unfair-dismissal claim merely because no financial remedy can be awarded. A finding of unfair dismissal, including…

For unfair-dismissal purposes, the employer’s reason is the facts or beliefs operating on the decision-maker’s mind. Evidence bearing on an employee’s…

An employment tribunal must exercise its amendment discretion in accordance with the Selkent guidance. The fact that a proposed new claim is in time does not…

Where there is objectively good cause for concern that a litigant may lack capacity to conduct proceedings, a tribunal should arrange an assessment. The…

A reduction for contributory conduct under sections 122(2) or 123(6) of the Employment Rights Act 1996 requires conduct which the tribunal finds culpable or…

For discrimination arising from disability under section 15(1) of the Equality Act 2010, the relevant treatment must be identified precisely. A decision to cap…

A qualifying disclosure under section 43B(1) of the Employment Rights Act 1996 must have sufficient factual content and specificity capable of tending to show…

For costs under Rule 76(1) of the Employment Tribunals Rules of Procedure 2013, a tribunal must first decide whether the statutory threshold is met. It must…

The Employment Appeal Tribunal has power to appoint a litigation friend for an appellant who lacks capacity to conduct the appeal. That power arises from its…

An Employment Tribunal deciding whether to permit an amendment must consider all the circumstances and balance the relative injustice and hardship caused by…

Under section 6 of the Equality Act 2010, a tribunal must determine both whether the claimant has a physical or mental impairment and whether it has a…

A claim of direct discrimination because of disability need not be expressly labelled as a claim based on actual, perceived, or associative disability. Subject…

Justification under section 15 of the Equality Act 2010 is an objective question for the tribunal. The tribunal must assess the justification advanced on the…

In a conduct dismissal, fairness under section 98(4) requires an assessment of the whole dismissal process, including the investigation, disciplinary hearing…

Whether an impairment is long-term under paragraph 2(1)(b) of Schedule 1 to the Equality Act 2010 is an objective question. The tribunal must assess, as at the…

For discrimination arising from disability under section 15 of the Equality Act 2010, the tribunal must decide as a matter of fact whether the alleged cause of…

An employee who invokes and pursues to conclusion a contractual appeal against dismissal objectively elects to affirm the contract of employment. A stated…

For the extension in section 207B(4) of the Employment Rights Act 1996, a period ending one month after Day B expires on the corresponding calendar date in the…

An Employment Tribunal need not address every argument or sub-issue in its reasons. The adequacy of reasons is fact-specific. The Tribunal must identify and…

In assessing damages for wrongful dismissal, the innocent employee is to be placed in the contractual position that would have existed had the employer…

An Employment Tribunal does not show apparent bias merely by asking appropriate questions to clarify evidence on issues which it reasonably understands to be…

A later communication may be treated as a qualifying disclosure only where it expressly, or by necessary implication, refers to or incorporates an earlier…

A dismissal for an irretrievable breakdown of trust and confidence may amount to some other substantial reason. Fairness remains governed by the band of…

A negligent breach of duty may justify summary dismissal where it is sufficiently grave and weighty to destroy the employment relationship. The assessment…

Where an appeal from a Court of Appeal decision succeeds in the Supreme Court on a different ground, the Court of Appeal's determination of an issue which the…

A tribunal determining whether a transferred employee remains entitled to a contractual payment must identify the relevant contractual terms and the mechanism…

Under section 116(3) of the Employment Rights Act 1996, a tribunal must make an express, evidence-based assessment of whether an employer can practicably…

An Employment Tribunal must secure a fair hearing and remain alert to disability-related barriers to effective participation. The adjustments required depend…

The territorial reach of United Kingdom employment legislation depends on the sufficient connection question. Employment abroad is covered only exceptionally…

An employee may establish constructive dismissal where an unaffirmed fundamental breach by the employer materially contributed to the resignation. A later…

Dismissal of a disabled employee may be a proportionate means of achieving a legitimate operational aim where an essential part of the role cannot be…

Section 81 of the Equality Act 2010, read with the Equality Act (Work on Ships and Hovercraft) Regulations 2011, excludes the whole of Part 5 unless the…

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

Where an Employment Tribunal has directed and heard a preliminary hearing on substantive issues, it must ordinarily determine those issues on the evidence…

A tribunal must assess the fairness of a hearing as a whole objectively. Its individual case-management decisions remain subject to appellate intervention only…

Where dismissal engages an employee’s Convention rights, the Employment Tribunal must itself decide whether dismissal was a justified and proportionate…

A tribunal may exceptionally strike out a claim during a merits hearing under Rule 37(1)(a) where the claimant’s informed refusal to participate means that the…