Employment Appeal Tribunal judgments, 2022

In assessing a conduct dismissal for refusal to follow an instruction, an employment tribunal must consider not only whether the instruction was lawful and…

A list of issues is a case-management tool, not a pleading. An Employment Tribunal must not apply it rigidly where that would prevent a fair determination of…

An extension of time for an Employment Appeal Tribunal appeal requires a full and honest explanation, a good excuse for the default, and circumstances…

For salaried-hours work, a worker’s basic hours under regulation 21(3) of the National Minimum Wage Regulations 2015 must be ascertained exclusively from the…

An employment tribunal may determine a costs application without an oral hearing, but both parties must have a fair opportunity to present their cases. An…

An employer’s duty to make reasonable adjustments arises only when it knows, or could reasonably be expected to know, both that a worker is disabled and that…

Re-opening a concluded disciplinary process is unusual and requires sufficient justification. It is not, however, barred by res judicata or abuse-of-process…

A contractual requirement to work specified full-time hours can be a provision, criterion or practice (PCP), even though the employer also operates part-time…

Where an appeal from an Employment Appeal Tribunal Registrar’s order determines whether a substantive employment appeal may proceed, an application to extend…

Collective redundancies which significantly affect employees in each of at least two EEA countries constitute a transnational matter under a European Works…

In a conduct dismissal case, an Employment Tribunal must assess the employer’s decision on the evidential position and reasoning before the decision-maker. It…

Without-prejudice privilege can protect pre-action settlement communications where an existing dispute is the subject of a genuine attempt to settle and the…

An employment tribunal deciding an application to amend must first identify the precise proposed amendment, normally in writing. It must then expressly balance…

In a constructive unfair dismissal claim founded on the implied term of mutual trust and confidence, the tribunal must determine the material factual…

An appeal is properly instituted only when the notice of appeal and all required documents are provided within the time limit. Where an ET1 incorporates…

A Polkey assessment must predict what the actual employer would probably have done had it followed a fair procedure. It is not enough that an employer could…

An appeal to the Employment Appeal Tribunal is not properly instituted unless the required documents are complete. A copied-and-pasted version of a tribunal…

Where liability and remedy are separated, a tribunal’s liability findings preclude reconsideration only of facts it actually determined. The meaning of its…

Where an employment tribunal assesses compensation by reference to the chance that a claimant would have obtained employment following a fair redundancy…

A false allegation is excluded from protected-act status by section 27(3) of the Equality Act 2010 only where it was made in bad faith, meaning dishonestly and…

A requirement to attend an interview includes effective participation in it. Under Equality Act 2010, the question is whether the effects of disability make…

For direct discrimination based on marriage or civil partnership, the protected characteristic is the fact of being married or a civil partner. It is…

The Coronavirus Job Retention Scheme did not alter existing employment rights or impose a statutory or contractual obligation on an employer to pay an employee…

An appeal from a reconsideration decision is not an appeal from the original judgment. An Employment Tribunal need not reconsider alleged errors which were…

An employment tribunal must identify a litigant in person’s discrimination claim by its substance, using a fair and non-technical reading of the pleadings and…

Regulation 4(1) of the Transnational Information and Consultation of Employees Regulations 1999, as amended, applies where central management is actually…

An Employment Tribunal must not reject a claim for a supposed mismatch between the respondent named in the early conciliation certificate and the ET1 where the…

Where an employee pursues a contractual dismissal appeal to a successful conclusion, the parties are bound to treat the employment as continuing throughout.…

A job evaluation study under Equality Act 2010, section 80(5), must evaluate jobs by reference to the demands made on workers under relevant headings. The…

A tribunal may uphold dismissal for disability-related conduct where dismissal is a proportionate means of protecting legitimate professional boundaries. The…

Where the implementation of EU equality protection brings occupational-pension legislation within the scope of EU law, the general EU law principle of equal…

A trade union disciplinary process must comply with natural justice where the union rules expressly require this. A process permitted by the rules may…

A qualifying settlement agreement under section 147 of the Equality Act 2010 must relate to an actual complaint, or to circumstances in which the grounds for a…

In a protected-disclosure dismissal claim, the ordinary inquiry is into the factors operating on the dismissing officer’s mind. However, where the claimant…

An employment tribunal deciding an amendment application must balance the practical injustice and hardship of allowing and refusing it. It must not substitute…

An unprivileged document does not retrospectively acquire legal advice or litigation privilege merely because lawyers later advise on it, an amended version is…

An appellate tribunal should not re-determine factual disputes merely because a different view of the evidence may be possible. Intervention on a perversity…

In a multiple employment tribunal claim, Rule 10 of the Employment Tribunal Rules 2013 requires the claim form to contain an early-conciliation number. It does…

Section 136 of the Equality Act 2010 is engaged only where there are facts capable of establishing a prima facie contravention. Where there is no evidence on a…

For the purposes of regulation 4(2)(a) of TUPE 2006, obligations need not arise under the employment contract itself. Obligations created by a separate…

An Employment Appeal Tribunal will not interfere with an employment judge’s discretionary refusal of an amendment unless an error of law is shown. In deciding…

Where a claimant has made no attempt to seek alternative work, an employer may establish an initial case of unreasonable failure to mitigate. The tribunal must…

When deciding whether to extend time for an application to reconsider an employment tribunal judgment, the tribunal must weigh the prejudice caused by refusal…

For limb (b) worker status under section 230(3)(b) of the Employment Rights Act 1996, the necessary starting point is whether the parties made a contract under…

For an employee working abroad, territorial jurisdiction depends upon an evaluative assessment of whether the employment relationship has a stronger connection…

Where an application both seeks to particularise or amend discrimination complaints and to add an individual respondent, the tribunal should first identify…

An appeal is properly instituted where the appellant supplies the tribunal judgment containing the reasons actually given, explains the absence of a claim…

An appellate tribunal may restrict disclosure of a non-party’s identity where this is necessary to protect Convention rights or the interests of justice. It…

For the purposes of section 15 and section 19 of the Equality Act 2010, the relevant treatment or disadvantage must be assessed in its full factual context.…

Employment status is a conclusion of law drawn from the parties’ rights, duties and the reality of their relationship. A genuine agreement to use a…

Where medical evidence recommends that a litigant should not attend the trial of their claim, an Employment Tribunal must take that information into account…

A civil proceedings order under Senior Courts Act 1981, section 42(1A), imposes a substantive condition precedent to commencing proceedings. A person subject…

An appellate court may allow an appeal where a reconsideration decision was materially founded on a factual error induced by a party or that party’s…

Section 108(4) of the Employment Rights Act 1996 removes the qualifying-period requirement only where dismissal is because of, or sufficiently relates to, the…

A decision on reconsideration under rule 13 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is a case management order, not…

In a reasonable-adjustments claim, the tribunal must identify the employer’s provision, criterion or practice before assessing disadvantage. It should not…

An employer who agrees to provide an employee with access to permanent health insurance does not thereby undertake to fund sickness benefits itself. Access…

Under rule 76(1), an Employment Tribunal must first decide whether a threshold for costs is met. It must then separately decide whether to exercise its broad…

An employee on maternity leave is not treated unfavourably merely because she is not given training information where the tribunal finds that employees not on…

Where the burden of proof has shifted in an age-discrimination claim, an employment tribunal must carefully assess the employer’s credible explanation that age…

An issue estoppel applies only to an issue which was necessary to decide the earlier claim or defence. A prior finding which was not necessary to the earlier…

A tribunal member must be recused for apparent bias where the fair-minded and informed observer would conclude that there is a real possibility that the member…

An employee who is medically cleared and offers to return to work is not rendered unwilling to perform the contractual role merely by expressing a preference…

A belief or lack of belief relied on as a protected characteristic must be identified with precision and meet the modest threshold in section 10 of the…

An Employment Tribunal may strike out a discrimination claim under Rule 37(1)(a) only where it has no reasonable prospect of success. The threshold remains…

Under the restrictive common-law doctrine of state immunity, a foreign state is immune from an employment claim arising from an inherently sovereign or…

Where redundancy is alleged under section 139(1)(b) of the Employment Rights Act 1996, the tribunal must identify the relevant work and decide whether the…

Worker status under section 230(3)(b) of the Employment Rights Act 1996 requires a structured application of the statutory language. The tribunal must…

An employment tribunal’s disability determination is unsafe where it materially rests on a misreading of medical evidence as supporting adverse findings about…

Under section 15(1)(b) of the Equality Act 2010, an employment tribunal must objectively balance the employer’s reasonable needs and legitimate aims against…

A tribunal’s administrative notification that a claim has been received or “accepted” does not determine jurisdiction. It cannot cure a failure to comply with…

In a redundancy dismissal, meaningful consultation must ordinarily occur while the proposal remains capable of being influenced. The principles in Williams…

An employment tribunal considering costs under rule 76(1)(a) must first decide whether the relevant party acted vexatiously, abusively, disruptively or…

In assessing compensation for unfair dismissal, a tribunal must distinguish between a predictive Polkey assessment and reductions based on the claimant’s…

An appellate tribunal must read an Employment Tribunal judgment fairly and as a whole. It should not infer that relevant evidence or an issue was ignored…

For Trade Union and Labour Relations (Consolidation) Act 1992 section 145B, the prohibited result is determined by causation. An individual offer is unlawful…

An employment tribunal may make a deposit order where a discrimination complaint has little reasonable prospect of success, provided it identifies a proper…

Under section 124(5) of the Employment Rights Act 1996, payments already made in respect of an unfair-dismissal complaint must be deducted from the tribunal’s…

A discrimination claim should not be struck out where, taking an unrepresented claimant’s pleaded case and supporting material at its highest, there are…

A claimant alleging automatic unfair dismissal for making a protected disclosure under Employment Rights Act 1996, section 103A, is exempt from the two-year…

For an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, the applicability of the Acas Code depends on the substance…

Where an Employment Tribunal takes a party’s means into account when fixing the amount of a costs order, it must accurately assess the evidence bearing on…

A deposit order under rule 39 requires a proper basis for doubting that a party can establish facts essential to the allegation. The threshold is lower than…

An employment tribunal considering restrictions on disclosure under rule 50 must begin with open justice, but must conduct a fact-specific balancing exercise…

Section 100(1)(d) of the Employment Rights Act 1996 can protect an employee who leaves, or refuses to return to, work because of a reasonably believed serious…

In an interim-relief case, the Employment Tribunal must determine the application as soon as practicable. It may postpone the hearing only where special…

Where there is evidence capable of supporting an inference of discrimination, an employment tribunal must grapple with it when applying section 136 of the…

An employment tribunal has a wide discretion under section 123(1)(b) of the Equality Act 2010 to extend time where just and equitable. It must consider the…

When deciding whether it is just and equitable to extend time under section 123 of the Equality Act 2010, or whether to permit an amendment, an employment…

In a conduct dismissal, an employment tribunal must decide fairness under section 98(4) of the Employment Rights Act 1996 by applying the standards of the…

Without-prejudice communications made in genuine settlement negotiations remain protected unless the party seeking disclosure establishes unambiguous…

In an indirect discrimination claim, the pool for comparison must be identified by reference to the actual PCP alleged. It must include all, and only, persons…

An employee who volunteers for redundancy may still have been dismissed and may bring an unfair-dismissal claim. A request for voluntary redundancy does not…

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

An Employment Appeal Tribunal costs order is discretionary. A ground which has been permitted to proceed at the sift stage may nevertheless prove misconceived…

An appellate tribunal may not revisit an Employment Tribunal’s findings of fact merely because the appellant advances competing evidential inferences. A…

An Employment Tribunal direction is characterised by its objective effect, not by the judge’s subjective intention. A direction which removes a pleaded claim…

A separate legal personality under national law does not, of itself, prevent an entity from forming part of a foreign diplomatic mission. Diplomatic status…

Without prejudice privilege depends on the objective question whether, during negotiations, the parties contemplated or might reasonably have contemplated…

Where a litigant in person’s claim and documents clearly assert that resignation was caused by the employer’s treatment, an employment tribunal must consider…

An employment tribunal has inherent jurisdiction, subject to statute and valid procedural rules, to give a non-party access to documents placed before it and…

Specific disclosure in an employment tribunal is not ordered merely because documents may be relevant. The applicant must show that the documents or defined…

An employment tribunal considering disclosure, redaction or anonymity must identify the specific procedural power being exercised and proceed in sequence.…

For victimisation under section 27 of the Equality Act 2010, detriment is interpreted widely. The question is whether a reasonable worker would or might regard…

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

A deliberate and substantial failure to pay wages or contractual sick pay to which an employee is entitled may amount to a fundamental breach of contract. The…

Where HMCTS has audio-recorded an employment tribunal hearing, a party may in principle request a transcript through the established procedure, on payment of…

An Employment Appeal Tribunal will ordinarily follow its own earlier decisions. It may depart only within tightly confined exceptions, including where an…

An Employment Appeal Tribunal may make a restriction of proceedings order under section 33 of the Employment Tribunals Act 1996 only if satisfied that a person…

For victimisation under Equality Act 2010, a false allegation is excluded from protection only if it was made in bad faith. The primary issue is whether its…

An employment tribunal considering an amendment application must assess delay as part of the balance of hardship. Delay alone, even if unexplained, does not…

In a constructive-dismissal claim, whether the employer committed a fundamental breach of the implied term of trust and confidence is determined objectively.…

When assessing future loss after unlawful discrimination, an employment tribunal must evaluate the chance that employment would have ended, or would not have…

Apparent bias must be assessed through the eyes of a fair-minded and informed observer, with close attention to the full context of the hearing. Robust or…

A compensatory reduction for contributory conduct under section 123(6) of the ERA is not excluded merely because a fair procedure might have avoided dismissal.…

An employer may reasonably treat a deliberate failure to disclose a matter as misconduct even where no express contractual, policy or regulatory provision…

For contributory-fault deductions, an Employment Tribunal must assess the employee’s actual conduct for itself. It must identify the conduct, decide whether it…

On an application for a deposit order, an Employment Tribunal may make a summary and impressionistic assessment of whether essential facts, including facts…

A claim in unjust enrichment for a quantum meruit is not a claim for “wages” within Part II of the Employment Rights Act 1996. Although Part II is to be…

An Employment Tribunal must not determine that an absent respondent was the claimant’s employer unless the evidence provides a logical and sufficient basis for…

A discrimination claim involving disputed facts may be struck out only in an exceptional case. The tribunal must remain alert to the danger of deciding factual…

A tribunal may vary or revoke an earlier case-management order only through a principled exercise of its discretion. Ordinarily, this requires a material…

In determining disability, a tribunal must take a functional approach and need not investigate the cause of an impairment. It may nevertheless consider whether…

An Employment Tribunal must give reasons which identify and resolve the material factual disputes raised by the agreed issues. It must explain sufficiently why…

A correction under Employment Tribunals Rules of Procedure 2013, rule 69, does not ordinarily restart time for an appeal or reconsideration. A fresh time limit…

For limb (b) worker status under section 230(3) of the Employment Rights Act 1996, the question is whether the other contracting party is a client or customer…

An unless order must be construed strictly. A claim may be dismissed for non-compliance only where it is beyond doubt that the party has failed to comply with…

An appeal to the Employment Appeal Tribunal lies only on a question of law. A perversity challenge succeeds only where the employment tribunal reached a…

An Employment Tribunal must decide whether an unless order has been complied with by construing its actual terms in context and applying a qualitative test of…

An alteration to an ET1 or a document attached to it is an amendment, whatever label the applicant uses. The important question is whether the Employment…

A late application to postpone an appeal in order to provide particulars of alleged procedural unfairness may properly be refused where the allegations could…

A claimant who is subject to early conciliation must obtain an ACAS certificate before presenting an Employment Tribunal claim. Under section 18A(8) of the…

For the purposes of section 15 of the Equality Act 2010, an Employment Tribunal must make its own critical and evidence-based assessment of objective…

A tribunal may determine at strike-out stage whether the objective requirements for a qualifying disclosure under Employment Rights Act 1996, section 43B, can…

An Employment Tribunal must determine fresh case-management applications by reference to the material and issues actually before it. A decision made without…

An individual who undertakes personally to perform work is not necessarily a worker. Under Employment Rights Act 1996, the individual may still be carrying on…

A tribunal may uphold dismissal for persistent lateness where the employee is subject to a live final written warning for the same conduct, has continued to be…

A claim described objectively as direct sex discrimination does not become an equal pay claim merely because the claimant identifies a man who succeeded her in…

Where victimisation and direct disability discrimination are both advanced in respect of the same detriment, a tribunal must determine each claim. A finding…

A claim for post-termination harassment or victimisation must be assessed as such. It is erroneous to strike it out on the premise that the claimant must…

For disability discrimination, the Employment Tribunal must determine disability by reference to the impairment and case advanced, and to the alleged…

Under section 111(2) of the Employment Rights Act 1996, the extension for claims that could not reasonably practicably be presented in time is strict. A…

An Employment Tribunal’s reasons satisfy rule 62(5) where, read fairly and as a whole, they identify the material issues, findings, applicable law and route to…

Where an appeal is allowed and successful discrimination and harassment claims are remitted for a fresh hearing before a freshly constituted tribunal, the…

A failure to make a reasonable adjustment to a dismissal procedure does not automatically make the dismissal unfair or disproportionate. The statutory tests…

An employee’s entirely blameworthy driving accident may amount to gross misconduct or gross negligence justifying summary dismissal where, on the particular…

An Employment Tribunal may find that an earlier decision-maker made a dismissal decision which was later implemented by others. It must, however, assess the…

Under Transfer of Undertakings (Protection of Employment) Regulations 2006, a pre-transfer employee’s complaint about the transferor’s information duties lies…

In an unfair-dismissal case, the tribunal must assess the overall fairness of the employer’s process under section 98(4), rather than determine for itself…

A party asserting privilege cannot be required to disclose the disputed documents to its opponent’s legal representatives before the privilege claim has been…

In deciding whether to extend time on a just and equitable basis, an employment tribunal has a broad discretion but must take account of all significant…

In a direct discrimination claim, a tribunal may focus on the reason for the treatment without first undertaking a comparison exercise. An actual comparator…

An Employment Tribunal may make a case-management order on its own initiative to consolidate similar claims for a hearing at which strike-out or deposit-order…

Reconsideration under Rule 70 is available only where it is necessary in the interests of justice. The tribunal must exercise that broad discretion in a…

An Employment Tribunal does not err merely because it does not refer to every item of evidence or submission. Where it has directed itself correctly and has…

An Employment Tribunal decision must be read fairly and as a whole. Reasons need not address every argument or item of evidence, provided they disclose the…

For a harassment complaint, a tribunal must identify the respondent’s specific unwanted conduct. If conduct is said to extend over a period, it must identify…

An Employment Tribunal should not narrow claims previously identified through case management without accurately considering the pleadings, documents…

A tribunal must identify the substance of a discrimination claim, particularly where it is advanced by a litigant in person, before deciding that it has no…

A direction to provide particulars in a Scott Schedule does not ordinarily permit a claimant to add new factual complaints. Whether an entry is a particular of…

Whether timely presentation was reasonably practicable is ordinarily a factual question for the Employment Tribunal. A claimant who knew of the right to claim…

In a constructive-dismissal claim based on a last straw, the tribunal must identify and assess the employee’s pleaded course of conduct cumulatively. A final…

A pleaded reference to legislation does not, without facts identifying the particular complaint, commence every possible claim under that legislation. A claim…

Where an application for reconsideration contains genuinely new evidence which could not have been produced at the original hearing, and which may materially…

A tribunal is not required to determine an application for remote attendance which was not clearly made or pursued at the hearing. Where a represented party…

Compensation for loss of earnings after unfair or discriminatory dismissal is ordinarily assessed as a loss of a chance. A tribunal may make no award, or…

A suspension may be a detriment for victimisation purposes where the employee reasonably regards it as such. The employee need not prove medical, physical or…

A Polkey assessment reconstructs the likely result of a fair procedure. A tribunal may reduce compensation by 100% where it is entitled to find that dismissal…