Employment Appeal Tribunal judgments, 2023

When deciding whether it is just and equitable to extend time under section 123 of the Equality Act 2010, an Employment Tribunal must assess all the…

For harassment under section 26 of the Equality Act 2010, unwanted conduct must be related to the protected characteristic. The expression “related to” is…

An Employment Tribunal must apply the two-stage burden of proof under section 136 of the Equality Act 2010. Where the primary facts support an inference of…

An Employment Tribunal must identify the factual substance of pleaded claims before deciding limitation. A discrimination claim is not defined merely by its…

Diplomatic immunity under Article 31 of the Vienna Convention on Diplomatic Relations 1961 attaches to the diplomatic agent. It cannot be invoked by the…

An Employment Tribunal determines the case advanced in the claim and response, read with any properly settled list of issues. A list of issues is a…

Under Rule 39(2) of the Employment Tribunal Rules of Procedure 2013, an Employment Tribunal must make reasonable enquiries into a party’s actual ability to pay…

Where an employment tribunal upholds a discrete reasonable-adjustment or discrimination-arising-from-disability complaint, it must give sufficient reasons on…

A contractual term cannot be used, through the tribunal’s just and equitable discretion, to achieve a fixed cap on statutory compensation which would be void…

For state immunity in employment claims, the decisive question is whether the employee’s functions were sufficiently close to the foreign state’s exercise of…

Where an Employment Tribunal has made a substantial Chagger/Polkey reduction because the claimant’s conduct made a fair dismissal highly likely, it must avoid…

At the notice stage of an unless order, an Employment Tribunal must construe the order and decide whether there has been material compliance. It must not…

An individual supplied by an agency to an end user may be employed by the agency for the purposes of the Civil Aviation (Working Time) Regulations 2004, even…

For harassment related to sex under Equality Act 2010, unwanted conduct need not concern a characteristic exclusive to one sex. The statutory question is…

A false discrimination allegation made in bad faith is not a protected act for victimisation purposes under section 27 of the Equality Act 2010. Where an…

Under section 98(4) of the Employment Rights Act 1996, an employment tribunal must decide whether dismissal for redundancy was reasonable in all the…

A requirement to wear a face mask as a health and safety measure during a pandemic is not, on its ordinary meaning, medical treatment for the purposes of…

A dismissal following withdrawal under rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 bars only a further claim…

On an application for a deposit order, the Employment Tribunal must focus on the specific allegation or argument actually advanced by the party facing the…

Implied affirmation of an employer’s repudiatory breach turns on the employee’s conduct and the circumstances after the breach, not on delay viewed in…

An Employment Tribunal must determine an asserted employment relationship objectively, by reference to the usual employment-status criteria and the reality of…

A perversity appeal succeeds only where the Employment Tribunal reached a conclusion which no reasonable tribunal, properly appreciating the evidence and law…

On an application to amend, an employment tribunal must consider all the circumstances and balance the injustice and hardship of granting the amendment against…

A tribunal may express firm preliminary views after hearing most of the evidence if it makes clear that they are provisional and remains open to persuasion.…

A strike-out for scandalous, unreasonable or vexatious conduct under rule 37 requires more than objectionable conduct. The conduct must mean that a fair trial…

An Employment Tribunal must distinguish between a strike-out application and substantive determination of a preliminary issue. A claim may be struck out for…

For discrimination under sections 18 and 13 of the Equality Act 2010, maternity leave or sex must have materially influenced the decision-maker's treatment. It…

A tribunal’s power to strike out a claim for non-compliance with an order is constrained by common-law and article 6 proportionality. It must consider the…

Where an employment claim contains an incorrect ACAS early-conciliation number, the reasonable-practicability inquiry is not whether making the original error…

An Employment Tribunal must not construct material hypothetical comparators for a direct-discrimination claim without giving the parties a fair opportunity to…

An employee does not affirm a repudiatory breach merely through delay in resigning. The question is what occurred during the intervening period. Receipt of pay…

Where an employment tribunal gives separate written reasons for a case-management decision made during a merits hearing, those reasons do not postpone time for…

Where services are supplied under a genuine contract between a putative employer and a partnership, a partner cannot also establish that he individually…

An employment tribunal must address and apply all material duties under the TUPE Regulations before deciding that a micro-business has complied with its duties…

A purported resignation or dismissal must be construed objectively in its full contractual context. The question is whether a reasonable bystander in the…

A trade union rulebook is a multilateral contract, but its rules must be construed in their practical union context. The court should adopt the meaning a…

Rule 72 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires a two-stage reconsideration process. An Employment Judge…

A benefit is payable on retirement or termination of service for the purposes of section 1(5) of the Pension Schemes Act 1993 only where that event…

An appellate tribunal must read Employment Tribunal reasons fairly and as a whole. It should not undertake a hypercritical examination of isolated wording. It…

For a direct discrimination claim based on comparators, an Employment Tribunal must address whether there are material differences in circumstances under…

In a redundancy dismissal, a tribunal must separately assess the fairness of selecting the particular employee after finding that a genuine redundancy…

An Employment Tribunal must identify the substance of a claim by reading the ET1 and all documents incorporated or referred to in it. A claim does not depend…

An employment tribunal must give reasons which enable the parties and an appellate court to understand how it resolved material issues. It need not determine…

An impairment may have a substantial adverse effect on normal day-to-day activities where it prevents an employee from returning to work as a whole. This is so…

An intervening act breaks the chain of causation only where it is the sole effective cause of the claimant’s loss. A wrongdoer’s conduct need not be the only…

For an omission-based reasonable-adjustments claim, the limitation date is not necessarily the date when the employer first breached its duty. Where there is…

Where a tribunal has found that an employer genuinely believed, on reasonable grounds and after a reasonable investigation, that the employee committed the…

A tribunal may strike out a claim for non-compliance with orders only after considering all the circumstances, including whether a fair trial remains possible…

An employment tribunal must assess injury-to-feelings compensation by reference to the actual effect of the unlawful conduct on the claimant. The examples…

A termination agreed freely by employer and employee is not a dismissal for the purposes of section 95(1)(a) of the Employment Rights Act 1996. The question is…

An employment tribunal ordinarily may presume that a representative acts with the party’s authority. It need not routinely require written authority or sworn…

An Employment Tribunal may strike out a claim for non-compliance with an order only by applying the overriding objective and a proportionate response. It must…

Under section 141 of the Employment Rights Act 1996, suitability of alternative employment and the reasonableness of an employee’s refusal are separate…

An employment tribunal deciding an amendment application must assess the practical consequences of allowing or refusing it. It must balance the parties’ real…

Where a transfer is effected through a series of transactions, the transfer date is the single factual point at which responsibility for carrying on the…

For a disclosure to qualify for whistleblowing protection, the worker must genuinely believe it is in the public interest and that belief must be objectively…

An Employment Tribunal’s reasons must be read fairly and as a whole. An infelicitous formulation of the burden of proof will not establish an error of law…

An employment tribunal’s duty to secure a fair hearing for a disabled or vulnerable party extends to its deliberations and credibility findings. Where dyslexia…

On an application to amend, an employment tribunal must examine the substance of the proposed case. It must balance the injustice and hardship of allowing or…

An employer’s duty to make reasonable adjustments depends on actual or constructive knowledge that a disabled applicant is likely to suffer the particular…

An employer need not list every possible form of gross misconduct. However, it is unfair to dismiss an employee for a single act unless the employee knew, or…

For a just and equitable extension of time under Equality Act 2010, the absence of an evidential explanation for delay is a relevant consideration but is not a…

An absence-management policy which provides for a decision to terminate employment does not, without more, prohibit an employer from postponing the effective…

A unilateral purported variation may amount to an express dismissal under section 95(1)(a) of the Employment Rights Act 1996 where, in reality, it withdraws…

Under section 123(1) of the Equality Act 2010, an Employment Tribunal has a broad discretion to extend time where it thinks this just and equitable. The length…

An unless order must be construed by its ordinary wording in its legal and procedural context. The party subject to it must be able to ascertain what…

A person who has no genuine interest in an advertised job cannot show that a discriminatory advertisement subjected them to less favourable treatment or…

In protected-disclosure claims, a tribunal must determine separately and sequentially whether there was a qualifying disclosure and whether it became protected…

When concurrent Employment Tribunal and High Court proceedings raise overlapping issues, the Tribunal must decide, after weighing all relevant circumstances…

For discrimination arising from disability under section 15 of the Equality Act 2010, the tribunal must determine separately whether the unfavourable treatment…

A reasonable mistake by an unrepresented claimant may make timely presentation of an Employment Tribunal claim not reasonably practicable for the purposes of…

A contractual commitment to comply with an operator’s rules as a condition of access to work does not, without necessity, imply a direct contract for personal…

A worker must prove that they disclosed information with sufficient factual content and specificity to tend to show a matter within section 43B of the…

Where an Employment Tribunal has found discrimination contrary to section 15 of the Equality Act 2010, it must analyse whether the discriminatory acts were…

Where an employer acts in response to an employee’s expression of protected religious or philosophical beliefs, the tribunal must first decide whether the…

For a like-work claim under Equality Act 2010, the tribunal must make clear findings about the work actually done by the claimant and each comparator. It must…

In a direct discrimination claim, the tribunal must identify each impugned act and explain why the circumstances of an actual comparator were not materially…

Where an alleged disability is managed by changing work activities, a tribunal must make clear findings about the affected normal day-to-day activity and…

For harassment under section 26 of the Equality Act 2010, the claimant’s perception is a mandatory part of the cumulative statutory test. A person who was…

An employment tribunal must not assume that presenting a claim puts either its existence or contents into the public domain. In an application for anonymity…

An Employment Tribunal may dismiss a claim automatically for non-compliance only where it has made an unless order under Rule 38. The order must be expressed…

In a direct discrimination claim, the tribunal must determine the alleged discriminator’s true reason for the treatment, including any conscious or unconscious…

On an application to stay Employment Tribunal proceedings in favour of concurrent High Court proceedings, the question is which forum is most conveniently and…

Under section 26 of the Equality Act 2010, harassment requires unwanted conduct related to a protected characteristic which has the proscribed purpose or…

The Coronavirus pandemic did not alter the statutory test for unfair dismissal. Under Employment Rights Act 1996, section 98(4), fairness remains a…

An employment tribunal must identify the claims and issues in reasonable detail before deciding that they have no, or little, reasonable prospect of success.…

A qualifications body does not itself provide additional examination opportunities merely because it recognises passes in examinations set by another body.…

A principal may be liable to contract workers under Equality Act 2010, section 41 where, viewed realistically, it has effectively dictated a term on which they…

For discrimination arising from disability under section 15 of the Equality Act 2010, an Employment Tribunal must address both causative stages. It must…

In deciding whether a dismissal was by reason of redundancy, an employment tribunal must apply the statutory question in Employment Rights Act 1996, section…

For Employment Rights Act 1996 health-and-safety protection, a workplace is a place where there is a safety representative or committee if that representative…

A communication may be a qualifying disclosure even if expressed as an opinion or allegation. The question is whether, in its context, it conveys information…

A tribunal must not effectively strike out a clearly pleaded discrimination claim at a preliminary hearing by relabelling its factual basis without giving the…

An appellate tribunal will not interfere with case-management decisions where the hearing was conducted fairly, proportionately and consistently with the…

In determining procedural fairness under section 98(4) of the Employment Rights Act 1996, an employment tribunal must assess the disciplinary process as a…

An individual who remains employed full-time by one employer will not ordinarily have a simultaneous contract of employment with a second body for the same…

The test for apparent bias is whether the fair-minded and informed observer, having considered all relevant facts, would conclude that there was a real…

For compensation following unfair dismissal, a tribunal must assess contributory conduct by reference to the employee’s actual conduct. Under section 123(6) of…

An employer’s actual or constructive knowledge of disability depends on the particular statutory claim. Constructive knowledge requires an objective assessment…

In deciding whether the burden of proof shifts under section 136 of the Equality Act 2010, an employment tribunal must assess the whole factual matrix. It may…

Where the Employment Appeal Tribunal substitutes the only lawful determination for that of an employment tribunal, it may exercise the tribunal’s costs…

Article 157 TFEU applies where a statutory pay measure produces unjustified indirect sex discrimination. It is not confined to an equal-pay claim based on an…

An Employment Tribunal must identify and manage the claims actually pleaded. A list of issues must not prevent a claimant from pursuing a properly arguable…

In a pregnancy-discrimination dismissal claim, the tribunal must identify the natural person or persons who made the relevant decision and determine whether…

An Employment Tribunal may reconsider a judgment only where this is necessary in the interests of justice. The jurisdiction must be exercised cautiously…

An Employment Tribunal may not strike out a claim at a private preliminary hearing where Employment Tribunals (Constitution and Rules of Procedure) Regulations…

An Employment Tribunal may determine a rule 38(2) application to set aside an unless order on written representations where no hearing is requested. It must…

A claim for unauthorised deduction from wages under Employment Rights Act 1996 requires a legal entitlement to an identifiable and quantifiable sum properly…

Legal advice privilege may extend to a communication made through an agent, but only where the agent is no more than a means of communication between client…

An employer alleging failure to mitigate bears the burden of proving that the claimant acted unreasonably. It is insufficient to show that a proposed step…

An employment tribunal may make proportionate allowances for a disabled litigant in person without being required to reconstruct an unpleaded case, disregard…

An employment tribunal may strike out a claim under Rule 37(1)(a) where it has no reasonable prospect of success on a critical factual issue as well as on a…

An employment tribunal deciding whether to issue notice that an unless order has taken effect must decide whether there has been material compliance. That is a…

An Employment Tribunal may make an unless order affecting an entire claim only where that consequence is a proportionate means of securing fair case…

For a claim under section 15 of the Equality Act 2010, a tribunal may begin either with the effects of disability or with the reason for the unfavourable…

An employment tribunal must determine the complaints and issues actually advanced. It should make appropriate allowances for a litigant in person, but it must…

When deciding whether a worker is part-time under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a tribunal must not isolate…

An application to extend time for an Employment Appeal Tribunal appeal requires a good explanation for the default throughout the whole period of delay and…

A statutory decision-maker cannot reopen complaints which it has finally determined unless it has statutory power to do so. Final determinations are subject to…

An unless order which provides for dismissal of the claim upon material non-compliance operates on the whole claim, rather than only on an individual…

Where an employee works partly in Great Britain and partly abroad, the territorial reach of the Employment Rights Act 1996 depends on whether the connection…

For the statutory effective date of termination, a summary dismissal takes effect when it is communicated to the employee. This is so even if the dismissal is…

In an unlawful-deduction claim, the tribunal must first determine whether the worker had a legal entitlement to the sum claimed. Only a sum properly payable…

An employment tribunal must distinguish between the statutory protection for identification in sexual-offence cases under section 11(1)(a) and the time-limited…

Direct age discrimination may be justified only by an aim of a public-interest social-policy character, rather than cost reduction alone. The tribunal must…

Where an employer has failed to provide a facility for workers to exercise the right to paid annual leave, the right under regulation 13 of the Working Time…

A whole claim may exceptionally be struck out where a party has conducted proceedings scandalously, unreasonably or vexatiously, a fair hearing is no longer…

Under section 136 of the Equality Act 2010, a claimant must first establish facts from which a reasonable tribunal could properly infer discrimination in the…

A determination of a flexible-working application can itself apply a provision, criterion or practice for indirect-discrimination purposes. An employee need…

An indirect discrimination claim under Equality Act 2010 section 19 may concern a disadvantage arising from the full operation of a neutral provision…

An employment tribunal must decide whether a proposed complaint was factually raised in the original claim before deciding whether an amendment is required. A…

Provision of ostensibly shared facilities may amount to direct sex discrimination where, viewed realistically and from the claimant’s perspective, women…

For an unfair-dismissal claim, the tribunal must identify the employer’s reason or, where there is more than one, the principal reason. That statutory inquiry…

An employment tribunal must give each party a fair opportunity to address any issue likely to affect its decision. A finding that a dismissal was unfair cannot…

An employer may commit direct age discrimination where it makes age-related assumptions about an older worker’s likely willingness to accept a junior role…

For direct disability discrimination under section 13 of the Equality Act 2010, a hypothetical comparator must share all material circumstances except…

An employment tribunal’s reasons must be read fairly and as a whole. An appellate tribunal should not subject individual passages to hypercritical analysis. A…

Where an employee instructs a skilled legal adviser, the adviser’s unreasonable ignorance or mistake is attributed to the employee when deciding whether it was…

An appellate challenge based on perversity fails where there was evidence on which the Employment Tribunal could properly reach its conclusion. A factual error…

Where dismissal is itself an alleged discriminatory act, whether an impairment’s effects are likely to be long-term must be assessed at the time of the…

Where an Employment Tribunal decides a direct age-discrimination justification case on a basis that was not apparent from the pleaded case or list of issues…

Before striking out a poorly pleaded claim by a litigant in person, an Employment Tribunal must make a reasonable and careful examination of the claim form…

Where an employer presents a dismissal as redundancy but the tribunal finds that its real reasons concern the employee’s alleged conduct or performance, the…

When employee or worker status is in issue, a tribunal must determine the parties’ true agreement by considering all relevant circumstances under the purposive…

A hearing is vitiated where a fair-minded and informed observer, considering all the circumstances, would conclude that there is a real possibility of bias.…

Worker status is determined by applying the statutory language purposively to the facts viewed realistically. Contractual labels and tax arrangements cannot…