Employment Appeal Tribunal judgments, 2024

Under the former rule 3(1) of the Employment Appeal Tribunal Rules 1993, an appellant who omitted required ET pleadings had to give an honest and satisfactory…

Conduct arising from an investigation into an allegation of racist abuse is not, without more, conduct related to race for the purposes of harassment under…

An Employment Tribunal may strike out a costs application as part of a claim, or under its general case-management powers. That power is discretionary and must…

An Employment Tribunal may determine only the claim fairly discernible from the ET1, unless a new cause of action is properly introduced by amendment. A list…

For the purposes of Equality Act 2010 section 15(2), constructive knowledge of disability is a fact-sensitive evaluative question. The employer need not make…

An Employment Tribunal must determine material factual issues that fall within the case it has been required to decide. Its reasons must show why it accepted…

For detriment short of dismissal under section 47B of the Employment Rights Act 1996, a protected disclosure need only have had a material influence on the…

A tribunal’s refusal to postpone a merits hearing for ill health is reviewable only on Wednesbury or perversity grounds. The tribunal must fairly assess the…

An award for injury to feelings in a discrimination claim must compensate the claimant’s actual injury. A tribunal should identify the discriminatory conduct…

When deciding an amendment application, an employment tribunal should ordinarily consider limitation as a Selkent factor. It may reserve the issue where the…

Where a relevant transfer would involve a substantial change in working conditions to an employee’s material detriment, regulation 4(9) of the Transfer of…

An appellate tribunal may not disturb a clear factual finding of an employment tribunal unless it is perverse. A party’s disagreement with the evaluation of…

For victimisation and protected-disclosure detriment, the question is whether a reasonable worker would or might regard the treatment as disadvantageous.…

An extension of time for an appeal to the Employment Appeal Tribunal is exceptional. The applicant must provide a full, honest and acceptable explanation…

On an interim-relief application for alleged whistleblowing dismissal, the Employment Tribunal must make a summary and impressionistic assessment of whether…

For indirect discrimination under Equality Act 2010, an employer must justify both an otherwise justified general policy and, where the policy permits…

An Employment Tribunal must give reasons which show that it has independently and even-handedly evaluated the parties’ material cases. Extensive unacknowledged…

Under Rule 37 of the Employment Tribunal Rules 2013, strike-out for having no reasonable prospect of success remains a high threshold in discrimination claims.…

An Employment Tribunal determining a direct discrimination claim must consider specifically identified evidential comparators where their treatment may bear on…

Where an employer has reasonably concluded, after a fair process, that mutual trust and confidence have irretrievably broken down, dismissal for some other…

A recurring impairment establishes a disability only where its substantial adverse effect on normal day-to-day activities, rather than merely the impairment…

A tribunal deciding whether a worker reasonably believed a disclosure was in the public interest must assess the whole picture known, or reasonably…

An employment judge may direct a party seeking to call a witness by video from abroad to follow the applicable Presidential Guidance. Where the direction does…

Where a whistleblowing recruitment complaint is brought under the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018, the…

An appeal against an employment tribunal’s conclusion on disability under section 6 of the Equality Act 2010 fails where the tribunal considered the relevant…

A claimant must complete only one mandatory early-conciliation process. Where a second certificate concerns the same matter, it does not extend the limitation…

Compensation for discrimination under section 123 of the Equality Act 2010 is assessed on ordinary tortious principles. A claimant must take reasonable steps…

An office-holder is a worker under section 230(3)(b) of the Employment Rights Act 1996 only if the parties intended a contractual relationship. That question…

An application to reconsider an Employment Tribunal decision is not a further opportunity to advance material or submissions which should have been presented…

For harassment under section 26 of the Equality Act 2010, conduct need not be caused by a protected characteristic, but it must have a clear connection with…

Whether underpayments form a series of unlawful deductions is a fact-sensitive question. It requires consideration of their similarities, differences…

A statutory exclusion of complaints about the handling, decisions and outcome of an armed-forces service complaint may lawfully prevent a serving serviceperson…

For harassment under section 26 of the Equality Act 2010, conduct may be related to a protected characteristic without being motivated by it. The expression is…

An Employment Tribunal's decision on costs is discretionary and must be assessed by considering the whole course of the relevant conduct. Costs remain…

An employer may make a contractual deduction from wages under a suspension policy only if the policy’s stated precondition is met. Where the policy requires…

Harassment and victimisation are distinct statutory wrongs and must be analysed by applying their separate elements. A harassment claim requires unwanted…

A serving member of the armed forces must first make a service complaint about the matter before bringing an Equality Act claim in an employment tribunal. The…

Where compensation is claimed for discrimination, the tribunal must distinguish between an established loss caused by the unlawful act and uncertainty about…

For regulation 8 of the Fixed-Term Employees (Prevention of less favourable treatment) Regulations 2002, it is the latest fixed-term renewal which must be…

Where an EAT appeal is lodged within 42 days but required documents are omitted, the omission is materially different from a failure to lodge any appeal in…

At the strike-out stage, an Employment Tribunal must not determine disputed factual issues without the analysis required to show that a complaint has no…

Section 111A of the Employment Rights Act 1996 makes both the fact and content of pre-termination negotiations inadmissible in ordinary unfair dismissal…

In assessing ordinary unfair dismissal, the tribunal must decide whether the employer had conducted a reasonably sufficient investigation overall. Fairness…

Under section 136 of the Equality Act 2010, a tribunal must first decide whether proved primary facts could, without any explanation for the treatment, support…

Where an appellant lodges a notice of appeal within time but omits documents required by the former Rule 3(1), the omission must be assessed by its practical…

For disability under Equality Act 2010, the assessment must focus on the activities which the person cannot do, or can do only with difficulty. Professional…

A complaint of unlawful deduction from wages based on bonus requires an identified and ascertainable sum which is payable but has not been paid. A challenge to…

A trade union rulebook is construed as a contractual constitution, in its practical union context and from the perspective of a reasonable trade union member.…

A philosophical belief is excluded from protection under section 10 of the Equality Act 2010 only in exceptional and extreme cases. The fifth Grainger…

Where adverse treatment is imposed because of disability-related absence, the claim will ordinarily fall under section 15 of the Equality Act 2010, rather than…

Worker status under section 230(3)(b) of the Employment Rights Act 1996 requires application of the statutory language to the true relationship. Concepts such…

In an unfair-dismissal claim, the employer must establish the actual reason which operated on the decision-maker’s mind and show that it was potentially fair.…

A tribunal may not treat recurrent episodes of loss of consciousness as lacking a substantial adverse effect on normal day-to-day activities merely because…

Judicial proceedings immunity applies where the pleaded claim is founded on the content of statements of case or other documents placed before a judicial or…

A former employee is not automatically a “lost” witness merely because they have left the employer’s employment. Before striking out a claim for inability to…

In a conventional redundancy exercise which reduces the number of employees holding the same existing generic role, the retained roles are not, without more…

For victimisation under section 27 of the Equality Act 2010, a protected act need not be the sole or principal reason for a detriment. It is sufficient if it…

Section 19 of the Equality Act 2010 had to be interpreted, under the applicable EU-law conforming interpretative obligation, so as to cover a claimant who did…

When considering strike-out or deposit applications, an employment tribunal must first identify the claim from the pleadings and other material. It must not…

An appellant who omits the Employment Tribunal’s written judgment does not properly institute an appeal under rule 3(1). The omission cannot be explained away…

A claimant must establish a disability at the material time. A tribunal is not required to analyse the effect of treatment under Schedule 1 where there is no…

An employee’s failure to pursue a further stage of an internal grievance procedure, and the possibility that it might have produced a favourable result, are…

A later Employment Tribunal must respect findings that an earlier Tribunal made about the period before it. It must nevertheless decide the later claims on the…

Employment Rights Act 1996, section 47B(2), excludes a claim against an employer for its own act of dismissal. It does not exclude a claim that an individual…

An Employment Tribunal errs in law where it relies decisively on part of a costs-warning letter while being unaware that the letter was sent on a…

On an application to strike out for no reasonable prospect of success, an employment tribunal must ordinarily assess the claimant’s case at its highest. It…

Under section 136 of the Equality Act 2010, a tribunal may shift the burden of proof only if it could properly infer from all relevant evidence that the…

An Employment Tribunal considering costs under rule 76 must first decide whether the relevant threshold is met and then decide whether it is appropriate to…

Under Employment Rights Act 1996, section 123(6), a finding that an employee’s culpable or blameworthy conduct caused or contributed to dismissal requires the…

A tribunal determining whether there has been a relevant transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006 must identify the…

For discrimination arising from disability, the tribunal must distinguish between whether the alleged something arose from disability and whether that thing…

An appointment of a sheriff as a temporary judge under section 20B of the Judiciary and Courts (Scotland) Act 2008 does not affect the sheriff’s appointment or…

A claim for causing a discriminatory basic contravention under section 111(2) of the Equality Act 2010 requires more than showing that A's act was a factual or…

An employment tribunal must address and determine the essential elements of a claimant’s case when deciding both justification under section 15 and reasonable…

For the purposes of regulation 12(1) of the National Minimum Wage Regulations 2015, a deduction is for the employer’s own use and benefit where the employer…

An anonymity application under Rule 50 is a case management application, not a judgment capable of reconsideration under Rule 70. A tribunal must instead…

On a renewed application to postpone a final hearing, a tribunal must assess the circumstances as they stand at that time. Where a claimant has lost their…

For a deposit order under rule 39, an employment tribunal may treat the result and reasoning of earlier litigation on identical facts as a relevant indicator…

Where a party’s capacity to give evidence or participate in proceedings gives rise to legitimate doubt, a tribunal should investigate the issue when it arises.…

Under rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a party facing strike-out must receive a reasonable…

For a claim under regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, apparently identical terms may constitute…

For a dismissal for some other substantial reason arising from refusal to accept a contractual change, the employer need show a sound business reason. The…

For indirect discrimination under section 19 of the Equality Act 2010, the respondent must establish the aim pursued and that the provision, criterion or…

A claimant alleging disability discrimination must establish that an impairment had a substantial and long-term adverse effect on the normal day-to-day…

Relief from the automatic dismissal caused by an unless order depends on the interests of justice. There is no mandatory checklist, but the tribunal must…

A voluntary European Works Council agreement confined to operations in EEA Member States applies to Member States as they exist from time to time, where its…

Employment status requires an objective, multifactorial assessment of the whole relationship. The parties’ labels and intentions are relevant but not decisive.…

An employment tribunal must not require a worker’s oral evidence about hours worked to be corroborated by independent or primary documentary records. There is…

For national minimum wage purposes, the meaning of time work under regulation 30 of the National Minimum Wage Regulations 2015 must be determined by reading…

Where a claim for notice pay or accrued holiday pay is properly advanced as an unlawful deduction from wages, the limitation period runs from the relevant wage…

For regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, commissioning or purchasing goods or services does not itself…

For an unlawful-deduction claim under Employment Rights Act 1996, section 13 requires two separate inquiries. First, the tribunal must determine the wages…

Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, comparability must be assessed when the alleged less favourable…

Where an employer relies specifically on redundancy as the explanation for dismissing an employee, the tribunal must determine whether the statutory definition…

An Employment Tribunal errs in dismissing an unlawful-deduction claim in its entirety where the pleaded particulars identify a distinct period of alleged…

When deciding whether to extend time for a late response, an employment tribunal must begin with the delay in lodging the response and, where relevant, the…

On an application to amend, an Employment Tribunal may find that proposed claims could and should have been advanced earlier where a represented claimant…

For the fairness assessment under section 98(4) of the Employment Rights Act 1996, the relevant knowledge and belief will ordinarily be that of the person…

Under regulation 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, objective justification for a renewed fixed-term…

Under the temporary coronavirus carry-forward regime in the Working Time Regulations 1998, a worker claiming carry-forward had to show that, by reason of the…

In determining the fairness of a redundancy dismissal under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must make sufficient…

An overseas employee will only exceptionally fall within British employment protections. A plea of state or diplomatic immunity, and consequent lack of a local…

A tribunal considering strike-out must separately decide whether a fair trial remains possible and whether strike-out is proportionate. It must evaluate…

A qualifying settlement agreement under section 147 of the Equality Act 2010 may validly settle future discrimination claims. The agreement must clearly…

Disability under Equality Act 2010 section 6 must be assessed at the date of each alleged discriminatory act. A tribunal must not confine a preliminary…

Under rule 3(1)(b) of the EAT Rules 1993, an appeal from a tribunal judgment is properly instituted where the appellant files the ET1 claim and ET3 response…

For justification of indirect discrimination under section 19 of the Equality Act 2010, the employer must show that each relevant PCP is rationally connected…

Where connected allegations of direct discrimination concern the conduct of one decision-maker, an Employment Tribunal may assess the evidence cumulatively…

In a health-related absence dismissal, an Employment Tribunal considering fairness under section 98(4) must consider as a matter of course whether the employer…

An employer may be directly liable for whistleblowing detriment where protected disclosures and protected acts materially influenced the claimant’s treatment…

For the knowledge defence to disability discrimination, an employer need not know the claimant’s diagnosis. It must, however, show that it did not know, and…

For disclosure under CPR 31.6, relevance is an evaluative question, not a case-management discretion. A document is relevant if it is likely to support or…

An employment tribunal may order staged disclosure in complex equal pay proceedings. It may require an initial standard-disclosure exercise, followed by…

Where material put before an employment tribunal raises a real possibility that an unrepresented claimant advances a legally distinct claim, the tribunal must…

For liability under section 109(2) of the Equality Act 2010, agency and vicarious liability are distinct questions. A person may act as an agent while being an…

A complaint pleaded under a distinct legal head remains live unless it is covered by a disposal order or has been withdrawn clearly and unambiguously. Where…

An Employment Tribunal’s power to strike out proceedings for abuse of process is exceptional. Re-litigation in civil proceedings is not presumed abusive. The…

When deciding an application to amend, an Employment Tribunal must balance the justice and prejudice to each party in light of all relevant circumstances. A…

A tribunal’s decision to defer, without determining, a jurisdictional issue is a case management order under rule 1(3)(a) of the Employment Tribunal Rules…

An Employment Tribunal has a broad discretion to case manage large, complex multiple claims under the overriding objective. A stay of claims pending sample…

A claimant need not establish a specific medical diagnosis to show a disability under section 6(1) of the Equality Act 2010. The tribunal must instead…

An employment tribunal's decision whether to permit an amendment is discretionary. It must consider all the circumstances, with the paramount consideration…

In an unfair-dismissal appeal, an Employment Tribunal does not adopt an impermissible substitution approach merely because it finds that the employer was…

An employment tribunal must determine the specific factual complaint advanced by a claimant. It must make the necessary findings of fact and apply the relevant…

A volunteer has no separate legal status that prevents a contractual or worker relationship. Whether a volunteer is a limb (b) worker depends on the particular…

An Employment Tribunal may ordinarily determine a costs application at the conclusion of a liability hearing, provided that the paying party has had a…

Where the conditions in section 110 of the Equality Act 2010 are met, an employment tribunal has no discretion to decline to find that an employee or agent has…

A worker must reasonably believe that a disclosure tends to show a relevant legal failure. Where the asserted failure is prospective, “likely” requires a…

For a claim under section 15 of the Equality Act 2010, the disability-related “something” need not be the sole or principal reason for unfavourable treatment.…

A judge may determine an arguable recusal application made after the hearing but before judgment is handed down or the order sealed, since there may be scope…

Under rule 39 of the ET Rules, a tribunal may make a deposit order where an allegation has little reasonable prospect of success. It conducts a high-level…

A list of issues is a case-management tool. It does not replace a pleaded claim. An Employment Tribunal must determine a clearly pleaded claim of…

A finding that treatment was not because of race does not, without more, determine a distinct claim of victimisation. Under Equality Act 2010, section 27(1)…

For a detriment claim under Employment Rights Act 1996, section 47B, a protected disclosure must have materially influenced the decision-maker. The knowledge…

An employer’s justification of unfavourable treatment arising from disability requires an objective proportionality assessment. The tribunal must balance the…

For statutory holiday pay, the governing requirement is payment equivalent to normal remuneration. A tribunal must decide whether an allowance is, in…

International jurisdiction and the territorial reach of employment legislation are separate issues. In proceedings concerning an individual employment…

For claims under section 136 of the Equality Act 2010, unreasonable treatment and a difference in protected characteristic do not alone require an inference of…

An Employment Tribunal considering strike out for non-compliance, failure actively to pursue a claim, or inability to hold a fair hearing must consider the…

An employer’s contractual obligation to provide an employment benefit is not made contingent on the continuing support of a third-party provider merely because…

In large multi-claimant litigation, the overriding objective does not require absolute equality between separately represented groups. Differences flowing from…

A tribunal must construe an unrepresented claimant’s claim form objectively. The claimant need not identify statutory provisions or use formal language, but…

Where a transfer occasions a substantial detrimental change in working conditions, an employee has a sufficient evidential basis to contend that the transfer…

On a strike-out application, an Employment Tribunal must not decide disputed and potentially material facts where the claim is reasonably arguable. The…

Where a deposit order concerns claims founded on separate alleged detriments, the Employment Tribunal must assess each discrete strand and give reasons which…

Worker status under section 230(3)(b) requires application of the statutory language to the facts as a whole. The tribunal must determine whether there is a…

A tribunal considering strike-out must apply Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It must decide whether…

Where two employment tribunal claims remain separate, an appeal can be properly instituted in time for one claim even though required documents for the other…

In a pregnancy-discrimination claim, an Employment Tribunal must assess whether the proved facts could support an inference that pregnancy materially…

An employment tribunal must read claim particulars fairly and as a whole, particularly where the claimant is unrepresented. A claim need not contain lawyerly…

Where a worker makes a qualifying disclosure to one person but seeks to rely on it in relation to a decision made by another, the decision-maker must know…

Under section 98(4) of the Employment Rights Act 1996, dismissal without a warning or appeal will ordinarily be unfair. Exceptionally, it may fall within the…

Under rule 37(1)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, strike-out for unreasonable conduct requires an…

An Employment Tribunal considering whether to vary or set aside an unless order must apply the overriding objective and take account of whether the affected…

A party who seeks on appeal to advance a materially different legal analysis from that advanced before the employment tribunal requires permission to raise a…

For harassment under section 26 of the Equality Act 2010, the conduct alleged must itself be related to the protected characteristic. Where the conduct is an…

A trial period in an alternative role may be a reasonable adjustment where it makes a substantive change to the disabled employee’s work and would or might…

Section 44(1)(c) of the Employment Rights Act 1996 protects an employee who raises, by reasonable means, health and safety concerns connected with work. Those…

The power introduced by rule 37(5) of the Employment Appeal Tribunal Rules 1993 applies from its commencement to pending appeals, including appeals instituted…

A claim form either contains a claim or it does not. It must be construed fairly and objectively as a whole. Allowance is made for a litigant in person, but…

Where facts, viewed cumulatively, could support an inference of race discrimination, an Employment Tribunal should apply the burden-shifting approach in…

An employee may have sought to take parental leave for the purposes of protection from automatic unfair dismissal without having given the formal notice…

The territorial reach of employment protection legislation depends on the employment relationship as a whole, not solely on the place where work on a vessel is…

For a material factor defence to an equal-pay claim under Equality Act 2010, the central question is whether the employer has proved the actual cause of the…

For direct discrimination, the tribunal must identify the decision-maker’s actual reason for the treatment. A protected belief may be an important part of the…

A body is a qualifications body under sections 53 and 54 of the Equality Act 2010 only in relation to a qualification which it can confer. A project-specific…

A person cannot qualify as an employee or limb (b) worker unless they undertake personally to perform work or services. A genuine contractual right to provide…

For the jurisdictional condition in section 121(1) of the Equality Act 2010, a service complaint need not be a legal pleading or use technical language.…

Section 47 B(2) of the Employment Rights Act 1996 excludes an employee’s detriment claim where the pleaded detriment is a dismissal within Part X. That…

Where a party has already obtained two postponements, Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, rule 30A(3), restricts the…

For the purposes of section 100(1)(e) of the Employment Rights Act 1996, whether an employee took or proposed to take appropriate protective steps is an…

An agency worker’s equal-treatment rights under Agency Workers Regulations 2010 regulation 5 apply during an assignment, when the worker is supplied to work…

Under Rule 38(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the question on issuing a confirmation notice is whether…

For direct discrimination, a statutory comparator must be in circumstances which are not materially different from those of the claimant. Whether a difference…

An Employment Tribunal considering a disabled party’s request to record proceedings must make reasonable adjustments where needed to alleviate a substantial…

An Employment Tribunal must assess a proposed amendment by reference to the practical reality of the pleaded case and evidence, rather than assumptions about…

An Employment Tribunal determining disability must reach discernible conclusions on impairment and adverse effect, including whether the effect is substantial…

For the material-factor defence in an equal-pay claim, a continuing contractual requirement may remain a genuine material factor even if a comparator has not…

Section 1(1) of the Sexual Offences (Amendment) Act 1992 protects an allegation made in the context of potential criminal proceedings, where a charge may…

An Employment Tribunal may determine potentially decisive issues at a preliminary hearing, including strike-out and limitation issues. It must, however…

When deciding an application to amend an Employment Tribunal claim, the Tribunal must consider the original claim form and subsequent material fairly. It must…

An employer seeking to justify indirect discrimination must establish, through a critical and thorough assessment, that the provision, criterion or practice is…

An Employment Tribunal must determine the claims a party has put before it. Its duty to assist an unrepresented litigant does not require it to identify and…

For indirect discrimination under section 19 of the Equality Act 2010, it is the particular PCP that must be justified. A tribunal cannot justify a…

A transfer under Transfer of Undertakings (Protection of Employment) Regulations 2006 does not transfer liability for an employee’s pre-transfer constructive…

A fair capability dismissal normally requires the employer to identify the deficient aspects of performance, explain the improvement required, provide…

In assessing the fairness of dismissal for misconduct under section 98(4) of the Employment Rights Act 1996, the tribunal must decide whether dismissal was…

An employer’s duty to make reasonable adjustments depends on actual or constructive knowledge of the particular substantial disadvantage caused by the relevant…

Under section 123 of the Equality Act 2010, the Employment Tribunal has a broad discretion to select such period for bringing discrimination proceedings as it…

In a redundancy dismissal, fairness under section 98(4) requires the employer to consider whether suitable alternative employment can avoid dismissal. The…

The statutory duty to make reasonable adjustments is the duty of the respondent on whom it is imposed. A tribunal cannot find that the duty has been met by an…

Section 23(6) of the Mental Health Act 1983, which prevents an NHS foundation trust from authorising its employees or executive directors to exercise discharge…

An external job applicant is not, without more, in an analogous situation to an existing worker for the purposes of Article 14 read with Article 10 of the…

An Employment Appeal Tribunal appeal is not properly instituted under rule 3(1) of the Employment Appeal Tribunal Rules 1993 unless the required documents are…

Under rule 38(2) of the Employment Tribunal Rules of Procedure 2013, relief from an automatic dismissal depends on the interests of justice. The tribunal has a…

For the purposes of section 111(2) of the Employment Rights Act 1996, a tribunal assessing whether it was reasonably practicable to present an unfair-dismissal…

An appeal from an Employment Appeal Tribunal Registrar’s refusal to extend time requires the Judge to exercise the extension discretion afresh. An appellant…