Employment Appeal Tribunal judgments, 2025

A requirement that employees attend work during a pandemic may place a disabled employee with a lung condition at a particular disadvantage. The threshold for…

For state-immunity purposes, an administrative or technical employee of a diplomatic mission is not employed in the exercise of sovereign authority merely…

Where an appellant persistently breaches directions, fails to provide evidence needed to determine reasonable adjustments, and ceases to co-operate so that an…

Where an employment tribunal finds that a redundancy dismissal involved no consultation and that absence was unfair, the tribunal must uphold the…

Section 3(1) of the Human Rights Act 1998 cannot be used to reverse a clear and longstanding legislative policy that disability and age discrimination rights…

A COT3 agreement is construed objectively under ordinary contractual principles. Its terms must be read as a whole, in their relevant shared context, without…

For the collective-consultation duty in section 188 of Trade Union and Labour Relations (Consolidation) Act 1992, the decisive question is whether the…

Under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, dismissal following withdrawal is mandatory unless the claimant reserved a…

Whether conduct is unwanted, and whether it had the prohibited purpose or effect required for sexual harassment, are matters of fact to be assessed in their…

Under Rule 21 of the Employment Tribunal Rules 2013, an Employment Judge may determine an undefended claim on paper only when satisfied that it can properly be…

Whether conduct amounts to a repudiatory breach of the implied term of mutual trust and confidence is assessed objectively. The tribunal must assess the likely…

Gross misconduct must be assessed objectively. A tribunal may not treat conduct as fundamentally repudiatory simply because the employer regarded it as such…

A party affected by an application to extend time for presentation of an ET3 must receive a fair opportunity to be heard before the Employment Tribunal finally…

Under Part XII of the Employment Rights Act 1996, recovery from the Secretary of State of a basic award for unfair dismissal requires an employment tribunal to…

An appellate court may refuse to permit a new point of law even where the point is correct, requires no further evidence, and could be corrected without…

An oral employment-related agreement may be enforceable despite not satisfying the formal requirements for a statutory settlement agreement. However, the…

In assessing compensation for unfair dismissal, a tribunal may make a Polkey reduction only on an evidentially grounded prediction that the actual employer…

Where an application for anonymisation under Rule 50 raises an arguable interference with Article 8 rights, an Employment Tribunal must conduct the required…

For the purpose of the primary limitation period for discrimination claims, a complaint about a discrete communication is not rendered continuing merely…

A deficient grievance process may support a constructive-dismissal claim, but only where the employer’s conduct amounts to a repudiatory breach, including of…

For the material-factor defence under Equality Act 2010, a claimant need show that the factor puts women, and the claimant herself, at a particular…

The power to extend time for an Employment Appeal Tribunal appeal is discretionary and must be exercised afresh on the facts of the individual case. Earlier…

A refusal of an application which would improve an employee’s position may be unfavourable treatment under section 15 of the Equality Act 2010. The tribunal…

An Employment Tribunal must give effect to a binding determination made by the Employment Appeal Tribunal on an earlier appeal in the same proceedings. It…

In determining the employer in an agency or umbrella-company arrangement, the tribunal must make a sufficiently wide-ranging inquiry into what the parties…

An appeal cannot succeed where the tribunal’s unchallenged alternative finding independently disposes of the claims. Arguments directed only to abuse of…

An Employment Tribunal need not determine an unargued case that express contractual terms were altered by implication through custom, practice or conduct. This…

A restriction of proceedings order under Employment Tribunals Act 1996, section 33, may be made where a person has habitually and persistently instituted…

A permanent restricted reporting and anonymisation order is a case-management order. It may generally be varied or set aside only where there has been a…

When deciding an uplift under section 207A, a tribunal must assess its earlier findings against the relevant requirements of the ACAS Code. A general…

The date of a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 is the date on which responsibility as employer…

In assessing fairness under section 98(4) of the Employment Rights Act 1996, long and previously unblemished service may be a relevant mitigating factor. Its…

Under Employment Tribunals Rules of Procedure 2013, rule 12(1)(b), tribunal staff must refer a claim form to an Employment Judge where it cannot sensibly be…

A rolled-up holiday-pay arrangement is unlawful under Article 7 of Directive 93/104. Payments made under it may nevertheless be set off against holiday pay due…

The 40-hour cap in Annex F for part-time police Inspectors must be applied on an annualised basis. Part-time Inspectors must be paid for hours actually worked…

In an unfair-dismissal claim, an Employment Tribunal must address a distinct and material contention bearing on the fairness of the dismissal. Its assessment…

Where fresh evidence undermines a central premise of an Employment Tribunal’s assessment of credibility, the tribunal must consider whether its liability…

A direct-discrimination claim under Equality Act 2010, section 13(1), requires the claimant to show treatment less favourable than that given, or that which…

An Employment Tribunal may determine the provenance and receipt of a dismissal email from circumstantial documentary evidence. Oral testimony is not invariably…

In a capability dismissal, warnings and an opportunity to improve are normally important elements of fairness. They are not, however, absolute legal…

A wasted costs order requires more than deficient professional service or the pursuit of an ultimately unsuccessful claim. The tribunal must apply the…

For costs under Rule 76(1)(b), a tribunal may assess whether a claim or response had no reasonable prospect of success at a stage after proceedings began. The…

An employer who dismisses an employee immediately and pays notice monies, without a contractual payment-in-lieu-of-notice clause, commits a wrongful dismissal.…

Under section 123(1) of the Employment Rights Act 1996, an assessment of unfair-dismissal compensation must be directed to the loss caused by dismissal. A…

Apparent predetermination bias is assessed by asking whether a fair-minded and informed observer, knowing the relevant facts, would think there was a real…

Where an unrepresented applicant for post-hearing anonymity identifies a genuine ability and intention to obtain medical evidence relevant to a claimed risk of…

Permission for expert evidence under Employment Tribunal (Equal Value) Rules of Procedure 2024 r 10(1) requires the tribunal first to identify the issues in…

A statutory decision-maker is not apparently biased merely because it is supported by, co-located with, or funded through a public body on whose council a…

A tribunal may find that a service recipient contracted directly with an individual even where payment was made to that individual’s limited company, where the…

For an automatic unfair-dismissal complaint under section 103A of the Employment Rights Act 1996, a tribunal must determine whether an apparently innocent…

In assessing dismissal for conduct, fairness requires that the employee receive sufficient information to answer the actual disciplinary charges. Whether…

An employment tribunal may determine the scope of an amendment by construing the document advanced for the amendment application in its full context. Where a…

A non-party has no automatic right to obtain documents used in a hearing after it has concluded. The court or tribunal must decide whether access would advance…

A discrete discriminatory decision does not become conduct extending over a period merely because it has continuing consequences. Under section 123(3)(a) of…

An Employment Appeal Tribunal costs order remains exceptional and is not punitive. However, where an appeal ground is misconceived, or a party conducts…

An employment tribunal will usually be entitled to determine a case by reference to an agreed list of issues. It has no general duty to invite a represented…

Whether a proposed redeployment, trial placement or training is a reasonable adjustment is an objective question for the employment tribunal on the evidence…

An employment tribunal must determine claims which emerge objectively from the parties’ pleadings and remain pursued. Its role is nevertheless arbitral, not…

An Employment Tribunal deciding whether to strike out an equal-value claim by reference to a job evaluation study must identify the statutory or procedural…

An employee claiming wages for a period in which no work was performed bears the burden of showing that they were ready, willing and able to work. That burden…

Where an appeal is lodged in time but required documents are omitted through an honest mistake, an extension of time may be just. The discretion under rule 37…

For the purposes of section 109 of the Equality Act 2010, whether an alleged harasser acted in the course of employment is a broad, fact-sensitive question.…

Whether a disclosure is qualifying depends on the worker’s reasonable belief, assessed in its factual context. An employment tribunal may find that a belief in…

A whistleblowing detriment claim under section 47B of the Employment Rights Act 1996 may concern post-termination conduct where the claimant is a former…

An employee does not cease to have contractual rights to work and remuneration merely because they are appointed a statutory director. Where an employment…

The Henderson v Henderson principle may apply to matters arising after a first claim was issued but sufficiently before its final hearing for an amendment…

In a conduct-dismissal case, the reasonableness of an employer’s investigation must be assessed as a whole. The employer must consider defences advanced by the…

On an application to amend an employment claim, the tribunal must assess the amendment’s practical substance, rather than apply rigid formal categories. It…

An Employment Tribunal commits an error of law where it makes a crucial factual finding that contradicts unchallenged direct evidence and lacks an evidential…

A tribunal must identify claims by an objective and practical reading of the pleadings. A claim may encompass a closely related statutory route where it arises…

For a service provision change under Transfer of Undertakings (Protection of Employment) Regulations 2006, an organised grouping must be organised by reference…

Parties may agree, before a contract of employment terminates, to extend a notice period or defer the effect of a resignation. Where conduct on the final day…

At a Stage 2 equal-value hearing, work means what the employer requires in practice, read with what the individual jobholder actually does. Detailed training…

Non-binding governmental guidance does not instruct, cause, induce or knowingly help an employer’s indirect discrimination merely because employers may follow…

A respondent barred from contesting liability for failure to present a response has no absolute right to participate in remedy. However, it will generally be…

A contractual commission provision must be construed according to its natural and ordinary meaning, in its commercial context. Where commission is payable on…

An Employment Tribunal must distinguish between determining a limitation issue substantively and striking out a complaint because it has no reasonable prospect…

Equality Act 2010, section 136 requires a claimant first to prove facts from which discrimination could be inferred. Poor or detrimental treatment alone does…

An employment tribunal commits an error of law where, following an unreasonable delay in promulgation, its reasons fail to resolve material pleaded…

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

For direct discrimination, the material circumstances of an actual comparator depend on the particular treatment alleged. A tribunal may find that differences…

Apparent bias requires a real possibility of bias in the eyes of the fair-minded and informed observer. The inquiry is fact-sensitive and must rest on…

Where the respondent named in an ET1 differs from the prospective respondent named in the early-conciliation certificate, rule 12(2A) requires the…

For the purposes of section 48(3)(a) of the Employment Rights Act 1996, out-of-time whistleblowing detriments must form a series of similar acts or failures…

In a constructive-dismissal claim based on a cumulative breach of the implied term of trust and confidence, the alleged final act need not itself be…

A case-management order for particulars about drivers’ work for other businesses must be proportionate to the legitimate case-management benefit. Although the…

Where a person has made an allegation to the police of a sexual offence within section 1(1) of the Sexual Offences (Amendment) Act 1992, the statutory…

For harassment under Equality Act 2010, the unwanted conduct itself must be related to the protected characteristic. That connection is broader than conduct…

An unfettered contractual right to substitute another person is incompatible with limb (b) worker status only if it is a genuine part of the parties’…

An uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 depends on an unreasonable failure to comply with the relevant…

Where a party has conducted proceedings scandalously, vexatiously or unreasonably, strike-out is not automatic. Unless the conduct is so extreme that the party…

Where an employer dismisses an employee because ill health prevents performance of the role, an assessment entitling the employee to ill-health retirement is…

In a direct discrimination claim, the claimant must identify the actual or hypothetical comparator relied upon in the pleaded case. A tribunal is not required…

When deciding whether to amend a timely employment claim to add a respondent, an Employment Tribunal must conduct a balancing exercise. It must consider all…

Under section 207B(3) of the Employment Rights Act 1996, early conciliation stops the limitation clock only for days which would otherwise count towards the…

Under section 20 of the Equality Act 2010, a proposed adjustment or auxiliary aid need not guarantee success. It must, however, have at least a real prospect…

For disability under section 6 of the Equality Act 2010, a substantial adverse effect on one normal day-to-day activity is sufficient. A tribunal must focus on…

An Employment Tribunal will ordinarily determine liability and remedy at the same final hearing unless it orders separate hearings. It may split those issues…

Where permission to amend has already been granted, an employment tribunal must decide any limitation issue under the distinct statutory question in section…

An appellate tribunal should read Employment Tribunal reasons fairly and as a whole. It should not interfere merely because a party identifies individual…

Where an employment tribunal has statutory cause-of-action jurisdiction and the requisite territorial connection with Great Britain, the applicable employment…

A local authority may discharge its duty to meet an adult’s care and support needs by making direct payments under Care Act 2014. That statutory method does…

In a victimisation claim, an employment tribunal must assess all relevant evidence when deciding whether a protected act was a substantial and effective cause…

A tribunal considering strike-out for non-compliance with a case-management order must exercise its discretion in accordance with the overriding objective.…

An Employment Appeal Tribunal appeal lodged within time but lacking required documents is materially different from an appeal lodged after the time limit. The…

In a recruitment discrimination claim, the comparative exercise must reflect the identified treatment and the employer’s actual decision-making process. Where…

An Employment Tribunal has a discretion, but no duty, to consider ability to pay when deciding whether to make a costs order and when setting its amount under…

A controlling shareholder may also be an employee of the company. Control of the company does not by itself prevent a contract of employment, and will…

In national-security employment proceedings, a tribunal considering whether to require a gist must conduct a fact-sensitive balance between the claimant’s…

A consultancy remuneration clause which provides for a percentage of fees billed, paid and received must be interpreted in its contractual and commercial…

Legal advice privilege is not displaced by the iniquity exception merely because privileged communications reveal that dismissal was likely, or because a…

In a direct disability-discrimination claim, the comparator must share the claimant’s material attendance and performance circumstances, save for disability.…

A claimant alleging disability must establish, on objective evidence, both a physical or mental impairment and its required adverse effect. A tribunal need not…

Where a trade-union member has taken all reasonable steps to use the union’s internal complaints procedure, section 108B(1) of the Trade Union and Labour…

Where an unchallenged local job-evaluation scheme is said to have produced unreliable individual evaluations, findings affecting some posts do not require an…

An employment tribunal considering permanent anonymisation under rule 50 must first decide whether a derogation from open justice is necessary under the common…

A whole-claim strike-out for unreasonable, scandalous or vexatious conduct requires more than an unsuccessful or unfounded application. The tribunal must…

A contract worker cannot use section 41 of the Equality Act 2010 to complain to a principal about the rate of pay arising under the worker’s contract with the…

A reconsideration application based on fresh evidence may be refused at the preliminary stage where there is no reasonable prospect that the original decision…

Where an employee has received an enhanced redundancy payment, it is not a loss for the purposes of a compensatory award for unfair dismissal. A tribunal must…

Whether statutory employment rights extend to work with foreign elements depends on the employment relationship’s connection with Great Britain and British…

An external provider conducting a grievance or disciplinary procedure may, in an employment relationship, be the employer’s agent while carrying out that…

For regulation 5(2)(a) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, less favourable treatment must, unless a higher…

A detriment for whistleblowing is assessed by asking whether the worker’s subjective perception of disadvantage is one that a reasonable worker in that…

An Employment Tribunal must read a litigant in person’s claim form with appropriate latitude, while retaining the claim form and response as the documents that…

A contract requiring a driver to work five shifts of variable length, with weekly hours described as intended averages, does not without more create an…

An Employment Tribunal considering an amendment must balance the injustice and hardship of allowing it against those of refusing it, having regard to all the…

An Employment Tribunal considering costs must apply the same statutory test to discrimination claims as to other claims. It must first decide whether a…

Where a complaint under section 15 of the Equality Act 2010 identifies conduct as the matter arising from disability, a tribunal must determine that pleaded…

Whether an employee has been dismissed or has resigned on agreed terms depends on the proper contextual reading of the parties’ communications. An employer’s…

For the purposes of rule 76(1)(a), unreasonable conduct need not occur in the hearing room or in legal correspondence to amount to conduct of tribunal…

On an application to strike out a complaint as having no reasonable prospect of success, an employment tribunal must first assess the pleaded case. If material…

An appellate tribunal will permit a new point of law only in exceptional circumstances. The absence of a need for further evidence is relevant but not…

Where an application to add an Employment Tribunal complaint is made while a freestanding claim would still be in time, that fact carries considerable weight…

Under Equality Act 2010 section 15, the tribunal must identify the relevant “something”, determine objectively whether it arose in consequence of disability…

An appeal must challenge identified determinations in the judgment below. In an equal-value case, an appeal from a stage 2 hearing must identify the particular…

Whether discriminatory conduct occurred in the course of employment is a fact-sensitive question for the employment tribunal. The tribunal must apply the…

An employee who resigns in response to a repudiatory breach may give notice without, by that fact alone, affirming the contract. Whether conduct during an…

An employment tribunal has power under its general case-management power to order a party to provide information or answer questions. The same broad principles…

A contractual entitlement to time off in lieu for bank-holiday work is not itself wages for an unauthorised-deduction claim. A claim concerning untaken…

For harassment related to disability, the tribunal must assess the claimant’s perception, all the circumstances, and whether it was reasonable for the conduct…

Under rule 50, a party seeking anonymity need not prove objectively that feared future harm will occur. The question is whether there is a reasonable…

An Employment Tribunal considering strike-out must adopt a two-stage exercise. It must first decide whether conduct falling within the applicable strike-out…

A claim before an Employment Tribunal comes to an end when it is withdrawn under Employment Tribunals Rules of Procedure 2013, Rule 51. The Tribunal must not…

A discrimination claim should be struck out for having no reasonable prospect of success only in clear cases. A tribunal must first identify the case actually…

An Employment Tribunal must not gross up the whole of an injury-to-feelings award for tax where the award may cover both pre-dismissal discrimination and…

A person claiming statutory worker status under section 230(3)(b) of the Employment Rights Act 1996 or regulation 2 of the Working Time Regulations 1998 must…

An Employment Tribunal must determine disability by making clear findings on the asserted adverse effects of an impairment, whether their cumulative effect is…

An allegation can be a protected act under section 27 of the Equality Act 2010 without using the words “race”, “discrimination” or referring expressly to the…

An amendment is a re-labelling, rather than a new complaint, where a fair construction of the ET1 already alleges facts and a causal connection capable of…

Compensation for discrimination must place the claimant in the position they would have occupied absent the unlawful conduct. Where a tribunal considers a…

An employment tribunal need not expressly cite Equality Act 2010, section 136, or recite the Igen guidance, provided that its reasons show that it has…

A limited right to provide a substitute only when the individual is unable to work will ordinarily support, rather than defeat, an obligation of personal…

On an application for expert evidence in equal-value proceedings, the tribunal must apply the test in Employment Tribunals (Equal Value) Rules of Procedure…

For the purposes of Equality Act 2010, the test that a substantial adverse effect is likely to recur sets a low threshold. “Likely” means that the effect could…

Judicial notice of the childcare disparity does not itself establish group disadvantage in an indirect sex discrimination claim. The Employment Tribunal must…

An employment tribunal’s discretion to extend time for a discrimination complaint under section 123 of the Equality Act 2010 is wide, but exceptional. The…

An unless order must be construed objectively. The question at the compliance stage is what the order required, what the party did, and whether those acts…

For a contract to be implied between parties, it must be necessary to explain their relationship. Where a worker’s dealings with a third party are fully…

A prolonged absence from work without the employer’s authorisation may constitute gross misconduct, particularly where the employee continues to be absent…

The Employment Appeal Tribunal recorded that appeals against a dismissal notice, a Rule 38(2) judgment and a reconsideration decision were allowed by consent.…

Where an employer’s conduct amounts to dismissal because the decision-maker genuinely but mistakenly believed that the employee had resigned, that belief is…

In a conduct-dismissal case, the tribunal must apply the Burchell inquiry and decide whether the employer had a genuine belief in misconduct, reasonable…

An Employment Tribunal's reasons are sufficient if they enable the parties, in broad terms, to understand why they won or lost. They must be read fairly and as…

At the stage 2 hearing under the Employment Tribunals (Equal Value) Rules of Procedure 2013, the starting point for identifying an employee’s work is what the…

An employment tribunal must assess, without hindsight, whether a discrimination claimant should reasonably have appreciated before trial that the claim had no…

In assessing compensation for discrimination, an Employment Tribunal must address the losses flowing from each act of discrimination it has upheld. It must…

A transfer of Employment Tribunal proceedings resulting from active judicial intervention is a case management decision. If made without a hearing, the written…

Where a claimant explains that a confused procedural history caused a reasonable belief that a further claim was unnecessary or premature, the tribunal must…

An award for injury to feelings must compensate the injury actually suffered. The manner of discriminatory treatment may assist a tribunal to infer the likely…

Payments promised under an employer’s permanent health insurance scheme may be wages where the contractual documents create a direct employer obligation to pay…

An employment tribunal may make an unless order under rule 38 in relation to a costs application. A costs application may be a part of a claim or response for…

Failure to obtain an early conciliation certificate before presenting a claim does not, where the omission is discovered after the claim has not been rejected…

An Employment Tribunal must exercise particular care before treating an unrepresented claimant as having withdrawn a claim at a private preliminary hearing. A…

An employment tribunal should not determine a disputed, fact-sensitive issue about the identity of an employer without witness evidence merely because a…

Where a tribunal finds that discriminatory treatment affected the process by which an employee was considered for an alternative role and dismissed, it must…

An Employment Appeal Tribunal appeal must identify a reasonably arguable error of law in the decision under challenge. It cannot reopen an underlying merits…

Where an employment tribunal may make an order under section 113 of the ERA, it must first consider reinstatement and, if it declines that remedy, must then…

An appeal concerning a component of a holiday-pay calculation is premature where the Employment Tribunal has selected a multiplier but has not determined the…

Under section 116(3)(c) of the Employment Rights Act 1996, an Employment Tribunal must take established contributory conduct into account when deciding whether…

In an ordinary unfair-dismissal claim, an Employment Tribunal must assess whether the employer’s investigation, disciplinary decision and appeal process fell…

An Employment Tribunal determining an amendment application must consider all the circumstances and balance the injustice or hardship of allowing it against…

In a conduct dismissal case, an Employment Tribunal is not generally required to identify and decide every possible procedural defect that the parties have not…