News and Events

Recent EAT decisions...

  • Posted

The following decisions have been placed on the EAT website recently. The transcripts can be downloaded from

Readers will already have received details of last week's decision in Midland Bank v Madden (reversing Haddon v van den Burgh Foods).

Driskel v Peninsula Business Services [17.12.99, Holland J.]: Mrs Driskel complained of sexual harassment against her employer, Peninsula Business Services. The employment tribunal identified 58 discrete incidents, none of which it found to be major or discriminatory. The EAT emphasised the importance of looking at the case as a whole, and not splitting the case into a series of individual incidents. It substituted a finding of sexual discrimination. This decision is well-worth reading, containing detailed guidance of the proper approach in harassment claims (indeed, it may become the 'new' case to quote in preference to King v Great Britain China Centre).

Heinz v Kenrick [3.12.99, Lindsay J.]: A dismissal found to be discriminatory under the DDA 1995 is not 'automatically' unfair - tribunals must still consider the test set out in ERA 1996, s98. More importantly, this case contains an excellent analysis of many authorities to date on disability discrimination. Again, this is another case worth reading.

Amec Processes v Gratton [19.1.2000, Lord Johnston]: A redundancy dismissal was held to be unfair because the employers did not consider alternative employment and did not allow a right of appeal. The employment tribunal made no deduction to reflect the percentage chance that dismissal would have been inevitable, making a finding of fact that the employee would not have been dismissed due to the size of the employer's organisation. The EAT held this was an error of law. When deciding that an employee would probably not have been dismissed if the procedure had been fair, it is incumbent on a tribunal to identify the job that the employee would have been offered.

Embleton v Rapid Fire Services [10.1.2000, Lord Couldsfield]: It was not an error of law for the employment tribunal to award loss of earnings in an unfair dismissal claim to the date of the hearing but not beyond. The tribunal was entitled to take the view that the Applicant should have found a job by the date of the hearing when the evidence demonstrated that although he had made plenty of applications for employment, they were all for high-powered jobs which his previous qualifications and experience did not render him fit for.

Jones v Dunlop [17.1.2000, Lord Johnston]: The issue was whether the unfair dismissal claim was presented prematurely, i.e. before the dismissal. The employee had stopped paying wages for some time prior to 28 May 1998, the date the IT1 was presented: however, there had been no formal dismissal. The employment tribunal held that presentation of the IT1 amounted to an implied resignation, thus the tribunal had jurisdiction to hear the unfair dismissal claim. The EAT reversed this, relying on a letter dated 20th July 1998 (7 weeks after the IT1 was presented) from the employee's trade union representative, written in terms suggesting the employment was still continuing. Since this express assertion was inconsistent with an implied resignation by the Applicant on 28th May, the resignation could not be implied and the claim had been presented prematurely.

Law Hospital NHS Trust v Rush [21.1.2000, Lord Johnston]: Confirming decision of EAT in Goodwin v The Patent Office [1999] IRLR 4, namely that in deciding whether an employee is 'disabled' within the meaning of the DDA 1995, the correct test is whether the employee can carry out her normal day-to-day activities and NOT whether she could carry out her job properly (which she may be able to do only with difficulty or with the benefit of medication).

Russell v Levi Strauss [18.1.2000, Lord Johnston]: A tribunal invited written representations from both parties due to a lack of time after hearing evidence. Neither party dealt with a compensatory award in the written submissions. The tribunal awarded a basic award only, of £900, on the basis they had no evidence on which to assess a compensatory award. The employer argued before the EAT that the employee had not taken the opportunity to argue for a compensatory award, and thus waived her entitlement to it. The EAT held that there was a difference between waiving a point, and omitting to take it in written submissions. It remitted the issue of a compensatory award back to the tribunal to hear evidence and submissions.

Brown v First Edinburgh Ltd. [15.2.2000, Lord Johnston]: An employment tribunal contained the following reasons for its decision:

"Having considered the matters and, largely for the reasons submitted on behalf of the respondents we found that there had been no unfairness and no basis for the other complaints made by the applicant. Accordingly, we dismissed the application."

The EAT held that was inadequate and failed to fulfill the tribunal's obligation to set out reasons for its decision. The case was remitted to a fresh tribunal.