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Discrimination Arising from Disability

Sat, 21 Mar 2026 16:24:40 GMT

In an Employment Tribunal case of Hussain v Armstrong Watson LLP , the tribunal ruled that the Claimant’s case for unlawful disability-related discrimination under section 15 of the Equality Act 2010 was successful. It found that he was subjected to unfavourable treatment due to his epilepsy, which impacted his memory, concentration, and processing ability.

It’s important to grasp that discrimination arising from disability, contrary to section 15 of the 2010 Act is not the same as direct discrimination, contrary to section 13 of the same Act. The latter is based on the concept of treating the complainant less favourably because of the protected characteristic in question, whilst the former is based on treating the complainant unfavourably because of something arising in consequence of the complainant's disability and, having done this, the respondent cannot show that the said unfavourable treatment was a proportionate means of achieving a legitimate aim .See Days Four and Five of Discrimination in Employment Law in 7 Days .

In the case of Hussain , the Claimant was employed as a Tax Compliance Assistant by the Respondent for less than two months, from July to September 2023. He disclosed his condition, temporal lobe epilepsy, which caused frequent focal seizures that affected his ability to process information and complete tasks efficiently. Despite providing detailed reports about his condition and requesting reasonable adjustments, including extra time to complete tax returns, the tribunal found that the Respondent failed to accommodate his needs adequately.

The Respondent repeatedly questioned the Claimant’s performance, particularly the time he spent on tax returns and his inability to meet the firm’s 80% utilization target. Concerns about his efficiency were raised during multiple meetings, culminating in a probationary review meeting scheduled for 28 September 2023. A letter sent to the Claimant ahead of the meeting stated that dismissal was a possible outcome due to performance concerns but failed to mention that his request for reasonable adjustments would be discussed. Feeling unsupported and fearing imminent termination, the Claimant resigned on 27 September 2023.

The tribunal concluded that the Respondent’s actions were not a proportionate means of achieving its legitimate business aim of ensuring efficient and profitable operations. While the company had a legitimate interest in ensuring timely and cost-effective work, it failed to balance this with its legal obligation to accommodate the Claimant’s disability. The tribunal ruled that the the Respondent’s treatment of the Claimant amounted to unlawful discrimination arising from his disability.

For completion, I should state that the Claimant had raised specific complaints on the same issues under a failure to make reasonable adjustments. However, in this respect, the tribunal recorded, “In light of the findings in respect of the section 15 claim, the Tribunal considers that it is neither necessary nor proportionate to reach a decision on the claimant’s complaint of a failure to comply with the section 20/21 duty to make reasonable adjustments. That complaint relates to exactly the same matters as the section 15 complaint and is an alternative way of asserting that the respondent acted unlawfully in regard to those matters. The Employment Appeal Tribunal commented in Carranza v General Dynamics Information Technology Ltd [2015] ICR 169 that cases brought as reasonable adjustments complaints are sometimes better analysed using section 15. This is such a complaint and is better expressed and dealt with under section 15, and to make findings under section 20/21 would add nothing in terms of outcome and possible remedy and would be a disproportionate use of the Tribunal’s time.”

Finally, therefore, whether one is in a probationary period or not, which generally means there would often be a term in many contacts of employment that employers can dismiss employees, during the latter’s probationary period without following their disciplinary process and procedures, as there is no qualifying period, during which one can be lawfully discriminated against, employers must be vigilant not to discriminate against employees at any stage of their employment whether during or post-probationary.

Disciplinary and Discrimination

Sun, 15 Feb 2026 13:29:05 GMT

S. Moody v LB of Southwark

On Days Two and Three of my book, ‘ Discrimination in Employment Law in 7 Days ,’ I describe the protected characteristics, and on Days Four and Five, I describe prohibited conducts. It is important to note that a discriminator treating their victim unconsciously less favourable is just as culpable as one doing the same consciously.

Very rarely would I write about a decision of the Employment Tribunal (‘ET’) because its decision is not binding on any other tribunal or court. However, occasionally, the facts and conclusion – rather than the law itself – of a case at that level make it interesting enough to warrant a departure. The case of Moody v LB of Southwark is one such exception. It caught my attention because of its focus on how subjective complaints about a Black employee’s "demeanour" and "facial expressions" can be used as a vehicle for unconscious—or conscious—racial bias. I am aware that diversity, equity, and inclusion (DEI) training is not supported by some, even with good intentions, but this might be a case for its adoption.

In the case of Moody, an ET found that Ms. Moody, a higher-level teaching assistant (HLTA), had been unfairly dismissal; directly discriminated because of race; and racially harassed, during her employment at a local primary school. The judgment runs to some 525 paragraphs and 86 pages. Therefore, no genuine attempt of succinctness could do it fair justice.

Ms. Moody began her employment with the respondent (‘the School’) in 2013 and promoted to an HLTA in September 2019, a position she held until her dismissal in December 2023. Throughout her tenure, she was generally regarded as a dedicated professional. However, her relationship with the School’s management deteriorated, following a series of complaints regarding her "tone" and "facial expressions." Specifically, Ms. Moody was accused of having an "angry face" and being "intimidating" toward pupils and colleagues. These complaints led to a disciplinary process that eventually culminated in her dismissal for alleged gross misconduct. In consequence, Ms. Moody presented complaints in the ET of, amongst others, unfair dismissal, direct race discrimination and harassment related to race.

Regarding the complaints of direct discrimination and harassment, the ET found that the School’s complaints about Ms. Moody’s "angry face" were not based on objective evidence of misconduct but were instead influenced by negative racial stereotypes. The judgment highlighted that the complaints regarding her tone and expression were "vague" (…”I find the comment to be somewhat vague. I do not find it contains any express criticism of [Ms. Moody’s] conduct”…) and, "exaggerated," (“It is evident that there is a consistent theme to the allegations made against the claimant regarding her interaction with children, which some children report makes them feel scared or even vary scared, that she’s angry and always shouting. There was one incident of a child being found to have lied or at least exaggerated when complaining about the claimant following an investigation by Mr Newman. However, aside from [Ms. G’s] questioning of Child O, there is limited evidence that the children’s accounts were probed or tested when they complained about feeling scared. In fact, [Ms. N] acknowledged she did not do so, and that she accepted the complaints at face value.”

Regarding, the "Angry Black Woman" trope, the ET recognised that the description of Ms. Moody as "intimidating" or "angry" reflected a common racial stereotype used against Black women (…“misattributing anger to black people reinforces a stereotype of the “angry black woman.”…) Also, “[Ms. A-C] written and oral evidence display a lack of insight around unconscious racial bias. When [Ms. Moody] initially objects to the comments, [Ms. A-C] focuses only on the advice regarding [Ms. Moody]’s “body language”. Nonetheless, I find [Ms. Moody] was justified in perceiving these comments, particularly advising [her] to have “soft facial” features as indicative of negative racial stereotyping, more specifically racial anger bias where one more readily misattributes anger to a black person compared to a white person. This comment seems to reflect the trope of [Ms. Moody] as an “angry black woman” to use [Ms. Moody]’s words.”

Furthermore, the ET noted, “I consider there is evidence from which it can be inferred that this was related to race. The respondent had not interviewed an entire class before based on complaints that one or two children in the class had made, yet it decided to do so in this case based on Child O’s allegations Child O’s allegations lacked credibility, which tends to further support the view that the respondent was seeking to obtain evidence of additional complaints to strengthen the case against [Ms. Moody]. This could also be seen as subjecting the claimant to a higher level of scrutiny and being more robust when investigating complaints about her compared to investigating complaints about others.” This disparity in treatment was a key factor in the finding of direct race discrimination.

Regarding, the complaint of unfair dismissal, the ET found that the dismissal was substantively and procedurally unfair. It determined that the investigation into the allegations was flawed and that the decision to dismiss was a disproportionate response to the behaviours described, especially given Ms. Moody's long service and prior record. It stated, “The respondent states the reason or principal reason [Ms. Moody] is dismissed was because [her], “continued allegation of discrimination suggests that the breakdown in relationships is irreconcilable.” In other words, it had lost trust and confidence in [her], which constituted some other substantial reason that justified her dismissal because she had alleged the respondent’s management team was racist, and despite the respondent explaining to her that it had applied its procedures fairly and consistently, she was not prepared to withdraw the remark. And in some circumstances, dismissing an employee who makes a vexatious and malicious allegation of racism could lead to a loss of trust and confidence. However, despite the investigation report suggesting the allegations may be malicious, the respondent’s disciplinary panel makes no express finding that [Ms. Moody’] complaint of racism is malicious or vexatious. Therefore, I conclude it is dismissing her because it considers she has made an ill-founded allegation which she is not prepared to withdraw. I find that a reasonable employer in the respondent’s position would not find that justified dismissal. That is because the respondent’s approach could discourage employees with justifiable grounds for claiming discrimination, from complaining, which would undermine their legal protection .” [ Emphasis Added ]

Employers and HR professionals must be alive to the dangers of subjective performance management. See also my article, ‘ PIP .” They should or must scrutinise subjective feedback. In my opinion, comments such as, "fit," "tone," or "facial expressions," should be treated with extreme caution. Employers must ask whether such feedback is rooted in objective performance standards or personal (and potentially biased) perception. Regarding the role of unconscious bias, it can manifest through the lens of demeanour and perceived personality traits. If employers discipline some employees on grounds of behaviour, but ignore similar behaviour in comparators, they are at high risk of a successful discrimination claim.

Clearly, training for leadership and management require to be specifically focused on identifying and neutralising racial acts, behaviour, conduct, decisions etc. in disciplinary and grievance procedures. Employers must look beyond their own perceptions and ensure that every disciplinary action is grounded in objective, non-discriminatory facts.

Performance Improvement Plan

Sat, 17 Jan 2026 21:43:18 GMT

Slow and Steady wins the Race ? Ryan Clement

One would think that the three words, ‘Performance Improvement Plan,’ in isolation and without context would be welcomed by most employees. After all, who doesn’t want to improve? For example, being reflective is primarily based on the concept of improving and making what was good even better.

However, in practice, it would be fair to say that an employee is rarely put on a PIP to prepare and equip them for promotion. In other words, it is not often heard that the purpose of placing one on a PIP is that the employee is performing competently at the expected level and it is to get them to the next level up. No. One is invariably put on a PIP because they are said not to be performing competently at the required or expected level demanded by their employer. Unlike with a misconduct, leading to a disciplinary and a sanction (oral or written warning or, worse, dismissal), being placed on a PIP is generally a matter of an employee’s capability.

Under the Employment Rights Act 1996, in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show that the reason for the dismissal is, in addition to some other substantial reason of a kind such as to justify the dismissal, one that relates either to the employee’s capability or the conduct. However, dealing with a capability or conduct matter is not necessarily handled in the same way. In some circumstances a conduct matter could lead to a summary dismissal, whereas regarding capability good practice is to give an employee a reasonable time to improve with clear SMART (Specific, Measurable, Achievable, Realistic, and Timely) objectives or goals within the parameters of the role they were employed to undertake. So, what is the position where an employee is put on a PIP and is dismissed for the reasons they were placed on the PIP before the time stipulated for their performance to be reviewed under or pursuant to the PIP? After all, they may not have improved sufficiently by the mid-point but may do so by the end. ‘Slow and steady wins the race,’ springs mind!

In P. Sabourin v. BT Group Plc [2025] EAT 171 , the Claimant began employment with the Respondent in 2009 and became project manager in the Data Compliance and Assurance (DCA) team in November 2021, reporting to Mr. C, Senior Manager of Data Projects, who in turn reported to Mr. D, BT Director for DCA. From early 2022, Mr. C raised concerns about the Claimant’s performance, initially addressed through coaching. A formal performance review commenced in August 2022, with expectations clearly outlined. On 18 October 2022, an informal PIP was agreed, identifying nine areas for improvement. Despite weekly reviews, Mr. C observed no progress. Consequently, a formal meeting on 23 November 2022 reduced the goals to seven, and the Claimant received a first written warning, confirmed by letter on 25 November 2022. The Claimant did not appeal.

A further formal review of the PIP took place on 5 January 2023, with the Claimant represented. Mr. C systematically reviewed each goal, identified ongoing concerns, and issued a final written warning, concluding that progress was insufficient to end the PIP. The final warning letter was issued on 9 January 2023 and advised that a decision meeting was to be held on 20 January 2023, giving the Claimant 10 working days to provide evidence of his improved performance. This was despite the Respondent’s policy stating, amongst other things, ‘usual monitoring is 4 weeks, may differ depending on role/circumstance.’

In a subsequent meeting between the Claimant and Mr. D (a more senior manager Mr. C), during which the Claimant was represented, the Claimant was informed of the decision to dismiss him in a letter dated 26 January 2023. The Claimant was in fact given notice and placed on garden leave, which ended on 1 May 2023.

The Claimant presented a complaint of unfair dismissal unsuccessfully. The Claimant contended that, the dismissing officer, Mr. D, had not considered his record of performance in that further two-week period at all, but had relied upon the same record of performance that had already resulted in a final written warning. The Employment Tribunal did not accept that the two-week period was so short that it did not allow a fair opportunity for further improvement. The Claimant appealed to the Employment Appeal Tribunal (‘EAT’). Allowing the appeal, the EAT held that the contention that Mr. D had not considered the Claimant’s record of performance in that further two-week period at all, but had relied upon the same record of performance that had already resulted in a final written warning was a material distinct argument of unfairness that the tribunal should have addressed in its decision. It erred by not doing so. In consequence, the matter was remitted to the same judge to make a finding of fact about it, and, to decide afresh, taking account of that finding alongside the existing findings, whether the dismissal was fair or unfair.

Finally, therefore, good practice would be to allow an employee a reasonable period to complete their PIP. There will be occasions when it will be apparent, hopefully to both employee and employer, that the employee’s performance will not improve by the stipulated – and hopefully agreed – timeframe in which case fair steps in the circumstances will need to be taken. On this point, I asked an HR practitioner of a multinational company for a comment: “ Where there is a huge gap in capability vs performance, it could be that the employee is so far from where they need to be that they are never going to get there (sometimes happens with a promotion), and all the PIP does is prolong the timescales, adds more stress and makes for a very unpleasant experience! ”

However, in the absence of an obvious and inevitable failure of the PIP, an employee should be afforded a reasonable time to improve and provided with reasonable assistance to do so.

J. Mayanja v. City of Bradford Metropolitan District Council [2025] EAT 160

Fri, 16 Jan 2026 20:37:10 GMT

Reconsideration based on New Evidence - Ryan Clement

On Day Seven of Discrimination in Employment in 7 days , I discuss the difference between a tribunal’s findings of fact and facts themselves. Amongst other things, I conclude that, “it would not be a good point of appeal for a party to show that the Employment Tribunal’s findings of fact are wrong in the face of evidence that was not before it at the time of making its findings. There must be some finality to proceedings. All parties know the trial date and, therefore, all parties must ensure that all relevant evidence is laid before the employment tribunal during the hearing, not afterwards.”

With the above in mind, what happens if a crucial material piece of evidence was not disclosed by either party that would, potentially, have led to the Employment Tribunal reaching a different finding of fact? In a recent appeal hearing before the Employment Appeal Tribunal (‘EAT’), J. Mayanja v. City of Bradford Metropolitan District Council [2025] EAT 160, the Claimant, who, for the purposes of the Equality Act 2010, identified as black African. He said that he had been offered and accepted a job as Refugee and New Communities Integration Officer with the Respondent (‘Council’) back in October 2021. However, the Council denied that any such offer had been made to the Claimant—just that he was the top pick in an ongoing selection process and needed to provide references. During that process, the Council felt his application included some misleading information, so they decided not to move forward. That call was made by Ms C of the Council.

In consequence, the Claimant presented complaints to the Employment Tribunal of breach of contract, direct and indirect race discrimination, victimisation, and race harassment. He was unsuccessful (‘Liability Judgment’). The following extract is taken from the EAT decision:

18. In the pleadings, in the discussion at the outset of the hearing and during his own evidence and cross examination it was the claimant’s position that he had received a voice message on the 18th of October 2021 informing him in order to progress your application of the respondent’s offer of employment which he accepted by e-mail on the 19th of October 2021 and there had been no conditions attached to the original offer.

19. The bundle of documents contains the e-mail from [Mrs. C] of the 20th of October 2021 but not any e-mail from the claimant accepting an offer on the 19th of October 2021. During the cross examination, in answer to questions from me the claimant admitted that he had sent no e-mail on the 19th of October 2021 or at all, accepting the respondents offer. The claimant had maintained in his statement dated the 30th of September 2021 which was adopted without amendment at the beginning of his evidence that such an email had been sent which was patently untrue.

20. The claimant also maintained in that statement that [Mrs C] had left an unconditional offer on the claimant’s answering service and that he had evidence of those messages. In cross examination the claimant conceded that he had no evidence of such calls, he claims the messages were erased, he had no transcripts of them. He failed to explain when he intended to disclose such messages. He then agreed that the length of the incoming calls from [Mrs C] were too short to encompass a formal offer.

21. [Mrs. C] is an experienced manager who has undergone training in the council’s recruitment and HR policies and practices and demonstrated in her evidence a thorough knowledge of them. She denies having made any offer to theclaimant on the 18th or 19th of October 2021. The council’s guidance to managers instructs them not to make offers at this stage of the process and the tribunal accepts her evidence that she did not do so. We prefer her evidence to that of the Claimant. In any event during his submissions the claimant said that he no longer relied on a contract having been made on the 18th of October 2021.

22. The tribunal also find that the inconsistent statements made by the claimant in respect of the alleged messages and emails on the 18th and 19th of October casts doubt on his credibility as a reliable witness.

As the EAT stated, “On a fair reading of the judgment as a whole it is clear that an adverse view that the Employment Tribunal formed as to the claimant’s credibility was fundamental to the rejection of all of the complaints. A key reason for that determination was the rejection of the claimant’s evidence that [Mrs. C] had offered him the job.”

After the Liability Judgment, the Council asked for costs and was awarded £2,000. The Claimant later applied for reconsideration, attaching an email from October 2021 he had found on his computer. The email seemed to show Mrs. C had offered the job, saying: “I’m pleased to say we’d like to offer you the job. Can I give you a ring in the morning to confirm that you want to take it, and discuss start date etc.” The Employment Tribunal decided this email had not been deliberately hidden (‘Reconsideration Judgment’) but, despite the contents of the email appearing to fly potentially in the face of both the Liability Judgment and the consequential costs award, which was varied and reduced to £200 as part of the Reconsideration Judgment, in light of the newly discovered email of October 2021, the Liability Judgment (credibility) itself was not reconsidered.

Accordingly, the Claimant appealed the Liability and Reconsideration Judgments. In consequence, the EAT held, amongst other things, “…the reconsideration application made it clear that the Claimant was seeking reconsideration of the Liability Judgment in addition to the costs judgment… The Employment Tribunal should at the very least have considered whether to reconsider the Liability Judgment.” The Employment Tribunal permitted the Claimant to rely upon the newly discovered email (the use of which the Respondent did not oppose to) in setting aside part of the costs judgment. “Having permitted the Claimant to rely on the new evidence it was incumbent on the Employment Tribunal to consider [his] application to rely on the new evidence to reconsider the Liability Judgment. The Employment Tribunal accepted that the new evidence demonstrated that the Claimant had not made up the suggestion that an offer of employment had been made so that the costs awarded in respect of that complaint should be revoked. The Employment Tribunal also concluded that [Mrs. C] had not deliberately concealed the email, but did not go on to consider the general assessment that it made of the credibility of the Claimant as opposed to [Mrs. C] that was fundamental to the liability decisions dismissing all of his complaints.” [Emphasis Added]

In conclusion, the Employment Tribunal erred in failing to reconsider the Liability Judgment. If necessary, in circumstances where the Claimant had applied for a reconsideration but the Employment Tribunal did not reconsider the Liability Judgment, the EAT would, in any case, have permitted the new evidence to be introduced for the purposes of the appeal against the Liability Judgment. The liability and costs judgments were set aside, and the claim was remitted to a differently constituted Employment Tribunal.

https://amzn.eu/d/7ycxQaW

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Al Sadeq v Dechert LLP and others [2024] EWCA Civ 28

Wed, 24 Sep 2025 16:18:46 GMT

This case is a good reminder that there are exceptions to Legal Professional Privilege.

Under s.190 (4) of the Legal Services Act 2007, ‘Any communication, document, material or information relating to the provision of the services in question is privileged from disclosure only if, and to the extent that, it would have been privileged from disclosure if—(a) the services had been provided by E or, if E is not a relevant lawyer, by the supervisor, and (b) at all material times the client had been the client of E or, if E is not a relevant lawyer, of the supervisor.’

Under s.190 (3) (b) of the 2007 Act, ‘the individual (“E”) through whom the body provides those services—(i) is a relevant lawyer, or (ii) acts at the direction and under the supervision of a relevant lawyer (“the supervisor”).’

Under 190 (5) of the 2007 Act, a “Relevant lawyer” means, amongst others, an individual who is—a solicitor; a barrister; a solicitor in Scotland; an advocate in Scotland; a solicitor of the Court of Judicature of Northern Ireland; and a member of the Bar of Northern Ireland.

Litigation privilege applies if the dominant purpose is related to legal advice or contemplated litigation, regardless of whether the privilege holder is a party to the litigation. The privilege also extends to communications with third parties, and the authority to conduct litigation is irrelevant to the privilege's applicability.

The Court of Appeal (‘CA’) case of Al Sadeq v Dechert LLP and others involved a Jordanian claimant who was convicted of fraud in Ras Al Khaimah (RAK) after being arrested in Dubai. He alleged that legal representatives assisting in investigating the fraud violated his rights through unlawful methods to coerce evidence against the CEO and others. The dispute centred on claims of legal professional privilege and the application of the iniquity exception in privilege law.

The claimant had challenged the defendants' claims to litigation and legal advice privilege, arguing that documents related to alleged iniquities—unlawful abduction, prison conditions, and denial of legal access—should not be privileged. The defendants applied a 'strong prima facie case' threshold, which the claimant contested.

The High Court had held, by applying, 'strong prima facie case,' test, that the relevant documents were privileged and did not fall within the iniquity exception, except in one respect concerning legal advice privilege. The claimant appealed this decision to the CA.

Documents created ‘as part of’ or ‘in furtherance of’ the iniquity are not privileged. This includes documents revealing or preparing for the iniquity, with no temporal limit. The disclosure process must be reassessed accordingly, although it is speculative if further documents will be disclosed.

Allowing the appeal, the CA held that the correct threshold for the iniquity exception is a balance of probabilities (prima facie case), not a 'strong prima facie case.' This means the iniquity must be more likely than not to exist based on available evidence. The judge had not properly evaluated the evidence supporting each alleged iniquity. Adopting the correct test, the CA held that the material had clearly established a prima facie case of the alleged iniquities.

Therefore, save in exceptional cases, the merits threshold for the iniquity exception was a balance of probabilities test: the existence of the iniquity had to be more likely than not on the material available to the decision maker, whether that was the party or legal adviser determining whether to give or withhold disclosure, or the court on any application in which the issue arose. Where there was a prima facie case of iniquity that engaged the exception, there was no privilege in documents and communications brought into existence ‘as part of ’ or ‘in furtherance of the iniquity.’

Ms Y Chen v Coach Stores Ltd [2025] EAT 108

Thu, 11 Sep 2025 20:37:35 GMT

The issue in this appeal was whether, “the Tribunal acting by a legal officer erred in rejecting a claim because the name of the respondent on the ET1 did not match the name of the employer on the early conciliation certificate.”

The claimant, employed by Coach Stores Limited ("Coach") as a sales associate from November 2022 to April 2023, alleged unfair dismissal and discrimination related to ethnic background concerns. After receiving an early conciliation certificate naming Coach as the prospective respondent, the claimant filed an ET1 claim form naming an individual HR manager, Ms. Dickinson of the Tapestry Group (Coach’s parent company), as the respondent, leading to a mismatch with the EC certificate. The claimant was unrepresented at the time and submitted detailed claims primarily referring to Coach and its management practices, without allegations against Ms. Dickinson personally.

The applicable rules were the 2024’s predecessor. Rule 12(2A) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013:

Rule 12 of the rules in force at the time, so far as relevant, provided:

“ 12 – rejection: substantive defects

(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be:

(f) one which institutes relevant proceedings and the name of the respondent on

the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates

(2A) the claim, or part of it, shall be rejected if the judge considers that the claim or part of it is of a kind described in subparagraph (e) or (f) of paragraph (1) unless the judge considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim. ”

Stiopu v Loughran [2019] clarified this rule as a "rescue provision" to prevent rejection on technical grounds and requires explicit consideration of error and justice interests by the tribunal. The Watford Employment Tribunal rejected the claim solely based on the name mismatch without addressing these considerations.

The claimant argued that the tribunal had failed to apply rule 12(2A) properly and that the claimant’s naming of Ms. Dickinson was an error given the clear focus on Coach in the claim form and details of claim. It was contended that rejecting the claim was not in the interests of justice, especially considering the claimant's unrepresented status and the lack of prejudice to the respondent. Conversely, the respondent argued that the naming of Ms. Dickinson was deliberate, not an error, and emphasised the importance of finality in litigation. It was also submitted that the claimant had researched the law and had sophisticated pleadings, thus the references to Coach did not negate the intention to sue Ms. Dickinson personally.

The Employment Appeal Tribunal (EAT) found that the rejection letter’s brevity and failure to address whether an error was made or the interests of justice considered constituted an error of law. The EAT emphasised that tribunals must explicitly consider if a naming discrepancy is an error and whether rejecting the claim is just, reflecting the statutory requirements and precedents such as Stiopuand Balcerzak v George Birchall Service Ltd [2022] .

There was indeed an error because the claim form’s focus and multiple references indicated the employer, Coach, was the intended respondent rather than Ms. Dickinson personally. The claimant’s naming of Ms. Dickinson appeared to be a misunderstanding or error, not an intentional naming of a different respondent. The claimant was unrepresented, and the principle of avoiding excessive formality in proceedings supported this interpretation.

Regarding the interests of justice, the EAT held that rejecting the claim would be unjust because:

The claimant correctly identified the employer and provided detailed particulars of the claim.
The error was minor and easily remedied.
The claimant would suffer greater prejudice than the respondent if the claim were rejected.
The case was at an early stage, so finality concerns were less compelling.

The EAT rejected the respondent’s argument that the claim should be dismissed due to finality. The appeal was allowed, the EAT set aside the tribunal’s rejection decision and substituted it with a decision that the claim should proceed.

The current rules are, ‘The Employment Tribunal Procedure Rules 2024’ and the corresponding rules are:

“ Rejection: substantive defects

13.—(1) Tribunal staff must refer a claim to the Tribunal if they consider that the claim, or part of it, may be— […] (f) one which institutes relevant proceedings and the name of the claimant on the claim form is not the same as the name of the prospective claimant on the early conciliation certificate to which the early conciliation number relates […] (4) The Tribunal must reject a claim, or part of it, if it considers that the claim, or part of it, is of a kind described in sub-paragraphs (f) or (g) of paragraph (1), unless the Tribunal considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim, or part of it. (5) If a claim, or part of it, is rejected, the Tribunal must send a copy of the claim form to each claimant together with a notice of rejection giving the Tribunal’s reasons for rejecting the claim, or part of it. The notice must contain information about how a claimant may apply for a reconsideration of the rejection."

This case underscores the necessity for tribunals to apply rules 13(1)(f) and (4) carefully by evaluating errors in naming respondents and balancing interests of justice, especially where claimants are unrepresented and the substance of claims clearly identifies the ‘true’ intended respondent.

Menopause Policy

Thu, 11 Sep 2025 19:41:53 GMT

BEFORE signing an employment contract, employees are often asked to confirm they have read and understood the organisation’s policies. Some may be contractual, and some may not. Interestingly, however, knowing the policies go both ways. Both the employer and the employee are bound by the same policies. Therefore, one is not in a more superior position to the other. There is a common misconception that the employer will always necessarily know them better than the employee or worker. That is not necessarily the case, at all, especially as many policies are not even drafted or written by the employers themselves! So, their interpretation or knowledge of all the policies contained in the Staff/Employer's Handbook may be no better than those of their own workers.

HOWEVER, this short piece is not about policies per se . But it is about Menopause Policies (covering perimenopause; menopause; and postmenopause). There is a lot of good information out there to form the basis of an organisation’s Menopause Policy. And this policy is a must! To still not have one is a grave mistake. Trust me. There are obligations in the UK Employment Rights Bill that may well make it onto the statutory books. Know your law, Know your policies. Under the Equality Act 2010, alone, employers could be exposed to claims of discrimination arising from disability; failure to make reasonable adjustments; victimisation; and direct discrimination because of or harassment related to disability, sex or gender reassignment. This is just to name a few!

HOWEVER, my purpose here is not to write about the contents of an organisation’s Menopause Policy, but simply to say that there is a lot of useful information out there, so do tap into them. Here are just a few for starters that may be of assistance to some:

NHS: Menopause: www.nhs.uk/conditions/menopause/
NHS: Early menopause: www.nhs.uk/conditions/early-menopause/
Acas: Menopause at work: www.acas.org.uk/menopause-at-work
British Menopause Society: thebms.org.uk/
Menopause Matters: www.menopausematters.co.uk/

AB v Grafters Group Ltd (t/a CSI Catering Services International) [2025] EAT 126

Wed, 10 Sep 2025 20:23:09 GMT

s.109(1) and (3) of the Equality Act 2010 state, ‘Anything done by a person (A) in the course of A's employment must be treated as also done by the employer,’ and, ‘It does not matter whether that thing is done with the employer's or principal's knowledge or approval,’ respectively.

The words, ‘in the course of one’s employment,’ seem easy enough to understand. But those six words are not always easy to apply. If one was employed as a lawyer, drafting, advising and appearing in court would be deemed to be in the course of one’s employment. I think we can all agree on that. What is the position, however, regarding one’s behaviour at an office party that neither involves any of the work hitherto mentioned nor in one’s job description? Can one’s behaviour be deemed to be in the course of one’s employment ? Let's extend it further. What is the position regarding one’s behaviour when being out with one’s colleagues at a local (to the office) wine bar? Can one’s behaviour still be deemed to be in the course of one’s employment ? Ok. Let's extend it even further. What about one’s behaviour whilst sharing a taxi after their evening out at the local wine bar? Can one’s behaviour still still be deemed to be in the course of one’s employment ? I am going to take the easy way out and not seek to answer these, but to say that they are all questions to be determine as matters of fact , applying the correct law ?

In the well-known and leading case on the point, Jones v Tower Boot Co. Ltd , an employee, who was aged 16 was physically and verbally racially abused by two fellow operatives. That abuse consisted of, amongst other things, burning his arm with a hot screwdriver, throwing metal bolts at his head and calling him racially abusive names. As a result, the supervisor moved him to another part of the factory, but the abuse continued. He consequently handed in his notice and complained that he had been discriminated against by his employer because of his race. The employer argued that it should not be liable for serious acts of harassment by the claimant’s colleagues on the grounds that those acts were not done in the course of employment. This case was determined under one of the Equality Act 2010’s predecessors, the Race Relations Act 1976, but nothing turns on this. The employment tribunal found that the employee had been unlawfully discriminated on racial grounds and that the acts of the fellow employees had been done in the course of their employment for the purposes of s.32(1) of the 1976 Act, which stated, ‘Anything done by a person in the course of his employment shall be treated for the purposes of this Act […] as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.’ The Court of Appeal ('CA') agreed.

In the case of Waters v Commissioner of Police of the Metropolis , the CA, "had to consider whether a sexual assault, committed by a male police officer (“T”) against a female colleague at a police section house where she had a room and when both were off-duty, amounted to an act committed by T in the course of employment. The tribunal held that the conduct was not done in the course of employment. The Employment Appeal Tribunal (‘EAT’) agreed. Dismissing the appeal, the CA held, “T and the applicant were off-duty at the time of the alleged offence. He lived elsewhere and was a visitor to her room in the section house at the time and in circumstances which placed him and her in no different position from that which would have applied if they had been social acquaintances only with no working connection at all. In those circumstances, it is inconceivable in my view that any tribunal applying the test in the [ Jones ] case could find that the alleged assault was committed in the course of T’s employment.”

In Chief Constable of Lincolnshire Police v Stubbs , a female police officer was sexually harassed by a male colleague at a pub where officers had gathered socially after the conclusion of their duties. The employment tribunal considered that the social gathering was closely connected to work and that the male officer’s conduct was done in the course of employment.

In Sidhu v Aerospace Composite Technology Ltd , ‘Mr Sidhu was subject to racial abuse by a white colleague at a family day out at a theme park where that family day out had been organised by the employer. The employment tribunal dismissed Mr Sidhu’s contention that this was conduct in the course of employment, notwithstanding the fact that the employers had organised the event at which the conduct had occurred. The employment tribunal regarded as significant that the day out was not in the place of employment but at a public theme park; that everyone was there in their own time, not during working hours, and that the majority of the participants were friends and family rather than employees.’ The CA agreed. However, Gibson LJ said, amongst other things, “I recognise that another tribunal could properly have reached the conclusion that the incident on the day out was in the course of employment. But in my judgment, it is quite impossible to say that no tribunal could have reached the conclusion which the majority did on this point.”

In Forbes v LHR Airports Ltd , a colleague of the Claimant, Ms S, posted an image on her private Facebook page, ‘that was capable of giving rise to offence on racial grounds,’ with the caption, “Let’s see how far he can travel before Facebook takes him off”. The image was shared with Ms S’s list of Facebook friends, including another colleague, BW. BW showed the Facebook post to the Claimant. The Claimant complained of harassment by Ms S. Ms S apologised and received a final written warning. Thereafter, the Claimant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. The Claimant complained to the Employment Tribunal of harassment, victimisation and discrimination. The Employment Tribunal dismissed the complaint. Whilst it found that Ms S had shared an image that was capable of giving rise to offence on racial grounds, her act of posting the message on her Facebook page was not an act done in the course of her employment and was therefore not one for which the Respondent could be liable. The Claimant appealed unsuccessfully to the EAT. It was held that s.109(1) of the Equality Act 2010 renders an employer liable for the acts of an employee done “in the course of employment”. Whether or not an act is in the course of employment within the meaning of that section is a question of fact for the Tribunal to determine having regard to all the circumstances: Jones applied. The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work. It might not be easy to determine whether something was done at work if it is done online. In this case, the Tribunal did not err in law in concluding that Ms S’s act of posting the image on her Facebook page was not done in the course of employment; it was a private Facebook account, and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague, BW, who took the subsequent step of showing the image to the Claimant at work. The outcome of the complaint might have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Claimant was done in the workplace and might be said to have been done “in the course of employment.”

The EAT helpfully summarised the following:

13.1. an employer is liable for “anything done” by an employee A in the course of A's employment: s109(1) EQA

13.2. It is the alleged harasser, A, who must be acting in the course of employment: s109(1) EQA

13.3. the term “course of employment” is not to be interpreted in accordance with the well-established meaning in law derived from the law of tort: Jones

13.4. the words “in the course of employment” are used in the sense in which every layman would understand them: Jones 13.5. anti-discrimination legislation should be given a broad interpretation: Jones

13.6. the application of the phrase will be a question of fact for each Employment Tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort: Jones

13.7. because the determination of what is in the course of employment is essentially a question of fact for the Employment Tribunal, different decisions may be made in circumstances that appear similar: 13.7.1. a sexual assault, committed by a male police officer against a female colleague at a police section house where she had a room when both were off-duty was found not to have been done in the course of employment: Waters 13.7.2. a male police officer who sexually harassed a female colleague at a pub where officers had gathered socially after the conclusion of their duties was acting in the course of employment: Stubbs 13.7.3. racial abuse by a white colleague at a family day out at a theme park was not done in the course of employment: Sidhu

13.8. the above examples emphasise that the question of whether a “thing” was or was not done in the course of employment is very much one of fact to be determined by the Employment Tribunal having regard to all the relevant circumstances: Forbes

13.9. while it is not possible or even desirable to lay down any hard and fast guidance some factors will generally be relevant such as whether the impugned act was done at work or outside of work: Forbes

13.10. if the “thing” was done outside of work the Employment Tribunal should consider whether there is nevertheless a sufficient “nexus or connection with work” such as to render it in the course of employment: Forbes. The Employment Tribunal may need to consider whether the circumstances are such as to make the situation an “extension of work and the workplace”: Stubbs

13.11. the “thing” may be done in the course of employment although it was not done at the workplace, or in working hours, if there is a sufficient “nexus or connection with work” such as when the situation is an “extension of work and the workplace”

13.12. whether the “thing” is done with the employer's or principal's knowledge or approval “does not matter”: section 109(3) EQA

13.13. a decision by an Employment Tribunal as to whether an act was done in the course of employment can only be challenged if there is a material misdirection as to the law, the decision is perverse in the sense that it falls outside the very wide ambit within which different views might reasonably have been taken about what is done in the course of employment, or the Employment Tribunal has demonstrably failed to take account of an important relevant factor or taken into account an irrelevant factor.

In a recent case, AB v Grafters Group Ltd (t/a CSI Catering Services International) , ‘The respondent is a Hospitality Recruitment Agency. The claimant, and a colleague CD, worked from the Cardiff Branch of the Respondent. On 1 November 2021, the claimant incorrectly believed that she was due to work at Hereford Racecourse. She was late arriving at the respondent’s office in Cardiff, where she thought transport had been arranged to take her to Hereford. Instead, the claimant was given a lift by CD, who then told her she was not required to work that day. The claimant requested to be taken home, but instead CD drove her to a golf course near Pontypridd where the Employment Tribunal held that he subjected her to sexual harassment.’ Having directed itself correctly on the law, including, amongst others, the case of Jones , the employment tribunal found that CD did subject the Claimant to sexual harassment. However, on the question of whether the Respondent was liable for such actions because the sexual harassment occurred “in the course” of CD’s employment, it found that CD was not acting in the course of his employment from around 06:00 onwards on 1 November 2021 and, therefore, dismissed the complaint of sexual harassment against the Respondent. The Claimant appeal to the EAT. Allowing the appeal, thew EAT held, amongst other things, “Having concluded that the impugned act was done outside of work (Jones) the Employment Tribunal then needed to go on to consider whether there was “nevertheless a sufficient nexus or connection with work such as to render it in the course of employment” (Forbes) including whether the provision of the lift was an “extension of work and the workplace” (Stubbs).”

Employers beware. Training your workers regularly and thoroughly in anti-discriminatory, harassment and bullying behaviour is imperative. Prevention is better than liability!

X (Appellant) v (1) Y (2) Z (3) CORE Education Trust [2025] EAT 128

Mon, 08 Sep 2025 16:04:30 GMT

The Employment Appeal Tribunal (EAT) judgment in X v Y and Others addresses the issue of whether an honest mistake in submitting necessary documents with a timely Notice of Appeal can justify an extension of time to properly institute the appeal. The case involves an appellant who failed to attach all required documents when submitting their appeal, despite having the documents ready, and explores the legal framework and discretion exercised by the EAT in granting extensions of time.

The appellant brought complaints of race and sex discrimination, harassment, victimisation, and whistleblowing detriment, which were dismissed by an Employment Tribunal on 10 October 2022. The appellant requested written reasons for the judgment but submitted the Notice of Appeal on 22 November 2022 without attaching the ET1 form, ET3 forms, or grounds of resistance, all necessary to properly institute the appeal at that time. The appellant explained this omission as a genuine mistake, influenced by pressure, a back condition, and dyslexia. The written reasons were sent on 8 December 2022, but the appellant did not immediately forward them to the EAT. The missing documents were provided on 12 February 2023, resulting in the appeal being treated as instituted 25 days late by the Registrar.

At the time of the appeal, the EAT Rules 1993 required the appellant to submit a Notice of Appeal along with relevant documents, including the ET1, ET3s, grounds of resistance, and written reasons for the judgment. The time limit for instituting an appeal where written reasons were requested was 42 days from the date those reasons were sent to the parties. The appellant mistakenly believed the time ran from the judgment date, which led to premature submission without all documents.

The Court of Appeal has clarified that there is a material difference between failing to submit a Notice of Appeal in time and submitting it in time but omitting some documents. The latter often involves honest mistakes and may justify a more generous approach to extensions of time.

r.37(1) of the EAT Rules grants the Tribunal discretion to extend time for any act, including instituting an appeal. The EAT traditionally adopts a strict approach, expecting a full and honest explanation for delays and considering whether there is a good excuse and circumstances justifying an extension. The Court of Appeal in Ridley v HB Kirtley emphasised that discretion must be exercised judicially and fairly, distinguishing between appellants who substantially complied with requirements within time and those who did not submit anything until after the deadline. Honest mistakes in submitting documents can support granting an extension, provided the appellant is candid and there is no significant prejudice to the respondent.

From 30 September 2023, r.37 was amended to add r.37(5), which allows extensions for minor errors in submitting relevant documents if the error is rectified and it is just to do so considering all circumstances, including timing and prejudice. The requirement to submit ET1 and ET3 forms was removed. The Court of Appeal in Melki v Bouygues UK clarified that "minor error" should be understood contextually concerning r.3(1) compliance, broadening the discretion to grant extensions for such errors.

The Tribunal accepted the appellant's explanation as an honest and genuine mistake to omit the ET1, ET3s, and grounds of resistance. Given the appellant acted with reasonable dispatch after notification of the missing documents and no significant prejudice was claimed by the respondent, the error was deemed minor. Therefore, extensions of time were granted under both r.37(5) and r.37(1), effectively treating the appeal as submitted within time and allowing it to proceed to the sift stage.

The judgment also discusses the EAT's practice regarding appeals submitted before receipt of written reasons, noting that such appeals are generally treated as properly instituted if there is a timely request for reasons and the reasons are subsequently provided. This practice furthers expeditious and economical disposal of appeals and aligns with the interests of justice.

The EAT Practice Direction 2024 distinguishes between failure to submit a Notice of Appeal on time and failure to submit all necessary documents with a timely Notice. While mistakes generally do not excuse late submission of the Notice of Appeal, minor errors in document submission that are rectified may justify extensions.

Conclusion

This judgment clarifies that honest mistakes in submitting required documents with a timely Notice of Appeal can justify an extension of time under the revised EAT Rules, particularly r.37(5). The Tribunal exercises discretion fairly, considering explanations, timeliness of rectification, and prejudice to respondents. The appellant’s genuine mistake and prompt correction led to the granting of an extension, allowing the appeal to proceed.

Mark Craven v Forrest Fresh Foods Ltd [2025]

Sat, 16 Aug 2025 21:50:35 GMT

Tribunal erred for concluding that employee was not entitlement to wages or work

I n Mark Craven v Forrest Fresh Foods Ltd [2025] , the Employment Appeal Tribunal (‘EAT’) held that the Employment Tribunal (‘Tribunal’) erred for concluding that the claimant was an employee without entitlement to wages or work. The case concerns the legal status and remuneration entitlement of an individual who was both an employee and a director of a company, and the correctness of a Tribunal's decision regarding salary and sick pay following the individual's appointment as a director.

The Employment Rights Act 1996 defines unauthorised deductions from wages and the meaning of wages, including statutory sick pay, and confirms the definition of an employee as one working under a contract of employment, which underpins the claimant’s complaints.

The respondent is engaged in wholesale distribution of food and drink. The managing director (‘MD’) and majority shareholder was a second cousin of the claimant. The claimant started working as a driver in 2009 for the business. In 2011, he left the respondent’s employment and subsequently rejoined in a sales capacity. There was a dispute over precisely when this happened Tribunal held that he entered into a written contract of employment in August 2015.

The contract provided that he was employed as a “Business Development Manager” with normal working hours of “47.5 per week between the hours of 6.00am and 6.00pm Monday to Friday” with a salary of “£10,600.20 per annum payable weekly in arrears by BACS” with duties that would be “advised by a Director” and might be “modified from time to time to suit the needs of the business.”

The Tribunal recorded that the salary was set to be below the threshold for income tax. The claimant received further remuneration as a “director.” However, this was not a matter about which the Tribunal made any findings. On 1 April 2016, the claimant was allocated one dividend only “D” Share.” On 30 June 2016, he was appointed as a statutory director. The Tribunal did not make any substantive findings about what, if any, changes there were to his duties when he became a statutory director.

The payments made to the claimant increased substantially over time. The Tribunal recorded that he received £32,878 in 2016-17, which increased to £76,640 for 2017-18. Payments were made predominantly as “dividends” and “director’s loans.” A pay slip in the court bundle demonstrated that he was still being paid an annual salary that was only a small proportion of his total remuneration.

The claimant and the MD fell out. The claimant had become a director of another company. The MD thought that the claimant was working for the other company when he should be working for the respondent. Things came to a head in 2022. On 22 April 2022, the claimant was signed off work and did not return thereafter. On 17 May 2022, he was suspended. on 10 June 2022 an Extraordinary General Meeting was held at which the claimant was removed as a director. He was not paid after this date. On 18 July 2022, he raised a grievance. The respondent initially agreed to investigate the grievance, but it was “paused” and did not progress. On 17 January 2023, the claimant resigned as an employee giving 12 weeks’ notice. On 3 February 2023, he resigned as a director and employee with immediate effect. On 15 February 2023, the respondent wrote to him, stating that his resignation dated 17 January 2023 was accepted and that it would pay him 12 weeks’ pay in lieu of notice. The letter also noted that the claimant had resigned as a director.

The Tribunal found that the claimant remained an employee after he became a director. “I reject the Respondent’s assertion that the Claimant ceased to be an employee entirely when he became a director, that the 2015 contract was therefore void and that his position was then governed solely by the terms of the articles of association. However, I also reject what I understand to be the basic tenor of the Claimant’s position that his appointment as a director had no real impact on his employment status and that, in effect, all monies due to him were due to him as an employee pursuant to his employment contract. As such, when determining whether the Claimant was entitled to the sums he now claims, I have had to consider each claim as a discrete issue because it has not been possible to establish any overarching agreement between the parties as to what sums the Claimant could expect to receive and in what capacity.”

However, despite holding that the claimant remained an employee the Tribunal nevertheless found that all payments were made because he was a director, stating, “The Respondent’s position is that, in effect, all pay to the Claimant by the relevant period was in his capacity as a director and shareholder. I am conscious that there was no specific agreement that the August 2015 contract had been amended but I also note that, in that contract, the Claimant’s salary is put at £10,600.20 per annum. This is clearly a fraction of what he was receiving by the relevant period so it must be the case that the position changed by way of mutual conduct if not by specific agreement. I have already set out above my view that the Clamant has, in effect, been content to take the benefits of being paid by way of a dividend whilst, at the same time, asserting that he did not understand the position and simply left it to Mr Craven to deal with on his behalf. In my judgment, the Claimant cannot have it both ways if he now says that he is entitled to payment as an employee pursuant to his contract. Despite the Claimant’s assertions in this regard, I have not seen or heard anything to persuade me that the position set out by [the MD] is wrong. The fact that the Claimant received payments from the Respondent into his bank account on a monthly basis does not indicate anything about the legal basis of that payment; indeed, the Claimant himself commented in cross-examination that he effectively just accepted the money and did not seek to question or understand the basis upon which it was being paid.

“I find on the balance of probabilities that the Claimant either agreed or, at the very least, acquiesced over time, to a payment structure based not on the contract of August 2015 but on his position as a director. As such, once he had been removed as a director in accordance with the articles of association in June 2022, he was not entitled to any further payments from the Respondent on the evidence I have seen.”

In consequence, the Tribunal dismissed the claim for unauthorised deduction from wages. In answer to the question, ‘Was the Claimant entitled to PAYE earnings between 10 June 2022 and 17 January 2023?’ the Tribunal said no. In respect of holiday pay, the Tribunal said, “Whilst I have found in relation to his monthly income that the Claimant cannot rely on the August 2015 contract for the purposes of his monthly income, the position can be, and in my view is, slightly different in relation to sick pay. The August 2015 contract states specifically that “[t]here is no contractual sickness/injury payments scheme in addition to SSP”. Reference is made to the employee handbook, which says that SSP is to be paid “if you are eligible.” […] I have found that, for the purposes of his monthly income, the Claimant was not entitled to payment after his removal as a director in June 2022. The Claimant claims an entitlement to unpaid sick pay for the same period. However, given that the August 2015 contract does not provide for anything other than SSP and, by the relevant period, the Claimant had been removed as a director (and therefore, as I understand it, is not eligible for SSP), it must follow that he is not entitled to SSP during the relevant period. Therefore, in answering the question, ‘Was the Claimant entitled to sick pay between 10 June 2022 and 17 January 2023?’ the Tribunal said no.

Therefore, although the Tribunal decided that the claimant remained an employee throughout, he was not entitled to any salary or sick pay because all payments were made to him because of his role as a director. The Employment Appeal Tribunal held that the Tribunal had erred (perverse) for concluding that the claimant was an employee without entitlement to wages or work, emphasising that an employment contract requires work in return for wages and that the Tribunal failed to properly analyse changes to the claimant’s duties and remuneration upon becoming a director. In consequence, due to fundamental errors of law by Tribunal, the case was remitted for reconsideration by another Tribunal, potentially alongside remedy for an unfair dismissal claim, following a subsequent decision that the claimant remained an employee until February 2023 and was absent due to genuine illness.

CONCLUSION

Regarding the Legal principles on director-employee status, c ase law confirms that a statutory or controlling director can also be an employee if a contract of employment exists and duties are performed under some degree of control, with all relevant facts considered to determine the employment relationship.

The complex world of Agency in Employment Law

Mon, 11 Aug 2025 11:18:29 GMT

N. Handa v The Station Hotel (Newcastle) Ltd (1) ; A. Handa (2) ; Williamson (3) ; Duncan (4) ; and McDougall (5)

This important case concerns a judgment from the Employment Appeal Tribunal (EAT), regarding an appeal by N. Handa (Claimant) against the decision to strike out his claims of unfair dismissal and detrimental treatment related to whistleblowing against several respondents, including his former employer, Station Hotel Newcastle Ltd (R1).

Employment Appeal Tribunal Case Overview

The Claimant alleged unfair dismissal by R1 and claimed detrimental treatment due to protected disclosures. The appeal specifically concerned the tribunal's decision to strike out claims against R4 and R5, who were HR consultants involved in the grievance and disciplinary processes. The tribunal found no reasonable prospect of success for the claims against these respondents, leading to the appeal being dismissed by the EAT.

Background of the Case

The case revolves around allegations of financial impropriety and subsequent grievances against the claimant, who was employed and later became a director of R1. After raising allegations of financial misconduct, grievances were filed against him by fellow employees, which he claims were retaliatory. R4 investigated these grievances, while R5 conducted the disciplinary hearing that led to the Claimant's dismissal.

Tribunal's Decision on Strike Out

The tribunal concluded that the claims against R4 and R5 lacked a reasonable prospect of success. The tribunal emphasised that R4 and R5 were not agents of the R1 in a legal sense. It was determined that they acted under contracts for services rather than as agents authorised to act on behalf of R1. The tribunal noted that the Claimant's arguments regarding agency were speculative and unsupported by evidence.

Legal Principles of Agency

The judgment discusses the common law concept of agency and its application in employment law. Agency requires a fiduciary relationship where one party acts on behalf of another with authority. The tribunal referenced case law, indicating that merely providing services does not establish an agency relationship. The absence of a fiduciary relationship or authority to affect the principal's legal relations is a significant indicator against agency.

Implications of the Judgment

The ruling clarifies the boundaries of liability for external HR consultants in employment disputes. It reinforces that external consultants cannot be held liable for whistleblowing detriments unless they act as agents of the employer. It also highlights the importance of establishing a clear agency relationship to hold individuals accountable for actions taken during employment processes. Notwithstanding the EAT’s decision, the claimant retains the right to pursue claims against R1, ensuring avenues for redress remain open despite the strike-out of claims against R4 and R5.

s.109(1)-(4) of the Equality Act 2010

Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. (3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval. (4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A—(a) from doing that thing, or (b) from doing anything of that description.

Legal Concept of Agency in Employment

In Ministry of Defence v Kemeh [2014], the MoD contracted with Serco, which sub-contracted with Sodexho, for the provision of catering services. The claimant in that case, an army cook, was racially abused by an employee of Sodexho, Ms A, when they were both working in the same mess. The issue was whether her conduct was, for the purposes of his race discrimination claim, done as agent for the MoD with its authority, under s.32 Race Relations Act 1976 (a predecessor of s.109 of the 2010 Act). The case discussed the legal concept of agency, particularly in the context of employment law and the responsibilities of agents and principals. The court determined that Ms. A was not an agent of the MoD, as her authority stemmed from her contract with Sodexo, not the MoD. Agency arises when an individual acts on behalf of another, but mere employment by a contractor does not establish agency. The principal may be liable for the agent's actions if they fall within the scope of implied or apparent authority.

Grounds of Appeal

The case outlines the grounds of appeal related to the tribunal's decision regarding agency and liability. Amongst other things, the Claimant challenged the tribunal's conclusions about the agency status of R4 and R5. He argued that the tribunal erred in its interpretation of agency, fiduciary relationships, and the authority of the respondents.

Tribunal's Reasoning and Findings

The tribunal's reasoning and findings regarding the agency claims and the dismissal of the Claimant are detailed. It concluded that R4 and R5 were not agents of R1 concerning the dismissal. It emphasised that agency requires more than just providing services under a contract, there must be authority to affect legal relations. Therefore, the tribunal found no reasonable prospect of success for the claims against R4 and R5.

Implications of Agency in Employment Law

This case highlights the implications of agency in the context of employment law and the responsibilities of employers and agents. Agency in employment law can extend liability to agents for actions taken within the scope of their authority. The tribunal's decision reflects the need for clear authority and control in establishing agency relationships. This case illustrates the complexities of agency in employment disputes, particularly regarding the roles of external contractors.

Conclusion

The appeal was dismissed, affirming the tribunal's ruling that the claims against R4 and R5 had no reasonable prospect of success. The EAT held that the arguments presented did not establish a basis for agency liability concerning the dismissal.

The outcome of this case underscores the importance of clearly defined roles and responsibilities in employment relationships.

THE CASE LINK

Sat, 09 Aug 2025 10:35:24 GMT

Discrimination in Employment in 7 days by Ryan Clement

The book, ' Discrimination in Employment in 7 days ,' written by Ryan Clement, will be published on 7 September 2025.

It provides a detailed overview of UK employment discrimination law, focusing on the Equality Act 2010. It covers the legislative process, protected characteristics (such as age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation), and prohibited conduct (including direct and indirect discrimination, harassment, and victimisation). The book also delves into disability-specific protections, such as reasonable adjustments and discrimination arising from disability, and outlines the rights and obligations of employers and employees. It emphasises the importance of contracts of employment, both express and implied terms, and the role of employment tribunals in determining disability status and addressing grievances. The book is structured over seven days, providing a comprehensive understanding of the law’s provisions, definitions, and practical implications.

Day One: The Law and Legislative Process

Explains the nature of “the law,” distinguishing primary legislation from secondary legislation.
Outlines the legislative process, using the Equality Act 2010 as an example.
Describes contracts of employment and the role of staff handbooks.

Day Two: Protected Characteristics

Details the protected characteristics under the Equality Act 2010 relevant to employment.
Explains who is covered under the 2010 Act and how.

Day Three: Disability, Perceived Characteristics, and Association

Defines disability and explains the statutory definition.
Discusses deemed disabilities.

Day Four: Prohibited Conduct

Explains the main types of unlawful conduct under the Equality Act 2010.

Day Five: Disability-Specific Prohibited Conduct and Reasonable Adjustments

Continues with disability-specific protections, including discrimination arising from disability and the duty to make reasonable adjustments.

Day Six: Rights, Obligations, and Liabilities

Outlines the rights of workers not to be unlawfully discriminated against and the corresponding obligations of employers.
Explains the process for presenting claims to employment tribunals and defending them.

Day Seven: Remedies and Further Obligations

Covers remedies available in employment tribunals.
Discusses the new legal duties such as, for example, requiring employers to take reasonable steps to prevent sexual harassment at work.

Discrimination in Employment in 7 days Out on on 7 September 2025.

Unfair Dismissal & Wrongful Dismissal

Mon, 03 Apr 2023 15:26:55 GMT

Unfair dismissal and Wrongful dismissal

Today, I’m going to discuss the distinction between unfair dismissal and wrongful dismissal, as the two are thought to be one and the same but for the adjectives. They a re not. For example, a former employee may well be found to have been fairly dismissed. In other words, not unfairly dismissed but by the same time deemed to be wrongfully dismissed. Therefore, fairly and yet wrongfully dismissed. Let me explain.

Firstly, unfair dismissal is a statutory concept found in the Employment Rights Act 1996 and is based on the employer acting reasonably when deciding whether or not to dismiss an employee. Currently, save for some exceptions, an employee does not acquire the protection unless they have been continuously employed by the employer for at least 2 years.

On the other hand, wrongful dismissal is a common law action and is based not on reasonableness but on the balance of probabilities. The damages for an employer wrongfully dismissing an employee, which would amount to a breach of contract, is that the employee is entitled to payment i.e. salary/wages for the duration of the notice period under the express or implied terms of the contract of employment. Whereas the remedy for unfair dismissal is, in addition to reinstatement and re-engagement, capped at the former employee’s annual salary or that prescribed by law.

IN SUMMARY, therefore, an employer could be found to have fairly dismissed an employee because it acted reasonably in doing so, but, at the same time, on the balance of probabilities, be deemed to have breached the employee’s contract by wrongfully dismissing the employee for the same conduct in question.