Kerry Underwood


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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In this, the second of a series of posts setting out brief summaries of key tribunal decisions in the last year, I set out 6 decisions of the Employment Appeal Tribunal.

All of the information in all of these posts is taken directly from the Senior President of Tribunals’ Annual Report 2020, which is an invaluable and free resource dealing with all aspect of the work of tribunals as well as setting out these summaries of key cases.

The whole report can be accessed here.


Employment Appeal Tribunal

Citation Parties Jurisdiction Commentary
UKEAT/0304/18Richard Page v Lord Chancellor and Lord Chief Justice EATThe claimant was a magistrate who objected on religious grounds to children being adopted by same-sex couples and was ultimately removed from office following a BBC interview. Choudhury P and members upheld the employment tribunal’s rejection of his claims arising from his removal from office, in particular (a) rejecting his victimization claim because the statement to the BBC relied on did not involve any allegation of breach of the Equality Act 2010 by the Respondents or was not the cause of his removal and (b) rejecting his case under Art 10 of the European Convention on Human Rights because that Art was not engaged on the facts or because his removal from the magistracy was in any event a proportionate limitation on his to right to freedom of expression.

UKEAT/0247/18 [2020] IRLR 4  Bessong v Pennine Care NHS Foundation Trust   EATSince the repeal of ss 40(2)(4) of the Equality Act 2010 by the Enterprise and Regulatory Reform Act 2013, there is no express provision in the 2010 Act to the effect that an employer’s failure to prevent racial harassment by third parties would itself amount to harassment under the 2010 Act unless the employer’s failure was itself related to the protected characteristic of race. Choudhury P decided that neither the Race Directive (2000/43/EC) nor the Charter of Fundamental Rights of the EU required a different interpretation of s 26(1) of the 2010 Act, which on its face requires the employer’s conduct (ie failure to prevent harassment) to be related to race.

UKEAT/0007/19                         Watson v Hemingway Design Ltd (in liquidation) and others EATKerr J decided that the employment tribunal had jurisdiction to determine a claim under the Third Parties (Rights against Insurers) Act 2010 against an insolvent employer’s insurer in a case where the underlying claims against the employer arose under the Employment Rights Act 1998 and the Equality Act 2010.

UKEAT/0236/18Sophia Walker v Wallem Shipmanagement Ltd EATKerr J and members decided that on its proper construction regulation 4 of the Equality Act (Work on Ships and Hovercraft) Regulations 2011 excluded a claim of sex discrimination under the Equality Act 2010 by a woman applying in UK to a recruitment agency operating here for work on a foreign registered vessel, notwithstanding that the agency admitted direct discrimination in refusing to consider a female applicant for the job. The Tribunal considered that it was doubtful that the regulation in question conforms to the Equal Treatment Directive and recommended that the Secretary of State revisit the scope of the Regulations.

UKEAT/0223/19Basfar v Wong EATSoole J decided that a Saudi diplomat was entitled to rely on the Diplomatic Privileges Act 1964 to resist a claim by a domestic servant claiming wrongful dismissal, failure to pay national minimum wage and breach of the Working Time Regulations 1998 in circumstances alleged to amount to modern slavery. Although the Court of Appeal’s decision in Reyes v Al-Maliki [2015] ICR 289 on the ambit of the “commercial activity” exclusion to the privilege was not binding authority because the Supreme Court’s had decided the case on other grounds [2017] ICR 1417, it was nevertheless highly persuasive and, combined with the observations of Lords Sumption and Neuberger in the Supreme Court, represented the true legal position.

UKEAT/0234/19HMRC v Middlesborough Football and Athletic Company (1986) Ltd EATHHJ Auerbach decided that reductions from certain employees’ weekly pay made by Middlesbrough football club in respect of season tickets provided to them counted as “deductions” in calculating their pay for the purposes of the National Minimum Wage Regulations 2015 and that the club was therefore in breach of the Regulations, and in particular that for the purposes of regulation 12, the reductions could not be classified as “payments” by the employees, were for the “use and benefit” of the club and were not made under a relevant contractual provision under regulation 12(2)(a).

Written by kerryunderwood

August 14, 2020 at 8:44 am

Posted in Uncategorized

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