Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Discrimination - From: 1985 To: 1989

This page lists 47 cases, and was prepared on 27 May 2018.

 
Mirror Group Newspapers v Gunning [1986] ICR 145; [1986] 1 WLR 546; Times, 06 November 1985; [1986] IRLR 26
1985
CA
Oliver LJ, Balcombe LJ, Sir David Cairns
Discrimination, Employment
The claimant sought to have transferred to her, her father's agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. Held: The statutory definition of employment went beyond the relationship of master and servant; "what is contemplated by the legislature in this extended definition is a contract the dominant purpose of which is the execution of personal work or labour." The parties anticipated that the claimant would carry out the work personally, but there was no obligation in the agreement to do that. There was no evidence that the agent was required personally to carry out the work though his personality was important and his personal involvement might be regarded as desirable. The dominant purpose of the contract was to ensure that newspapers were efficiently distributed. For a contract to fall within the Act, the claimant had to establish that the dominant purpose of the contract was to require the work to be carried out personally by the claimant. "However I do accept Mr. Irvine's alternative submission that the phrase in its context contemplates a contract whose dominant purpose is that the party contracting to provide services under the contract performs personally the work or labour which forms the subject matter of the contract."
Sex Discrimination Act 1975 82(1)
1 Citers


 
Regina v Secretary of State for Education and Science, Ex parte Keating (1985) 84 LGR 469
1985

Taylor J
Discrimination

1 Citers


 
Orphanos v Queen Mary College [1985] AC 761
1985
HL
Lord Fraser of Tullybelton
Discrimination, European
The complainant, a Cypriot, argued that the respondent college’s practice, determined by government policy, of charging higher fees to ‘overseas’ students than to ‘home’ students indirectly discriminated against him on the ground of his race. ‘Overseas’ students were defined as those who had not been resident in the UK or the EEC for the three years immediately preceding the commencement of their course. The respondent conceded that a considerably smaller proportion of persons of Cypriot, non-British or non-EEC nationality than of British or EEC nationality could comply with the condition regarding residence so as to qualify for the lower fees. Held: The respondent had unlawfully discriminated against the plaintiff, but the court dismissed his claim on other grounds.
Lord Fraser of Tullybelton said: "The admission [by the respondent] seems to be made on the footing that Mr. Orphanos belongs to three racial groups (Cypriot, non-British, and non-E.E.C.) and that it makes no difference which of these groups is chosen for the comparison required by section 1(1)(b )(i). I agree that Mr. Orphanos belongs to each of these groups, and that each is a "racial group" as defined by section 3(1) as extended by section 3(2). But I do not agree that it makes no difference which of these groups is used for the comparison under section 1(1)(b )(i). The comparison must be between the case of a person of the same racial group as Mr. Orphanos and the case of a person not of that racial group, but it must be such that "the relevant circumstances in the one case are the same, or not materially different, in the other": see section 3(4). The "relevant circumstances" in the present case are, in my view, that Mr. Orphanos wished to be admitted as a pupil at the college, so the comparison must be between persons of the same racial group as him who wish to be admitted to the college, and persons not of that racial group who so wish. Consider first the two largest groups - namely persons of non-British and non-E.E.C. nationality (omitting the reference to national origins brevitatis causa.) I have no doubt that the proportion of persons of non-British and non-E.E.C. nationality who wish to attend the college and who can comply with the requirement of having ordinarily resided in the E.E.C. area for three years immediately before 1 September 1982 is substantially smaller than the proportion of persons not of that group (i.e., persons who were British or E.E.C. nationals) who wish to attend the college and who can comply with it. That seems obvious and causes no difficulty. But consider now the group consisting of persons of Cypriot (or Greek Cypriot) nationality and compare it with the group consisting of persons not of Cypriot (or Greek Cypriot) nationality, i.e., consisting of all persons (except Cypriots) of every nationality from Chinese to Peruvian inclusive. If the comparison is between persons of those groups who wish to be admitted to the college as pupils I do not see how any sensible comparison can be made because it would be impracticable to ascertain the numbers of persons so wishing."
Race Relations Act 1976
1 Citers


 
Porcelli v Strathclyde Regional Council [1986] ICR 564; [1986] SC 137; [1985] ICR 1977
1985
EAT
Lord McDonald
Discrimination, Employment, Scotland
A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer. Held: The real question was whether the sexual harassment was to the detriment of the applicant within section 6(2)(b). The claim of sex discrimination succeeded.
Lord McDonald said: "It was argued on behalf of the applicant that the words "subjecting her to any other detriment" were so universal that they covered acts of sexual harassment committed against her during her employment, without reference to any consequences thereof so far as her employment was concerned. The mere fact that they had been committed automatically placed her employers, perhaps vicariously, in breach of section 6(2)(b) and section 1(1) of the Act of 1975.
We do not think this interpretation is correct. The Act of 1975 does not outlaw sexual harassment in the field of -employment or elsewhere. That is left to the common law in an appropriate case. What it does outlaw in the field of employment is discrimination against a woman within the terms of her contract of employment on the ground of her sex. In certain cases sexual harassment may be relevant in this connection. An employer who dismisses a female employee because she has resisted or ceased to be interested in his advances would, in our view, be in breach of section 6(2)(b) and section 1(1) of the Act of 1975 for reasons arising from sexual harassment. Similarly if, for the same reason, he takes other disciplinary action against her short of dismissal, he would also be in breach. This action could be suspension, warning, enforced transfer, etc., all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment.
If this is a correct interpretation of the statute we ask ourselves what detriment, if any, within her contract of employment, the applicant suffered in the present case. The answer, we feel, is not far to seek. It lies in the fact that on 4 August 1983 she felt obliged to seek transfer from Bellahouston Academy to another school, and this was duly granted with effect from 19 September 1983. The campaign of harassment, including sexual harassment, with the objective of making the applicant apply for transfer had succeeded."
Sex Discrimination Act 1975 1(1)(a) 6(2)b)
1 Citers



 
 James v Eastleigh Borough Council; CA 1985 - [1990] QB 61
 
De Souza v Automobile Association [1985] EWCA Civ 13; [1986] IRLR 103; [1986] ICR 514
19 Dec 1985
CA
May LJ
Employment, Discrimination
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as 'the wog'. She said that this was sufficient to mean that she suffered a detriment. The employer replied that the word detriment shouldbe looked at not by the effect on the employee, but by the objective difference in treatment by the employer. Held: The claim failed. May LJ said "Apart from the actual decisions in these cases I think that this necessarily follows upon a proper construction of section 4 and in particular Section 4(2)(c) of the Act. Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress; before the employee can be said to have been subjected to some "other detriment" the Court or Tribunal must find that by reason of the acts or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."
Race Relations Act 1976 4
1 Cites

1 Citers

[ Bailii ]
 
S v United Kingdom [1986] 47 D&R 274
1986
ECHR

Human Rights, Discrimination, Housing
The applicant was not entitled in domestic law to succeed to a tenancy on the death of her partner. The aim of the legislation is question was to protect the family, a goal similar to the protection of the right to respect for family life guaranteed by Article 8 of the Convention. The aim itself is clearly legitimate. The question remains, however, whether it was justified to protect families but not to give similar protection to other stable relationships. The Commission considers that the family (to which the relationship of heterosexual unmarried couples living together as husband and wife can be assimilated) merits special protection in society and it sees no reason why a High Contracting Power should not afford particular assistance to families. The Commission therefore accepted that the difference in treatment between the applicant and somebody in the same position whose partner had been of the opposite sex can be objectively and reasonably justified. And "The Commission notes that the applicant was occu?ying the house, of which her partner had been the tenant, without any legal title whatsoever. Contractual relations were established between the local authority and the deceased partner and that contractual agreement may or may not have permitted long-term visitors. The fact remains, however, that on the death of the partner, under the ordinary law, the applicant was no longer entitled to remain in the house, and the local authority was entitled to possession so that the house could no longer be regarded as 'home' for the applicant within the meaning of Article 8."
European Convention on Human Rights 8
1 Citers


 
Strathclyde Regional Council v Porcelli 1986 SC 137; [1986] ICR 564; [1986] IRLR 134
1986
SCS
Lord President Emslie
Discrimination, Scotland
Mrs Porcelli was employed as a science laboratory technician at a school in Glasgow. Two technicians in the same department pursued a vindictive campaign against her for the deliberate purpose of making her apply for a transfer to another school. This conduct was both unpleasant and intimidating. It included various obscene acts which had a sexual innuendo. When the gender of the victim dictates the form of the harassment, that of itself indicates the reason for the harassment, namely, it is on the ground of the sex of the victim. Degrading treatment of this nature differs materially from unpleasant treatment inflicted on an equally disliked male colleague, regardless of equality of overall unpleasantness: "It was a particular kind of weapon, based upon the sex of the victim, which . . would not have been used against an equally disliked man."
1 Cites

1 Citers



 
 Lindsay v United Kingdom; ECHR 1986 - (1986) 9 EHRR 513; (1986) 9 EHRR CD 555

 
 Haughton v Olau Line (UK) Ltd; CA 1986 - [1986] ICR 357
 
Deria v General Council of British Shipping [1986] ICR 172
1986


Discrimination
The claimant alleged race discrimination by an employment agency against when he applied for work on a British registered ship, which was not an establishment in Great Britain at the relevant time. At the time of refusal it was not contemplated or expected by the parties that the ship would even enter British territorial waters in the course of the voyage for which the complainants sought to be engaged. The ship only did so by reason of subsequent requisition.
1 Cites

1 Citers


 
M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) C-152/84; [1986] IRLR 140; [1986] ICR 335; R-152/84; [1986] EUECJ R-152/84; [1986] 2 WLR 780; [1986] 1 CMLR 688; [1986] 2 All ER 584; [1986] ECR 723; [1986] QB 401
26 Feb 1986
ECJ

European, Discrimination
ECJ The term 'dismissal' contained in article 5(1) of Directive no 76/207 must be given a wide meaning; an age limit for the compulsory dismissal of workers pursuant to an employer's general policy concerning retirement falls within the term 'dismissal' construed in that manner, even if the dismissal involves the grant of a retirement pension. In view of the fundamental importance of the principle of equality of treatment for men and women, article 1(2) of Directive no 76/207 on the implementation of that principle as regards access to employment and working conditions, which excludes social security matters from the scope of the directive, must be interpreted strictly. It follows that the exception to the prohibition of discrimination on grounds of sex provided for in article 7(1)(a) of directive no 79/7 on the progressive implementation of the principle of equal treatment in matters of social security applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits. Article 5(1) of directive no 76/207 must be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that directive. Wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the state where that state fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly. It would in fact be incompatible with the binding nature which article 189 confers on the directive to hold as a matter of principle that the obligation imposed thereby cannot be relied on by those concerned. Consequently, a member state which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails. In that respect the capacity in which the state acts, whether as employer or public authority, is irrelevant. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with community law. According to article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to 'each member state to which it is addressed'. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person.
Article 5(1) of council directive no 76/207, which prohibits any discrimination on grounds of sex with regard to working conditions, including the conditions governing dismissal, may be relied upon as against a state authority acting in its capacity as employer, in order to avoid the application of any national provision which does not conform to article 5(1).
Directive no 76/207 5(1)
1 Citers

[ Bailii ]
 
Roberts v Tate and Lyle (Judgment) C-151/84
26 Feb 1986
ECJ

European, Employment, Discrimination
Europa The term ' dismissal ' contained in article 5(1) of directive no 76/207 must be given a wide meaning ; an age limit for the compulsory redundancy of workers as part of a mass redundancy falls within the term ' dismissal ' construed in that manner, even if the redundancy involves the grant of an early retirement pension.
In view of the fundamental importance of the principle of equality of treatment for men and women, article 1 (2) of directive no 76/207 on the implementation of that principle as regards access to employment and working conditions, which excludes social security matters from the scope of the directive, must be interpreted strictly. It follows that the exception to the prohibition of discrimination on grounds of sex provided for in article 7 (1)(a) of directive no 79/7 on the progressive implementation of the principle of equal treatment in matters of social security applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.
Article 5 (1) of directive no 76/207 must be interpreted as meaning that a contractual provision which lays down a single age for the dismissal of men and women under a mass redundancy involving the grant of an early retirement pension, whereas the normal retirement age is different for men and women, does not constitute discrimination on grounds of sex, contrary to community law.


 
 Bilka-Kaufhaus v Webers Von Hartz; ECJ 13-May-1986 - [1986] ECR 1607; [1987] ICR 110; C-170/84; R-170/84; [1986] EUECJ R-170/84; [1984] IRLR 317

 
 Johnston v Chief Constable of the Royal Ulster Constabulary; ECJ 15-May-1986 - C-222/84; [1986] ECR 1651; [1987] QB 129; [1986] 3 WLR 1038; [1987] ICR 83; [1986] 3 All ER 135; R-222/84; [1986] EUECJ R-222/84
 
Gisela Rummler v Dato-Druck [1987] ICR 774; C-237/85
1 Jul 1986
ECJ

European, Discrimination
In general Directive 75/117 on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women does not prohibit the use, in a job classification system as referred to in the second paragraph of article 1, for the purpose of determining rates of pay, of the criterion of muscular demand or muscular effort or that of the heaviness of the work if, in view of the nature of the tasks involved, the work to be performed does require the use of a certain degree of physical strength, so long as the system as a whole, by taking into account other criteria, precludes any discrimination on grounds of sex. In particular, it follows from the directive that: (a) the criteria governing pay-rate classification must ensure that work which is objectively the same attracts the same rate of pay whether it is performed by a man or a woman; (b) the use of values reflecting the average performance of workers of one sex as a basis for determining the extent to which work makes demands or requires effort or whether it is heavy constitutes a form of discrimination on grounds of sex, contrary to the directive; (c) in order for a job classification system not to be discriminatory as a whole, it must, in so far as the nature of the tasks carried out in the undertaking permits, take into account criteria for which workers of each sex may show particular aptitude.
1 Citers



 
 Deborah Lawrie-Blum v Land Baden-Wuerttemberg; ECJ 3-Jul-1986 - C-66/85; R-66/85; [1986] EUECJ R-66/85; [1986] ECR 2121; [1987] ICR 483

 
 Rainey v Greater Glasgow Health Board; HL 27-Nov-1986 - [1987] 1 AC 224; 1987 SLT 146; [1987] 2 CMLR 11; [1986] 3 WLR 1017; [1987] ICR 129; [1987] IRLR 26; [1987] 1 All ER 65; 1987 SC (HL) 1; [1987] UKHL 16; [1986] UKHL 8
 
Johnston and Others v Ireland [1986] ECHR 17; 9697/82; [1986] 9 EHRR 203
18 Dec 1986
ECHR

Human Rights, Discrimination
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Pecuniary damage - claim rejected; Non-pecuniary damage - finding of violation sufficient; Costs and expenses award - Convention proceedings
The applicants were an unmarried couple who could not marry, and so legitimate their daughter, the third applicant, because the Irish Constitution did not permit divorce. They relied on article 14 in conjunction with article 8, arguing that they had been discriminated against on grounds of their limited financial means, since (had they been better off) they could have obtained a divorce by the expedient of a spell of residence outside the Republic. Held: The complaint was rejected in short measure: "Article 14 safeguards persons who are 'placed in analogous situations' against discriminatory differences of treatment in the exercise of the rights and freedoms recognised by the Convention. The court notes that under the general Irish rules of private international law foreign divorces will be recognised in Ireland only if they have been obtained by persons domiciled abroad. It does not find it to have been established that these rules are departed from in practice. In its view, the situations of such persons and of the first and second applicants cannot be regarded as analogous."
European Convention on Human Rights 814
1 Citers

[ Bailii ] - [ Bailii ]
 
Irving and Irving v Post Office [1987] IRLR 289
1987
CA

Discrimination, Vicarious Liability
The defendant's employee disliked his neighbours - the plaintiffs. Whilst working in the sorting office, he wrote racially abusive materials on letters addressed to them. The plaintiffs appealed a finding that the defendant was not liable because the acts were not carried out as part of the employee's work. Held: The test was whether the act was merely unauthorised, or whether it was entirely outside the scope of the employment. The employee had not merely done something as a prohibited mode of carrying out his work. The employment merely gave him the opportunity to carry them out.
Race Relations Act 1976 1(1)(a) 32(1)
1 Citers



 
 Hayward v Cammell Laird Shipbuilders Ltd (No. 2); CA 1987 - [1987] 2 All ER 344; [1987] ICR 682; [1987] 3 WLR 20; [1988] QB 12
 
Cornelius v University College of Swansea [1987] IRLR 141; [1995] IRLR 87; [1988] ICR 785
1987
CA
Sir John Donaldson MR, Fox and Bingham UJ
Discrimination
A college declined to act on an employee's transfer request or to operate their grievance procedure while proceedings under the 1975 Act, brought by the employee against the college, were still awaiting determination. The college was trying to protect itself. Held: An unjustified sense of grievance cannot amount to a detriment in discrimination law. The court recognised a distinction in an allegation of victimisation in a discrimination claim, between the commencement of proceedings and the continuance of proceedings, once commenced. The respondent had acted purely to protect its position in pending proceedings.
Bingham LJ: "There is no reason whatever to suppose that the decisions of the registrar and his senior assistant on the applicant's requests for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decisions. No doubt, like most experienced administrators, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings. They accordingly wished to defer action until the proceedings were over. But that had nothing whatever to do with the appellant's conduct in bringing proceedings under the Act. There is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied. If the appellant was victimised, it is not shown to have been because of her reliance on the Act"."
Sex Discrimination Act 1975
1 Citers


 
In re Northern Ireland Electricity Services Application [1987] NI 271
1987

Nicholson J
Discrimination
A company complained that it had been refused a tender for work because of discrimination on the ground of religious belief or political opinion since the unions on the site refused to work with the company's employees, the unions believing the company to have IRA sympathies. Held: "person" in section 16 of the 1976 Act included a body corporate by virtue of the 1978 Act. In the light of the provisions of section 7(3) and section 10(2), the latter referring both to an individual and a body corporate, it was "inescapable that 'person' in section 8 includes a body corporate."
Fair Employment Act (Northern Ireland) 1976 16 - Interpretation Act 1978
1 Citers



 
 Borrie Clarke v Chief Adjudication Officer; ECJ 24-Jun-1987 - C-384/85
 
Alexander v Home Office [1988] ICR 685; [1988] IRLR 190
1988
CA
May LJ
Damages, Discrimination
Prisoners are a section of the public for the purposes of the 1976 Act. The Court increased an award for injury to feelings awarded for race discrimination by prison officers from £50 to £500. The court considered the appropriate level of damages to be awarded in race discrimination cases: "damages for this relatively new tort of unlawful racial discrimination are at large, that is to say they are not limited to the pecuniary loss that can be specifically proved". Such awards should not be minimal. It was open to a tribunal to include in appropriate cases "an element of aggravated damages where, for example, the defendants may have behaved in a high handed, malicious, insulting or oppressive manner in committing the act of discrimination." Aggravated damages are intended to deal with cases where the injury was inflicted by conduct which was "high-handed, malicious, insulting or oppressive".
Race Relations Act 1976
1 Citers


 
North West Thames Regional Health Authority v Noone [1988] IRLR 530; [1988] ICR 813
1988
CA
May, Balcombe LJJ
Discrimination
The question of whether an employer has acted in a racially discriminatory is to be concluded not as a matter of law, but from his behaviour and almost as a matter of common sense.
May LJ said: "As there is not often direct evidence of discrimination complaints of discrimination more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. If there is a finding of discrimination and a difference of race and then an inadequate or unsatisfactory explanation by the employer to the discrimination, usually the legitimate inference would be that the discrimination was on racial grounds." As to overturning a tribunal decision: 'The Appellate Tribunal should interfere only if the award by the [Employment] Tribunal is so out of the normal run that it can properly be described as a wholly erroneous estimate of the damage suffered by the complainant'."
May LJ said that he had not found the decision in Khanna satisfactory and: "In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. ,; It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an adequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds."
1 Citers


 
Hayward v Cammell Laird Shipbuilders Ltd (No. 2) [1988] 2 All ER 257; [1988] ICR 464; [1988] 2 WLR 1134; [1988] AC 894
1988
HL
Lord Mackay of Clashfern LC, Lord Bridge, Lord Brandon and Lord Griffiths
Employment, Discrimination, European
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with Community law and this had been done by regulations made under section 2(2) of the European Communities Act 1972. If the applicant has terms in her contract which are more favourable than equivalent terms in the comparator's contract the applicant keeps the benefit of those terms and in addition is entitled to have any less favourable term in her contract modified so as to be not less favourable than the equivalent term in the comparator's contract or, if the comparator has in his contract a beneficial term which does not appear in the applicant's contract, to have such a term included in her contract. It is not open to an employer to say "I have not modified that clause in the applicant's contract because although it is less favourable than the similar clause in the comparator's contract, looked at overall the applicant's contract is as favourable to her as the comparator's contract is favourable to him." Lord Mackay "Generally speaking primary legislation in the United Kingdom could confer a greater [employment] benefit on the appellant than she would be entitled to under the community legislation. The present case is special since the particular provisions on which the appellant relies for her case were inserted by regulations made under the European Communities Act 1972 and accordingly it might be questioned whether, if higher rights than those conferred under community law were provided in this way under domestic law, the making of the regulations was a proper exercise of the statutory power conferred by the European Communities Act 1972."
European Communities Act 1972 2(2)
1 Cites

1 Citers


 
Strathclyde Regional Council v Wallace [1988] IRLR 146
1988
HL
Lord Browne-Wilkinson
Discrimination, Employment
Female teachers carried out the work of principal teachers but had not been appointed to the promoted post and were paid less than they would have received had they been so appointed. They claimed equal pay with male comparators who were appointed principal teachers. Like work was established and it was agreed that disparity in pay between the women and their male comparators was not based on sex. The tribunal had said that there was insufficient evidence to found a material factor defence in circumstances where there were a variety of reasons including financial restraints, administrative practices advanced by way of explanation for the failure to appoint, none of which were sex based. Held: There was no need for objective justification which only arose when the employer was relying on a factor that was gender discriminatory – something that was not an issue in that case. The Equal Pay Act was not concerned with fair wages but only with sex related pay discrimination whereas the objective sought by the applicants had been to achieve equal pay for like work regardless of sex and not to eliminate any inequalities due to sex discrimination. Lord Browne-Wilkinson: “To my mind it would be very surprising if a differential pay structure which had no disparate effect or impact as between the sexes should prove to be unlawful under the Equal Pay Act 1970. The long title to that act describes its purpose as being:
‘An Act to prevent discrimination, as regards terms and conditions of employment, between men and women.’” and
“The cases establish that the Equal Pay Act 1970 has to be construed so far as possible to work harmoniously both with the Sex Discrimination Act 1975 and article 119. All three sources of law are part of a code dealing with unlawful sex discrimination: see Shields v. E. Coomes (Holdings) Ltd. [1978] I.C.R. 1159 and Garland v. British Rail Engineering Ltd. [1982] I.C.R. 420. It follows that the words "not the difference of sex" where they appear in section 1(3) of the Equal Pay Act 1970 must be construed so as to accord with the Sex Discrimination Act 1975 and article 119 of the E.C. Treaty, i.e. an employer will not be able to demonstrate that a factor is "not the difference of sex" if the factor relied upon is sexually discriminatory whether directly or indirectly. Further a sexually discriminatory practice will not be fatal to a subsection (3) defence if the employer can "justify" it applying the test in the Bilka­Kauj7/C/us case [1987] I.C.R. 11O.
In North Yorkshire County Council v. Ratcliffe [1995] I.C.R. 833, 839, this House expressed the view, obiter, that the Equal Pay Act 1970 has to be interpreted without introducing the distinction between direct and indirect discrimination drawn by section I of the Sex Discrimination Act 1975. That dictum must not be carried too far.
Whilst there is no need to apply to the Equal Pay Act 1970 the hard and fast statutory distinction between the two types of discrimination drawn in the Sex Discrimination Act 1975, this House did not intend, and had no power, to sweep away all the law on equal pay under article 119 laid down by the European Court of Justice, including the concept of justifying, on Bilka grounds, practices which have a discriminatory effect on pay and conditions of service. The law on article 119, whilst recognising that in many cases there is a de facto distinction between direct and indirect discrimination, does not draw the same firm legal demarcation between the two as does the Sex Discrimination Act 1975 which permits justification of indirect discrimination but not of direct discrimination. The correct position under section l(3) of the Equal Pay Act 1970 is that, even where the variation is genuinely due to a factor which involves the difference of sex, the employer can still establish a valid defence under subsection (3) if he can justify such differentiation on the grounds of sex, whether the differentiation is direct or indirect. I am not aware as yet of any case in which the European Court of Justice has held that a directly discriminatory practice can be justified in the Bilka sense. However, such a position cannot be ruled out since, in the United States, experience has shown that the hard and fast demarcation between direct and indirect discrimination is difficult to maintain.
From what I have said, it is apparent that, in considering section 1(3) of the Equal Pay Act 1970, the only circumstances in which questions of "justification" can arise are those in which the employer is relying on a factor which is sexually discriminatory. There is no question 'of the employer having to "justify" (in the Bilka sense) all disparities of pay. Provided that there is no element of sexual discrimination, the employer establishes a subsection (3) defence by identifying the factors which he alleges have caused the disparity, proving that those factors are genuine and proving further that they were causally relevant to the' disparity in pay complained of.”

and: “In my judgment the law was correctly stated by Mummery J. giving the judgment of the Employment Appeal Tribunal in Tyldesley v. T. M. L. Plastics Ltd. [1996] I.C.R. 356, in which he followed and applied the earlier appeal tribunal decisions in Calder v. Rowntree Mackintosh Confectionery Ltd. [1992] I.C.R. 372 and Yorkshire Blood Transfusion Service v. Plaskitt [1994] I.C.R. 74. The purpose of section I of the Equal Pay Act 1970 is to eliminate sex discrimination in pay not to achieve fair wages. Therefore, if a difference in pay is explained by genuine factors not tainted by discrimination that is sufficient to raise a valid defence under subsection (3): in such a case there is no further burden on the employer to "justify" anything. However if the factor explaining the disparity in pay is tainted by sex discrimination (whether direct or indirect) that will be fatal to a defence under subsection (3) unless such discrimination can be objectively justified in accordance with the tests laid down in the Bilka [1987] I.C.R. 110 and Rainey [1987] I.C.R. 129 cases.”
1 Citers


 
Kelly v Liverpool Maritime Terminals Limited [1988] IRLR 310
1988
CA
Taylor LJ, Glidewell LJ
Discrimination, Employment
An employee had no valid claim for unfair dismissal if illness prevented her from returning to work before the end of the twenty-nine week period after her confinement, allowing for only one statutory extension of 4 weeks. The applicant's maternity leave entitlement had come to an end and so had her contract of employment on the date at the end of the four week extension to her maternity leave on medical grounds. "The statutory scheme in relation to maternity leave entitles the employee to return to work within 29 weeks after the birth if appropriate notice is given. That period can be extended by four weeks once, but only once." and "I conclude that the contract terminated when the four-week extension of the maternity leave expired." and "In the event it was the problems with the pain in her back which prevented her from returning to work within the 29 week period after her confinement"
1 Citers


 
General Medical Council v Goba [1988] ICR 885
1988
EAT

Employment, Discrimination

1 Citers


 
West Midlands Passenger Transport Executive v Jaquand Singh [1988] 1 WLR 730; [1988] ICR 614
1988
CA
Balcombe LJ
Discrimination, Employment
The court identified 'a conscious or unconscious racial attitude which involves stereotyped assumptions' underlying discrimination. Statistical evidence may be used to establish a discernible pattern in the treatment of a particular group such as to give rise to an inference of discrimination.
1 Citers



 
 Duke v GEC Reliance Systems Limited; HL 2-Jan-1988 - [1988] ICR 447; [1988] AC 618; [1988] 2 WLR 359; [1988] 1 All ER 626; [1988] IRLR 118; [1987] UKHL 10
 
Mary Murphy and others v An Bord Telecom Eireann C-157/86; [1988] ICR 445; [1988] 1 CMLR 879
4 Feb 1988
ECJ

European, Discrimination
Article 119 of the EEC Treaty, which is directly applicable in the sense that the workers concerned may rely on it in legal proceedings and in the sense that national courts or tribunals must take it into account as a constituent part of community law, must be interpreted as covering, in addition to the case of unequal pay for equal work or work of equal value, the case where a worker who relies on that provision to obtain equal pay within the meaning thereof is engaged in work of higher value than that of the person with whom a comparison is to be made. It is for the national court or tribunal before which a party relies on a directly applicable Treaty provision, within the limits of its discretion under national law, when interpreting and applying domestic law, to give to it, where possible, an interpretation which accords with the requirements of the applicable community law and, to the extent that this is not possible, to hold such domestic law inapplicable.
1 Citers



 
 Aziz v Trinity Street Taxis Ltd; CA 26-Feb-1988 - [1989] QB 463; [1988] ICR 534; [1988] 2 All ER 860; [1988] EWCA Civ 12

 
 Dik v College Van Burgemeester En Wethouders; ECJ 8-Mar-1988 - C-80/87
 
Meer v London Borough of Tower Hamlets [1988] EWCA Civ 10; [1988] IRLR 399
26 May 1988
CA
Dillon, Balcombe, Staunton LJJ
Employment, Discrimination
The Court discussed the nature of "a requirement or condition" for the purposes of the 1976 Act. Held: Dillon LJ said: "The case of Perera decided that there can only be a requirement or condition within s.1(1)(b) of the Race Relations Act 1976 if the requirement or condition, or whatever other word may be used to describe it, is mandatory and an absolute bar to selection."
Balcombe LJ, who delivered the leading judgment, said that "a requirement or condition under (the section) is a must - something which has to be complied with".
Race Relations Act 1976 1(1)(b)
1 Cites

1 Citers

[ Bailii ]

 
 Pickstone v Freemans Plc; HL 30-Jun-1988 - [1989] AC 66; [1988] 2 All ER 803; [1988] 3 WLR 265; [1988] UKHL 2; [1988] 3 CMLR 221; [1988] ICR 697; [1988] IRLR 357
 
Norris v Ireland 10581/83; (1989) 13 EHRR 186; [1988] ECHR 22; [1985] ECHR 13
26 Oct 1988
ECHR

Human Rights, Discrimination
A homosexual man complained that the criminalisation of homosexual conduct in Ireland violated his article 8 right to respect for his private life, although he accepted that the risk of being prosecuted was remote. Held: The court accepted that he was a victim. Even an administrative policy of not prosecuting for the offence in question would not have made a difference.
European Convention on Human Rights 8
1 Citers

[ Bailii ] - [ Bailii ] - [ Bailii ]
 
Regina v Birmingham City Council ex parte Equal Opportunities Commission [1989] AC 1155; [1989] 1 All ER 769; [1988] IRLR 430; [1988] 3 WLR 837; (1988) 86 LGR 741
1989
HL
Lord Goff of Chieveley
Discrimination
At the council's independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination. Held: The council, as local education authority, had discriminated against girls. Discrimination can take place when a woman is disallowed a choice valued to her. In order to show discrimination on the ground of gender under the 1975 Act, it is not necessary to show an intention or motive to discriminate. The Council had provided more grammar school places for boys than for girls, and plainly it knew that it had done so. It had not intended to discriminate against the girls but in fact it had done so. Whether treatment is less favourable is to be determined objectively. It is not enough that a claimant believes it to be less favourable.
Lord Goff of Chieveley said: "The first argument advanced by the council before your Lordship's House was that there had not been, in the present case, less favourable treatment of the girls on the grounds of sex. Here two points were taken. It was submitted . . (2) that, if that burden had been discharged, it still had to be shown that there was less favourable treatment on grounds of sex, and that involved establishing an intention or motive on the part of the council to discriminate against the girls. In my opinion, neither of these submissions is well-founded . . As to the second point, it is, in my opinion, contrary to the terms of the statute. There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned . . is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. Indeed, as Mr. Lester pointed out in the course of his argument, if the council's submission were correct it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are the subject of discrimination under the Act of 1975. This is well established in a long line of authority: see, in particular, Jenkins v. Kingsgate (Clothing Productions) Ltd. [1981] 1 W.L.R. 1485, 1494, per Browne- Wilkinson J., and Ex parte Keating, per Taylor J., at p. 475; see also Ministry of Defence v. Jeremiah [1980] Q.B. 87, 98 per Lord Denning M.R. I can see no reason to depart from this established view."
Sex Discrimination Act 1975
1 Citers


 
Leverton v Clwyd County Council [1989] ICR 33; [1989] IRLR 28
1989
HL
Lord Bridge of Harwich
Employment, Discrimination
The claimant, employed as a nursery nurse by the respondent in an infant school sought to compare herself with clerical staff employed by the respondent, but not in schools. Held: The employee's appeal succeeded. The majority of the Employment Tribunal, the Employment Appeal Tribunal, and the majority of the Court of Appeal were wrong to apply a narrower test as to whether the terms of the claimant and the comparator were broadly similar. It was sufficient to establish common terms and conditions to show that the claimant and her comparators were employed on terms and conditions derived from the same collective agreement.
1 Citers


 
Calder v James Findlay [1989] ICR 157
1989
EAT
Browne-Wilkinson J
Discrimination
The EAT considered the denial of access to a female employee of a preferential mortgage subsidy scheme which favoured male employees. Held. So long as the applicant remained in the employment of these employers there was a continuing discrimination against her. Browne-Wilkinson J said: "By constituting a scheme under the rules of which a female could not obtain the benefit of the mortgage subsidy in our judgment the employers were discriminating against the applicant in the way they afforded her access to the scheme. It follows, in our judgment, that so long as the applicant remained in the employment of these employers there was a continuing discrimination against her. Alternatively it could be said that so long as her employment continued, the employers were subjecting her to 'any other detriment' within section 6(2)(b). Once this conclusion is reached, in our judgment it follows that the case does fall within section 76(6)(b). The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as having been done at the end of her employment."
1 Citers


 
Hampson v Department of Education and Science [1989] ICR 179; [1989] IRLR 69
1989
CA
Balcombe, Nourse and Parker LJJ
Discrimination, Employment
Balcombe LJ said: "In my judgment 'justifiable' requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition." The task of the Tribunal hearing such a complaint is to strike an objective balance between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it.
1 Citers


 
Aldridge v Telecommunications Plc [1989] ICR 790; [1989] UKEAT 99_88_2609; [1990] IRLR 10
1989
EAT
Wood P
Employment, Discrimination

Equal Pay Act 1970
1 Citers

[ Bailii ]
 
Andrews v British Columbia [1989] 1 SCR 143
1989

McIntyre J
Commonwealth, Discrimination
(Canada) McIntyre J defined discrimination: "discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society."
1 Citers


 
Ingrid Rinner-Kuehn v Fww Spezial-Gebaudereinigung Gmbh and Co. Kg C-171/88; R-171/88; [1989] EUECJ R-171/88; [1989] ECR 2743
13 Jul 1989
ECJ

European, Discrimination
The Court heard a complaint about a German statute providing that an employer need not pay sick pay to a part-time worker. In at least seven member states part-time workers were predominantly women (the percentages ranging from 89% in the Federal Republic to 62% in Italy; only in Denmark, at 54%, was there anything close to parity). There was such a striking disparity between men and women that the question referred to the Court of Justice assumed that the proportion of women adversely affected was considerably greater than that of men, and the Court of Justice was concerned only with the issue of objective justification. Nine times as many women as men were disadvantaged, and no one was going to waste time in suggesting that the entire national workforce contained nine times as many women as men.
Europa Article 119 of the Treaty precludes national legislation which permits employers to exclude employees whose normal working hours do not exceed 10 hours a week or 45 hours a month from the continued payment of wages in the event of illness, if that measure affects a far greater number of women than men, unless the Member State shows that the legislation concerned is justified by objective factors unrelated to any discrimination on grounds of sex, which concern one of the essential aims of its social policy.
1 Citers

[ Bailii ]
 
Maximilian Rommelfanger v Federal Republic of Germany 12242/86; (1989) 62 D & R 151; [1989] ECHR 27
6 Sep 1989
ECHR
Norgaard P
Human Rights, Health Professions, Discrimination
(Admissibility)
[ Bailii ]
 
Handels Og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdsgiverforening, Acting On Behalf Of Danfoss. (Preliminary Questions ) R-109/88; [1989] EUECJ R-109/88; [1989] IRLR 532
17 Oct 1989
ECJ

European, Discrimination
Europa Where the law provides that an industrial arbitration board has jurisdiction in disputes between parties to collective agreements made between employees' and employers' organizations and either party may bring a case before it, so that the jurisdiction does not depend on the agreement between them, and the composition of the board is not within the parties' discretion but is determined by the law, the industrial arbitration board must be regarded as a court or tribunal of a Member State within the meaning of Article 177 of the Treaty. Directive 75/117 on equal pay for men and women must be interpreted as meaning that where an undertaking applies a system of pay which is totally lacking in transparency, it is for the employer to prove that his practice in the matter of wages is not discriminatory, if a female worker establishes, in relation to a relatively large number of employees, that the average pay for women is less than that for men. Where it appears that the application of criteria for pay supplements such as mobility, training or the length of service of the employee systematically works to the disadvantage of female employees, the employer may justify recourse to the criterion of mobility if it is understood as referring to adaptability to variable hours and varying places of work, by showing that such adaptability is of importance for the performance of the specific tasks which are entrusted to the employee, but not if that criterion is understood as covering the quality of the work done by the employee; he may also justify recourse to the criterion of training by showing that such training is of importance for the performance of the specific tasks which are entrusted to the employee; he does not have to provide special justification for recourse to the criterion of length of service, for it goes hand in hand with experience, which generally enables the employee to perform his duties better.
1 Citers

[ Bailii ]
 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.