EAT DISABILITY DISCRIMINATION – Loss/mitigation The appeal concerned a Remedy Judgment after a finding that he was entitled on the grounds to compensation for discrimination on the grounds of disability – failure to make reasonable adjustments, arising in consequence of disability and harassment. The Claimant claimed that a finding by the Employment Tribunal that the … Continue reading Daly v Northumberland Tyne and Wear Nhs Foundation Trust (Disability Discrimination: Loss/Mitigation): EAT 5 Dec 2014
The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He applied for a review. Held: The court was asked whether, and in what … Continue reading Flint v Eastern Electricity Board: EAT 1975
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the council sought possession when it discovered that he had sublet. Held: Section 23(3)(c) … Continue reading London Borough of Lewisham v Malcolm and Disability Rights Commission: CA 25 Jul 2007
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation after their primary discrimination claims. Held: The 1975 and 1976 Acts were similarly phrased and the wording in the 1995 … Continue reading Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions: HL 19 Jun 2003
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EAT DISABILITY DISCRIMINATIONDirect disability discriminationReasonable adjustmentsThe Employment Tribunal rejected the Appellant’s contention that the reason for his treatment by the Respondent of which he complained was a perception that he had a dangerous mental illness. Any argument that action taken on grounds of a perception of mental illness is for a reason relating to or … Continue reading Aitken v The Commissioner of Police of The Metropolis: EAT 21 Jun 2010
EAT PRACTICE AND PROCEDURE Application/claim AmendmentVICTIMISATION DISCRIMINATION An originating application must be read as a whole to ascertain whether it contains a particular complaint. The Claimant who was black and dyslexic completed an ET1 without legal assistance. He ticked the Disability and the Race boxes in paragraph 6.1. In the particulars of complaint in Box … Continue reading Baker v The Commissioner of Police of The Metropolis: EAT 5 Feb 2010
EAT DISABILITY DISCRIMINATION Disability In determining whether the effects of an impairment are long term for the purposes of Schedule 1 paragraph 2 (1)(a) and (b) of the Disability Discrimination Act 1975 the duration of effects of a condition which is likely to develop or has developed from a different condition may be aggregated with … Continue reading Patel v Oldham Metropolitan Borough Council and Another: EAT 15 Jan 2010
EAT UNFAIR DISMISSAL – Compensation
DISABILITY DISCRIMINATION – Reasonable adjustments
AGE DISCRIMINATION
The Appellant, a senior art director at a marketing and advertising agency, was aged 50 . .
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it. Held: In a sex discrimination case, where there has been a constructive dismissal, time runs from the date of the employer’s breach and not from the date of the employee’s … Continue reading Cast v Croydon College: CA 19 Mar 1998
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. Judges: His Honour Peter Clark Citations: [2005] UKEAT 0318 – 05 – 2907, UKEAT/0319/05/TM, UKEAT/0318/05/TM, [2005] ICR 1647, UKEAT/0320/05/TM, [2005] IRLR 836 Links: Bailii, EATn Statutes: Employment Tribunal Rules 2004 20(1) … Continue reading Sodexho Ltd v Gibbons: EAT 14 Jul 2005
The claimant appealed against decisions rejecting his claims of race and disability discrimination. Judges: Ward, Elias, Jack LJJ Citations: [2012] EWCA Civ 497 Links: Bailii Statutes: Race Relations Act 1975, Disability Discrimination Act 1995 Jurisdiction: England and Wales Discrimination Updated: 07 October 2022; Ref: scu.452900
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that for men in the same employment. The health authority paid her the maximum sum of pounds 6,250 which was then permitted as compensation … Continue reading M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching): ECJ 26 Feb 1986
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her complaint. The complaint now was solely as to her treatment by the Board. Held: The body was a … Continue reading Heath v Commissioner of Police for the Metropolis: CA 20 Jul 2004
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 … Continue reading Regina v Birmingham City Council ex parte Equal Opportunities Commission: HL 1989
The claimant sought damages after his treatment as a disabled person whilst held in immigration detention centres. The court dismissed his claim on the basis of Amin. Held: The application of the Amin case was too simplistic. The various services provided at the detention centre were only to some extent purely governmental. A disabled person … Continue reading Gichura v Home Office and Another: CA 20 May 2008
The court was asked about the differential in retirement ages between men and women in private sector employment, and whether it constituted sex discrimination. Held: Section 2(4) of the 1972 Act did not allow a British Court to distort the meaning of a British Statute in order to enforce a Community Directive which does not … Continue reading Duke v GEC Reliance Systems Limited: HL 2 Jan 1988
EAT Sex Discrimination – Inferring DiscriminationThe claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay. Held: The new provisions included reference to the Code of Practice issued by the Equal Opportunities Commission, which provided that the employer should provide a transparent system for setting pay … Continue reading Barton v Investec Henderson Crosthwaite Securities Ltd: EAT 6 Mar 2003
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case. Held: Questions of the burden of proof are very common in discrimination cases: ‘The factual content of the cases does not simply … Continue reading Madarassy v Nomura International Plc: CA 26 Jan 2007
The claimant appealed against dismissal of her unfair dismissal and of her maternity related discrimination claim. Held: The appeal succeeded: ‘it does not appear that the tribunal gave any separate consideration to whether the pregnancy was an effective cause of the adverse treatment of Mrs Gbokoyi and, insofar as it relied on the reasons which … Continue reading Gbokoyi v Bennett’s Eco-Inverter (Environmental Services) Ltd: EAT 18 Jan 2002
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation. Held: The employer’s appeal was dismissed. ‘There must be many cases in which the disabled person has been placed at a substantial disadvantage in the workplace, but in … Continue reading Mid-Staffordshire General Hospitals NHS Trust v Cambridge: EAT 4 Mar 2003
Race Discrimination – Direct. After dealing with the arguments based on the history of the various statutes: ‘Whether the employer deliberately dismisses the employee on racial grounds or he so acts as to repudiate the contract by racially discriminatory conduct, which repudiation the employee accepts, the end result is the same, namely the loss of … Continue reading Derby Specialist Fabrication Ltd v J N Burton: EAT 27 Sep 2000
The dismissal by a Roman Catholic school of a teacher who was pregnant by a priest, was on the grounds of pregnancy, and for an inadmissible reason. The pregnancy was an effective cause of the adverse treatment of the Appellant by her employer. Judges: Mummery P Citations: Gazette 12-Sep-1996, Times 07-Jun-1996, [1996] IRLR 372, [1996] … Continue reading O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School: EAT 7 Jun 1996
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq war broke out, under which the charterer could have terminated the charter as of right. The defendant … Continue reading Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’): HL 28 Mar 2007
The industrial tribunal had refused the applicant an extension of time. Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary hearing as a result of her representative’s shortcomings. It would not be in the interests … Continue reading Lindsay v Ironsides Ray and Vials: EAT 27 Jan 1994
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not dependent upon the contract. There could be no derogation from the European Directive … Continue reading Hall v Woolston Hall Leisure Limited: CA 23 May 2000
Rehearing/Review – Little Difference on Appeal The appellant asked the Court to reverse a decision on the facts reached in the lower court. Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. Tanfern was limited to appeals from … Continue reading Assicurazioni Generali Spa v Arab Insurance Group (BSC): CA 13 Nov 2002
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear idea of when it would be possible for him … Continue reading Clark v TDG Limited (Trading As Novacold): CA 25 Mar 1999
The employer appealed against a decision by the tribunal that it had jurisdiction to hear the complaints of sex discrimination. The tribunal had extended the time for the claim on the just and equitable basis. Held: The EAT set out five criteria for answering whether to extend time: ‘(a) the length of and reasons for … Continue reading British Coal Corporation v Keeble and others: EAT 26 Mar 1997
Limitations to Judicial Reviw of Upper Tribunal Three claimants sought to challenge decisions of various Upper Tribunals by way of judicial review. In each case the request for judicial review had been first refused on the basis that having been explicitly designated as higher courts, the proper scope of judicial review was limited or excluded. … Continue reading Cart v The Upper Tribunal: SC 21 Jun 2011
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant circumstance for the purposes of the comparison required by section 5(3) to be made is expected unavailability at … Continue reading Webb v EMO Air Cargo (UK) Ltd (No 1): HL 3 Mar 1993
Proving Discrimination – Two Stage Process Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted. Held: The new situation required a two stage process before a complaint could be upheld. First the claimant had to establish facts allowing the tribunal to conclude, in the … Continue reading Igen Ltd v Wong: CA 18 Feb 2005
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained that the refusal violated her right not to be discriminated against. Held: The prisoner’s appeal failed. … Continue reading Stewart v Secretary of State for Work and Pensions: CA 29 Jul 2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 Regulations. The High Court found the appointment to be outwith the provisions, but this was … Continue reading Jivraj v Hashwani: SC 27 Jul 2011
The applicant complained that she was dismissed when her employers learned that she was pregnant. Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact that pregnancy was the reason for her temporary unavailability at a time … Continue reading Webb v EMO Air Cargo (UK) Ltd (No 2): HL 20 Oct 1995
EAT PRACTICE AND PROCEDURE – Review Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer adjournment if absence of Claimant had been explained and adjournment applied for – Counsel tells Judge that he does not know reason … Continue reading Council of The City of Newcastle Upon Tyne v Marsden (Rev 1): EAT 23 Jan 2010
Result Decides Dscrimination not Motive The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination. Held: The 1975 Act directly discriminated between men and women by treating women more favourably on the … Continue reading James v Eastleigh Borough Council: HL 14 Jun 1990
EAT SEX DISCRIMINATION: Vicarious liability Sexual harassment claim by an employee of an education authority. Circumstances in which tribunal had misdirected itself as to its own prior judgment and erred in continuing the claim straight to a remedies hearing when an issue of time bar, and, depending on the resolution of that issue, an issue … Continue reading Dundee City Council v Malcolm: EAT 25 Jul 2008
Sympathetic construction of national legislation LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC Directive designed to protect companies and third parties from the adverse effects of the doctrine of nullity. … Continue reading Marleasing SA v La Comercial Internacional de Alimentacion SA: ECJ 13 Nov 1990
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s allowance payable to those under 25. Held: (Lord Carswell dissented in part.) The claims failed. The … Continue reading Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same: HL 26 May 2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could . .
The issue of justification of discrimination is rarely a simple matter. No margin of appreciation was to be allowed to an employer. It is for the tribunal to make its own judgment as to whether the practice complained of by the employee was . .
Where a dismissal was properly related to poor work performance, the fact that such a deterioration in performance was associated with a gender reassignment process being undergone by the employee, did not make the dismissal sex discrimination. To . .
