Category: Discrimination

Sheriff v Klyne Tugs (Lowestoft) Ltd: CA 24 Jun 1999

The Claimant complained to an industrial tribunal of unlawful racial discrimination. He had suffered a nervous breakdown and was certified as unfit for work due to stress. The employer had compromised all claims justiciable by the Employment tribunal.
Held: The employment tribunal had similar powers to the county court when hearing cases alleging the tort of racial discrimination, and the employment tribunal therefore had the power to award damages for personal injuries suffered because of the tort. Having claimed at the industrial tribunal it was therefore an abuse of process to bring a later claim on the same facts in the county court for damages the ET could have awarded. Section 57(4) adds a head of injury for which compensation is payable since at common law a claimant cannot as a rule recover damages for injuries for feelings, save in defamation and false imprisonment.

Judges:

Stuart Smith LJ

Citations:

Gazette 07-Jul-1999, Times 08-Jul-1999, [1999] EWCA Civ 1663, [1999] ICR 1170, [1999] IRLR 481

Links:

Bailii

Statutes:

Race Relations Act 1976 56 57(4)

Jurisdiction:

England and Wales

Cited by:

Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Damages

Updated: 21 January 2023; Ref: scu.136028

Cornerstone (North East) Adoption and Fostering Service Ltd, Regina (on The Application of) v The Office for Standards In Education, Children’s Services and Skills: Admn 7 Jul 2020

Whether it is lawful for an adoption and fostering agency only to accept heterosexual evangelical Christians as the potential carers of fostered children.

Judges:

The Honourable Mr Justice Julian Knowles

Citations:

[2020] EWHC 1679 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Adoption, Discrimination

Updated: 31 December 2022; Ref: scu.652385

Johns v Solent SD Ltd: CA 12 Jun 2008

The court considered whether it was proper to issue a stay of proceedings to await a judgement in the EJ on a related issue.

Citations:

[2008] EWCA Civ 790, [2008] IRLR 820

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal From – Johns v Solent SD Ltd EAT 30-Oct-2007
EAT Practice and Procedure: Postponement or stay
Age Discrimination
Stay of proceedings where age discrimination is alleged. There is no basis for a valid claim in current UK law, but a case (Heyday) . .

Cited by:

Cited – Interflora, Inc and Another v Marks and Spencer Plc and Another ChD 22-May-2009
Each of the parties provided a service delivering flowers. The claimant had a trade mark, and the defendants each purchased the use of that trade mark and variations of it with a search engine (Google) so that a search under the trade mark produced . .
Cited – Interflora, Inc and Another v Marks and Spencer Plc and Another ChD 22-May-2009
Each of the parties provided a service delivering flowers. The claimant had a trade mark, and the defendants each purchased the use of that trade mark and variations of it with a search engine (Google) so that a search under the trade mark produced . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 20 December 2022; Ref: scu.270809

Allen and others v GMB: CA 16 Jul 2008

The claimants were members of the defendant trades union which settled their claims for sex discrimination against local authorities. They said that the union had entered into a settlement which still discriminated against them, and that therefore the union was itself guilty of indirect sex discrimination.
Held: The claimants’ appeal succeeded, and the matter was remitted to the tribunal. The union had given preference in its settlement to those in need of pay protection and to achieving equality in the future. It had failed to address properly the need to maximise the claimants’ proper interests in claiming arrears of pay. Some received only 25% of what they should have received and many received nothing. The tribunal found the union to have mis-sold the decision to its members and to have tried to manipulate them. That was not justified in an attempt to achieve its other and proper aims.

Judges:

Lord Justice Tuckey, Lady Justice Smith and Lord Justice Maurice Kay

Citations:

[2008] EWCA Civ 810, Times 01-Sep-2008, [2008] IRLR 690, [2008] ICR 1407

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 1(2)(b) 12(3), Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (SI 2001 No 2660)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 December 2022; Ref: scu.270835

Cast v Croydon College: CA 19 Mar 1998

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 resignation, and ‘the Industrial Tribunal, having found that the College reconsidered and looked at the matter again in 1993, erred in law in failing to consider the implications of that finding for the purpose of the running of time. It is true that the best that Mrs Cast could have achieved on this approach was a determination that the final refusal occurred on 10th May 1993. That was still outside the three months time limit, but only by three days, a trivial over-run when compared with that of thirteen and a half months if the refusal on 26th March 1992 were the only potential act of discrimination, and thus material to the exercise by the tribunal of its discretion whether to extend the time limit.’

Judges:

Auld LJ, Walker LK, Otton LJ

Citations:

Times 26-Mar-1998, [1998] EWCA Civ 498, [1998] ICR 500, [1998] IRLR 318

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 76(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Cast v Croydon College EAT 9-May-1996
. .
Cited – Barclays Bank Plc v Kapur HL 1991
The bank had decided not to credit re-located employees, for pension purposes, with their previous service in East Africa. The employees had been re-located to the United Kingdom some time in the early 1970s all upon terms that their prior service . .
Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
Cited – Amies v Inner London Education Authority EAT 1977
A female art teacher and deputy department head applied in 1975 to be department head at her school. In September a man was appointed instead. The 1975 Act came into force on 29th December. On 1st January 1996 she complained to the Tribunal on the . .
Cited – Sougrin v Haringey Health Authority CA 1992
The claimant alleged race discrimination arising out of a disputed grading and because it affected her pay she said it was a continuing act.
Held: The court drew the distinction between a ‘one-off’ act of alleged racial discrimination and its . .
Cited – Calder v James Findlay EAT 1989
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 . .
Cited – Rovenska v General Medical Council EAT 22-Sep-1994
The complainant said that the respondent’s rules imposing language skills testing on doctors with recognised foreign qualifications were discriminatory.
Held: Discriminatory rules are a continuing act and the complaint was not barred by time . .
Cited – Rovenska v General Medical Council CA 4-Dec-1996
A Czechoslovakian doctor complained against the General Medical Council under Section 12(1)(a) of the 1976 Act 1976 in respect of the most recent of a series of refusals, under its rules for the grant of limited registration as a medical . .
Cited – Clarke v Hampshire Electro Plating Co Ltd EAT 24-Sep-1991
The EAT remitted a case to the Employment tribunal and stressed the importance of determining, as between alleged incidents of discrimination on different dates, when the act of discrimination ‘crystallized’. . .
Cited – Swithland Motors Plc v Clarke and others EAT 14-Jul-1993
There could be no act of discrimination under the Section 6(1)(c) of the 1975 Act in omitting to offer employment until the person allegedly responsible for the omission was in a position to offer such employment. . .
Cited – Meade-Hill and Another v The British Council CA 7-Apr-1995
An employee mobility clause in a contract must be justified, or it may be discriminatory against women.
The potentially discriminatory effect on the complainant of the introduction of a ‘mobility clause’ to her contract of employment was a . .
Cited – Meade-Hill and Another v The British Council CA 7-Apr-1995
An employee mobility clause in a contract must be justified, or it may be discriminatory against women.
The potentially discriminatory effect on the complainant of the introduction of a ‘mobility clause’ to her contract of employment was a . .

Cited by:

Doubted – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – Coutts and Co Plc Royal Bank of Scotland v Paul Cure Peter Fraser EAT 6-Aug-2004
The applicants complained of less favourable treatment as fixed term workers in that they had not been paid a non-contractual bonus. The employer said the claim was out of time, and appealed a finding against it.
Held: Time ran from the date . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 20 December 2022; Ref: scu.143977

Department of Work and Pensions v Boyers (Disability Discrimination): EAT 24 Jun 2020

The Claimant, who was disabled within the meaning of the Equality Act 2010, was dismissed by the Respondent whilst on sickness absence. An Employment Tribunal found that the Claimant had been unfairly dismissed, contrary to the provisions of the Employment Rights Act 1996. The Tribunal also upheld the Claimant’s claim that her dismissal constituted disability discrimination, contrary to section 15 of the Equality Act. The Respondent appealed against the finding that the dismissal of the Claimant was unlawful discrimination, on the basis that the Employment Tribunal had erred in law in rejecting the Respondent’s justification defence.
The Employment Tribunal had accepted that the dismissal pursued two legitimate aims but held that it was not justified because it was not a proportionate means of achieving either aim. The Respondent contended that in considering the issue of justification the Tribunal had erred in law by focusing on criticism of the Respondent’s decision-making process rather than conducting a balancing exercise between the needs of the employer, as represented by the legitimate aims the Tribunal had accepted were being pursued, and the discriminatory effect on the employee.
The Employment Appeal Tribunal upheld the Respondent’s appeal and remitted the claim under section 15 of the Equality Act to the same Employment Tribunal for redetermination.

Citations:

[2020] UKEAT 0282 – 19 – 2406

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 December 2022; Ref: scu.652140

Barclays Bank Plc v Kapur and Others (No 2): CA 1995

An unjustified sense of grievance cannot amount to a detriment in discrimination law.

Citations:

[1995] IRLR 87

Jurisdiction:

England and Wales

Citing:

See also – Barclays Bank Plc v Kapur and Others CA 15-Aug-1994
Whether there has been discrimination is independent and irrespective of the discriminator’s motives. . .
See also – Barclays Bank Plc v Kapur and others EAT 3-Dec-1992
. .

Cited by:

Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – St Helens Borough Council v Derbyshire and others HL 25-Apr-2007
The claimants were pursuing an action for equal pay. Several others settled their own actions, and the respondents then wrote direct to the claimants expressing their concern that the action ws being continued and its possible effects. The claimants . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 12 December 2022; Ref: scu.207075

Schonheit v Stadt Frankfurt am Main; Becker v Land Hessen: ECJ 23 Oct 2003

ECJ Social policy – Equal pay for men and women – Applicability of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Article 141(1) and (2) EC and of Directive 86/378/EEC or Directive 79/7/EEC – Meaning of pay – Civil service pension scheme – Calculation of the old-age pension for part-time civil servants – Discriminatory treatment as compared with full-time workers – Indirect discrimination based on sex – Conditions governing justification for objective reasons unrelated to any discrimination on grounds of sex – Protocol concerning Article 119 of the EC Treaty (now Protocol concerning Article 141 EC) – Temporal effects.

Judges:

La Pergola Rap

Citations:

[2003] EUECJ C-4/02, C-5/02, [2003] EUECJ C-5/02, [2004] IRLR 983, [2004] Pens LR 43, [2006] 1 CMLR 51, C-4/02

Links:

Bailii, Bailii

Jurisdiction:

European

Cited by:

Applied – Cross, Gibson, Malone, Leckenby, Young v British Airways EAT 23-Mar-2005
EAT Transfer of Undertakings / Sex Discrimination
Claims by BA employees, retired at 55, for unfair dismissal and sex discrimination dismissed by ET and Applicants’ appeals dismissed. Contractual retirement . .
Cited – Seldon v Clarkson Wright and Jakes (A Partnership) CA 28-Jul-2010
The claimant solicitor said that the compulsory retirement from his partnership on age grounds was discriminatory, and that the UK Regulations had not implemented the Directive fully.
Held: The appeal failed. The purpose of the provision as to . .
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 12 December 2022; Ref: scu.213875

Wheatstone v Blakeney News Food and Wine Ltd and Others (Disability Discrimination): EAT 11 Feb 2020

An Employment Tribunal was entitled to find, on the medical evidence before it, that the admitted disability, namely epilepsy, was not the reason for the Appellant’s absence from work. Consequently, its finding that the Respondent’s unfavourable treatment of her arising from the that absence was not related to the disability was not an error of law.

Citations:

[2020] UKEAT 0287 – 19 – 1102

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.652139

Tough v Revenue and Customs (Practice and Procedure – Strike Out): EAT 14 Feb 2020

The Claimant’s claims of direct disability discrimination and harassment had been struck out after a Preliminary Hearing at which the Employment Tribunal (‘ET’) had determined he was not a disabled person for the purposes of the Equality Act 2010. The Claimant appealed, complaining that the ET had erred: (1) in failing to make findings as to perceived disability discrimination and harassment; and (2) in striking out claims of direct disability discrimination, and harassment related to disability, purely on the basis that it had found that the Claimant was not disabled.
Held: dismissing the appeal
It was a moot point whether there could be harassment related to a perceived disability but that was assumed in the Claimant’s favour for the purposes of the appeal. Adopting that course and further allowing that, unless a complainant has expressly limited their claim to a particular form of direct discrimination or harassment that requires that they first establish that they fall within the definition of a disabled person of the purposes of the EqA, it may not be possible to do justice to the case without properly exploring the employer’s reasoning, it was apparent that the Claimant had so limited his claim in this case. Even if that was unclear from his ET1 (and allowing that the Claimant was acting in person), at an earlier case management stage, he had accepted the question whether he was a disabled person should be determined as a preliminary issue in his case. At the subsequent Preliminary Hearing, listed to consider that question, the Claimant further accepted that a finding that he was not disabled would be determinative of his claims. The ET did not err in determining the case before it.

Citations:

[2020] UKEAT 0255 – 19 – 1402

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.652138

F v Responsible Body of School W: UTAA 6 Apr 2020

The appeal is allowed. The decision of the First-tier Tribunal on the papers on 31 October 2019 under reference EH935/1900089 involved the making of an error of law and is set aside. Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007, I remake the decision in terms that the claim is to be registered including, as free-standing claims, the appellant’s claims based on a failure to make reasonable adjustments

Citations:

[2020] UKUT 112 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination

Updated: 09 December 2022; Ref: scu.651817

Gill, Regina (on The Application of) v Secretary of State for Justice: Admn 26 Feb 2010

Failure to provide programme discriminated

The claimant prisoner who had a learning disability said that he had been unable to complete the offending behaviour programmes because of his disability, that he had been kept in prison for much longer than he should have been as a consequence, and that the defendant should have made appropriate adjustments. It was accepted that his reading skills and IQ level were below the levels required to participate in the programmes. Prison policies stated that facilities were available to all, including prisoners with disabilities.
Held: The claim succeeded. It was acknowledged that he needed to complete the courses but also that suitable courses were not available to him. It was demonstrated that the respondent had neither made reasonable adjustments nor even considered how they might be made.
Cranston J said: ‘steps should have been taken so that he could be provided with some type of offending behaviour work to give him the opportunity to demonstrate, eventually, his safety for release. Other steps have been taken, and assistance provided, but nothing comparable to offending behaviour work. It is clear to me that this failure cannot be justified. In the circumstances of this claimant’s case the Secretary of State has unlawfully breached the statutory duty imposed on him to take steps so that his practices, policies and procedures do not discriminate against this intellectually disabled prisoner.’

Judges:

Cranston J

Citations:

[2010] EWHC 364 (Admin), (2010) 13 CCL Rep 193

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 49A, Prison Act 1952

Jurisdiction:

England and Wales

Citing:

Cited – Alexander v Home Office CA 1988
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 pounds 50 to pounds 500. The court considered the appropriate level . .
Cited – Gichura v Home Office and Another CA 20-May-2008
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 . .
Cited – Lunt, Regina (On the Application of) vLiverpool City Council and Another Admn 31-Jul-2009
Blake J endorsed a six step approach which a public authority will need to address in relation to its duty to make adjustments to avoid indirectly discriminating: ‘1. Did the [public authority] have a practice policy or procedure?
2. Did that . .
Cited – Brown, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 18-Dec-2008
Having ‘due regard’ is not Obligation to do
The claimant sought to challenge the decision to close her local post office on the basis that being retired and disabled and without a car in a rural area, the office was essential and the decision unsupportable. In particular she challenged the . .
Cited – AM, Regina (on The Application of) v The City Council and Another Admn 2-Mar-2009
The question under section 49A is whether the relevant public body has in substance incorporated the thought processes required. . .
Cited – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – EC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment QBD 1985
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the . .
Lists of cited by and citing cases may be incomplete.

Prisons, Discrimination

Updated: 09 December 2022; Ref: scu.401862

Tariquez-Zaman v London Deanery of Post Graduate Medical and Dental Education: CA 6 Nov 2008

Renewed application for leave to appeal against decision of the EAT.

Judges:

Wall LJ

Citations:

[2008] EWCA Civ 1226

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.277567

Kiani v The Secretary of State for The Home Department: CA 21 Jul 2015

Lord Dyson MR (with whom Richards LJ and Lewison LJ agreed) held that the requirements of article 6 ‘depend on context and all the circumstances of the case’. The court will strike an appropriate balance between the requirements of national security and the right of an individual to effective judicial protection. The balancing of these competing interests must take account of all the facts of the particular case.

Judges:

Lord Dyson MR, Richards, Lewison LJJ

Citations:

[2015] EWCA Civ 776, [2015] WLR(D) 325, [2016] QB 595

Links:

Bailii, WLRD

Statutes:

European onvention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Appeal from – Kiani v Secretary of State for The Home Department EAT 21-Nov-2014
EAT National Security – An immigration officer, C employed by the Home Office was suspended, his security clearance withdrawn, and then dismissed, all without any reason being given to him. He claimed it was . .

Cited by:

Cited – Reprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Human Rights

Updated: 07 December 2022; Ref: scu.550369

Palihakkara v Robertson Bell Ltd and Another (Race Discrimination and Victimisation : Time Points): EAT 14 Apr 2021

PRACTICE AND PROCEDURE – Amendment
RACE DISCRIMINATION AND VICTIMISATION – Time Points
The Claimant was placed by the First Respondent (an agency) on a short-time assignment with the Second Respondent. She began work on 9 October 2017. On 9 November 2017 the Second Respondent terminated the assignment. It was agreed that the Claimant would work out a week’s notice. However, on 10 November 2017 the Second Respondent required her to leave immediately. On 7 April 2018 the Claimant presented a claim against the Second Respondent (the first claim), including complaints of direct race discrimination and victimisation, relating to the events of 9 and 10 November 2017, and the handling of a subsequent grievance by it.
On 4 October 2018 the Claimant presented a claim seeking to pursue complaints against the First Respondent under the Equality Act 2010 (the second claim). She also applied to add those complaints against the First Respondent to the first claim. She relied on documents contained in the hard copy disclosure provided by the Second Respondent in relation to the first claim, in August 2018, relating to its communications with the First Respondent in connection with the termination of the assignment with it. The Employment Tribunal held that the second claim had been presented outside the primary time limit, decided that it was not just and equitable to extend time, and refused the application to amend the first claim.
Held: The Employment Tribunal had not erred in identifying that the complaints that the Claimant sought to advance against the First Respondent were not of alleged conduct extending over a period, and hence that they were presented outside of the primary time limit. The Tribunal also reached a proper decision not to extend time, which was not perverse. In particular it was entitled to take account of its finding that the Claimant had been informed about, and provided with, the documents now relied upon by her, during April and May 2018. It also properly exercised its discretion not to permit the proposed amendment of the first claim.

Citations:

[2021] UKEAT 0028 – 20 – 1404

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 07 December 2022; Ref: scu.661952

Hillman v BBC Resources Ltd: EAT 30 Mar 2004

EAT Alleged failure by the ET to make appropriate findings of fact, to deal properly with issue of comparators, and to follow the process indicated in the Barton case in respect of the transfer of the burden of proof (section 63A Sex Discrimination Act 1975) – all dismissed – no order for costs.- leave to appeal to the Court of Appeal.

Judges:

His Honour Judge Prophet

Citations:

UKEAT/0815/03, [2004] UKEAT 0815 – 03 – 3003

Links:

Bailii, EATn

Statutes:

Sex Discrimination Act 1975 63A

Jurisdiction:

England and Wales

Cited by:

Appeal from – Hillman v BBC Resources Ltd CA 29-Nov-2004
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 December 2022; Ref: scu.197794

Camden and Islington Mental Health NHS Trust (Now Materially Succeeded By Camden and Islington Mental and Social Care Trust) v Akinmolasire: EAT 9 Oct 2003

EAT Race Discrimination – Indirect

Judges:

His Hon Judge Prophet

Citations:

EAT/332/03, [2003] EAT 0332 – 03 – 0910, [2003] UKEAT 0332 – 03 – 0910

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Akinmolasire v Camden and Islington Mental Health NHS Trust CA 6-Oct-2004
. .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 December 2022; Ref: scu.187572

Devon and Cornwall Police v Town (Sex Discrimination): EAT 10 Sep 2020

The Claimant was a police officer who was transferred from her Response Team to the Crime Management Hub after she became pregnant. There had been a risk assessment indicating that she could safely remain with the Response Team if certain adjustments were made but the Devon and Cornwell Police had a general policy that police officers on restricted duties would be transferred to the Hub and the risk assessment was ignored. The ET found that the police had discriminated against her (a) on grounds of pregnancy under section 18 EqA 2010 and (b) indirectly on grounds of her sex under section 19, on the basis that women were more susceptible to enforced transfer under the policy because pregnancy ( as well as ill health) would lead to the application of the policy.
The police appealed saying (a) that the relevant treatment for the purpose of section 18 was removing her from danger and was not therefore unfavourable and (b) that any ‘particular disadvantage’ under section 19 was suffered by pregnant women and not women in general.
The appeal failed on both grounds:
(a) The treatment of which the Claimant complained was not that she had been removed from danger but that she had been transferred to the Hub which she did not want and which made her ill. The ET had found as facts that this treatment was unfavourable and that it was because she was pregnant.
(b) It was not necessary for the purpose of section 19 that all women suffered from the particular disadvantage if women as a group were more likely to be subject to an enforced transfer because of the PCP

Citations:

[2020] UKEAT 0194 – 19 – 1009

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 December 2022; Ref: scu.661652

Garcia Mateos v Spain: ECHR 19 Feb 2013

ECHR Article 14
Discrimination
Failure to enforce a judgment acknowledging gender discrimination against a working mother: violation
Facts – In February 2003, relying on the labour regulations, the applicant asked her employer for a reduction in her working hours as she had custody of her son, who was under the six-year age-limit. When her employer refused, she brought proceedings before the Employment Tribunal, but her complaint was dismissed. In a judgment of 2007 the Constitutional Court upheld the applicant’s amparo complaint. It found that the principle of non-discrimination on grounds of sex had been breached in respect of the applicant, as her employer had prevented her from reconciling her professional life with her family life. It remitted the case to the Employment Tribunal for a new judgment. In 2007 the Tribunal dismissed the applicant’s case and she lodged a fresh amparo appeal. In 2009 the Constitutional Court found that its 2007 judgment had not been properly enforced and declared null and void the Employment Tribunal’s judgment. It decided, however, that it would not be appropriate to remit the case to the Employment Tribunal for a further decision, as in the meantime the applicant’s son had reached the age of six. It further ruled that it could not award compensation in lieu as this was not permitted by the Institutional Law on the Constitutional Court.
Law – Article 14 in conjunction with Article 6 ss 1: The State was required to enable applicants to obtain due enforcement of decisions given by the national courts. The Constitutional Court had found, in its 2009 decision, that the applicant’s right to the enforcement of its first judgment, acknowledging a violation of the non-discrimination principle, had been breached. A decision or measure in an applicant’s favour did not deprive him or her of ‘victim’ status unless the authorities had recognised, expressly or in substance, and then remedied the violation of the Convention. The violation found by the Constitutional Court had not to date been remedied in spite of two judgments by that court.
The applicant’s initial intention had not been to obtain compensation but to seek recognition of her right to reduced working hours so that she could look after her son when he was still under six. She subsequently submitted a compensation claim only because she no longer qualified for the reduction in working hours, as her child had passed the age-limit. The Constitutional Court, having refused her compensation in its decision of 2009, did not give her any indication about the possibility of taking her claim to any other administrative or judicial body. It was true that because of the child’s age at the end of the proceedings it was no longer possible to grant alternative redress for the acknowledged breach of the applicant’s right. Nor could the Court could indicate to the respondent State how redress in the context of amparo complaints should be provided. It simply observed that the protection provided by the Constitutional Court had proved ineffective. Moreover, the applicant’s claim before the Employment Tribunal regarding the refusal to grant her a reduction in working hours had not been settled on the merits, even though the two unfavourable judgments of the Employment Tribunal had been declared null and void. In addition, her amparo appeal had proved meaningless, as the Constitutional Court had considered that the law did not provide for compensation as a means of redress for a breach of a fundamental right. Accordingly, the failure to restore to the applicant her full rights had rendered illusory the protection provided through the upholding of an amparo complaint by the Constitutional Court.
Conclusion: violation (unanimously).
Article 41: EUR 16,000 in respect of non-pecuniary damage.
Discrimination (Article 8)

Citations:

38285/09 – Legal Summary, [2013] ECHR 395

Links:

Bailii

Statutes:

European Convention on Human Rights 6-1 14

Human Rights, Discrimination, Employment

Updated: 05 December 2022; Ref: scu.491922

The Incorporated Trustees of the National Council on Aging (Age Concern England), Regina (on the Application of) v Secretary of State for Business, Enterprise and Regulatory Reform: Admn 24 Jul 2007

Age Concern challenged the implimentation of the European Directive as regards the prohibition of age discrimination.

Judges:

David J

Citations:

[2007] EWHC 3090 (Admin)

Links:

Bailii

Statutes:

Council Directive of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (2000/78/EC), Employment Equality (Age) Regulations 2006 (SI 1031 No 2006)

Jurisdiction:

England and Wales

Cited by:

At First Instance – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 23-Sep-2008
Europa Council Directive 2000/78/EC Article 6(1) Age discrimination – Compulsory retirement National legislation permitting employers to dismiss employees aged 65 and over if the reason of dismissal is retirement . .
At High Court – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 5-Mar-2009
(Third Chamber) The trustees complained that the respondent had failed to implement the Directive, in that there remained, for example, rules allowing employers to have fixed retirement ages.
Held: The complaint failed. The Directive allowed . .
See Also – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 05 December 2022; Ref: scu.263482

Playfoot (A Minor), Regina (on the Application of) v Millais School: Admn 16 Jul 2007

The claimant sought to be allowed to wear a purity ring at school. The ring infringed the school’s uniform code. She said that the ring expressed her desire religious to remain pure before marriage.
Held: The wearing of the ring was not sufficiently closely connected with the claimant’s religion or her belief in chastity before marriage. The claim failed.

Judges:

Michael Supperstone QC

Citations:

[2007] EWHC 1698 (Admin), Times 23-Jul-2007, [2007] ELR 484, [2007] BLGR 851, [2007] 3 FCR 754, [2007] ACD 80, [2007] HRLR 34

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Watkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
Lists of cited by and citing cases may be incomplete.

Education, Discrimination, Human Rights

Updated: 05 December 2022; Ref: scu.258412

Jenkins v Legoland Windsor Park Ltd: EAT 12 Feb 2003

The claimant who had a withered arm, took on employment with the respondent. He was given a long service award in the form of a model with a withered arm. This upset him, and he was off work for a long time with depression. He said the tribunal had failed to see the upsetting nature of the depiction which singled him out. The discrimination was not that he was shown with a withered arm, but that he was not carrying a clipboard.
Held: The tribunal ‘did not ask themselves the question as to whether the failure to depict him with a work related item, thereby highlighting his disability amounted to an act of discrimination.’ and the matter was remitted to a fresh tribunal. However the allegation of constructive dismissal was not remitted.

Citations:

[2003] EAT 1155 – 02 – 1202, [2003] UKEAT 1155 – 02 – 1202

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Jenkins v Legoland Windsor Park Ltd EAT 3-Jul-2003
EAT Disability Discrimination – Disability . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 05 December 2022; Ref: scu.191359

Anyanwu and Another v South Bank Students’ Union South Bank University: CA 19 Mar 1999

The applicants sought an extension of time to apply to set aside leave to appeal given to their opponents.
Held: The cause of the respondent seemed weak, but raised a point of law which needed determination and the appeal should be allowed to go ahead.

Judges:

Peter Gibson LJ, Hale LJ

Citations:

[1999] EWCA Civ 1032

Jurisdiction:

England and Wales

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Appeal from – Regina v South Bank University ex parte Anyanwu Admn 27-Jun-1996
The university was concerned at the way it saw the students’ union being run, and imposed a constitution which resulted in the claimants being dismissed. The claimants sought judicial review of the imposition of the new constitution, but that was . .
See Also – Anywanwu and Another v South Bank Students Union and others EAT 12-Sep-1997
. .

Cited by:

Leave – Anyanwu and Another v South Bank Students’ Union and Another CA 4-Nov-1999
A university was not acting in a racially discriminatory manner because of the acts of its student union in dismissing two workers after the university had itself expelled them as students. The term ‘knowingly aided’ in the Act was not to be read so . .
Leave – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Discrimination

Updated: 05 December 2022; Ref: scu.145947

Biktasheva v University of Liverpool (Equal Pay): EAT 3 Nov 2020

The Claimant brought a ‘like work’ claim in 2015. The 2015 claim was withdrawn without the Claimant, who was legally advised at the time, stating that she wished to reserve the right to bring a further claim that was the same, or substantially the same, in the future. In 2018 the Claimant brought a further like work claim in relation to the same work, naming different comparators, but not contending there was any change in the work being done by her, or her comparators, compared to the 2015 claim. The only proper conclusion was that the 2018 claim, as pleaded by the Claimant, should be struck out because it was precluded by cause of action estoppel and/or operation of Rule 52 of the ET Rules.

Citations:

[2020] UKEAT 0253 – 19 – 0311

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 December 2022; Ref: scu.661659

Elliott v Dorset County Council (Disability Discrimination): EAT 9 Apr 2021

The Employment Judge erred in law in the approach adopted to considering whether an admitted impairment had a substantial adverse effect on the ability of the Claimant to carry out day-to-day activities. The term ‘substantial’ is defined by Section 212 EqA 2010 as ‘more than minor or trivial’. If this statutory definition is met, on a consideration of the ordinary meaning of the words, that takes precedence over the Guidance and Code, including the reference to the ‘general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people’. The tribunal has to consider whether the Claimant is affected to a more than minor or trivial extent in carrying out day-to-day activities (which may include work activities) as a result of the impairment in comparison to what the situation would be if the Claimant did not have the impairment.

Citations:

[2021] UKEAT 0197 – 20 – 0904

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 December 2022; Ref: scu.661710

Garrett v Lidl Ltd: EAT 16 Dec 2009

EAT DISABILITY DISCRIMINATION: Reasonable adjustments
VICTIMISATION DISCRIMINATION
HARASSMENT
A move to a different store could amount to a reasonable adjustment. In considering harassment it is important to consider the effect on the alleged victim irrespective of the motive.

Citations:

[2009] UKEAT 0541 – 08 – 1612

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 November 2022; Ref: scu.393338

MEC for Education: KwazuluNatal and Others v Pillay: 5 Oct 2007

(Constitutional Court of South Africa) A rule which prevented a Tamil-Hindu girl from wearing a nose stud which was central to her cultural and religious identity was discriminatory on religious and cultural grounds. The court rejected an argument similar to the one put forward in this case that the refusal to offer the girl an exemption to the uniform code was justified to promote uniformity and acceptable conventional among students.
Langer CJ said that the comparator group which was treated better than the claimant was those pupils: ‘whose sincere religious cultural beliefs or practices, or religious beliefs or practices are not compromised by the [Uniform] Code, as compared to those whose beliefs or practices are compromised’.

Judges:

Langer CJ

Citations:

[2007] ZACC 21

Links:

Saflii

Jurisdiction:

England and Wales

Cited by:

Cited – Watkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Discrimination

Updated: 30 November 2022; Ref: scu.271242

Onuegbu v Campbell: CA 11 Jun 2003

Citations:

[2003] EWCA Civ 858

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 November 2022; Ref: scu.184076

Jenkins v Legoland Windsor Park Ltd: EAT 3 Jul 2003

EAT Disability Discrimination – Disability

Judges:

His Hon Judge J R Reid Qc

Citations:

EAT/1155/02, [2003] EAT 1155 – 02 – 0307, [2003] UKEAT 1155 – 02 – 0307

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Jenkins v Legoland Windsor Park Ltd EAT 12-Feb-2003
The claimant who had a withered arm, took on employment with the respondent. He was given a long service award in the form of a model with a withered arm. This upset him, and he was off work for a long time with depression. He said the tribunal had . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 November 2022; Ref: scu.191721

Mallon v Aecom Ltd (Disability Discrimination): EAT 25 Feb 2021

The Claimant has dyspraxia. He contended that he required a reasonable adjustment to make a job application to the Respondent orally, rather than online. The Respondent sought strike out or a deposit order. For the purposes of the strike out application it was accepted that a PCP was applied of requiring an online application. The claim was struck out on the basis that the Claimant would not be able to establish that the application of the PCP placed him at a substantial disadvantage in comparison with people who are not disabled. Having regard to the definition of substantial, being more than minor or trivial, the Employment Judge erred in law in striking out the case on the basis of the material put before him, the arguments advanced and his analysis.
It is important in considering reasonable adjustment claims, to consider the possibility that the case is about physical features (which includes furniture) or auxiliary aids (which include services). No consideration was given to whether this case should be analysed as an auxiliary service claim.

Citations:

[2021] UKEAT 0175 – 20 – 2002

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 November 2022; Ref: scu.661698

Identoba And Others v Georgia: ECHR 12 May 2015

ECHR Article 3
Positive obligations
State’s failure to protect demonstrators from homophobic violence: violation
Article 14
Discrimination
State’s failure to investigate homophobic motives behind violence during demonstration: violation
Facts – The applicants were a non-governmental organisation set up to promote and protect the rights of LGBT people in Georgia, and 14 individuals. On 17 May 2012 a peaceful demonstration to mark the International Day against Homophobia, organised by the first applicant, took place in Tbilisi and was attended by approximately 30 people, including 13 of the individual applicants. During the event, the LGBT participants in the march were insulted, threatened and assaulted by a larger group of counter-demonstrators who were members of two religious groups. The police eventually arrested four of the applicants and briefly detained and/or drove them around in a police car, with the alleged aim of protecting them from the counter-demonstrators. Following the events, the applicants filed several criminal complaints, requesting in particular that criminal investigations be launched into the attacks against them by the counter-demonstrators which had been perpetrated with discriminatory intent, and into the acts and omissions of the police officers, who had failed to protect them from the assaults. Two investigations into the injuries sustained by two of the applicants were opened in 2012 and remained pending.
Law – Article 3 read in conjunction with Article 14 (second to fourteenth applicants)
(a) Whether the attack on the applicants reached the minimum threshold of severity under Article 3 taken in conjunction with Article 14 of the Convention: In assessing the incident, the Court bore in mind the precarious situation in which LGBT persons found themselves in the respondent State at the time of the attacks and the various reports documenting negative attitudes against members of the LGBT community prevalent in some parts of Georgian society. Against this background, the Court first noted that during the march the applicants had been surrounded by an angry mob that outnumbered them and which had uttered death threats and randomly resorted to physical violence against them. This behaviour had been motivated by a clear homophobic bias, demonstrated by the particularly insulting and threatening language used by the two religious groups and by the acts of ripping LGBT flags and posters followed by actual physical assaults on some of the applicants. The aim of that verbal and physical abuse had evidently been to frighten the applicants so that they would desist from their public expression of support for the LGBT community. The applicants’ feelings of distress must have been exacerbated by the fact that the police protection which had been promised to them in advance of the march had not been provided in due time or adequately. That violence had thus rendered the fear, anxiety and insecurity experienced by all 13 applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention.
(b) Whether the authorities provided due protection to the applicants: Since the organiser of the march had specifically warned the police about the likelihood of abuse, the law-enforcement authorities had been under a compelling positive obligation to protect the demonstrators from violence. However, the police officers had been present at the demonstration only in a limited numbers and had distanced themselves without any prior warning from the scene when the verbal attacks started, thus allowing the tension to degenerate into physical violence. By the time they finally decided to step in, the applicants had already been bullied, insulted or assaulted. Furthermore, instead of focusing on restraining the most aggressive counter-demonstrators with the aim of allowing the peaceful procession to proceed, the belated police intervention had shifted onto the arrest and evacuation of some of the applicants, the very victims whom they had been called to protect. Thus, the domestic authorities had failed to provide adequate protection to the applicants from the attacks of private individuals during the march.
(c) Whether an effective investigation was conducted into the incident: The authorities had also fallen short of their procedural obligation to investigate what went wrong during the incident of 17 May 2012, with particular emphasis on unmasking bias as a motive and identifying those responsible. Despite the reiterated complaints filed by the applicants immediately after the incident, concerning both their ill-treatment and the purported inaction of the police, the domestic authorities had failed to launch a comprehensive and meaningful inquiry into the circumstances surrounding the incident with respect to all of the applicants. Instead, they had inexplicably narrowed the scope of the investigation to two separate cases concerning physical injuries inflicted on only two individual applicants and which had resulted merely in administrative sanctions for two counter-demonstrators of a fine of some EUR 45 each. This could not be considered sufficient to discharge the State’s procedural obligation under Article 3 given the level of the violence and aggression against the applicants.
In the circumstances it had been indispensable for the domestic authorities to take all reasonable steps to unmask possible homophobic motives for the events in question. In the absence of such a meaningful investigation by the law-enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence or even connivance in hate crimes. Moreover, it would be difficult for the respondent State to implement measures aimed at improving the policing of similar peaceful demonstrations in the future, thus undermining public confidence in the State’s anti-discrimination policy. In the light of these considerations, the domestic authorities had failed to conduct a proper investigation into the thirteen applicants’ allegations of ill-treatment.
Conclusion: violation (six votes to one).
The Court also found, unanimously, a violation of Article 11 read in conjunction with Article 14 in that the respondent State, in breach to its positive obligations, failed to ensure that the march of 17 May 2012 take place peacefully by sufficiently containing homophobic and violent counter-demonstrators.
Article 41: sums ranging from EUR 1,500 to EUR 4,000 in respect of non-pecuniary damage.
(See also Nachova and Others v. Bulgaria [GC], 43577/98 and 43579/98, 6 July 2005, Information Note 77; Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, 71156/01, 3 May 2007, Information Note 97; Baczkowski and Others v. Poland, 1543/06, 3 May 2007, Information Note 97; see also the Factsheet on Sexual orientation issues)

Citations:

73235/12 – Legal Summary, [2015] ECHR 537

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Discrimination

Updated: 30 November 2022; Ref: scu.547588

O’Connor v Bar Standards Board: SC 6 Dec 2017

The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time having begun on the initial ruling against her.
Held: The appeal succeeded. The Appellant’s challenge was to the disciplinary proceedings against her, not to an alleged state of affairs in which BME lawyers were more likely to be the subject of such proceedings. Therefore, the bringing and pursuit of the disciplinary proceedings must be the focus of the investigation in terms of section 7(5)(a) of the 1998 Act. That section must not be read narrowly and must be allowed to provide an affective and workable remedy, particularly where what was complained of was a course of conduct. Here, there had been a single and continuing action. It had not been Parliament’s intention to have limitation calculated individually from each element of the process. The period ran from when the process ceased, not from when it began, and in this case it was from the time when the Visitors eventually allowed her appeal.

Judges:

Lady Hale, President, Lord Kerr, Lord Wilson, Lady Black, Lord Lloyd-Jones

Citations:

[2017] UKSC 78, [2018] 2 All ER 779, [2017] WLR(D) 813, [2017] 1 WLR 4833, [2018] HRLR 2, UKSC 2016/0174

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Videos Summary, SC 2017 Oct 04 am Video, SC 2017 Oct 04 pm Video

Statutes:

European Convention on Human Rights 14

Jurisdiction:

England and Wales

Citing:

At QBD – O’Connor v Bar Standards Board QBD 18-Dec-2014
Appeal against an order of Deputy Master Eyre by which he struck out the appellant’s statements of case and dismissed the action with judgment for the defendant with costs. The claimant said that the procedures adopted by the Board in disciplinary . .
Appeal from – O’Connor v Bar Standards Board CA 25-Jul-2016
The appellant said that the Board had infringed her human rights in its approach to disciplinary proceedings brought against her. She had been cleared and now sought a remedy. The Board successfully argued that her claims were out of time.
Cited – DH v Czech Republic ECHR 13-Nov-2007
(Grand Chamber) The applicants complained that their children had been moved to special schools which did not reflect their needs from ordinary schools without them being consulted.
Held: The Court noted that, at the relevant time, the . .
Cited – Rehman v The Bar Standards Board Admn 29-Jul-2016
The barrister appealed against two findingd of the Disciplinary Tribunal of the Council of the Inns of Court. . .
Cited – Lincoln v Daniels CA 1961
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council . .
Cited – In re S (A Barrister) 1970
(Inns of Court) The regulation of barristers has been delegated by the judges to the Inns of Court. Five judges sitting as Visitors of the Inns of Court stated that ‘the judges as visitors have always had supervisory powers and their decision, upon . .
Cited – Delcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
Cited – Sampanis and Others v Greece ECHR 8-Aug-2011
Resolution as to execution of judgment . .
Cited – Orsus And Others v Croatia ECHR 16-Mar-2010
(Grand Chamber) Fifteen Croatians of Roma origin complained that they were victims of racial discrimination in that they were segregated into Roma-only classes and consequently suffered educational, psychological and emotional damage.
Held: . .
Cited – Eckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
Cited – Regina v Visitors to the Inns of Court ex parte Calder CA 1993
Two barristers had been struck off for disciplinary offences. Their appeals were heard by three High Court judges sitting as Visitors, who dismissed the appeals. The barristers now sought judicial review of that decision.
Held: Justices . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights, Discrimination, Limitation

Updated: 27 November 2022; Ref: scu.599756

The Lord Chancellor and Another v Coker and Another: EAT 17 Jan 2001

Appeal at the instance of the Lord Chancellor and his department against the decision of the Employment Tribunal that in the selection of a special adviser he contravened the provisions in respect of the first respondent, as she now is, the Sex Discrimination Act 1975 and in respect of the second respondent, as she now is, both that Act and the Race Relations Act 1976.

Judges:

Lord Johnston

Citations:

[2001] UKEAT 820 – 99 – 1701, [2001] Emp LR 272, [2001] ICR 507, [2001] IRLR 116

Links:

Bailii

Statutes:

Sex Discrimination Act 1975, Race Relations Act 1976

Jurisdiction:

England and Wales

Employment, Discrimination, Discrimination

Updated: 27 November 2022; Ref: scu.442034

Glasgow City Council v McNab: EAT 17 Jan 2007

EAT An atheist teacher working in a Roman Catholic school applied for the post of Acting Principal Teacher of Pastoral Care. He was not even considered for an interview as he was not of the Roman Catholic faith and the local education authority which maintained the school thought that the Roman Catholic Church would have regarded being of their faith as a pre-requisite for the post. The Employment Tribunal found that he had been discriminated against on religious grounds in terms of the Employment and Equality (Religion or Belief) Regulations 2003 since none of the exceptions provided for under regulations 7(2) and (3) of those regulations applied. The Employment Appeal Tribunal upheld that finding and the award of andpound;2,000 that had been made. Consideration given to the effect and implications of s.21(2)(A) of the Education (Scotland) Act 1980 and an agreement that had been entered into between the respondent education authority and the Roman Catholic Church, purportedly under reference to those provisions, in 1991.

Citations:

[2007] UKEAT 0037 – 06 – 1701, UKEATS/0037/06

Links:

Bailii, EATn

Statutes:

Employment and Equality (Religion or Belief) Regulations 2003 7(2), Education (Scotland) Act 1980 21(2)(a)

Jurisdiction:

Scotland

Employment, Discrimination

Updated: 27 November 2022; Ref: scu.251282

Kelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive: HL 29 Jul 1998

Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the person making the contract shall himself undertake to do, at any rate, some of the work or labour. ‘ The notice of appointment referred to the individual qualifications of the person nominated, even though the appointment was of a firm. The Interpretation Act required a ‘person’ to include a body corporate or incorporate, and the Act intended a wide interpretation of employment. However, the non-appointment was not a refusal to confer a qualification under the Act.

Judges:

Lord Slynn of Hadley, Lord Griffiths, Lord Lloyd of Berwick, Lord Steyn, Lord Clyde

Citations:

Times 14-Sep-1998, Gazette 23-Sep-1998, [1998] 3 WLR 735, [1998] UKHL 33, [1999] 1 AC 428, [1998] ICR 828, [1998] NI 240, [1998] IRLR 593

Links:

House of Lords, Bailii

Statutes:

Fair Employment (Northern Ireland) Act 1976 17, Interpretation Act 1978

Jurisdiction:

Northern Ireland

Citing:

Adopted – Mirror Group Newspapers v Gunning CA 1985
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. . .
Cited – Ryder v Warde 1848
A person who undertakes work and employs several or many men to do, or to assist in doing, the work is not an artificer or workman for the purposes of the Truck Act which prohibited payment other than in the currency of the realm. . .
Cited – Sharman v Sanders 25-Jan-1853
A contract which employed one person, but anticipated that the services required might be carried out by his employees did not fall within the Truck Acts. . .
Cited – Tanna v Post Office EAT 1981
The applicant sought appointment as a post-master, and claimed race discrimination when the respondent failed to interview or appoint him. He was required only to provide premises and to ensure that services were provided without being obliged . .
Cited – In re Northern Ireland Electricity Services Application 1987
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 . .
Cited – Regina v Department of Health, Ex parte Ghandi 1991
A claim was brought under the section which provides that it is unlawful ‘for an Authority or Body which can confer an authorisation for, or facilitates, engagement in a particular profession or trade to discriminate.’ It was claimed that there had . .
Cited – Dr Tattari v Private Patients Plan Limited CA 8-Jul-1997
Health insurer is not body providing qualification to carry on profession or trade and not liable as such in race discrimination laws. . .
Cited – McLoughlin v Queen’s University of Belfast CANI 1995
The words ‘registration’ and ‘enrolment’ refer in our opinion to variants of conferment of qualifications upon persons who thereby achieve some status in relation to their work or the work which they propose to do.’ . .
Cited – Department of the Environment for Northern Ireland v Bone 15-Sep-1993
The court was asked as to the meaning of ‘qualification’ when considered under the Act: ‘It is our view that the word ‘qualification’ itself and the other words in the definition viz ‘authority, recognition, registration, enrolment, approval and . .

Cited by:

Cited – Mingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
Cited – Jivraj v Hashwani SC 27-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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 27 November 2022; Ref: scu.158964

Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc: CA 6 Nov 1995

A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations. ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’ Profound cultural changes do take time, but ‘A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z.’

Judges:

Sir Thomas Bingham MR

Citations:

Times 06-Nov-1995, [1996] QB 517

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:

Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Appeal from – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Bennett v Officers A and B and Commissioner of Police for the Metropolis CA 2-Nov-2004
Police Officers had been involved in a shooting in which a man died. They were granted anonymity before the coroner’s court, on evidence suggesting they might be at risk. The family of the deceased appealed.
Held: The coroner misdirected . .
Cited – A and Others, Regina (on the Application of) v Lord Saville of Newdigate and others CA 28-Jul-1999
Former soldiers who had been involved in the events in Londonderry in 1972, and were to be called to give evidence before a tribunal of inquiry, still had cause to fear from their names being given, and so were entitled to anonymity when giving such . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Armed Forces

Updated: 27 November 2022; Ref: scu.87689

London Fire Commissioner and Others v Sargeant and Others (Age Discrimination): EAT 12 Feb 2021

AGE DISCRIMINATION
1. The Employment Tribunal did not err in law in its construction of section 61 of the Equality Act 2010 or its impact on the availability of the defence provided by paragraph 1(1) of Schedule 22 of that Act.
2. Section 61 prohibits the Appellants from acting in a manner which discriminates on the grounds of age and it prioritises that obligation over other provisions in the pension scheme which would oblige them to act in that way. In this way it gives effect to the UK Government’s obligations under EU Directive 2000/78. The defence provided by paragraph 1(1) of Schedule 22 of the Equality Act 2010 is not available to the Appellants.
3. Upon the proper construction of section 62 of the Equality Act 2010 the appellants have vested in them the power to pass a resolution making non-discrimination alterations to the scheme of which they are managers in respect of those members who were last employed by them. In that respect, also, they were not obliged by a statutory requirement to discriminate against the Claimants on the grounds of age and so, by that route too, are unable to avail themselves of the statutory defence provided by paragraph 1(1) of Schedule 22.
4. The provision of a cause of action against a third party for inducing an employer to breach the principles underlying the EU Directive falls a long way short of compliance with Article 16 of the Directive: to take necessary measures to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished. Community law requires that the discriminatory provisions of the 2015 Scheme Regulations are to be overridden, set aside, disapplied, or amended with the consequence that the appellants are not required by an enactment to contravene the Equality Act by applying them. In that way too, if necessary, the statutory defence is unavailable to the Appellants.

Citations:

[2021] UKEAT – 0137 – 1202

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 November 2022; Ref: scu.661697

Diageo Plc v Thomson: EAT 29 Apr 2004

EAT Equal Pay Act – Article 141
Appeal against Employment Tribunal’s Decision that Respondent’s 2000 job evaluation study not within s1(5) (and therefore no bar to Applicant’s claim by reference to s2A) of the Equal Pay Act 1970 dismissed by reference to Eaton v Nuttall [1977] ICR 272. Tribunal did not deal with effect of the earlier (1996) evaluation study: order that fresh tribunal deal with that and other matters by way of preliminary issues within Rule 10A in relation to the equal value claim.

Judges:

Burton J P

Citations:

[2004] UKEAT 0064 – 03 – 2904, EATS/0064/03

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 November 2022; Ref: scu.200017

Alemi v Mitchell and Another (Sex Discrimination): EAT 8 Jan 2021

Sex Discrimination
The Employment Judge erred in law in holding that all that is necessary for a person to be an employee in the extended sense for the purposes of section 83(2) Equality Act 2010 is that the person should have entered into a contract under which she or he agrees to do work personally.
There is no significant difference between the definition of an employee in the extended sense for the purposes of section 83(2) Equality Act 2010 and a limb (b) worker for the purposes of provisions such as the Employment Rights Act 1996 , both of which exclude those who are genuinely in business on their own account and undertake work for their clients or customers.

Citations:

[2021] UKEAT 0042 – 20 – 0801

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 November 2022; Ref: scu.661678

Tesco Stores Ltd v Tennant (Disability Discrimination): EAT 15 Nov 2019

DISABILITY DISCRIMINATION – Disability
The Claimant brought proceedings on 11 September 2017 for disability discrimination and harassment based on actions of her employer Tesco which took place from September 2016. The EJ decided as a preliminary issue that the Claimant was disabled at the relevant time, finding that from 6 September 2016 she suffered an impairment (namely depression) which had a substantial adverse effect on her ability to carry out normal day-to-day activities and which was long-term under para 2(1)(a) of Schedule 1 to EqA 2010 because by September 2017 it had lasted 12 months.
Tesco appealed on the basis that in order to claim disability discrimination or harassment the claimant must be disabled at the time of the relevant act and that para 2(1)(a) of Schedule 1 to EqA 2010 required the effect of the impairment to have lasted 12 months before she could be said to be disabled. The EAT held that it was clear on the wording of the para that Tesco were right and that the Claimant was only disabled and could only bring claims as from 6 September 2017.

Citations:

[2019] UKEAT 0167 – 19 – 1911

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 November 2022; Ref: scu.650907

Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust: CA 21 Dec 2005

The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not enough for the non-RVI claimants to show that they have the same employer as the comparators. They must show that that employer was also the body responsible for setting the terms of both groups of employees. The tribunal could not properly have reached its conclusion on the evidence before it that the outsourcing decision was discriminatory.

Judges:

Lord Justice Buxton Lady Justice Arden Lord Justice Latham

Citations:

[2005] EWCA Civ 1608, [2006] IRLR 124

Links:

Bailii

Statutes:

Equal Pay Act 1970 1, EC Treaty 141

Jurisdiction:

England and Wales

Citing:

Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Lawrence and others v Regent Office Care Ltd and Others ECJ 17-Sep-2002
The employees claimed sex discrimination, and sought to have as comparators, male employees of an employer who had previously employed some of them, before a TUPE transfer of the services supplied. The Court of Appeal referred to the court the . .
Cited – Robertson and others v Department for Environment Food and Rural Affairs CA 22-Feb-2005
The claimants argued that civil servants in one government department could establish that civil servants in another department could stand as comparators in their equal pay claim.
Held: It was not necessarily the person with whom the workers . .
Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – Glasgow City Council and Others v Marshall and Others HL 8-Feb-2000
Although instructors in special schools, carried out work of a broadly similar nature to qualified teachers, and the majority were women, they were not entitled to an equality of pay clause, since there was no evidence of sex discrimination, and the . .
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – Ratcliffe and Others v North Yorkshire County Council HL 7-Jul-1995
Three school dinner ladies had been employed by the Council at National Rates of pay and conditions. Their work which was almost exclusively carried out by females had been rated as of equal value to that of men employed by the council at various . .
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
Appeal from – Armstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

Cited by:

Cited – South Tyneside Metropolitan Borough Council v Anderson and others EAT 26-Mar-2007
The council appealed a finding that there was no genuine material factor justifying a difference in pay, and in particular the availability of bonus schemes. . .
See Also – Newcastle Upon Tyne NHS Hospitals Trust v Armstrong and Others EAT 22-Feb-2010
EAT EQUAL PAY – Material factor defence and justification
EQUAL PAY – Indirect discrimination
Appeal from decision of Employment Tribunal on issues remitted by the Court of Appeal in Armstrong v . .
See Also – Gibson and Others v Sheffield City Council CA 10-Feb-2010
The employees appealed against dismissal of their claims of sex discrimination, saying that the employer’s explanation of the pay differential was not adequate.
Held: The appeal succeeded. The tribunal had failed to distinguish between what . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 November 2022; Ref: scu.236607

Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions: CA 18 Jun 2003

The appellants were widowers whose wives had died at a time when the benefits a widow would have received were denied to widowers. The legislation had since changed but they variously sought compensation for the unpaid sums.
Held: The appeal succeeded. By 1995 discrimination as to pensions was no longer supportable. And those appellants pursuing that point succeeded. The Human Rights Act required the court to read statute to be compliant. A statute purporting to justify an infringement could not be relied upon as a defence. Those individuals who had taken their cases to the Human Rights Court had been paid on a friendly settlment. Such would not oblige the respondent to make arrangements for others. This was well recognised as a motive for such settlements. However the Secretary had power to make the payments, and in failing to pay he again infringed the claimants’ 6.1 rights, but it was not irrational not to make extra statutory payments for those who had not claimed. It was necessary to make a payment in damages to achieve just satisfaction, and damages were awarded.

Judges:

Lord Justice Mantell Lord Justice Rix Lord Phillips Of Worth Matravers, Mr

Citations:

[2002] EWCA Civ 813, Times 28-Jun-2003, Gazette 17-Jul-2003, [2003] 1 WLR 2623, 14 BHRC 626, [2003] 2 FCR 504, [2003] UKHRR 1268, [2003] 3 All ER 673

Links:

Bailii

Statutes:

Social Security Contributions and Benefits Act 1992 36 37 38, Income and Corporation Taxes Act 1988 262(1), European Convention on Human Rights 14 First Prot Art1

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Cornwell v United Kingdom; Leary v United Kingdom ECHR 25-Apr-2000
Mr Cornwell’s wife had died on 24 October 1989, leaving a dependent child. On 7 February 1997 his representative had ‘contacted’ the Benefits Agency to enquire about widow’s benefits. On 14 February 1997 the Agency ‘answered’ to say that legislation . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Mellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
Appeal from – Hooper and others v Secretary of State for Work and Pensions Admn 14-Feb-2002
The claimants alleged that the way they were treated as widowers under the benefits subjected them to discrimination.
Held: The continued payment of widow’s pension was objectively justified. . .

Cited by:

Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Appeal from – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination

Updated: 25 November 2022; Ref: scu.183704

Regina v Secretary of State for Health, ex parte Richardson: ECJ 19 Oct 1995

ECJ Different ages for prescription charges between sexes were an unlawful discrimination. Pension differences were no justification for different eligibility for prescription.

Citations:

Independent 17-Nov-1995, Times 27-Oct-1995, C-137/94, [1995] EUECJ C-137/94

Links:

Bailii

Statutes:

Council Directive 79/7/EEC

Jurisdiction:

European

Benefits, Discrimination, European

Updated: 25 November 2022; Ref: scu.161354

Tchoula v Netto Foodstores (UK) Limited: CA 15 Oct 1998

The complainant alleged bias on the part of the tribunal, saying that a tribunal member had fallen asleep. He now sought leave to appeal against the decision of the EAT. The Employment Appeal Tribunal had indicated certain areas of dissatisfaction with the conduct of the case but had not reversed the judgment. Leave was given, but the appellant was warned against optimism.

Citations:

[1998] EWCA Civ 1542

Jurisdiction:

England and Wales

Citing:

Appeal from – Tchoula v Netto Foodstores Ltd EAT 6-Mar-1998
A bald statement saying that X’s evidence was preferred to Y’s is implausible and unreasoned and unacceptable; included simply to try and prevent any appeal. It is likely that there will be a great deal of background material which is . .
See Also – Tchoula v Netto Foodstores Ltd EAT 14-Jul-1997
The appicant sought leave to appeal against refusal of his claim of race discrimination.
Held: Leave was granted on one point. The Industrial Tribunal under the heading ‘Dismissal’, referred to the fact that: ‘The applicant lacked the ability . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 25 November 2022; Ref: scu.145021

Bartholomew v London Borough of Hackney and Yeboah: CA 23 Oct 1998

An employee was suspended, but complained of race discrimination. A settlement was reached. When applying for another job, the reference given mentioned only one side of the dispute.
Held: A reference had to be viewed as a whole, and to be seen to be fair, but that in this case it was. The claimant had himself contrived the state of affairs leaving the absence of any adjudication of the complaint against him.
Robert Walker LJ discussed Spring, observing, having regard to the nature of the reference in that case, that there was: ‘understandably hardly any discussion of any question of nuances or, as it might be put in terms of defamation law, innuendo which might stop a reference, while factually correct so far as it went, from being unfair.’ Citing Lord Goff and Lord Woolf, he noted that almost any reference would consist of: ‘opinion based on facts, some of which are capable of more or less precise and objective measurement and others of which depend on much more subjective perceptions.’
He assumed that Hackney had a duty to give a true, fair and accurate reference, noting that: ‘the libel cases seem to me to serve as a salutary reminder that the fairness or unfairness, the accuracy or inaccuracy, and, indeed, truth or falsity of a statement have to be taken in the round and in context and cannot be in every case dissected into a number of discrete parts.’
He then asked as to what Hackney was to do in order to fulfil its duty to provide a fair reference to Mr Bartholomew without being unfair or misleading to the recipient. He concluded that had it omitted all reference to suspension and disciplinary inquiry it might well have considered itself as failing in its civic duty to other local authorities, even though the charges were unproven. Recognizing that a reference was not given unfair or misleading impression overall, even if discreet components were factually correct, he did not consider it need to be full and comprehensive or that this particular reference constituted a breach of Hackney’s duty of care to Mr Bartholomew.

Judges:

Butler-Sloss, Robert Walker LJJ

Citations:

Gazette 19-May-1999, [1998] EWCA Civ 1604, [1999] IRLR 246

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Spring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .

Cited by:

Distinguished – Jackson v Liverpool City Council CA 15-Jun-2011
Having left the defendant with a satisfactory reference, on moving jobs again a further reference was requested, but given this time in terms which the claimant said was defamatory, as to his record-keeping.
Held: The Council’s appeal was . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 25 November 2022; Ref: scu.145083

Chalmers v Airpoint Ltd and Others (Sex Discrimination; Victimisation): EAT 16 Dec 2020

The Claimant submitted that the Tribunal had erred in finding that there was no ‘protected act’ for the purposes of ss26 and 27 of the Equality Act 2010. It concluded that the Claimant could not have been harassed or victimised on the ground of sex since the protected acts relied on Respondents were not based on her protected characteristic, sex. The Claimant further submitted that she was entitled to allege victimisation under s. 27 of the Equality Act 2010 on the basis that she had disclosed an intention to raise tribunal proceedings based on her protected characteristic. Held that the Tribunal was on the facts entitled to conclude that the offending email did not allege sex discrimination and that the EAT could not disturb its finding. Held further that the Claimant was not entitled to seek to prove an intention to raise proceedings as they had not given notice of this ground of discrimination under s. 27(1) of the Equality Act 2010 and that the evidence said to establish the protected act was not apt to support the Claimant’s appeal.

Citations:

[2020] UKEAT 0031 – 19 – 1612

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 25 November 2022; Ref: scu.661667

Roca Alvarez (Social Policy): ECJ 6 May 2010

Europa (Opinion) Social policy – Equal treatment for men and women – Breastfeeding leave.

Citations:

C-104/09, [2010] EUECJ C-104/09 – O

Links:

Bailii

Jurisdiction:

European

Cited by:

Opinion – Roca Alvarez (Social Policy) ECJ 30-Sep-2010
Social policy – Equal treatment for male and female workers – Directive 76/207/EEC – Articles 2 and 5 – Right to leave for employed mothers – Possible use by an employed mother or an employed father – Mother self-employed – Exclusion of the right to . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 25 November 2022; Ref: scu.410788

Quirk v Burton Hospitals NHS Trust Secretary of State for Health: EAT 4 Dec 2000

The Appeal tribunal upheld the refusal of an employment tribunal to grant the applicant a declaration that he was entitled to retire at 55 with the same superannuation terms as had female nurses also retiring at that age.
EAT Sex Discrimination – Direct

Judges:

His Honour Judge Peter Clark

Citations:

Times 19-Feb-2002, EAT/1031/99

Statutes:

National Health Service (Superannuation) Regulations 1980 (1980 No 362)

Jurisdiction:

England and Wales

Discrimination, Health Professions

Updated: 25 November 2022; Ref: scu.171968

Frette v France: ECHR 26 Feb 2002

A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article 14 in conjunction with article 8, on margin of appreciation grounds. The claimant succeeded on a separate complaint of a breach of article 6. There was the legitimate aim of protecting the interests of children at a time when child psychiatrists and psychologists were divided in their opinions of the effects of being adopted by homosexual parents. Article 14 ‘ . . complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions.’

Citations:

36515/97, [2002] ECHR 156, [2003] 2 FLR 9, (2002) 38 EHRR 438, [2002] ECHR 156

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Frette v France ECHR 2002
There are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment, including sexual orientation: ‘. . the Contracting States enjoy a margin of appreciation in assessing . .

Cited by:

Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption, Discrimination

Updated: 24 November 2022; Ref: scu.212864

Frette v France: ECHR 2002

There are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment, including sexual orientation: ‘. . the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States.’

Citations:

(2003) 2 FLR 9, (2002) 38 EHRR 438

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
See Also – Frette v France ECHR 26-Feb-2002
A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination

Updated: 24 November 2022; Ref: scu.198489

Smith v Intelling Ltd (Disability Discrimination): EAT 11 Dec 2020

Disability Discrimination
It was not perverse for an ET to make findings as to the true reason for the dismissal which were entirely at odds with the case that the Respondent had originally advanced. The Respondent’s case had been prepared chaotically but the ET had been able to establish the true reason for the Claimant’s dismissal which was not connected with his admitted he disability. Although it was unfortunate that the ET made no reference to s136 of the Eq A, dealing with the shifting burden of proof, there is no formal requirement for it to do so. Contrary to the Claimant’s submissions there was an evidential basis for the ET’s findings.

Citations:

[2020] UKEAT 0307 – 19 – 1112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 November 2022; Ref: scu.661672

Roca Alvarez (Social Policy): ECJ 30 Sep 2010

Social policy – Equal treatment for male and female workers – Directive 76/207/EEC – Articles 2 and 5 – Right to leave for employed mothers – Possible use by an employed mother or an employed father – Mother self-employed – Exclusion of the right to leave for an employed father

Citations:

[2010] EUECJ C-104/09, [2011] All ER (EC) 253, [2011] 1 CMLR 28

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Roca Alvarez (Social Policy) ECJ 6-May-2010
Europa (Opinion) Social policy – Equal treatment for men and women – Breastfeeding leave. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 24 November 2022; Ref: scu.650816

Couronne and others v Bontemps and others: CA 2 Nov 2007

The applicants had come to the UK after being excluded from their own island of Chagos. They sought judicial review of the refusal of Job Seekers’ Allowance after a finding that they were not resident here.

Judges:

Ward LJ, Thomas LJ, Wa;; LJ

Citations:

[2007] EWCA Civ 1086, [2008] ACD 21, [2008] 1 WLR 2762

Links:

Bailii

Statutes:

Race Relations Act 1976, European Convention on Human Rights 14

Jurisdiction:

England and Wales

Benefits, Discrimination

Updated: 23 November 2022; Ref: scu.260195

Wade v Chief Constable of West Yorkshire and Others: CA 31 Jul 1998

A tribunal’s decision on the facts was not to be set aside without good reason. It was within the tribunal’s range of discretion not to admit notes of police disciplinary proceedings in a claim for sexual harassment made by a woman PC.

Citations:

Times 09-Sep-1998, [1998] EWCA Civ 1369

Jurisdiction:

England and Wales

Discrimination

Updated: 23 November 2022; Ref: scu.144848

Allay (UK) Ltd v Gehlen (Race Discrimination): EAT 4 Feb 2021

An employer can defend a claim resulting from the otherwise unlawful discriminatory actions of an employee if it is able to rely on section 109(4) Equality Act 2010 because it can demonstrate that all reasonable steps were taken to prevent the employee from doing ‘that thing’, or ‘anything of that description’. In considering the steps that have been taken, and whether further reasonable steps were required, it is legitimate to consider how effective the steps that have been taken were likely to be when they were taken and, in appropriate circumstances, how effective they have proved to be in practice. The tribunal in this case was entitled to conclude that such training as had been provided to the perpetrator of race harassment, and a number of other employees, including two managers who failed to report matters to HR, had become stale and required refreshing.

Citations:

[2021] UKEAT 0031 – 20 – 0402

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 22 November 2022; Ref: scu.661690

Degnan and others v Redcar and Cleveland Borough Council: CA 17 Jun 2005

Equal Pay claims.

Citations:

[2005] EWCA Civ 726, [2005] IRLR 615, [2005] ELR 475

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Degnan and others v Redcar and Cleveland Borough Council EAT 14-Apr-2005
EAT Sex Discrimination – Injury to feelings.
EAT Equal Pay Act – Out of time . .

Cited by:

Cited – European Credit Management Ltd v Hosso EAT 12-Aug-2008
EAT Practice and Procedure
The issue was whether the modified grievance procedure had been satisfied in relation to a claim for larger payments when no specific mention of such payment had been made in any . .
Cited – Brownbill and Others v St Helens and Knowsley Hospital NHS Trust EAT 6-Aug-2010
EAT EQUAL PAY ACT – Case management
This appeal by some of the Claimants in a multiple equal pay claim, from a judgment on a PHR, raised the important question of the meaning of section 1(2) of the Equal Pay . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 22 November 2022; Ref: scu.226729

H Aziz v Crown Prosecution Service: CA 31 Jul 2006

The claimant appealed dismissal of his claim for race discrimination, saying that the defendant had failed to comply with its own disciplinary procedures. She had been accused of making inappropriate remarks after 9/11. The EAT had found that the ET had misunderstood the defendant’s procedures.
Held: The appeal succeeded. The suspension had proceeded despite awareness that the evidential basis was weak, and without proper enquiries. The Code required more than mere suspicion of gross misconduct, that suspicion must also be based on reasonable grounds.

Judges:

Ward LJ, Smith LJ, Richards LJ

Citations:

Times 30-Aug-2006, [2006] EWCA Civ 1136, [2007] ICR 153

Links:

Bailii

Statutes:

Race Relations Act 1976 1(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – The Crown Prosecution Service v Aziz EAT 23-May-2005
EAT Race Discrimination – Erroneous construction by Employment Tribunal in law of Respondent’s disciplinary procedures led to the conclusion that the Respondent had acted in deliberate breach of its own procedure . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 22 November 2022; Ref: scu.244095

Balamoody v United Kingdom Central Council for Nursing: CA 14 May 2001

The applicant sought leave to appeal against a decision disallowing his complaint at his claim for race discrimination being struck out as scandalous, frivolous or vexatious. He said that the Tribunal had dismissed his claim without giving him opportunity to present the facts on which it was based.
Held: Given the decision on Roffey, the case should be allowed to go forward to appeal.

Judges:

Mummery LJ

Citations:

[2001] EWCA Civ 729

Links:

Bailii

Statutes:

Race Relations Act 1976 12, Employment Tribunal’s Constitution and Rules of Procedure Regulations 1993 13(2)

Jurisdiction:

England and Wales

Citing:

See Also – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting Admn 18-Jul-1997
The applicant complained of having been struck off the register of nurses. He said that when he told the court that he wanted to appeal he was sent forms appropriate for a judicial review. He amended and submitted them. In correcting him, the court . .
See Also – Balamoody v United Kingdom Central Council; Balamoody v Manchester City Magistrates’ Court Admn 10-Jun-1998
The applicant had been convicted of offences relating to the management of his nursing home, and had been struck off the Register of Nurses.
Held: It was no defence to the criminal charges that a member of staff had failed in her duties. The . .
See Also – Balamoody v Manchester Health Authority EAT 2-Mar-1999
The claimant appealed against orders striking out his complaint of unlawful racial discrimination. He had owned a nursing home regulated by the respondent authority. A senior white employee had broken regulations regarding safekeeping of drugs, but . .
Appeal from – Balamoody v UkCC for Nursing Midwifery and Home Visitors EAT 5-Dec-2000
The claimant’s claim of unlawful race discrimination had been dismissed as an abuse of process by the EAT. The Tribunal now considered whether the EAT had power to make such a decision.
Held: The 1993 Regulations were more generous to . .
Cited – Care First Partnership Ltd v Roffey and Others CA 22-Nov-2000
An employment tribunal had no power to dismiss a claim as without a reasonable prospect of success before it was begun to be heard. The power to regulate its own hearings did not include such a power, and the power to dismiss a claim as frivolous or . .

Cited by:

See Also – Balamoody v Manchester Health Authority EAT 12-Nov-2001
The Tribunal heard a preliminary application in a claim for unlawful race discrimination. Earlier applications had been struck out. This second set of applications had been struck out as frivolous by the Tribunal on the basis that they were not new . .
Leave Given – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Discrimination

Updated: 22 November 2022; Ref: scu.201028

A v Chief Constable of the West Yorkshire Police and Another: CA 5 Nov 2002

The appellant had undergone a male to female sex change, but was refused employment by the respondent before the Human Rights Act came into effect.
Held: Although the Human Rights Act could not apply, the act was in breach of the Equal Treatment Directive and discrimination. The 1999 regulations were incompatible with the provisions of the Directive. The respondent said that it was a requirement of the job that an officer be ready to search a person of the same sex, under the 1984 Act. Following Goodwin, it was no longer permissible to treat the applicant other than as a female. It is now necessary to apply the law as developed by the European convention jurisprudence. It was necessary to decide first what is ‘the appellant’s legal gender’. There had been gender reassignment surgery and the Court concluded that the appellant had become female.

Judges:

Kennedy, Buxton, Keene LJJ

Citations:

Times 14-Nov-2002, Gazette 09-Jan-2003, [2002] EWCA Civ 1584, [2003] ICR 161

Links:

Bailii

Statutes:

Equal Treatment Directive (76/207/EEC) (OJ 1976 L39/40), Sex Discrimination Act 1975 Part II, Sex Discrimination (Gender Re-Assignment) Regulations 1999 (1999 No 1102), Police and Criminal Evidence Act 1984 54

Jurisdiction:

England and Wales

Citing:

Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Appealed to – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Appeal from – The Chief Constable of the West Yorkshire Police v A, Secretary of State for Education EAT 2-Oct-2001
The Force appealed findings of sex discrimination against the respondent who had undergone gender reassignment. She required the fact of the procedure to be kept secret. The force refused her application for appointment since they said she would be . .

Cited by:

Cited – Croft v Royal Mail Group Plc (formerly Consignia Group plc) CA 18-Jul-2003
The employee was a transsexual, awaiting completion of surgical transformation to a woman. The employer said she could not use the female toilet facilities, but was offered use of the unisex disabled facilities.
Held: The 1975 Act provides for . .
Appeal from – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Police, Employment, European, Human Rights

Updated: 20 November 2022; Ref: scu.178099

Smith v Gardner Merchant Ltd: CA 14 Jul 1998

A male homosexual barman complained of offensive remarks about his sexuality from a female colleague.
Held: When considering whether a gay man has been discriminated against on the grounds of his sex, by means of abuse in work-place, the proper comparator to test for discrimination is how a gay woman would have been treated. The fact that the harassment is gender specific in form is not of itself conclusive evidence that the reason for the harassment is gender based: ‘on the ground of her sex’. It will certainly point in that direction. But this does not dispense with the need for the tribunal of fact to be satisfied that the reason why the victim was being harassed was her sex.

Judges:

Ward LJ

Citations:

Times 23-Jul-1998, Gazette 26-Aug-1998, [1998] EWCA Civ 1207, [1999] ICR 134, [1998] IRLR 510, [1998] 3 All ER 852

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Jurisdiction:

England and Wales

Citing:

Appeal From – Smith v Gardner Merchant Ltd EAT 19-Oct-1995
. .

Cited by:

Binding – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 20 November 2022; Ref: scu.144686

Leverton v Clwyd County Council: HL 1989

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.

Judges:

Lord Bridge of Harwich

Citations:

[1989] ICR 33, [1989] IRLR 28

Jurisdiction:

England and Wales

Cited by:

Cited – British Coal Corporation v Smith and Others HL 23-May-1996
The phrase ‘common terms of employment’ means broadly comparable terms. There is no need for them to be identical, and the phrase should be construed liberally, though there can be no general commonality where there is no commonality in terms and . .
Cited – White v Burton’s Foods Ltd EAT 6-Jul-2010
EAT EQUAL PAY ACT – Like work
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site. She brought a claim under the Equal . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 November 2022; Ref: scu.420384

Orphanos v Queen Mary College: HL 1985

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.’

Judges:

Lord Fraser of Tullybelton

Citations:

[1985] AC 761

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Cited by:

Cited – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
Cited – London Underground Ltd v Edwards EAT 14-Feb-1995
The Tribunal considered the difficulties arising where one party was not represented, but where the case gave rise to difficult questions of law. In this case the claimant alleged sex discrimination in the context of rostering arrangements making . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 19 November 2022; Ref: scu.384325

Harrold v North Bristol NHS Trust: CA 2 Nov 2007

The employee appealed a finding that the employer had not discriminated against her, saying that the tribunal had refused an adjournment.
Held: The refusal or grant of an adjournment was a matter within the discretion of a tribunal in fulfillment of its case management duties. In the absence of exceptional reasons, an appeal court could not interfere with the exercise of such a discretion.

Judges:

Wall LJ

Citations:

[2007] EWCA Civ 1090

Links:

Bailii

Statutes:

Race Relations Act 1976 1(1)(a)

Jurisdiction:

England and Wales

Discrimination

Updated: 19 November 2022; Ref: scu.260196

Kaler v Insights ESC Ltd (Disability Discrimination): EAT 25 Sep 2020

The Claimant was a police officer who was transferred from her Response Team to the Crime Management Hub after she became pregnant. There had been a risk assessment indicating that she could safely remain with the Response Team if certain adjustments were made but the Devon and Cornwell Police had a general policy that police officers on restricted duties would be transferred to the Hub and the risk assessment was ignored. The ET found that the police had discriminated against her (a) on grounds of pregnancy under section 18 EqA 2010 and (b) indirectly on grounds of her sex under section 19, on the basis that women were more susceptible to enforced transfer under the policy because pregnancy ( as well as ill health) would lead to the application of the policy.
The police appealed saying (a) that the relevant treatment for the purpose of section 18 was removing her from danger and was not therefore unfavourable and (b) that any ‘particular disadvantage’ under section 19 was suffered by pregnant women and not women in general.
The appeal failed on both grounds:
(a) The treatment of which the Claimant complained was not that she had been removed from danger but that she had been transferred to the Hub which she did not want and which made her ill. The ET had found as facts that this treatment was unfavourable and that it was because she was pregnant.
(b) It was not necessary for the purpose of section 19 that all women suffered from the particular disadvantage if women as a group were more likely to be subject to an enforced transfer because of the PCP

Citations:

[2020] UKEAT 0051 – 20 – 2509

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 18 November 2022; Ref: scu.661653

Lasila v APCOA Parking (UK) Ltd (Race Discrimination): EAT 18 Aug 2020

Among other claims, the Claimant complained that he was required to drive a faulty vehicle back to base while another employee had a van sent to recover his vehicle which merely had a flat tyre. It was his contention that the reason for the difference in treatment was his race. The ET held, in brief that the Claimant’s vehicle was drivable but the other vehicle had four slashed tyres and could not be expected to be driven.
The appeal was allowed to proceed to a Full Hearing following an assertion at the Rule 3(10) hearing that there was no evidence as to four slashed tyres, which had merely been an assertion by the solicitor advocate appearing for the Respondent. It was also pointed out that there had been an admission by the Respondent to an assertion in the ET1 that the other vehicle merely had a flat tyre, and the ET erred in allowing the Respondent to run the ‘slashed tyres’ argument without seeking to amend its ET3.
The notes of the Employment Judge established, the EAT held, that there was an evidential basis for the ET’s finding that four tyres had been slashed. The issues before the ET had been set out at a Preliminary Hearing and refined at the outset of the final hearing. The ET did not err in permitting the evidence to be adduced without amendment: the key question for it, so far as this head of claim was concerned, was the reason for the difference in treatment.

Citations:

[2020] UKEAT 0012 – 20 – 1808

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.661651

IPC Media Ltd v Millar (Disability Discrimination : Section 15): EAT 26 Apr 2013

EAT DISABILITY DISCRIMINATION – SECTION 15
DISABILITY DISCRIMINATION – BURDEN OF PROOF
Claimant dismissed for redundancy – Not given the chance to apply for two vacancies for which the Tribunal considered she was potentially appointable – Claimant had a history of absences due to operations for a knee condition which constituted a disability – Tribunal holds, applying the burden of proof provisions, that the failure to give her the chance to apply for the vacancies was because of her absences and accordingly fell within the terms of section 15 of the Equality Act 2010.
Held (by a majority), allowing the appeal, that there was no evidence that the relevant decision-taker was aware of the Claimant’s absence history and that the burden of proof had accordingly not shifted.

Judges:

Underhill J

Citations:

[2013] UKEAT 0395 – 12 – 2604

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.473020

Micheldever Tyre Service Ltd v Burrell: EAT 15 Feb 2013

EAT Race Discrimination : Inferring Discrimination – Detriment
Conduct capable of being racially discriminatory – burden of proof transferred to employer – whether Employment Tribunal entitled to conclude it had not been discharged – whether ET also entitled to conclude that employee was required to change his place of work by reason that he had undertaken a protected act, raising a grievance about racial harassment and the manner in which the employer had dealt with it.

Judges:

Mitting J

Citations:

[2013] UKEAT 0427 – 12 – 1502

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Burrell v Micheldever Tyre Service Ltd EAT 15-Feb-2013
EAT Race Discrimination : Inferring Discrimination – Detriment
Conduct capable of being racially discriminatory – burden of proof transferred to employer – whether Employment Tribunal entitled to conclude it . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.473013

Durrani v London Borough of Ealing: EAT 10 Apr 2013

EAT RACE DISCRIMINATION / DIRECT
An ET dismissed complaints that the Claimant had been discriminated against on the grounds of race. It did not when doing so distinguish between direct discrimination, harassment, and victimisation, under each of which heads the claim had been advanced. Although no appeal was made as to the conclusions in respect of direct discrimination or harassment, the Claimant appealed on the basis that he had referred often during his employment to having been discriminated against, and said he had suffered detriment as a result of doing so. Since, however, he had not used the word ‘discriminated’ in any sense other than that he had been unfairly treated, never linked it to race or another characteristic protected by the 1976 or 2010 Acts, and when given the opportunity to say it was on the ground of race effectively explained it was not, there was no complaint which could be understood as one of race discrimination and hence his claim for victimisation had rightly been dismissed.
An argument that the Tribunal should not have dismissed Ealing Borough Council as a Respondent to the proceedings because it was potentially vicariously liable for acts of discrimination which had allegedly been committed by someone who had been a co-employee of the Claimant in the service of Ealing Homes at the time of the acts, but had subsequently become an employee of Ealing Council pursuant to a transfer of undertaking, such that the Council was liable as her successor employer, had not been advanced to the ET, and could not properly be entertained on appeal.
The appeals were dismissed.

Judges:

Langstaff P J

Citations:

[2013] UKEAT 0454 – 2012 – 1004

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.472857

The Carphone Warehouse Ltd v Martin: EAT 12 Feb 2013

EAT Unfair Dismissal : Constructive Dismissal – DISABILITY DISCRIMINATION – Reasonable adjustments
Claimant suffered personality disorder and was disabled for the purposes of DDA. He was suspended for misconduct in November 2009 and was still suspended a year later when he resigned.
The Employment Tribunal found in his favour on disability discrimination claims based on ‘reasonable adjustments’ arising from a failure to pay him correct pay and failure to bring an end to suspension by July 2009. The EAT found that this was misconceived: neither the failure to exercise care on pay or to make proper progress on the suspension could be described as a ‘provision, practice or procedure applied by the employer’ and nor could the exercise of care or the speeding-up of the disciplinary process be described as the ‘taking of steps’ so as to bring the case within section 4A of the DDA.
The ET also found that he had been constructively (and unfairly) dismissed. The Respondent’s appeal against that finding was rejected: this was a classic case of a course of conduct culminating in a last straw which amounted to a repudiatory breach of contract in response to which the Claimant resigned, and the ET’s conclusions in this respect were not ones that no reasonable Tribunal could reach.
The Claimant’s cross-appeals on various other findings of the ET raised no points of law.

Judges:

Shanks J

Citations:

[2013] UKEAT 0371 – 12 – 1202

Links:

Bailii

Statutes:

Disability Discrimination Act 1996 4A

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.472836

Turner v South Central Ambulance Service NHS Trust: EAT 8 Feb 2013

EAT Disability Discrimination
A Claimant suffered from PTSD, diagnosed in 2004. She had suffered episodes of stress thereafter, causing symptoms, which she attributed to her PTSD. Psychiatric evidence differed as to whether these were recurrent episodes of PTSD or separate short-lived events of stress-related symptoms. The Employment Judge held it was the latter. However, though rejecting an underlying condition throughout the Claimant’s employment he indicated that she might have had sufficient symptoms for part of her time in employment to qualify as a disability, and on one reading of his Reasons rejected the conclusion that she did only because he adopted the wrong standard of proof. Held that in context he had not erred in that way, and had actually concluded that there was sufficient evidence for him properly to conclude that the Claimant had been disabled for part of the time, and indeed when she had been so.

Judges:

Langstaff P J

Citations:

[2013] UKEAT 0383 – 12 – 0802

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.472844

Walker v Sita Information Networking Computing Ltd: EAT 8 Feb 2013

EAT Disability Discrimination : A claimant suffered from a constellation of symptoms, causing significant difficulty in his day to day life, which could not be attributed to a recognisable pathological or mental cause, but were regarded as functional overlay, accentuated by his being obese (at 21.5 stones). The genuineness of the symptoms and their effects were not challenged. An EJ was held in error in concluding that because no physical or mental cause could be identified, therefore there was no disability within the DDA. He should have had regard to the effect of the impairments, not their cause (though the absence of an obvious cause might have evidential significance in an appropriate case if the genuineness of the symptoms was put in issue); should have considered the Guidance in the Code; and wrongly relied on authority which dated from the time when a recognised mental illness had to be shown before a mental impairment could be regarded as a disability, which has not been the case since 2005.

Judges:

Langstaff P J

Citations:

[2013] UKEAT 0097 – 12 – 0802

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.472846

Patel v Llyoyds Pharmacy Ltd: EAT 6 Feb 2013

EAT Disability Discrimination : Direct Disability Discrimination
PRACTICE AND PROCEDURE – Striking-out/dismissal
Whether or not the Employment Tribunal right to strike out direct disability claim as having no reasonable prospect of success – test to be applied – ET right to strike out claim where there was not evidence that interviewers and decision makers who decided to refuse to offer employment to the Claimant knew of his disability.

Judges:

Mitting J

Citations:

[2013] UKEAT 0418 – 12 – 0602

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.472843

Foster v Cardiff University: EAT 27 Mar 2013

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant is employed as an academic at the Respondent university’s business school and suffers from Chronic Fatigue Syndrome, a recognised disability. The Employment Tribunal dismissed the Claimant’s complaints of disability discrimination and harassment. The core of the case concerned an alleged breach of the duty to make reasonable adjustments in the allocation of teaching requirements for the academic year 2010-11. On the appeal the Claimant argued that there were numerous errors in the approach taken by the Employment Tribunal. Two points of law in particular were emphasised. First, that the Tribunal had erred in not having regard to the effect which anxiety and stress had on the Claimant’s disability; and, secondly, that the Tribunal was wrong to conduct a comparison exercise between the Claimant and a person who did not have her disability. Although that approach was supported by domestic authority, it was argued that it was incompatible with the requirements of Council Directive 2000/78/EC, in particular Article 5, on the duty to make reasonable accommodation.
Held (1) The Tribunal was not required to examine the causes of the Claimant’s disability but only its effects. Anxiety and distress were not part of the Claimant’s disability although they could trigger it or exacerbate it.
(2) The Tribunal was correct to follow earlier decisions of the Employment Appeal Tribunal, which require a comparison to be done, in the context of the duty to make reasonable adjustments, between the Claimant and a person who does not have the relevant disability. Such an approach is not incompatible with Directive 2000/78/EC, in particular Article 5.

Judges:

Singh J

Citations:

[2013] UKEAT 0422 – 12 – 2703

Links:

Bailii

Statutes:

Council Directive 2000/78/EC

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 November 2022; Ref: scu.472849