Gravell v London Borough of Bexley: EAT 2 Mar 2007

EAT Race Discrimination
Racial harassment (s3A). Effect of House of Lords Judgment in Pearce v The Governing Body of Mayfield School re. Burton v de Vere Hotels Ltd on s3A claim. Employment Tribunal strike-out. Need for fact-finding. Appeal allowed.
The Tribunal had struck out a claim brought under section 3A of the Race Relations Act. The Claimant’s case was that her employer had a policy to ignore racist comments from customers at the housing department where she worked, and that she was prevented by that policy from telling customers that any such remarks were simply unacceptable, a consequence being that she had to listen patiently to racist comments. The Claimant also complained that she had received a text from a work colleague to her private mobile telephone which conveyed a racist joke and that further racist jokes had been sent to her similarly some three weeks afterwards, and that when she complained about them her employer took no action.
HHJ Peter Clark concluded that, because he was considering an application to strike-out the claim as unarguable, he had to ask whether there might be a reasonable argument that, on these facts, the employer might be found liable for a claim of harassment contrary to section 3A. He commented that there had been no decided case on the point (see paragraph 14). He did not himself resolve that issue of law, nor purport to do so; he merely held that it was arguable. He dealt with the text messages separately. The result was that he directed that the Tribunal should continue to hear those allegations.

HHJ Peter Clark
[2007] UKEAT 0587 – 06 – 0203, UKEAT/0587/06
Bailii, EAT
Race Relations Act 1976 3A
England and Wales
Cited by:
See alsoGravell v London Borough of Bexley EAT 24-Sep-2007
EAT Race Discrimination
Tribunal Chairman in error in striking out part of a victimisation claim relating to comparison of treatment with another female employee when allowing similar allegations to be . .
CitedConteh v Parking Partners Ltd EAT 17-Dec-2010
EAT HARASSMENT – Conduct
Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 27 January 2022; Ref: scu.251583

Partnership In Care Ltd (T/A the Spinney) v Laing and Another: EAT 1 Feb 2007

EAT Race Discrimination – Contract Workers
The Claimant was employed by A to provide patient advocacy services at B’s mental hospital. He was barred by B from access to a ward, allegedly after an incident with a patient. A then suspended him. He claimed that both A and B were guilty of race discrimination. On a preliminary issue the Tribunal held that he was a contract worker of B, within S7 of RRA. On appeal held that the Tribunal had reached a factual finding open to them and had made no error in principle. There have, I think, been very few contract worker cases; only 4 reported in 30 years; and this was the thinnest; but appeal dismissed.

His Honour Judge Burke QC
[2007] UKEAT 0622 – 06 – 0102, UKEAT/0622/06
Bailii, EAT
Race Relations Act 1976
England and Wales

Employment, Discrimination

Updated: 27 January 2022; Ref: scu.251579

Benveniste v Kingston University: EAT 28 Mar 2007

EAT Sex Discrimination; Victimisation

Contract of Employment; Damages for breach of contract

Definition of ‘protected acts’ on which Claimant could rely determined by earlier appeal – Chairman’s formulation of wrongful dismissal issues amended in part.

[2007] UKEAT 0008 – 07 – 2803
Bailii
England and Wales

Employment, Discrimination

Updated: 27 January 2022; Ref: scu.251582

City of York Council v Grosset: EAT 1 Nov 2016

EAT Disability Discrimination – Section 15
DISABILITY DISCRIMINATION – Justification
UNFAIR DISMISSAL – Reasonableness of dismissal
Appeal
Disability discrimination – unfavourable treatment because of something arising from the consequences of disability – justification – section 15 Equality Act 2010 (‘EqA’)
The Claimant – Head of English at a secondary comprehensive school operated by the Respondent and a disabled person by virtue of the fact that he suffered from cystic fibrosis (as the Respondent was aware) – had been required to take on additional workload and other pressures (including ‘Focus Fortnights’ introduced by the new Head Teacher), which he could not cope with given the difficulties arising from his disability and which thus amounted to unfavourable treatment because of something arising in consequence of his disability and in respect of which the Respondent had failed to comply with its duty to make reasonable adjustments. There was no appeal from those findings, but the ET had gone on to find that the Claimant’s subsequent dismissal had also amounted to discrimination for the purposes of section 15 EqA and it was that Judgment which was the subject of the Respondent’s appeal.
As was common ground, the reason for the Claimant’s dismissal was his misconduct in inappropriately showing an 18-rated film (Halloween) to a class of vulnerable 15- and 16-year-olds; that was the ‘something’ operating on the Respondent’s mind/significantly influencing its decision (IPC Media Ltd v Millar [2013] IRLR 707 EAT / Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15). The ET then considered whether that misconduct had arisen as a consequence of the Claimant’s disability. On the material before it – which included medical evidence not available to the Respondent – it was satisfied it had: the Claimant’s error of judgement, and thus his misconduct in inappropriately showing the film, arose as a consequence of his disability. As dismissal was an unfavourable act, he had been treated unfavourably because of something arising in consequence of his disability. The ET went on to consider the Respondent’s defence of justification. Accepting it had legitimate aims in terms of safeguarding children and maintaining disciplinary standards, the Respondent had not demonstrated that dismissal was proportionate, so failed to prove objective justification.
Held: dismissing the appeal
Applying the guidance laid down by the EAT in Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, the definition of ‘the something’ under section 15 EqA gave rise to a question of causation: it had to be that which caused the employer to treat the employee unfavourably; it required the ET to look into the mind of the relevant decision taker and ask what was the factor (conscious or subconscious) that materially operated on his or her mind. Having thus defined ‘the something’ – in this case the Claimant’s misconduct in terms of the inappropriate showing of the film – the ET had to ask whether that something arose as a consequence of the Claimant’s disability. That – as the parties accepted – gave rise to a question to be answered by the ET on an objective basis: on the evidence before it, did the ‘something’ arise in consequence of the employee’s disability? In this case, the ET had found as a fact that the inappropriate showing of the film – the something – did arise as a consequence of the Claimant’s disability (his impaired mental state). The ET did not fail to appreciate the need to make a finding on causation; it did not spend a great deal of time on this issue, because it was not in dispute. As for the ET’s reliance on the medical evidence before it (not available to the Respondent itself, and for which the ET (majority) had not criticised it in relation to the unfair dismissal case) that was permissible given the objective nature of the exercise required.
On the question of justification, the approach again required an objective test, albeit one that had regard to the working practices and business considerations of the employer (Hardy and Hansons plc v Lax [2005] ICR 1565 CA applied). The ET had taken care to define the Respondent’s legitimate aim – the protection of the children and ensuring disciplinary standards were maintained – and had then carried out the balancing exercise required of it by reference to that aim. The ET thus kept the Respondent’s ‘workplace practices and business considerations’ firmly at the centre of its reasoning. Doing so, it reached a different conclusion to the Respondent, permissibly taking into account medical evidence that had not been before it. The appeal was dismissed.
Cross-Appeal
Unfair dismissal – separate consideration of disciplinary and grievance procedures – fairness of the decision to dismiss – section 98(4) Employment Rights Act 1996 (‘ERA’)
The ET had found that the reason for the Claimant’s dismissal was related to his misconduct in showing an inappropriate film to a class of vulnerable 15- and 16-year-olds. By a majority, it had further found the dismissal of the Claimant for that reason had been fair. The Claimant cross-appealed.
Held: dismissing the cross-appeal
Although accepting it was open to the ET to find that the dismissal breached section 15 EqA but was still fair for the purposes of section 98(4) ERA, the Claimant criticised the ET majority for failing to find that the Respondent’s decision to separate out the grievance process from the disciplinary procedure rendered the dismissal unfair. This was, however, a point with which the ET majority expressly engaged and concluded that the approach adopted did not fall outside the band of reasonable responses. The ET was best placed to make that judgment. In reality the cross-appeal was an attempt to re-run the arguments below. Whilst a different ET might – as the minority member of this ET had – reach a different conclusion to the majority, that conclusion was not perverse. The cross-appeal would also be dismissed.

Eady QC HHJ
[2016] UKEAT 0015 – 16 – 0111
Bailii
Equality Act 2010 15
England and Wales

Discrimination

Updated: 27 January 2022; Ref: scu.572668

Herry v Dudley Metropolitan Council: EAT 16 Dec 2016

EAT Practice and Procedure: Costs – DISABILITY DISCRIMINATION – Disability
Costs
The Employment Tribunal sufficiently explained its reasons for holding that (subject to the question of ability to pay) the Claimant should pay the whole of the Respondents’ costs. However the Employment Tribunal, having decided to take account of the Claimant’s ability to pay and having found that he was impecunious, did not sufficiently explain why it considered that he would have the future earning capacity to pay a Costs Judgment of more than andpound;100,000; and did not explain why it had not considered ordering a proportion of the costs or a capped amount of costs taking account of the Claimant’s ability to pay. Arrowsmith v Nottingham Trent University [2012] ICR 159 and Vaughan v London Borough of Lewisham and others [2013] IRLR 713 considered and applied. Appeal allowed on that ground alone. Remitted to same Employment Tribunal.
Note. The Respondent had taken the unusual step of serving a statutory demand on the Claimant as a precursor to bankruptcy proceedings. The Judgment discusses the potential effect of bankruptcy on further litigation brought by the Claimant; and holds that an applicant for costs who argues that the future earning capacity of the paying party should be taken into account ought to inform the Employment Tribunal if there is any intention to serve a statutory demand and commence bankruptcy proceedings in the near future.
Disability
The Employment Judge did not err in law in rejecting the Claimant’s case that he had a disability during a relevant period in 2014. J v DLA Piper UK [2010] ICR 1052 discussed and applied in the context of absence described as ‘stress’ or ‘work related stress’.

David Richardson HHJ
[2016] UKEAT 0101 – 16 – 1612, [2016] UKEAT 0100 – 16 – 1612
Bailii, Bailii
England and Wales

Employment, Discrimination, Costs

Updated: 27 January 2022; Ref: scu.572674

Braganca Linares Verruga and Others v Ministre de l’Enseignement superieur et de la Recherche: ECJ 14 Dec 2016

ECJ Judgment – Reference for a preliminary ruling – Freedom of movement of persons – Equal treatment – Social advantages – Regulation (EU) No 492/2011 – Article 7(2) – Financial aid for higher education studies – Students not residing in the territory of the Member State concerned subject to the condition that they be the children of workers who have been employed or who have pursued their professional activity in that Member State for a continuous period of at least five years – Indirect discrimination – Justification – Objective of increasing the proportion of residents with a higher education degree – Whether appropriate – Proportionality

C-238/15, [2016] EUECJ C-238/15
Bailii
European

Discrimination

Updated: 27 January 2022; Ref: scu.572569

Bowman v Pensionsversicherungsanstalt: ECJ 21 Dec 2016

ECJ Judgment – Reference for a preliminary ruling – Social policy – Charter of Fundamental Rights of the European Union – Directive 2000/78 / EC – Equal treatment in employment and occupation – Article 2 (1) and (2) – Discrimination on grounds of age – Collective labor agreement – Extension of the period from the first to the second scale – Unequal treatment on the basis of age

C-539/15, [2016] EUECJ C-539/15
Bailii
Charter of Fundamental Rights of the European Union
European

Discrimination, Human Rights

Updated: 27 January 2022; Ref: scu.572568

Brunnhofer v Bank der Osterreichischen Postparkasse AG: ECJ 26 Jun 2001

Europa Equal pay for men and women – Conditions of application – Difference in pay – Definition of ‘the same work and ‘work of equal value – Classification, under a collective agreement, in the same job category – Burden of proof – Objective justification for unequal pay – Effectiveness of a specific employee’s work.
Ms Brunnhofer worked in an Austrian bank and claimed equal pay with a male colleague. Both were classified under a collective agreement in the same category but from the time of his recruitment the male received an individual supplement higher than the supplement received by Ms Brunnhofer. The Bank claimed that there were rejected reasons for the difference in the supplements. According to the Bank the male comparator carried out more important functions than Ms Brunnhofer who is not authorized to enter into binding commitments on behalf of the Bank, and also the quality of their work was said to be different.
Held: ‘the fundamental principle laid down in Article 119 of the Treaty and elaborated by the Directive precludes unequal pay as between men and women for the same job or work of equal value, whatever the mechanism which produces such inequality, unless the difference in pay is justified by objective factors unrelated to any discrimination linked to the difference in sex . . . ‘ A finding of inequality in pay between the appellant and her main comparator would not be sufficient basis for concluding that discrimination prohibited by Community Law exists. Firstly, it must be ascertained whether the employees concerned were performing work of equal value and secondly ‘the differences in treatment prohibited by article 119 are exclusively those based on the difference in sex of the employees concerned – see Jenkins’. The ECJ then set out a stage by stage approach with the onus firstly on the employee to prove that her pay was less than that of her comparator and that her work was the same or of equal value so that ‘prime facie she is the victim of discrimination which can be explained only by the difference in sex’

C-381/99, [2001] ECR 4961, [2001] EUECJ C-381/99, [2001] 1RLR 271
Bailii
European
Citing:
CitedJ P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .

Cited by:
FollowedBarton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 26 January 2022; Ref: scu.162778

Birmingham City Council v Wilson: CA 17 Nov 2016

The case concerns the extent of a housing authority’s duty of inquiry, in light of the public sector equality duty set out in section 149 of the Equality Act 2010, into whether an applicant for homelessness assistance has a disability requiring special arrangements to be made.

Black, Beatson, Sales LJJ
[2016] EWCA Civ 1137
Bailii
Housing Act 1996, Equality Act 2010 149
England and Wales

Housing, Discrimination

Updated: 25 January 2022; Ref: scu.571419

De Lange v Staatssecretaris van Finacien: ECJ 10 Nov 2016

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Principles of equal treatment and of non-discrimination on grounds of age – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 2, 3 and 6 – Scope – Difference in treatment on grounds of age – National legislation capping deductions of training costs incurred after a certain age – Access to vocational training

ECLI:EU:C:2016:850, [2016] EUECJ C-548/15
Bailii
European

Discrimination

Updated: 25 January 2022; Ref: scu.571268

Salaberria Sorondo: ECJ 15 Nov 2016

ECJ (Judgment) Preliminary reference – Equal treatment in employment and occupation – Directive 2000/78 / EC – Article 2, paragraph 2, and Article 4, paragraph 1 – Discrimination based on age – Limitation of recruiting agents the autonomous Community of the Basque Police Force to candidates who have not attained the age of 35 – Definition of ‘essential and determining occupational requirement’ – Aim pursued – Proportionality

ECLI:EU:C:2016:873, [2016] EUECJ C-258/15
Bailii
European

Discrimination

Updated: 25 January 2022; Ref: scu.571284

Raad van bestuur van de Sociale verzekeringsbank v Wieland and Rothwangl: ECJ 27 Oct 2016

ECJ (Judgment) Reference for a preliminary ruling – Articles 18 and 45 TFEU – Social security for migrant workers – Regulation (EEC) No 1408/71 – Articles 3 and 94 – Regulation (EC) No 859/2003 – Article 2(1) and (2) – Old-age and survivor’s insurance – Former seafarers who are nationals of a third country which became a Member State of the European Union in 1995 – Excluded from entitlement to old-age benefit)

ECLI:EU:C:2016:820, [2016] EUECJ C-465/14
Bailii
Regulation (EEC) No 1408/71, Regulation (EC) No 859/2003
European

Benefits, Discrimination

Updated: 25 January 2022; Ref: scu.571262

Lambert v The Secretary of State for The Home Department: EAT 28 Sep 2016

EAT Victimisation Discrimination – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Whether the Employment Tribunal failed to recognise that in a complaint of victimisation the employer may act with mixed motives, protected act and ‘innocent’ motivation. Answer: no. The Employment Tribunal clearly found that the sole reason for disciplinary proceedings brought against the Claimant was her perceived wilful unmanageability

Peter Clark HHJ
[2016] UKEAT 0074 – 16 – 2809
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570976

Brito-Babapulle v Isle of Wight NHS Trust: EAT 10 Jun 2016

EAT Victimisation Discrimination: Detriment
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Protected disclosure – detriments – burden of proof – section 48 Employment Rights Act 1996 – adequacy of Employment Tribunal reasons
On the Claimant’s complaint of detriment due to having made protected disclosures, the ET accepted that she had been subjected to detriment in the failure to pay her for (un-worked) on-call hours and in the Respondent’s failure to afford her any process or hearing under its disciplinary or dismissal procedures. The ET did not find, however, that either detriment had been on the ground of the Claimant’s protected disclosures. The Claimant appealed.
Held: allowing the appeal
On the failure to pay the on-call sums, the ET had found this was an unauthorised deduction from the Claimant’s wages as she was contractually entitled to the payments in question but did not consider this was on the ground of the Claimant’s protected disclosure because the non-payment had been on the basis of erroneous HR advice. The ET stated, however, that it could not understand the basis of the HR advice. That gave rise to the question whether it might have been materially influenced by the Claimant’s protected disclosures. On the reasons provided, there was not a complete answer to that question and it was unclear whether the ET had failed to adopt the correct approach when looking at the Respondent’s explanation or whether it had failed to provide adequate reasons. In either event, the conclusion was rendered unsafe.
As for the failure to afford the Claimant any process, the ET was faced with a case where the decision had already been made and the Claimant – who had less than two years’ service – had no contractual right (as a locum Consultant) to a disciplinary process. That said, the ET’s finding that the decision not to go through any process was simply due to the Claimant’s lack of requisite service failed to explain the evidential basis for its conclusion; there was no explanation as to how the ET had found that the Respondent had met the burden upon it in this regard. The reasoning provided was inadequate to the ET’s task.
The appeal would therefore be upheld.
On disposal, contrary to the Claimant’s arguments, the upholding of these grounds of appeal did not then undermine the decision rejecting her claim of automatic unfair dismissal, not least as different decision makers were involved. The appropriate course was to remit the case to the same ET for reconsideration of these two detriments in the light of the EAT’s Judgment.

Eady QH HHJ
[2016] UKEAT 0090 – 16 – 1006
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570970

Lee v HSBC Bank Plc: EAT 21 Sep 2016

EAT Disability Discrimination : Disability – PRACTICE AND PROCEDURE – Review – PRACTICE AND PROCEDURE – New evidence on appeal
Initial finding that the Appellant was not disabled confirmed by the Employment Judge at the Reconsideration Hearing after admitting fresh evidence (GP surgery notes not produced to the Appellant before the initial Employment Tribunal hearing). Appeal against the Reconsideration Decision dismissed; GP certificates that the Appellant was unfit for work are not determinative of the substantial effect question. Decision not perverse.
Application to admit (further) fresh evidence on appeal refused. That material could have been adduced below. Ladd v Marshall test applied.

Peter Calrk HHJ
[2016] UKEAT 0119 – 16 – 2109
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570977

Fairlead Maritime Ltd v Parsoya: EAT 30 Oct 2016

EAT Race Discrimination: Indirect – JURISDICTIONAL POINTS – Extension of time: just and equitable
Indirect race discrimination – claim in time – continuing act – section 123(3) Equality Act 2010 – just and equitable extension of time
The Respondent had operated an indirectly discriminatory policy of under-paying those with ’employability issues’ – effectively where it considered immigration issues might arise given an employee’s visa status. The ET had found this put those sharing the Claimant’s protected characteristic (he was an Indian national) at a disadvantage and also put him at a disadvantage. The Respondent did not challenge those findings but submitted that the Claimant was no longer disadvantaged by the policy after June 2013, when his pay was increased to the correct level after he had been granted a longer-term visa; the Claimant’s ET claim, lodged in September 2014 was therefore out of time. The ET disagreed, finding the Respondent had adjusted its policy when it told the Claimant – in January 2012 – that, once his ’employability’ was resolved, the earlier shortfall in pay would be made good. Its failure to make good on that promise meant there was a continuing act of indirect discrimination until the termination of the Claimant’s employment. The claim was therefore brought in time, alternatively it would have been just and equitable to extend time. The Respondent appealed.
Held: dismissing the appeal
The ET’s Reasons – as amplified under the Burns/Barke procedure – made clear that it had found that there was a continuing discriminatory policy. The Respondent’s policy, as amended in January 2012, continued to mean that the Claimant suffered from the underpayment in his salary because the Respondent failed to make good the short-fall and that was because of the initial (indirectly discriminatory) ’employability issues’. That thus remained the discriminatory application of the Respondent’s policy, of which the Claimant had complained. As it continued until the termination of the Claimant’s employment, his claim was presented in time.
In the alternative, the ET’s finding in this regard was relevant to its consideration as to what was just and equitable in terms of any extension of time. It had found that the Respondent had strung the Claimant along such that he had reasonably believed that it would make good the past short-fall in his pay but it had continued to fail to do so. This was a permissible finding on the ET’s part and a permissible exercise of its judicial discretion.

Eady QC HHJ
[2016] UKEAT 0275 – 15 – 3010
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570980

Henderson v The General Municipal and Boilermakers Union: CA 11 Oct 2016

The claimant appealed against rejection of his claims for unfair dismissal and otherwise. The union appealed against a finding in favour of the claim for discrimination (and otherwise) on account of his religion or belief, namely ‘left wing democratic socialism’. At the EAT all claims were dismissed.

Underhill, Briggs LJJ
[2016] EWCA Civ 1049
Bailii
Equality Act 2010 13(1)
England and Wales
Citing:
Appeal fromGeneral Municipal and Boilermakers Union v Henderson EAT 13-Mar-2015
EAT Unfair Dismissal – RELIGION OR BELIEF DISCRIMINATION – HARASSMENT
1. The Employment Tribunal found that the Claimant was fairly dismissed for gross misconduct but also found that he had suffered . .
CitedWarby v Wunda Group Plc EAT 27-Jan-2012
EAT HARASSMENT
SEX DISCRIMINATION
Direct
Pregnancy and discrimination
In the course of a heated discussion between the Claimant and her manager about pay, each accused the other of lying. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570869

Buchanan v The Commissioner of Police of The Metropolis: EAT 30 Sep 2016

EAT Disability Discrimination: Disability Related Discrimination – Justification
The Claimant, a serving police officer who had a disability by virtue of a serious motor cycle accident, was made subject to the ‘Unsatisfactory Performance Procedure’ laid down in the Police (Performance) Regulations 2012. He complained to the Employment Tribunal that a series of steps taken at the first and second stages of that procedure amounted to discrimination arising from disability. The Employment Tribunal unanimously held that the steps amounted to unfavourable treatment because of something arising from the Claimant’s disability. The majority held that it was the procedure, rather than its application to the Claimant, which had to be justified; and found for the Respondent on this question.
Appeal allowed. The procedure laid down in the Regulations and the policies which the Respondent developed to apply it allowed for individual assessment in each case at each stage. The steps held by the Employment Tribunal to amount to unfavourable treatment were not mandated by the procedure or by any policy of the Respondent. Section 15(1)(b) of the Equality Act 2010 required the Employment Tribunal to consider whether the treatment was justified; and in such a case as this it was not sufficient to ask whether the underlying procedure was justified. Seldon v Clarkson Wright and Jakes [2012] ICR 716 SC and Crime Reduction Initiatives v Lawrence UKEAT/0319/13 considered.

David Richardson HHJ
[2016] UKEAT 0112 – 16 – 3009
Bailii
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570392

Dutton v The Governing Body of Woodslee Primary School and Another (: EAT 8 Apr 2016

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke
SEX DISCRIMINATION – Indirect
The Claimant – a teacher, employed to work with children who had special educational needs and needed stability and continuity – requested to work on a reduced basis after her maternity leave (a four- rather than five-day week). The Respondents refused. On the Claimant’s claim of indirect sex discrimination, it was accepted that the PCP of working a full, five-day, week placed her and others sharing her protected characteristic at a disadvantage. It was also accepted that the Respondents had demonstrated a legitimate aim, the need for stability and continuity for the children the Claimant was employed to teach. What was in issue was whether the PCP was a proportionate means of achieving that legitimate aim. That was a matter for assessment by the ET; the test was an objective one, not limited to assessing the reasonableness of the Respondent’s response at the time but engaged in a broader exercise of assessment and scrutiny of the means adopted with a view to achieving a legitimate aim, balanced against the discriminatory impact demonstrated. In explaining its conclusion, whilst the ET was entitled to expect its reasoning to be read as a whole, the parties were entitled to see how the ET had arrived at the conclusion it did. Specifically, having acknowledged that a difficult balancing exercise arose in this case, the ET’s reasoning needed to demonstrate acknowledgement of, and engagement with, the balance required as between the need identified by the Respondents and the discriminatory impact.
Having recorded the issue before it and summarised the (largely undisputed) factual background, the ET had identified the specific questions arising from an application of the law to the facts in this case. Having observed that the points were not easy to resolve, the ET then gave a one-line answer, stating its conclusion that the PCP had been proportionate.
On the Claimant’s appeal, held: allowing the appeal
From the limited reasoning provided, it was impossible to see the ET’s engagement with the issues before it, specifically the balance required between the Respondents’ aim and the disparate impact. In some instances the answer might be obvious but the ET had acknowledged that was not the case here; yet it was impossible, from the reasons given, to see it had carried out the required assessment let alone had done so with the appropriate degree of scrutiny.
In the circumstances, the decision could not stand. Consideration was given to the possibility of a Burns/Barke Order but it was apparent that the Employment Judge had since retired and this was not an appropriate course, not least as the hearing had been in June 2014.
The appeal would be allowed and the matter remitted to be considered afresh by a new ET.

Eady QC HHJ
[2016] UKEAT 0305 – 15 – 0804
Bailii
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570377

Unite The Union v Nailard: EAT 27 Sep 2016

EAT Jurisdictional Points : Worker, Employee or Neither
HARASSMENT
SEX DISCRIMINATION – Direct
TRADE UNION RIGHTS
The appeal concerned sexual harassment by elected officers of the Respondent trade union against a paid (employed) officer.
1. The ET held that the elected officers were employees of the Respondent under the extended definition in section 83(2) of the Equality Act 2010. Appeal allowed on this ground. The elected officers were not employees under the extended definition. Allonby v Accrington and Rossendale College [2004] IRLR 224, Jivraj v Hashwani [2011] IRLR 827 and Halawi v WDFG UK Ltd [2015] IRLR 50 considered and applied
2. The ET held that the Respondent was responsible for the harassment of the elected officers by virtue of section 109(2). Appeal dismissed on this ground. Kemeh v Ministry of Defence [2014] IRLR 377 and Heatons Transport v Transport and General Workers’ Union [1972] ICR 308 considered and applied.
3. The ET held that the paid officers themselves harassed the Claimant by failing to take action against the elected officers to prevent harassment and by deciding to transfer her elsewhere. Appeal allowed on this ground, but matter remitted to ET for reconsideration. The ET had applied the wrong legal test; the question was whether the conduct of the elected officer in question was ‘related to sex’; it was not ‘related to sex’ merely because it was concerned with earlier harassment by the elected officers which was related to sex. Conteh v Parking Partners Ltd [2011] ICR 341, Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] ICR 1234 and Sheffield City Council v Norouzi [2011] IRLR 897 considered.
4. The ET held that, if it had not found that the paid officers harassed the Claimant, it would have found that they had discriminated against her because of sex – direct discrimination. The finding in this respect would also be remitted. The ET was required to focus on the mental processes of each paid officer and ask whether that officer’s conduct was because of sex. CFLIS (UK) Ltd v Reynolds [2015] IRLR 562 applied.
5. Section 64(2)(f) of the Trade Union and Labour Relations (Consolidation) Act 1992 is not concerned with decisions relating to the employment of a paid officer employee of the Respondent (who may or may not be a member of the Respondent union).

David Richardson HHJ
[2016] UKEAT 0300 – 15 – 2709
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570396

Meer v London Borough of Tower Hamlets: CA 26 May 1988

The Court discussed the nature of ‘a requirement or condition’ for the purposes of the 1976 Act.
Held: Dillon LJ said: ‘The case of Perera decided that there can only be a requirement or condition within s.1(1)(b) of the Race Relations Act 1976 if the requirement or condition, or whatever other word may be used to describe it, is mandatory and an absolute bar to selection.’
Balcombe LJ, who delivered the leading judgment, said that ‘a requirement or condition under (the section) is a must – something which has to be complied with’.

Dillon, Balcombe, Staunton LJJ
[1988] EWCA Civ 10, [1988] IRLR 399
Bailii
Race Relations Act 1976 1(1)(b)
England and Wales
Citing:
ExplainedPerera v Civil Service Commission (No 2) EAT 1982
The tribunal considered the method of selection of the pool on a claim for indirect discrimination. In this case the claimant alleged that an age test applied on his application would effectively limit the proportion of coloured who would meet the . .

Cited by:
CitedMeikle v Nottingham City Council EAT 14-Apr-1994
The appellant challenged dismissal of her claim for indirect racial discrimination based on two grounds. First, that the Tribunal’s decision was perverse; in other words that it was a decision which, on the evidence before it, no reasonable tribunal . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 January 2022; Ref: scu.262641

Bain v Bowles: CA 1991

The Lady magazine had no defence to a complaint by a man whose advertisement for a housekeeper in Tuscany they had refused to accept. Following past complaints of sexual harassment, the magazine’s policy was to accept such advertisements only where the employer was a woman. The perception of the risk of harm to those who answer the advertisement was not a relevant circumstance for the purpose of the Act. Essentially, it comes within the category of motive for the discrimination and for the policy adopted by the defendants.

Beldam LJ, Dillon LJ
[1991] IRLR 357
England and Wales
Cited by:
CitedEuropean Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
CitedShamoon 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 . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Media

Updated: 22 January 2022; Ref: scu.182466

London Borough of Hammersmith and Fulham, G Alltimes v L Ezeonyim: EAT 7 Jun 2000

EAT The claimant had succeeded in his claim for race discrimination. The employer appealed, saying the tribunal had misunderstood its harassment procedure so as to be wrong in law. The claimant complained of a doicument recommending fer for a refernce to the Occupational health Department. The tribunal rejected the claim as to any factual discrimination but found against the employer in its procedures. The respondent had asked the authority to transfer the person about whom she had made the complaint, but this had not happened. The tribunal found that the respondent had not neen offered the protection of the harrassment procedure. The appellant said the tribunal had wrongly thought the procedure required the removal of the party alleged to have committed the harassment.
Held: The procedure was permissive only. Though the decision and reasons were not clear, it appeared that the tribunal had erred in the construction of the procedure. The decision was not demonstrably correct, and the case should be remitted.

His Honour Judge J Altman
EAT/0659/00
England and Wales
Citing:
See AlsoHammersmith and Fulham and Another v Ezeonyim EAT 2-Nov-1999
. .
CitedGlasgow City Council v Zafar SCS 1997
The house considered the burden of proof in cases involving allegations of discrimination.
Held: Lord Morison ‘The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of . .
CitedDobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
CitedChapman and Another v Simon CA 1994
The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary . .

Cited by:
See AlsoHammersmith and Fulham and Another v Ezeonyim EAT 2-Nov-1999
. .

Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 22 January 2022; Ref: scu.171469

AA Solicitors Ltd (T/A AA Solicitors) and Another v Majid: EAT 23 Jun 2016

EAT Sex Discrimination: Injury To Feelings – Unsuccessful challenge to quantum of award for injury to feelings in a sexual harassment claim. Application of Vento guidelines and whether award manifestly excessive.
Employment Tribunals are entitled to take account of cogent evidence of changes in the value of money over time, when considering whether the boundaries of the Vento bands should be altered.

Kerr J
[2016] UKEAT 0217 – 15 – 2306
Bailii
England and Wales

Employment, Discrimination

Updated: 20 January 2022; Ref: scu.567942

Fennell v Foot Anstey Llp: EAT 28 Jul 2016

Age Discrimination – Direct Age Discrimination – section 13 Equality Act 2010 – burden of proof
The Claimant was a solicitor who had not been offered a new partnership under a restructuring exercise carried out by the Respondent firm, in which he had been a limited equity partner (‘LEP’). He complained this was because of his age (being aged over 45) and also made various other complaints about his earlier treatment by the Respondent in terms of an earlier decision that his poor performance meant he should leave the partnership (this decision being reversed after the Claimant had objected) and in respect of the subsequent performance process applied to him, the target set and the feedback the Respondent had given.
The ET rejected the Claimant’s complaints about this earlier treatment. As for the Respondent’s decisions as to which of the former LEPs should be offered the new partnerships, although the ET accepted that the statistics relied on by the Claimant showed that ‘the prospect of obtaining equity membership diminishes with the age of the candidate’, it did not consider that the statistical picture did sufficient to shift the burden of proof to the Respondent. It accepted the Respondent’s evidence that it had applied a multi-factorial approach to the question of selecting new partners and tested the Respondent’s case in respect of each of the LEPs relied on by the Claimant as actual (statutory) and hypothetical comparators. Having done so, the ET accepted that decisions were made on an individual basis. It did not accept that any of the other LEPs could serve as statutory comparators (there were material differences in circumstances). Asking itself why the Claimant had not been offered one of the new partnerships, the ET was satisfied that this was unrelated to his age but was due to concerns as to his performance and a lack of confidence that he would be able to take the business forward. The Claimant appealed.
Held: dismissing the appeal.
The ET had been entitled to conclude that the statistical picture alone did not shift the burden of proof to the Respondent. It had then considered whether the Claimant had made out a prima facie case in terms of the comparisons he relied on but concluded that there were material differences between his case and those of the other LEPs. It had not thereby erred in its approach to the burden of proof but had reached a permissible conclusion that the Claimant had not shown facts from which an ET could conclude that there had been unlawful discrimination. Equally, in reaching that conclusion, the ET had not erred in its approach to the question of comparison: it had understood that it was having to assess the question of less favourable treatment – a comparative exercise – but did not consider that the actual comparisons relied on by the Claimant were apt. Allowing for the possibility of a hypothetical comparator, the ET had referred back to its findings as to why the Respondent had taken the decisions it had in respect of the Claimant and the other LEPs. Having tested the Respondent’s explanation, the ET was entitled to conclude that the Respondent had made good an explanation for its decisions that was wholly unrelated to age.

Eady QC HHJ
[2016] UKEAT 0290 – 15 – 2807
Bailii
England and Wales

Employment, Discrimination

Updated: 20 January 2022; Ref: scu.567892

Kratzer v R + V Allgemeine Versicherung AG: ECJ 28 Jul 2016

ECJ (Judgment) Preliminary ruling – Social policy – Directive 2000/78 / EC – Equal treatment in employment and occupation – Article 3, paragraph 1 a) – Directive 2006/54 / EC – Equal opportunities and equal treatment between men and women in employment and occupation – Article 14, paragraph 1 a) – Scope – Concept of ‘access to employment, self-employment or to occupation ‘- Presentation of a job application to achieve candidate status only formal order to seek compensation for discrimination – Abuse of rights’

ECLI:EU:C:2016:609, [2016] EUECJ C-423/15
Bailii
European

Discrimination

Updated: 20 January 2022; Ref: scu.567786

Abbey National Plc v Fairbrother: EAT 12 Jan 2007

EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found that the Claimant, who suffered an obsessive compulsive disorder, was subjected to taunts that she would not have had inflicted on her if she had not had the disorder. On appeal, the EAT held that the Tribunal had erred in law. They failed to apply a ‘range of reasonable responses’ test to the employers’ operation of the grievance procedure. They failed to apply the correct statutory test for disability discrimination.
Smith J said: ‘conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:
1. what was the conduct of the employer that is complained of?
2. did the employer have reasonable and proper cause for that conduct?
If he did have such cause, then that is an end of it. The employee cannot claim that he has been constructively dismissed. If the employer did not have such cause, then a third question arises:
3. was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?’

Smith J
[2007] UKEAT 0084 – 06 – 1201, [2007] IRLR 320
Bailii
Employment Rights Act 1996 94, Disability Discrimination Act 1995 4 5
England and Wales
Citing:
CitedMurco Petroleum Ltd v Forge EAT 1987
The employer was found to have acted unreasonably but was not in significant breach going to the root of the contract where what they had done was not a ‘capricious exercise’ and was not an ‘arbitrary decision’. The employee’s claim of constructive . .
CitedWestern Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
CitedWhitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
CitedClark v Nomura International plc 2000
clark_nomura2000
Mr Clark was dismissed on three months’ notice and, although he was paid his basic salary for that period and was still in employment at the date for payment of the annual bonus, he was not paid a bonus. He had earned substantial profits for the . .
CitedNoorani v Merseyside TEC Limited EAT 21-Apr-1999
A tribunal’s discretion not to grant witness summonses because the witnesses appeared to be only of limited relevance was not to be interfered with, save where it was unreasonable. A tribunal can always act to remedy the refusal later if this . .
CitedTransco Plc v O’Brien CA 7-Mar-2002
The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before . .
CitedHamilton v Tandberg Televison Ltd EAT 12-Dec-2002
The applicant claimed unfair constructive dismissal.
Held: The appeal failed. McMullen QC J said: ‘It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation . .
CitedGrattan Plc v Kamran Hussain EAT 30-Apr-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Burke QC discussed the need for an employer to make investigations: ‘The issue was not whether further investigation might . .
CitedPost Office v Roberts EAT 1980
When looking to see whether there had been a fundamental breach of an employer’s or employee’s obligations, the conduct of the parties has to be looked at as a whole and its cumulative impact assessed: ‘in each case, in our view, you have to look at . .

Cited by:
CitedGAB Robins (UK) Ltd v Triggs EAT 13-Jun-2007
EAT UNFAIR DISMISSAL
Constructive dismissal
Compensation
Last straw constructive unfair dismissal. Last straw; employer’s failure to deal properly with her grievance – Constructive dismissal . .
CitedGMB Trade Union v Brown EAT 16-Oct-2007
EAT Unfair Dismissal: Reason for dismissal including substantial other reason / Compensation
The employee claimed constructive unfair dismissal because the employers refused to modify their grievance . .
CitedEdinburgh Council v Wood EAT 2-May-2008
EAT UNFAIR DISMISSAL: Constructive dismissal – Tribunal found two ‘stand alone’ material breaches, one in respect of penalty imposed for misconduct and one in respect of respondents’ response to claimant’s . .
CitedClaridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
CitedBournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
CitedBuckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 January 2022; Ref: scu.247777

Gurung, Pun and Thapa v Ministry of Defence: QBD 27 Nov 2002

The applicants were British Nepalese soldiers who had been imprisoned by the Japanese in the second world war. They challenged the decision of the respondent in November 2000 to exclude them from a compensation scheme, but to allow other British nationals from India who had also been imprisoned.
Held: The decision to exclude them was irrational. It offended the common law principle of equality before the law, and was discriminatory under the Convention. It was permissible for the government not to seek compensation on behalf of nationals of other states which had themselves reached a settlement with Japan, but that did not apply to these claimants. Standards which may have applied in 1955 need not be applied now. The ABCIFER case was to de distinguished because that case did not involve any element of race discrimination as did this.

McCombe J
Times 28-Nov-2002, [2002] EWHC 2463 (Admin)
Bailii
European Convention on Human Rights 8 14
England and Wales
Citing:
DistinguishedABCIFER v Secretary of State for Defence 2002
. .

Cited by:
CitedMohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was . .
CitedDost Mohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
The applicant was a Pakistani national who had been in the Indian army during the secind world war, and had been imprisoned by the Japanese. The defendant had set up a system of ex gratia payments to five classes of beneficiary, but the claimant . .
See AlsoLimbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others Admn 30-Sep-2008
The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights, Discrimination, Immigration

Updated: 20 January 2022; Ref: scu.178477

Ladiende v Royal Mail Group Ltd: EAT 27 May 2016

EAT Race Discrimination: Direct – VICTIMISATION DISCRIMINATION – Other forms of victimisation
Race Discrimination – direct discrimination – victimisation
The Claimants – all long-serving, black employees of the Respondent – complained of less favourable treatment as compared to a named (non-black) comparator/a hypothetical comparator in terms of their treatment as Temporarily Promoted Managers and had also complained of direct race discrimination and victimisation in respect of how the Respondent had responded to their grievance.
On the Claimants’ appeal against the ET’s rejection of their complaints:
Held: allowing the appeal in part
The Claimants complained that they had not been considered for/informed of vacant higher grade roles whereas their comparator had been slotted into such a role. The Respondent’s general explanation (accepted by the ET) – that there were no such vacancies at the Claimants’ workplace – was put into question by the treatment of the comparator. That said, it was apparent from the ET’s findings that the more favourable treatment of the comparator arose from a genuine mistake on the part of the Respondent (both in respect of the position of the comparator and also as to the position of the Claimants) and was in no way because of race. Although that left a question as to why this had not been rectified once the Respondent had learned of the error, the continuing position was not an issue before the ET and fell to be considered on the subsequent ET claims brought by the Claimants.
The Claimants had further complained that they had not been paid at the appropriate level for some ten years but that was again answered by the ET’s finding that their move to Temporary Promoted managers in 2004 had erroneously not been communicated to the Respondent’s payroll: the ET had gone to the ‘reason why’ question and had permissibly found that the answer was also unrelated to race.
As for the final complaint – of direct race discrimination and victimisation in respect of the handling of the Claimants’ grievance – the ET expressed a number of concerns in this respect but then failed to have regard to those matters when determining the issue of discrimination. There was a troubling confusion in the ET’s reasoning, which suggested an erroneous application of the burden of proof. Moreover, having found an absence of explanation provided by the Respondent, the ET erroneously considered that it was its role to provide the missing explanation. The errors in these respects also tainted the ET’s decision on victimisation. The appeal in respect of the grievance complaints (both of direct race discrimination and victimisation) would thus be allowed.

Eady QC HHJ
[2016] UKEAT 0197 – 15 – 2705
Bailii
England and Wales

Employment, Discrimination

Updated: 20 January 2022; Ref: scu.567280

Perratt v The City of Cardiff Council: EAT 28 Jun 2016

EAT Disability Discrimination: Disability Related Discrimination – Reasonable adjustments – UNFAIR DISMISSAL – Reasonableness of dismissal – The Tribunal below was required under a decision of the Appeal Tribunal, subsequently (after the Tribunal’s decision) found by the Court of Appeal to have been in error, to apply the wrong comparison when determining claims for breach of the duty to make reasonable adjustments.
Those issues that may have been decided differently must be remitted to the same Tribunal for reconsideration in the light of the Court of Appeal’s decision in Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216. That included the Appellant’s claim under section 15 of the Equality Act 2010 for discrimination constituting unfavourable treatment because of something arising in consequence of a disability.
The Tribunal had erred by failing to consider the Appellant’s unfair dismissal claim independently of her claims for disability discrimination. Dismissal for a discriminatory reason is not necessarily unfair; whether it is or not depends on application of the tests in section 98 of the Employment Rights Act 1996.

Kerr J
[2016] UKEAT 0079 – 16 – 2806
Bailii
England and Wales

Employment, Discrimination

Updated: 19 January 2022; Ref: scu.566915

Ornano v Ministero della Giustizia, Direzione Generale dei Magistrati del Ministero: ECJ 14 Jul 2016

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Article 119 of the EC Treaty (subsequently Article 141 EC) – Directive 75/117/EEC – Equal pay for men and women – Article 1 – Directive 92/85/EEC – Measures to improve the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding – Article 11(2)(b) and Article 11(3) – National law providing for an allowance for ordinary magistrates in respect of expenses which they incur in the performance of their professional functions – No entitlement for an ordinary magistrate to that allowance in the case of compulsory maternity leave taken prior to 1 January 2005

C-335/15, [2016] EUECJ C-335/15
Bailii
European

Discrimination

Updated: 19 January 2022; Ref: scu.566903

Mechkarov v Citibank Na (Race Discrimination : Post Employment): EAT 11 May 2016

EAT RACE DISCRIMINATION – Post employment
Whether permissible that part of a race discrimination claim should have been determined by hearing oral evidence on core issues of fact without a Full Hearing: on principle and on the facts, no.

Mitting J
[2016] UKEAT 0041 – 16 – 1105
Bailii
England and Wales

Employment, Discrimination

Updated: 18 January 2022; Ref: scu.565990

Taiwo and Another v Olaigbe and Others: SC 22 Jun 2016

The claimants had been brought here illegally to act as servants for the defendants. They were taken advantage of and abused. They made several claims, but now appealed against rejection of their claims for discrimination. The court was asked whether discrimination because of, or on grounds of, immigration status amounts to discrimination because of, or on grounds of, nationality. The subsidiary question is whether the employers’ conduct amounted to indirect discrimination against persons who shared that nationality.
Held: The appeals failed: ‘This is not because these appellants do not deserve a remedy for all the grievous harms they have suffered. It is because the present law, although it can redress some of those harms, cannot redress them all. Parliament may well wish to address its mind to whether the remedy provided by section 8 of the Modern Slavery Act 2015 is too restrictive in its scope and whether an employment tribunal should have jurisdiction to grant some recompense for the ill-treatment meted out to workers such as these, along with the other remedies which it does have power to grant.’
The reasons for the abuse they suffered related to the immigration vulnerability as migrant workers, and not to their race.

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson
[2016] UKSC 31, [2016] WLR(D) 319, [2016] IRLR 719, [2016] 1 WLR 2653, [2016] ICR 756, UKSC 2014/0105
Bailii, Bailii Summary, WLRD, SC, SC Summary
Equality Act 2010 13(1), Modern Slavery Act 2015
England and Wales
Citing:
At EATAkwiwu and Another v Onu EAT 1-May-2013
EAT Race Discrimination : Direct
Indirect
Post Employment
UNLAWFUL DEDUCTION FROM WAGES
NATIONAL MINIMUM WAGE
WORKING TIME REGULATIONS
The Claimant was a Nigerian woman who had . .
At CAOnu v Akwiwu and Another CA 13-Mar-2014
Two claimants, Nigerian women, came illegally to work as domestics. They suffered severe abuse by their employers. Whilst each received substantial awards, they appealed now from rejection of their claims for discrimination based upon the advantage . .
CitedMorris, Regina (on the Application of) v Westminster City Council and Another Admn 7-Oct-2004
The applicant questioned the compatibility of s185 of the 1996 Act with Human Rights law. The family sought emergency housing. The child of the family, found to be in priority housing need, was subject also to immigration control. Though the matter . .
CitedAttorney General’s Reference (No 4 of 2004) CACD 22-Apr-2005
The defendant was accused of having racially abused the complainant by referring to him as an ‘immigrant doctor’ before the assault. The trial judge had held that the word ‘immigrant’ was so wide in its possible application as not to be capable of . .
CitedRogers, Regina v HL 28-Feb-2007
The House was asked whether the use of the phrases ‘bloody foreigners’ and ‘get back to your own country’ counted to make a disturbance created by the defendant a racially aggravated crime.
Held: (Baroness Hale of Richmond) ‘The mischiefs . .
CitedSchnorbus v Land Hessen ECJ 7-Dec-2000
ECJ Equal treatment for men and women – Rules on access to practical legal training in Land Hesse – Priority for applicants who have completed military or civilian service
Jacobs AG said: ‘The discrimination . .
CitedRogers, Regina v HL 28-Feb-2007
The House was asked whether the use of the phrases ‘bloody foreigners’ and ‘get back to your own country’ counted to make a disturbance created by the defendant a racially aggravated crime.
Held: (Baroness Hale of Richmond) ‘The mischiefs . .
CitedBressol and Others, Chaverot and Others v Gouvernement de la Communaute francaise ECJ 13-Apr-2010
ECJ Citizenship of the Union Articles 18 and 21 TFEU Directive 2004/38/EC Article 24(1) Freedom to reside Principle of non-discrimination Access to higher education Nationals of a Member State moving to another . .
CitedPatmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .
CitedBull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
CitedHounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Torts – Other

Updated: 18 January 2022; Ref: scu.565832

Wells Cathedral School Ltd and Another v Souter and Another (Practice and Procedure : Discrimination): EAT 20 Jul 2021

The employment tribunal did not err in deciding that it was just and equitable to extend time in respect of the presentation by the claimants of their respective discrimination claims, in all the circumstances of their particular cases. Robinson v The Post Office [2000] IRLR 804, Apelogun-Gabriels v London Borough of Lambeth [2002] ICR 713 and Miller v The Ministry of Justice, UKEAT/003/15/LA, [2016] UKEAT 0003 – 15 – 1503 considered.

[2021] UKEAT 2020-000801
Bailii
England and Wales

Employment, Discrimination

Updated: 18 January 2022; Ref: scu.670763

C: ECJ 2 Jun 2016

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Principles of equal treatment and non-discrimination on grounds of age – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 2, 3 and 6 – Difference in treatment on grounds of age – National legislation providing, in certain situations, for higher taxation of pension income than earned income – Scope of application of Directive 2000/78 – Competence of the European Union in the field of direct taxation

C-122/15, [2016] EUECJ C-122/15, ECLI:EU:C:2016:391
Bailii
Directive 2000/78/EC 2 3 6

European, Discrimination

Updated: 17 January 2022; Ref: scu.565136

University of Bolton v Corrigan (Unfair Dismissal: Automatically Unfair Reasons): EAT 21 Dec 2015

EAT VICTIMISATION DISCRIMINATION – Detriment
The Claimant was branch secretary of UNISON. Her post and six others in Library Services were deleted. Two new team leader posts were created. She had a good chance of being appointed to one. In the course of the redundancy exercise she was critical of management. Both new posts were then deleted. One was reinstated but not the other to which the Claimant had a good chance of being appointed. The Claimant was dismissed as redundant. The Employment Tribunal did not err in their approach to the claim that the Claimant had been subjected to a detriment, the withdrawal of the team leader post, of penalising her for taking part in trade union activities. However the Employment Tribunal erred in their approach in concluding that the Claimant had been ‘automatically’ unfairly dismissed within the meaning of TULR(C)A section 152 because she had taken part in trade union activities. The Employment Tribunal erred in reasoning that because they did not accept the Respondent’s reason for dismissal, redundancy, the claim under TULR(C)A section 152 was made out. Whilst the ET referred to Kuzel v Roche Products Ltd [2008] IRLR 530 they did not apply the approach explained in paragraph 59. The Employment Tribunal should have decided that the reason for the dismissal was rather than accepting that it was the reason advanced by the Claimant once they did not accept that put forward by the Respondent. Appeal against finding of unfair dismissal allowed. Unfair dismissal claim remitted for rehearing.

Slade DBE J
[2015] UKEAT 0408 – 14 – 2112
Bailii
England and Wales

Employment, Discrimination

Updated: 17 January 2022; Ref: scu.565099

Ahir v British Airways Plc: EAT 15 Apr 2016

EAT Practice and Procedure: Striking-Out/Dismissal – The Claimant – employed by the Respondent on a fixed-term basis in an airside ground staff capacity – had complained that his dismissal had been an act of victimisation contrary to section 27 Equality Act 2010 (in respect of previous complaints against the Respondent and a more recent complaint of racial harassment) and/or was unfair pursuant to Regulation 6(1) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the Claimant having complained about the Respondent’s rejection of his application for permanent employment) and/or constituted a wrongful dismissal. For its part, the Respondent contended that the dismissal was due to admitted falsehoods on the Claimant’s CVs used to seek permanent employment, something that had been drawn to the Respondent’s attention by an anonymous letter. Accepting he had, indeed, lied on his CVs and this could provide a good reason for his dismissal, the Claimant nonetheless contended the Respondent had concocted the ‘anonymous’ letter and this was all a sham to punish him for his various complaints.
At a Preliminary Hearing to consider the Respondent’s application to strike out, the ET took the view that the Claimant’s case in this regard was founded upon baseless and unlikely assertions and had no reasonable prospect of success. Accordingly it struck out the dismissal claims, albeit that other (related) matters proceeded to a Full Merits Hearing. The Claimant appealed against the strike out decision.
Held: dismissing the appeal
The striking out of a claim was a draconian action and constituted a power to be used exceptionally, in particular where there was a factual dispute, as would usually be the case in discrimination cases and, more generally, where the reason for a dismissal was in issue (applying Anyanwu v South Bank Student Union [2001] ICR 391 HL; Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 CA; Balls v Downham Market High School and College [2011] IRLR 217 EAT; Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755 CS; and Romanowska v Aspiration Care Ltd UKEAT/0015/14/SM). In the present case, however, the ET had been entitled to conclude that the Claimant’s positive case – that the anonymous letter had been a sham – was inherently implausible and had no reasonable prospect of success. The real question raised by the appeal was whether the ET had proper regard to the need to test the Respondent’s case or whether it had lost sight of the need to hear evidence from the decision taker(s) as to the reason for a dismissal.
Having regard to the reasoning as a whole, it was apparent that the ET had carefully recorded the narrative history, which was not in dispute and which made clear that some six separate managers had considered the content of the letter and had individually determined it was something that required further investigation and, ultimately, disciplinary penalty. The Claimant’s case did not challenge that history. For his complaint to succeed would require an ET to find that considerations of the Claimant’s protected acts had tainted the thought processes of six separate managers, although there was no evidence that each had been aware of those acts and it was accepted that the Claimant had lied on his CV and that this provided a proper basis for his dismissal. That concession inevitably meant that the wrongful dismissal was bound to fail. The uncontested facts also meant, however, that the Claimant’s claims were indeed founded on unlikely assertion. Where a case is properly to be described as fanciful, an ET could permissibly take the view that it had no reasonable prospect of success; that was this case. The ET had been entitled to strike out the claim and the appeal would be dismissed.

Eady QC HHJ
[2016] UKEAT 0014 – 16 – 1504
Bailii
Equality Act 2010 27
England and Wales

Employment, Discrimination

Updated: 17 January 2022; Ref: scu.565115

Chief Constable of Sussex Police v Millard (Disability Discrimination : Disability): EAT 22 Feb 2016

EAT DISABILITY DISCRIMINATION – Disability
Disabled person – section 6 Equality Act 2010
At a Preliminary Hearing, the ET had held that the Claimant was at all material times a disabled person within the meaning of section 6 of the Equality Act 2010. On the Respondent’s appeal and the parties having agreed terms of a consent Order by which the appeal should be allowed.
Held:
Allowing the appeal.
The question for the ET was whether – on a predictive basis – the effect of the Claimant’s impairment was likely (i.e., so ‘it could well happen’ SCA Packaging Ltd v Boyle [2009] ICR 1056) to last for at least 12 months, based on the evidence of circumstances prevailing at the date of the discriminatory act relied on, not subsequent events (applying McDougall v Richmond Adult Community College [2008] ICR 431).
Notwithstanding obtaining further explanation from the ET under the Burns/Barke procedure, the parties were left not understanding the basis of the Judgment reached.
The appeal should be allowed. Further, following agreement between the parties that the Claimant should be held to have been disabled from 13 July 2012 (a date justified by the evidence) the ET’s finding would be set aside and substituted by the conclusion that the Claimant was disabled, for the purposes of the Equality Act, as from 13 July 2012.

Eady HHJ
[2016] UKEAT 0341 – 14 – 2202
Bailii
Equality Act 2010 6
England and Wales

Employment, Discrimination

Updated: 17 January 2022; Ref: scu.565101

Rodriguez Sanchez v Consum Sociedad Cooperativa Valenciana: ECJ 16 Jun 2016

(Judgment) Reference for a preliminary ruling – Social policy – Directive 2010/18/EU – Revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC – Reconciliation of professional and family life – Return from maternity leave of a worker member – Request for a reduction of working hours and for a change in work pattern – Situation which does not fall within the scope of Clause 6(1) of the revised Framework Agreement – Inadmissibility of the request for a preliminary ruling

ECLI:EU:C:2016:447, [2016] EUECJ C-351/14
Bailii
Directive 2010/18/EU
European

Discrimination, Employment

Updated: 17 January 2022; Ref: scu.565632

Dambagolla v Automobile Association Ltd (Disability Discrimination): EAT 13 Nov 2015

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge erred in law by striking out the Appellant’s disability discrimination claims; there was clear triable issues of fact, including as to the treatment of the Appellant, as compared with that of his five comparators, which were not addressed in the Judgment.

Kerr J
[2015] UKEAT 0193 – 15 – 1311
Bailii
England and Wales

Employment, Discrimination

Updated: 17 January 2022; Ref: scu.565087

Beckford v London Borough of Southwark (Disability Discrimination): EAT 27 Nov 2015

EAT DISABILITY DISCRIMINATION – Compensation
The Employment Tribunal held unfairly dismissed for capability because the Respondent had not considered suitable alternative employment by asking what the Claimant could do if reasonable adjustments were first made to a possible alternative post. Appeal by the Claimant on this ground rejected – (a) the Employment Tribunal had dealt with the point sufficiently, and (b) in any event it had not been argued as such.
A cross-appeal on the ground that the Employment Tribunal was wrong to uplift damages for injury to feelings by 10% (in accordance with Simmons v Castle) was dismissed. Doubt was expressed as to the correctness of De Souza v Vinci Construction UK Limited UKEAT/ 0328/14/DXA.

Langstaff P J
[2015] UKEAT 0210 – 14 – 2711, [2016] ICR D1, [2016] IRLR 178
Bailii
England and Wales

Employment, Discrimination

Updated: 17 January 2022; Ref: scu.565084

Samira Achbita and Another v G4S Secure Solutions Nv: ECJ 31 May 2016

ECJ Fundamental rights – Directive 2000/78/EC – Equal treatment in employment and occupation – Concept of discrimination based on religion or belief – Distinction between direct and indirect discrimination – Justification – Company ban on the wearing of visible religious, political or philosophical symbols – Religious and ideological neutrality – Dismissal of a female employee of Muslim faith on account of her firm intention to wear an Islamic headscarf in the workplace

ECLI:EU:C:2016:382, C-157/15, [2016] EUECJ C-157/15, [2017] EUECJ C-157/15
Bailii, Bailii
Directive 2000/78/EC
European

Discrimination, Human Rights

Updated: 17 January 2022; Ref: scu.564910

TK and hers v Land Sachsen-Anhalt: ECJ 27 Feb 2020

(Judgment) Reference for a preliminary ruling – Social policy – Equal treatment in matters of employment and occupation – Directive 2000/78 / EC – Articles 2 and 6 – Prohibition of any discrimination based on age – Remuneration of civil servants – Discriminatory remuneration system – Reminder of remuneration calculated on the basis of a previous discriminatory classification – New discrimination – Article 9 – Compensation for discriminatory legislation – Time-limit for submitting a claim for compensation – Principles of equivalence and effectiveness

C-773/18, [2020] EUECJ C-773/18, ECLI : EU: C: 2020: 125
Bailii
European

Discrimination, Employment

Updated: 17 January 2022; Ref: scu.654800

Kedziora v Servest Group Ltd: EAT 22 Apr 2016

Practice and Procedure: Striking-Out/Dismissal – The Employment Appeal Tribunal allowed the Claimant’s appeal against the decision of the Employment Tribunal to strike out his claim for discrimination on the grounds of his sexual orientation.

Laing DBE J
[2016] UKEAT 0099 – 16 – 2204
Bailii
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.563302

London Borough of Wandsworth v CRW: EAT 7 Mar 2016

EAT Race Discrimination: Direct – UNFAIR DISMISSAL – Automatically unfair reasons
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
Direct race discrimination – sections 13 and 136 Equality Act 2010; automatic unfair dismissal – section 103A Employment Rights Act 1996; unfair dismissal – section 98 Employment Rights Act 1996
The Claimant – a black woman employed by the Respondent at a residential unit for disabled, vulnerable young people – had brought complaints of direct race discrimination, automatic unfair dismissal (whistle blowing) and ‘ordinary’ unfair dismissal. These concerned the disciplinary process pursued by the Respondent, resulting in the Claimant’s dismissal for what was said to be gross misconduct arising from failures to safeguard vulnerable children in the Claimant’s care. The Claimant’s white comparator had also faced disciplinary charges relating to failings in respect of vulnerable children at the unit. In his case, the incidents were alleged to give rise to concerns as to inappropriate behaviour and/or risk of sexual abuse but there was a delay in investigating these matters and the concerns ultimately pursued to a disciplinary hearing were characterised by the Respondent as misconduct rather than gross misconduct and the disciplinary penalty limited to a written warning rather than dismissal.
The ET considered the difference in treatment between the two cases to be inadequately explained and inferred that the Respondent’s actions were because of race and thus upheld the complaint of direct race discrimination, contrary to section 13 Equality Act. It also found the reason or principle reason for the Claimant’s dismissal was her whistle blowing (she had raised concerns about the incidents involving her comparator) and thus unfair under section 103A Employment Rights Act. Considering the Claimant’s section 98 unfair dismissal claim, however, the ET found the Respondent had made good its reason for her dismissal for the purposes of section 98(2) – conduct – and the dismissal was fair in all the circumstances.
On the Respondent’s appeal.
Held: allowing the appeal
The inconsistencies in the ET’s conclusions could not be reconciled and rendered the decision unsafe. It was not possible for the reason or principle reason for the Claimant’s dismissal to be both automatically unfair for section 103A purposes but still fair under section 98(2) of the Employment Rights Act. Although it was possible that race might play a part in an employer’s decision making, whilst not being the reason or principle reason for the dismissal, the ET’s reasoning on the race discrimination case was not adequate to the task. In the circumstances the appeal would be allowed and the ET’s decision set aside in its entirety. The matter would be remitted to be considered afresh by a differently constituted ET.

Eady QC HHJ
[2016] UKEAT 0322 – 15 – 0703
Bailii
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.563300

Croydon Health Services NHS Trust v George: EAT 11 Feb 2016

Race Discrimination : Direct – HARRASSMENT – UNLAWFUL DEDUCTION FROM WAGES – UNFAIR DISMISSAL – Constructive dismissal
The ET had found that the Respondent directly discriminated against the Claimant (a registered Nurse and Midwife) because of race in its referral of her to the Local Supervising Authority (‘LSA’). It further found that the Respondent directly discriminated against her because of race and unlawfully harassed her after she had given notice of resignation (by way of retirement) in (i) demoting her and (ii) pursuing disciplinary and sickness review procedures against her. The ET also found the Claimant’s demotion was without any contractual basis and thus the subsequent reduction in her pay amounted to an unauthorised deduction of wages. That said, the ET did not find that the Claimant had resigned due to any breach of contract by the Respondent (the demotion had taken place after her resignation) but for other reasons.
On the Respondent’s appeal and the Claimant’s cross-appeal.
Held: Allowing the appeal in part and dismissing the cross-appeal.
In reaching its conclusion that the referral of the Claimant to the LSA had been an act of direct race discrimination, the ET had drawn a direct (‘statutory’) comparison with a previous employee of the Respondent. Allowing that comparison was identified in the list of issues (although not particularly clear) and that there had been a relevant difference in treatment between the two cases (again, unclear), the ET failed to demonstrate regard to potentially material differences between the two cases; an omission that might have been apparent if the ET had engaged with the Respondent’s explanation for referring the Claimant to the LSA but it did not. That rendered the finding of direct race discrimination in respect of the LSA referral unsafe and the ET’s conclusion in this regard could not stand.
As for the findings on the post-resignation complaints, the ET had again relied on the same comparison – this time, treating the former employee as an evidential comparator – without engaging with the material differences between the two cases. Whilst the individual cases did not have to be identical, the hypothetical comparator thereby constructed had to involve a like with like comparison; the ET’s failure to engage with this point again rendered its decision unsafe, both on direct race discrimination and harassment.
The ET had, however, reached a permissible conclusion on the unauthorised deduction claim; the Respondent had not identified a relevant contractual basis for the demotion.
On the cross-appeal, the Claimant had challenged the ET’s findings on breach of contract but that still left its conclusion that she had not left in response to any breach of contract. That being so, the cross-appeal could not succeed and would be dismissed.

Eady QC HHJ
[2016] UKEAT 0139 – 15 – 1702
Bailii
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.563297

Dansk Industri v Estate of Karsten Eigil Rasmussen: ECJ 19 Apr 2016

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Charter of Fundamental Rights of the European Union – Directive 2000/78/EC – Principle prohibiting discrimination on grounds of age – National legislation incompatible with the directive – Possibility for a private person to bring proceedings to establish the liability of the State for breach of EU law – Dispute between private persons – Balancing of various rights and principles – Principles of legal certainty and the protection of legitimate expectations – Role of the national court

K. Lenaerts, P
C-441/14, [2016] EUECJ C-441/14, ECLI:EU:C:2016:278, [2015] EUECJ C-441/14 – O
Bailii, Bailii
Directive 2000/78/EC

European, Human Rights, Discrimination

Updated: 14 January 2022; Ref: scu.562817

Cousins v The Forum@Greenwich: EAT 1 Feb 2016

EAT Sex Discrimination: Direct – SEX DISCRIMINATION – Burden of proof
RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Burden of proof
VICTIMISATION DISCRIMINATION
Direct discrimination – sex and race – victimisation
The Claimant (a black woman) had been dismissed from her employment as General Manager of the Respondent. The ET had accepted that the Respondent’s Chair of Trustees had a poor relationship with the Claimant, had made an inappropriate comment to her that amounted to less favourable treatment but was not, itself, the subject of a stand-alone complaint to the ET, and it had been recommended that he attend equality and diversity training to update his knowledge of working in a multicultural environment. He had further produced a report recommending that the Claimant be dismissed at the end of her probation period, the fairness and balance of which was – as the ET found – open to doubt.
All that said, the ET’s findings of fact also referenced concerns being expressed regarding the Claimant’s performance by other members of the Board and the ET concluded that the views of another Trustee had won the day, when the Respondent decided to extend the Claimant’s probation period rather than dismiss her (as the Chair had wanted). The ET further concluded that the individual Trustees who had ultimately determined to dismiss the Claimant and, subsequently, to reject her appeal against dismissal, had reached their own views independently of the former Chair and their decisions were not tainted by any discriminatory conduct/intent on his part. Equally, the decisions were not acts of victimisation.
On the Claimant’s appeal:
Held: dismissing the appeal.
Reading the ET’s reasoning as a whole, it was apparent that the ET had found that the Chair’s views had not tainted the decision to extend the Claimant’s probation period. Members of the Board had concerns about the Claimant’s performance independent of the Chair’s report and were persuaded to adopt the course favoured by another Trustee, to extend the Claimant’s probation rather than terminate her employment. In so doing, it did not lose sight of its findings adverse to the Chair but had formed a permissible conclusion as to what had really informed the decision in issue.
And that was ultimately the answer to the Claimant’s other grounds of appeal. The decisions to dismiss and to then reject the Claimant’s appeal were equally not influenced by the views of the former Chair but were taken independent and for reasons the ET concluded were other than the Claimant’s sex or race.
The ET had also reached a permissible conclusion on the victimisation claim. Whilst the reasoning might have been more fully explained, it was apparent that it had concluded that the action taken against the Claimant (the detriments she suffered) were not because of the protected act (the Claimant’s grievance).

Eady QC HHJ
[2016] UKEAT 0183 – 15 – 0102
Bailii
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.562531

The Secretary of State for The Department of Work and Pensions v Iqbal: EAT 8 Feb 2016

EAT Jurisdictional Points: Worker, Employee or Neither – Extension of time: just and equitable – The Claimant brought claims under the Equality Act 2010 of indirect disability discrimination and failure to make reasonable adjustments based on the employers’ insistence that he work full-time until 24 April 2012 when they allowed him to work part-time. He did not start his claims until 17 December 2012. The Employment Tribunal found the claims were well founded but had to consider the jurisdictional issues raised by section 123 Equality Act.
The Employment Tribunal concluded that time began to run on the date of his (fair) dismissal on 21 September 2012 on the basis that there was a ‘continuing state of affairs’ because the ‘part-time regime’ was not permanent. There was no finding in the Reasons about any request for a permanent ‘part-time regime’ or as to the effect of the part-time regime not being permanent and the conclusion that time began to run on 21 September 2012 was contrary to the Employment Tribunal’s express findings that the discrimination and failure to make reasonable adjustments applied until 24 April 2012.
On the question of a just and equitable extension of time, the Employment Tribunal said it would have extended time on the basis of the extreme stress under which the Claimant was labouring after receipt of a letter on 14 May 2012 (notifying him of the investigatory process that ultimately led to his dismissal). The Employment Tribunal did not have regard in its Reasons to the cause of this extreme stress or its effect on the Claimant’s ability to bring proceedings and the Reasons were therefore inadequate.
In the circumstances both issues arising under section 123 Equality Act were remitted to the Employment Tribunal.

Shanks HHJ
[2016] UKEAT 0094 – 15 – 0802
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.562540

Zeb v Xerox (UK Ltd and Another: EAT 24 Feb 2016

EAT Practice and Procedure: Striking-Out/Dismissal – 1. The Employment Judge erred in law in striking out claims of unlawful discrimination without a hearing where the Claimant advanced facts that were not significantly disputed but where the reasons for alleged poor and/or unreasonable treatment were part of the critical core of disputed facts that required a hearing.
2. Nevertheless the claims were rightly regarded, in the alternative, as having little prospect of success. The deposit Order made in the alternative would be substituted.
3. A second appeal raised an issue not argued below, and there were no exceptional reasons to permit it to be argued. In any event, there was no adequate material for the point to be determined.

Simler DBE P J
[2016] UKEAT 0091 – 15 – 2402
Bailii, Bailii
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.562546

Kowalewska-Zietek v Lancashire Teaching Hospitals NHS Foundation Trust: EAT 21 Jan 2016

EAT Race Discrimination – The Claimant Neurologist made eight complaints that she had been directly discriminated against and one complaint that she had been subject to harassment. This was on the grounds of her being a Polish national. All were rejected by the Employment Tribunal. Appeals against this decision on the grounds that the Employment Tribunal had not adopted a two-stage analysis of discrimination were rejected, as were grounds that the Employment Tribunal had insufficiently explained its reasoning, and wrongly relied upon one of the relevant decision makers in her case as having ‘lacked attention to detail’. Observations were however made about the care an Employment Tribunal needs to take before ascribing what are alleged to be acts of discrimination too easily to mistakes or incompetence.

Langstaff J
[2016] UKEAT 0269 – 15 – 2101
Bailii
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.562523

Brighton v Tesco Stores Ltd: EAT 27 Jan 2016

EAT Disability Discrimination : Disability Related Discrimination – The Employment Tribunal failed to take into account important letters from a Consultant Neurologist in deciding whether the Claimant had suffered an epileptic seizure on the day of his aggressive behaviour that led to his dismissal and in deciding whether aggression and amnesia could be the result of a seizure. The Employment Tribunal did not have to accept the medical evidence but should have given it due regard.
Further, the decision of the Employment Tribunal that the Claimant did not suffer a seizure on 19 October 2012 is not Meek-compliant. Claims of disability discrimination arising from the events of 19 October 2012 remitted for rehearing before a differently constituted Employment Tribunal.

Slade DBE J
[2016] UKEAT 0165 – 15 – 2701
Bailii
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.562518

The Law Society v Kamlesh Bahl: EAT 7 Jul 2003

EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination against her. The complainant appealed findings that she had lied to the tribunal on oath, and that the discrimination had been only indirect.
Held: The finding that she had lied under oath to the tribunal was not part of the tribunal’s order and could not be challenged on appeal. All unlawful discriminatory treatment is unreasonable, but not all unreasonable treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. The fact of unreasonable behaviour operates to increase the possibility of finding explanations for behaviour challengeable. There must be evidence independent of hostile treatment to justify the inference of discrimination on proscribed grounds. It is not possible to state whether the chosen comparator would have been differently treated independently of knowing why the alleged victim was treated in the way in which he or she was. The tribunal erred in law in not distinguishing between the race and sex discrimination. The tribunal had failed to identify the facts upon which their inference of discrimination was based. The complete absence of evidence to support the allegation of discrimination whether for sex or race made the findings unsustainable. There was no proper basis for concluding that Mrs Betts was treating Dr. Bahl less favourably because of Dr. Bahl’s race or sex. Similarly, there was even less justification in the light of the evidence for imputing such improper discriminatory conduct to Mr Sayer.

The Honourable Mr Justice Elias
EAT/1057/01, EAT/1056/01, [2003] UKEAT 1056 – 01 – 3107
Bailii, EATn
Sex Discrimination Act 1975 12, Race Relations Act 1976 11
England and Wales
Citing:
AppliedHarrod v Minister of Defence EAT 1981
The Employment Appeal Tribunal had no jurisdiction to hear appeals which do not attempt to disturb an order of the tribunal. . .
CitedRiniker v University College London (Practice Note) CA 5-Apr-2001
The Employment Appeal Tribunal does not have jurisdiction to hear an appeal which does not set out to disturb any part of the order made by the original tribunal. There is no inherent power in the Court of Appeal to bypass the prohibition in . .
CitedShamoon 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 . .
CitedSwiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
CitedQureshi v Victoria University of Manchester EAT 21-Jun-1996
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. The questions on a complaint of race discrimination are: (a) Did the act complained of actually occur? (b) If the act . .
CitedDr 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 . .
CitedKing v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
CitedMacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
CitedStrathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
CitedMarks and Spencer Plc v Martins CA 19-Dec-1997
The court emphasised the ubiquitous need to make the findings of primary fact without which it is impossible to consider the drawing of relevant inferences. A tribunal hearing a race discrimination case must ask the question as put by the Act; there . .
CitedEffa v Alexandra Healthcare NHS Trust CA 5-Nov-1999
The tribunal’s decision was found to have confused unreasonable treatment with discriminatory treatment. ‘It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no . .
CitedChief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
CitedMeek 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 . .
CitedChapman and Another v Simon CA 1994
The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary . .
CitedGovernors of Warwick Park School v Hazelhurst CA 2001
‘In my judgment the Employment Appeal Tribunal were correct to hold that there was an error of law in the decision of the Employment Tribunal as identified by the Employment Appeal Tribunal. In a situation in which it is expressly found that there . .
CitedEnglish v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
CitedRobertson v Bexley Community Centre CA 11-Mar-2003
The claimant brought his claim in discrimination, but it was out of time. The employer appealed against a decision to extend the time for him to file his complaint.
Held: A tribunal has a very wide discretion in the area of whether to extend . .
CitedShamoon 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 by:
Appeal fromLaw Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 January 2022; Ref: scu.185270

Johns and Another, Regina (on The Application of) v Derby City Council and Another: Admn 28 Feb 2011

The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be homosexual. A declaration was sought as to the legality of the proposed decision.
Held: A declaration was refused. The propositions put forward on their behalf were ‘a travesty of reality’.
Munby LJ said: ‘No one is asserting that Christians (or, for that matter, Jews or Muslims) are not ‘fit and proper’ persons to foster or adopt. No one is contending for a blanket ban. No one is seeking to de-legitimise Christianity or any other faith or belief. No one is seeking to force Christians or adherents of other faiths into the closet. No one is asserting that the claimants are bigots. No one is seeking to give Christians, Jews or Muslims or, indeed, peoples of any faith, a second class status. On the contrary, it is fundamental to our law, to our polity and to our way of life, that everyone is equal: equal before the law and equal as a human being endowed with reason and entitled to dignity and respect. . . it is important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. And invocation of religious belief does not necessarily provide a defence to what is otherwise a valid claim.
The authority’s proposed line was not discriminatory: ‘If the defendant’s treatment is the result of the claimants’ expressed antipathy, objection to, or disapproval of homosexuality and same-sex relationships it is clear, on authorities which bind us, namely the decisions of the Court of Appeal in Ladele and McFarlane, that it would not be because of their religious belief. Moreover, the defendant’s treatment of the claimants would not be less favourable than that afforded other persons who, for reasons other than the religious views of the claimants, expressed objection to, or disapproval of, homosexuality and same-sex relationships’

Munby LJ, Beatson J
[2011] EWHC 375 (Admin)
Bailii
Equality Act 2006, Equality Act (Sexual Orientation) Regulations 2007, Fostering Services Regulations 2002, SI 2002/5, European Convention on Human Rights 8 14
England and Wales
Citing:
CitedLindo, By Her Guardian v Belisario 5-Jun-1795
(Consistory Court of London) Sir William Scott considered the notion of marriage: ‘The opinions which have divided the world, or writers at least, on this subject, are, generally, two. It is held by some persons that marriage is a contract merely . .
CitedTurner v Meyers (falsely calling herself Turner) 6-May-1808
Sir William referred to the view of ‘the mysterious nature of the contract of marriage, in which its spiritual nature almost entirely obliterated its civil character’ as a notion that prevailed in the dark ages: ‘In more modern times it has been . .
CitedE, 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 . .
CitedKC and Another v City of Westminster Social and Community Services Dept. and Another; Westminster City Council v C and others CA 19-Mar-2008
A ‘marriage’ though valid under both Sharia law and the lex loci celebrationis despite the manifest incapacity of one of the parties was not, on grounds of public policy, entitled to recognition in English law.
The 2005 Act has not abolished . .
CitedHyde v Hyde and Woodmansee 20-Mar-1866
A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a, marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time . .
CitedBowman v Secular Society Limited HL 1917
The plantiff argued that the the objects of the Secular Society Ltd, which had been registered under the Companies Acts, were unlawful.
Held: The House referred to ‘the last persons to go to the stake in this country pro salute animae’ in 1612 . .
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
CitedMcFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .
CitedLadele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .
CitedCampbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
CitedThe Moscow Branch of The Salvation Army v Russia ECHR 5-Oct-2006
The Salvation Army complained that the respondent had refused to allow its registration as a religious association, thus denying its members the right to practice their religion.
Held: The court stressed both the importance of the rights . .
CitedPalau Martinez v France ECHR 16-Dec-2003
A decision of the French court that the children should live with their father, and not with their Jehovah’s Witness mother, was based decisively on its view of the mother’s religious practices and was discriminatory; although the protection of the . .
CitedLeyla Sahin v Turkey ECHR 29-Jun-2004
(Grand Chamber) The applicant had been denied access to written examinations and to a lecture at the University of Istanbul because she was wearing an Islamic headscarf. This was prohibited not only by the rules of the university but also by the . .
CitedEB v France ECHR 22-Jan-2008
The claimant, a homosexual woman, complained that her homosexuality had meant her disqualification from adopting a child.
Held: There is no right to foster, but the provision was an unlawful discrimination. The denial of adoption to a woman in . .
CitedEweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
CitedKalac v Turkey ECHR 1-Jul-1997
In exercising his freedom to manifest his beliefs an individual ‘may need to take his specific situation into account.’ ‘The Commission recalls that the expression ‘in accordance with the law’, within the meaning of Article 9(2), requires first that . .
CitedThlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. . .
CitedCopsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
CitedIn 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 by:
CitedNational Secular Society and Another, Regina (on The Application of) v Bideford Town Council Admn 10-Feb-2012
The claimant challenged the placing of a prayer on the agenda of the respondent’s meetings.
Held: The claim succeeded. The placing of such elements on the Agenda was outside the powers given to the Council, and the action was ultra vires: . .

Lists of cited by and citing cases may be incomplete.

Children, Discrimination, Human Rights

Updated: 13 January 2022; Ref: scu.430083

Law Hospitals NHS Trust v Rush: SCS 13 Jun 2001

The claimant had said that the effect of her dyslexia was to inhibit her career progress.
Held:It was right for a tribunal to have regard to how an applicant could carry out duties at work in deciding whether she was within the Disability Discrimination Act. Evidence of how the claimant carries out normal day-to-day activities while at work is relevant evidence. However, on the facts, the decision that the claimant was disabled should not be disturbed.

Lord Kirkwood
[2001] IRLR 611, 2001 GWD 21-810, [2001] ScotCS 149, 2002 SC 24, 2002 SLT 7
Bailii
Disability Discrimination Act 1995
Cited by:
AppliedAbbey National Plc v Dutton EAT 20-Jan-2005
EAT Disability Discrimination
Employment Tribunal Chairman sitting alone hearing a preliminary issue as to whether Claimant was disabled erred in refusing to allow cross-examination of Claimant on what she . .

Lists of cited by and citing cases may be incomplete.

Scotland, Employment, Discrimination

Updated: 12 January 2022; Ref: scu.561385

Sivanandan v Independent Police Complaints Commission and Another: EAT 29 Jan 2016

(Sex Discrimination: Indirect) The Employment Judge struck out claims of indirect discrimination without hearing any evidence, on the basis that they had no reasonable prospect of success. The Employment Judge refused to strike out direct discrimination claims, ordering a deposit Order instead.
On appeal, it was held that this was a case where on consideration of all the available material, the Tribunal could not properly conclude that the claim based on the first two PCPs had no reasonable prospect of success. The Employment Judge accordingly erred in law in reaching the opposite conclusion. A different view in relation to the asserted PCPs (iii), (iv) and (v) was taken and the strike out Order in relation to these was upheld.
The deposit Order was upheld
There was no appearance of bias.

Simler DBE J
[2016] UKEAT 0436 – 14 – 2901
Bailii
England and Wales

Employment, Discrimination

Updated: 12 January 2022; Ref: scu.560979

Abertawe Bro Morgannwg University v Morgan: EAT 8 Mar 2016

EAT (Jurisdictional Points: Extension of Time: Just and Equitable) The Employment Tribunal found that the Appellant employer had failed to make reasonable adjustments in relation to re-deploying the Claimant employee between April and August 2011 and that the Claimant’s claim in respect thereof was well founded. They also found that time for that claim began to run by no later than the beginning of August 2011. The two findings were not inconsistent.
The Employment Tribunal’s decisions to extend time under section 123(1)(b) Equality Act 2010 in respect of that claim and in respect of a separate claim of harassment, though generous to the Claimant, were not wrong in law. In particular, it was open to the Employment Tribunal to make findings as to the reason(s) for the Claimant’s delay in presenting her claims based on inference even though she had not given any direct evidence on the point.

Shanks HHJ
[2016] UKEAT 0320 – 15 – 0803
Bailii
England and Wales

Employment, Discrimination

Updated: 12 January 2022; Ref: scu.560987

Magoulas v Queen Mary University of London (Age Discrimination): EAT 29 Jan 2016

EAT Age Discrimination – The Employment Appeal Tribunal dismissed an argument that there was a duty on the Respondent to adduce evidence that it had considered alternative(s) to the provision, criterion or practice (‘PCP’) that it adopted: first, on the facts of the case (as if any viable alternative had existed it would have emerged in the long redundancy consultation process, and none did); and second, as a matter of law, as no authority binding on the Employment Appeal Tribunal suggests that there is any such duty. The Employment Appeal Tribunal also dismissed the linked argument that the Employment Appeal Tribunal was bound to consider ‘manifest alternatives’ to the PCP, as, on the facts, there was no such alternative.

Laing DBE J
[2016] UKEAT 0244 – 15 – 2901
Bailii
England and Wales

Employment, Discrimination

Updated: 12 January 2022; Ref: scu.560976

Regina v Army Board of Defence Council, ex parte Anderson: QBD 1991

Members of the Armed Forces who alleged discrimination did not have access to Industrial Tribunals. The only recourse was to make a service complaint which would then be considered by the Army Board. Anderson complained of race discrimination. His service complaint had been dismissed and in his application for judicial review he challenged the procedure which the Panel had adopted including not holding an oral hearing.
Held:
Taylor LJ said: ‘The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing: see Local Government Board v. Arlidge [1915] A.C. 120, 132-133; Reg. v. Race Relations Board, Ex parte Selvarajan [1975] 1 W.L.R. 1686, 1694B-D and Reg. v. Immigration Appeal Tribunal, Ex parte Jones (Ross) [1988] 1 W.L.R. 477, 481B-G. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence. This does not mean that whenever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined.’

Taylor LJ, Morland J
[1992] QB 169, [1991] 3 All ER 375, [1991] 3 WLR 42
England and Wales
Citing:
CitedLocal Government Board v Arlidge HL 1914
A right of appeal against the exercise of a statutory authority requires no general right to an oral hearing before an administrative decision maker, and a hearing on the papers may be perfectly fair for legal purposes.
Lord Shaw said: ‘The . .
CitedRegina v Race Relations Board, Ex parte Selvarajan CA 1975
Lord Denning MR said: ‘In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . In all these cases it has been held that the investigating body is under a duty to act . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Discrimination, Natural Justice

Leading Case

Updated: 12 January 2022; Ref: scu.539816

Post Office v Jones: EAT 23 Mar 1999

[1999] UKEAT 83 – 99 – 2303
Bailii
Disability Discrimination Act 1995
England and Wales
Cited by:
CitedPost Office v Jones EAT 9-Feb-2000
. .
See AlsoPost Office v Jones CA 5-Jun-2001
The employee had become diabetic. Upon his coming to require insulin, the employer undertook a new risk assessment, and restricted his duties as a driver. He claimed disability discrimination. At the tribunal, both employer and employee brought . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 January 2022; Ref: scu.205006

Donelien v Liberata (UK) Ltd: CA 17 Nov 2015

Application for permission to appeal against a decision of the Employment Appeal Tribunal dismissing an appeal from the Employment Tribunal which had held that the employer, Liberata (UK) Limited, were not in breach of their duty to make reasonable adjustments under the Disability Discrimination Act.

Lewison LJ
[2015] EWCA Civ 1449
Bailii
England and Wales

Employment, Discrimination

Updated: 10 January 2022; Ref: scu.560432

London General Transport Service Ltd Blackledge v London General Transtoet Service Ltd A P Blackledge: EAT 23 May 2003

EAT Disability Discrimination – Compensation

His Hon Judge Birtles
EAT/43/03, EAT/37/03, [2003] EAT 0037 – 03 – 1806, [2003] UKEAT 0037 – 03 – 1806
Bailii, Bailii
Citing:
See AlsoBlackledge v London General Transport Services Ltd EAT 3-Aug-2001
The appellant appealed against a finding that he was not disabled under the Act. He had been a soldier in action and many years later, he suffered flash backs and claimed post traumatic stress disorder. Doctors differed in their diagnosis, and in . .

Cited by:
See AlsoBlackledge v London General Transport Services Ltd EAT 3-Aug-2001
The appellant appealed against a finding that he was not disabled under the Act. He had been a soldier in action and many years later, he suffered flash backs and claimed post traumatic stress disorder. Doctors differed in their diagnosis, and in . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 10 January 2022; Ref: scu.184352

Pajic v Croatia: ECHR 23 Feb 2016

The applicant alleged discrimination on the grounds of her sexual orientation in obtaining a residence permit in Croatia, contrary to Articles 8 and 14 of the Convention.

68453/13 (Judgment (Merits and Just Satisfaction) : Court (Second Section)), [2016] ECHR 203
Bailii
European Convention on Human Rights
Human Rights
Cited by:
CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Discrimination

Updated: 10 January 2022; Ref: scu.560201

Fraser v Crown Prosecution Service: EAT 16 Jan 2013

EAT Disability Discrimination – PRACTICE AND PROCEDURE – Review
The CPS appealed against the Employment Tribunal’s decision, on review, to revoke their earlier remedy judgment, made in the absence of the Claimant, and to order a new remedy hearing.
In addition to the importance of the finality of litigation, the ET were found to have had proper regard, in the exercise of their discretion, to the relevant factor that the Claimant’s mental impairment may have influenced the way in which he had conducted the litigation, which the CPS described as ‘unreasonable’. Reference to the equality duty and the ‘judicial function’ exemption in the Equality Act 2010, and the guidance provided in the Judicial College Equal Treatment Bench Book as to the fair treatment of people with mental disabilities.
The appeal was dismissed.

Cox DBE J
[2013] UKEAT 0022 – 13 – 0702
Bailii
England and Wales

Employment

Updated: 10 January 2022; Ref: scu.559948

Moore v Marks and Spencer Plc: EAT 17 May 2010

EAT PRACTICE AND PROCEDURE – Amendment
The Employment Judge did not err in refusing an application, in the form of a new claim, to amend to add claims out of time under the Sex Discrimination Act 1975 and the Maternity Employment Tribunal Regulations. It was still open to the Claimant to have her second claim, presently stayed, determined.

McMullen QC J
[2010] UKEAT 0076 – 10 – 1705
Bailii
Sex Discrimination Act 1975
England and Wales

Employment, Discrimination

Updated: 10 January 2022; Ref: scu.417096

Noble v Sidhil Ltd and Another (Harassment): EAT 5 Jan 2016

EAT Harassment – The Claimant made complaints of harassment under various protected characteristics. The Employment Tribunal found some proved, and the majority of the claims not proved. The Claimant appealed against the findings on those which were not proved. Held the Employment Tribunal had erred in law in the method used by one member to decide on credibility. Further, the Employment Tribunal erred in law in finding that the Claimant could not be harassed unless he shared the protected characteristic. Case remitted to a Tribunal to reconsider, leaving the findings of harassment intact and reconsidering the whole case in light of them, and applying the law correctly that there is no need for the Claimant to share the protected characteristic, whether any claims found not proved have been proved.
Cross-appeal: the First Respondent cross-appealed on a finding of harassment on grounds of disability, on the basis that the First Respondent did not know of the disability.
Held: cross-appeal dismissed, there being no requirement of knowledge.

Lady Stacey
[2016] UKEAT 0375 – 14 – 0501
Bailii
England and Wales

Employment, Discrimination

Updated: 09 January 2022; Ref: scu.558200

Trustee Solutions Ltd and others v Dubery and Another: ChD 21 Jun 2006

The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and the amendment was ineffective. No estoppel arose as against the members: ‘An avoidance of pedantry, and the need to protect beneficiaries may well be powerful factors in choosing between rival constructions; but once the requirements of a valid means of alteration of the rules has been determined as a matter of construction, either a document satisfies those requirements or it does not.’ and ‘it was a substantive requirement of a document amending the rules that it was signed by the trustees and by or on behalf of the company. Since, in my judgment, the court has no power to authorise a departure from the rules, or to waive one of their requirements, it follows that the rules have never been validly amended. ‘
As to the estoppel, a group estoppel was alleged, saying that the amendments had been given effect since 1991. In fact those who had left the scheme, and who might have asserted the estoppel had been treated as if the amendment had not been made, and ‘the entitlement to pension of members who have the right to retire for part of their service and who had attained the age of 60 at the date of winding up falls within section 73 (3) (b) of the Pensions Act 1995. ‘

Lewison J
[2006] EWHC 1426 (Ch), [2006] Pens LR 177, [2007] 1 All ER 308, [2007] ICR 412, [2006] PLR 177, Times 07-Aug-2006
Bailii
Pensions Act 1995 73
England and Wales
Citing:
CitedBarber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
CitedColoroll Pension Trustees v Russell and others (Judgment) ECJ 28-Sep-1994
The trustees of a pension fund have the same equal treatment obligations as do employers. The effect of the judgment in Barber was that: ‘i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male . .
CitedBestrustees v Stuart 2001
The court considered the validity of a purported alteration in the rules of a pension scheme. It was said to have altered the rules in accordance with a power of alteration contained in clause 16 of the scheme under consideration.
Held: ‘I . .
CitedEverard v Paterson CEC 1816
The plaintiff sued on a bond which was conditional on performance of an arbitrators’ award ‘made in writing under their hands’. The pleading alleged that the arbitrators had made and published their award in writing; but it did not allege that the . .
CitedChadwick v Clarke CCC 1845
The plaintiff and defendant were directors of an insurance company. The board resolved to rent a house from Mr Chadwick for one year. A memorandum of agreement was prepared and agreed, but it was never signed. The memorandum recorded an agreement to . .
CitedTechnocrats International Inc v Fredic Ltd QBD 23-Nov-2004
The court was asked to consider the effectiveness of an unsigned assignment of a chose in action: ‘An assignment is only a legal assignment if it complies with s.136 of the 1925 Act. What that section requires is that there should be an ‘absolute . .
CitedRedrow Plc v Pedley and Lewis ChD 12-Feb-2002
The company had a final salary pension scheme. The respondents were variously trustees of the scheme, and representative employees. To calculate benefits, it was necessary to determine the ‘total remuneration from the Employers’. The employees . .
CitedAmalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
CitedChadwick v Clarke CCC 1845
The plaintiff and defendant were directors of an insurance company. The board resolved to rent a house from Mr Chadwick for one year. A memorandum of agreement was prepared and agreed, but it was never signed. The memorandum recorded an agreement to . .
CitedWaterson’s Trustees v St Giles Boys’ Club IHCS 1943
The House considered a testamentary direction by the testatrix to give effect to any ‘informal writing under my hand’. At her death she left holograph directions, but they were not subscribed with a signature.
Held: This document was not . .
CitedSteria Ltd and others v Hutchison and others ChD 21-Dec-2005
. .
CitedHearn v Younger 2005
. .
CitedIcarus (Hertford) Ltd v Driscoll ChD 1990
. .
CitedHoover Ltd v Hetherington ChD 2002
. .
CitedITN v Ward ChD 1997
. .
CitedLansing Linder Ltd v Alber ChD 2000
Pension scheme rules were amended varying the ages etc for retirement. The rules gave the company power to amend the rules with the consent of the Trustees. The original rules permitted early retirement on an immediate, but actuarially reduced, . .

Cited by:
Appeal fromTrustee Solutions Ltd and others v Dubery and Another CA 26-Jul-2007
When apportioning the assets of a pension fund on its winding up under the statutory scheme, the trustees had to take careful note of the differing historic retirement ages throught the scheme and between men and women. . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Discrimination, Financial Services, Insolvency

Updated: 08 January 2022; Ref: scu.242661

Arjona Camacho v Securitas Seguridad Espana SA: ECJ 17 Dec 2015

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Directive 2006/54/EC – Equal treatment of men and women in matters of employment and occupation – Discriminatory dismissal – Article 18 – Compensation or reparation for the loss and damage actually sustained – Deterrent effect – Article 25 – Penalties – Punitive damages

C-407/14, [2015] EUECJ C-407/14, ECLI:EU:C:2015:831
Bailii
Directive 2006/54/EC
European

Discrimination

Updated: 08 January 2022; Ref: scu.556987

Pnaiser v NHS England and Another (Disability Discrimination: Burden of Proof): EAT 4 Dec 2015

EAT DISABILITY DISCRIMINATION – Burden of proof
DISABILITY DISCRIMINATION – Section 15
The Claimant brought claims of unlawful disability discrimination under section 15 against both NHS England and the Council alleging (inter alia):
(i) that the withdrawal of a job offer by Prof Rashid on behalf of NHS England was unfavourable treatment, done because of something arising in consequence of her disability; and that Prof Rashid knew or ought to have known of her disability. No justification argument was advanced by NHS England.
(ii) In relation to the Council she alleged (among other things) that the giving of a negative reference by Ms Tennant which led to the withdrawal of the job offer was unfavourable treatment, given as a consequence of the absences which arose in consequence of her disability. It was conceded that the Council (and Ms Tennant) knew that the Claimant was disabled at the time the reference was given.
The claims failed and were dismissed by the Employment Tribunal on the basis that the Claimant failed to establish a prima facie case such as would shift the burden of proof to either Respondent.
The appeal would be allowed. A fair reading of the whole of paragraph 122 of the Tribunal Reasons shows that the Tribunal did apply a test that required the Claimant to show that the only inference that could be drawn was a discriminatory one before it could conclude that the burden shifted to the Respondents. This was an impermissibly high hurdle. What the Tribunal should have asked itself instead is simply whether the fact that Ms Tennant gave a negative reference, which she denied giving, in a conversation where she mentioned the Claimant’s significant absence, and her knowledge of and concerns about the Claimant’s history of significant absences were together sufficient to raise a prima facie case against the Council that absence was (consciously or unconsciously) a reason in Ms Tennant’s mind for giving the negative reference, so that the burden shifted.
Further, the Tribunal reached a conclusion that was not only unsupported by the evidence, but was contrary to the evidence about the negative reference, and contrary to the Tribunal’s own finding as to why Ms Tennant denied giving it. There were facts from which the Tribunal could infer that the unsuitability comments were made by Ms Tennant (at least partly) because of the Claimant’s absences (which were a consequence of her disability) so that the burden shifted to the Respondents to show that absence (or the consequence of the Claimant’s disability) played no part whatever in the reasons she said the Claimant was unsuitable that led to Prof Rashid’s withdrawal of the offer of employment.
The cross-appeal against the finding that Prof Rashid had constructive knowledge of the Claimant’s disability failed. The Tribunal made a conscientious assessment of the facts and a permissible finding that was not arguably perverse or in error of law.
For the reasons given at paragraphs 81 to 83, the EAT substituted findings of unlawful discrimination pursuant to section 15 against both Respondents.

Simler DBE J
[2015] UKEAT 0137 – 15 – 0412
Bailii
England and Wales

Employment, Discrimination

Updated: 07 January 2022; Ref: scu.556436

Chief Constable of Greater Manchester Police v Bailey (Race Discrimination : Direct): EAT 3 Dec 2015

EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Indirect
RACE DISCRIMINATION – Inferring discrimination
RACE DISCRIMINATION – Burden of proof
PRACTICE AND PROCEDURE – Questionnaires
VICTIMISATION DISCRIMINATION – Other forms of discrimination
This appeal was a challenge to the conclusions and reasoning of the Employment Tribunal in a claim for direct and indirect discrimination on grounds of race. The appeal was dismissed.

Elisabeth Laing DBE J
[2015] UKEAT 0166 – 15 – 0312
Bailii
England and Wales

Employment, Discrimination

Updated: 07 January 2022; Ref: scu.556435

Kibirango v Barclays Bank Plc and Others: EAT 25 Nov 2015

EAT Race Discrimination : Direct – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Decision of the Tribunal was inadequately reasoned and did not inform the Appellant properly why he had lost his case. The authorities do not support the proposition that it is sufficient for a Tribunal to state that it preferred the account of one witness to that of another, without saying why.

Kerr J
[2015] UKEAT 0234 – 14 – 2511
Bailii
England and Wales

Employment, Discrimination

Updated: 07 January 2022; Ref: scu.556005

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 he as owner had been prosecuted and struck off. She had not. The home registration was then cancelled. He complained that the decision to prosecute him was unlawful discrimination.
Held: In this context the respondent was not a body whose relationship with the applicant fell within section 12 of the 1976 Act. The appeal failed.

[1999] UKEAT 1288 – 97 – 0203
Bailii
Employment Tribunal Rules of Procedure 1993 13(2)(d), Race Relations Act 1976 12
Citing:
CitedE T Marler Limited v Robertson NIRC 1974
A frivolous claim is one that has no substance in it and is bound to fail or on the face of it is so manifestly misconceived that it has no prospect of success: ‘If the employee knows that there is no substance in his claim and that it is bound to . .
CitedSelkent Bus Co Ltd v Moore EAT 2-May-1996
The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was . .

Cited by:
See AlsoRegina v Manchester Health Authority ex parte Balamoody Admn 21-Apr-1999
The applicant sought leave to bring judicial review. In seeking to extend his nursing home he said that the respondent had allowed him to execute works to allow 38 patients, but had then only registered the home for 16 patients.
Held: The . .
See AlsoBalamoody v UKCC for Nursing Midwifery and Home Visitors EAT 15-Oct-1999
The claimant had complained that a decision of the respondent to cancel his nursing home registration was unlawful racial discrimination. He now appealed a decision to strike out his claim as vexatious and frivolous.
Held: It was not clear . .
See AlsoBalamoody 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 . .
See AlsoBalamoody 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 . .
See AlsoBalamoody 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 . .
See AlsoBalamoody 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.

Employment, Discrimination

Updated: 07 January 2022; Ref: scu.204909

Muzi-Mabaso v HM Revenue and Customs: EAT 13 Nov 2015

EAT Disability Discrimination – Reasonable adjustments – Justification – PRACTICE AND PROCEDURE – Costs
Disability Discrimination – Indirect Discrimination (section 19 Equality Act 2010) – Discrimination by Reasons of a Failure to Make Reasonable Adjustments (sections 20 and 21)
The Claimant made complaints of indirect disability discrimination and discrimination by reason of a failure to make reasonable adjustments, in respect of two PCPs: (1) his placement within the Respondent’s redeployment pool, and (2) the requirement that he take an online test as part of the selection process in respect of higher grade vacancies in July 2012. His claims having been rejected by the ET and an award of costs made against him, the Claimant appealed. The Respondent also pursued a cross-appeal against the finding of disadvantage for the purposes of section 19.

Eady QC J
[2015] UKEAT 0353 – 14 – 1311
Bailii
England and Wales

Employment, Discrimination

Updated: 06 January 2022; Ref: scu.554886

Legal Services Commission v Yvonne Patterson: CA 11 Nov 2003

The claimant worked as a sole practitioner solicitor. The firm failed the first part of its franchise assessment. She sought to allege race discrimination. The EAT rejected the complaint on the basis that she was not an employee.
Held: The contracts between a firm and the Commission made it clear that this was a contract for services, rather than a contract of service. Accordingly the applicant was free to employ others to do the work she would promise to do for the Commission, and she was not therefore employed with any standing to make a complaint as an employee. She might however proceed on a complaint relating to the authorisation procedure adopted.

Clarke, Judge LJJ, Burton J
[2003] EWCA Civ 1558, Gazette 15-Jan-2004, [2004] ICR 312, [2004] IRLR 153
Bailii
England and Wales
Citing:
Appeal fromPatterson v Legal Services Commission EAT 21-Feb-2003
. .

Cited by:
Appealed toPatterson v Legal Services Commission EAT 21-Feb-2003
. .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedJivraj 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.

Discrimination, Legal Professions, Employment

Updated: 05 January 2022; Ref: scu.187722

Chamberlin Solicitors v Emokpae: EAT 15 Jun 2004

[2004] UKEAT 0989 – 03 – 1506
Bailii
England and Wales
Cited by:
See AlsoChamberlin Solicitors, Emezie v Emokpae EAT 15-Mar-2004
EAT Sex Discrimination – Detriment. . .
On Appeal fromIgen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 05 January 2022; Ref: scu.198940

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 women was substantial.

Times 25-Feb-1999, C-167/97, [1999] IRLR 253, [1999] ICR 447, [1999] ECR I-623, [1999] EUECJ C-167/97
Bailii
EC Treaty 119
European
Citing:
Reference fromRegina v Secretary of State for Employment, ex parte Seymour Smith (1) HL 13-Mar-1997
The House referred to the European Court the question of whether the extension of the minimum period of employment before employment rights were acquired, was discriminatory. . .
Returned toRegina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
CitedInge Nolte v Landesversicherungsanstalt Hannover ECJ 14-Dec-1995
Europa Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that persons in employment which is . .

Cited by:
CitedChief Constable of Avon and Somerset Constabulary v Chew EAT 27-Sep-2001
The Constabulary appealed against a decision that they were guilty of indirect sex discrimination, as regards the way they had implemented part time working and shift duties. The parties differed as the pool of employees from which the comparison . .
Returned fromRegina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
AppliedSecretary of State for Trade and Industry v Rutherford and Another; Same v Bentley EAT 2-Oct-2003
The claimants sought to challenge the legislation which removed their employment rights upon attaining the age of 65, arguing that this was discriminatory against men. The Secretary of State appealed the tribunal’s decision.
Held: The tribunal . .
CitedRegina (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: . .
CitedRutherford and Another v Secretary of State for Trade and Industry CA 3-Sep-2004
The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy.
CitedHockenjos v Secretary of State for Social Security (No 2) CA 21-Dec-2004
The claimant shared child care with his former partner, but claimed that the system which gave the job-seeker’s child care supplement to one party only was discriminatory.
Held: In such cases the supplement usually went to the mother, and this . .
CitedSecretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
CitedAge 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 . .
CitedArmstrong 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 . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 05 January 2022; Ref: scu.162113

Monmouthshire County Council v Harris: EAT 23 Oct 2015

EAT Disability Discrimination: Section 15 – DISABILITY DISCRIMINATION – Compensation
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Polkey deduction
Unfair Dismissal – Section 98 Employment Rights Act 1996 (‘ERA’)
Disability Discrimination – discrimination arising from disability – section 15 Equality Act 2010 (‘EqA’)
The Employment Tribunal (‘ET’) having found that the Claimant had been unfairly dismissed and that her dismissal amounted to unlawful discrimination arising from disability (Liability Judgment) and, further, that no Polkey reduction should be made
Remedy Judgment – the Respondent appealed.
On the liability appeal – allowing the appeal:
The ET had erred in its approach to the test of proportionality for the purposes of section 15 EqA 2010 and had further failed to carry out the correct assessment when considering the fairness of the dismissal under section 98(4) ERA 1996.
In determining whether dismissal was a proportionate means of achieving the legitimate aim accepted by the ET, it was entitled to take into account the Respondent’s past failure to comply with an obligation to make reasonable adjustments, but was also bound to have regard to its own finding that there was no continuing obligation. Further, to the extent that it found the Respondent’s failure to consider up-dated medical evidence to be relevant, the ET was also bound to have regard to the fact that the evidence in question had continued to provide an uncertain and pessimistic prognosis in terms of the Claimant’s ability to return to work.
As for the unfair dismissal claim, given that this was an absence-related, capability case, the ET had to consider whether the Respondent could have been expected to wait longer (BS v Dundee City Council [2014] IRLR 131 CS) but its reasoning failed to disclose an engagement with that fundamental question and that rendered the conclusion unsafe.
On the remedy appeal – this appeal would also have been allowed (albeit that it was strictly unnecessary to do so given the conclusion reached on the liability appeal):
The ET had erred in declining to apply Polkey principles to the award of compensation. It had adopted an approach that did not allow for the possibility of a fair or non-discriminatory dismissal in circumstances in which the incapacity in question had been caused or exacerbated by the employer’s conduct (contrary to the approach approved in McAdie v Royal Bank of Scotland plc [2008] ICR 1087 CA). Whilst the question of the employer’s own culpability might be relevant to the application of the band of reasonable responses test (although not determinative of it) and/or to the question of possible reasonable adjustments in the future, it could not be the complete answer that the ET’s reasoning assumed.

Eady QC J
[2015] UKEAT 0010 – 15 – 2310
Bailii
England and Wales

Employment, Discrimination

Updated: 05 January 2022; Ref: scu.553732

Bethnal Green and Shoreditch Education Trust v Dippenaar: EAT 21 Oct 2015

EAT Unfair Dismissal – AGE DISCRIMINATION
An ET found that a teacher, who because of her considerable experience was more expensive to employ than a new recruit, was managed out of her employment for that reason. The Tribunal held her to have been unfairly dismissed, and on the basis that her claim for age discrimination was of indirect discrimination on the ground of her age, upheld it. In doing so it did not clearly establish that there was a practice (it did not rely on provision or criterion) as contended, and thought that the statistical evidence put before it, though indicative of a PCP was insufficiently persuasive. It purported to apply the burden of proof; and did not consider whether those in the Claimant’s age group had suffered a similar and particular disadvantage by application of the practice. Since the findings of the Tribunal were insufficient to hold that there was a PCP, and if there were, there was no evidence that it caused others in the Claimant’s age group particular disadvantage, and since the burden of proof provisions could not properly be used to establish either the PCP or the disadvantage, since these were necessary primary findings of fact before the burden could be reversed, the decision as to age discrimination was quashed. An appeal, on grounds that the Tribunal was not entitled to hold that the Claimant had been unfairly dismissed, and one on the basis that it had been biased, were rejected. A further appeal was made against the Tribunal’s conclusion that it should uplift damages by 25% for breach of a relevant ACAS Code, and cross-appeal against its failure to gross-up awards both in respect of loss of earnings and injury to feelings. The appeal was dismissed since the Tribunal’s reasons displayed no error of law, as was the cross-appeal because the point had not been raised before the ET and discretion would not in the circumstances be exercised to permit it now to be raised for the first time.

Langstaff P
[2015] UKEAT 0064 – 15 – 2110
Bailii
England and Wales

Employment, Discrimination

Updated: 05 January 2022; Ref: scu.553731

Marshall v The Learning Trust and Others: EAT 21 Jul 2015

EAT Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke
Two live issues:
(1) The Appellant was not permitted to run a new argument on aiding and abetting under section 57 Disability Discrimination Act 1995.
(2) Having heard live evidence I found that the Appellant’s representative (her husband) had not pursued a claim for damages for wrongful dismissal at the Remedy Hearing.

Peter Clark HHJ
[2015] UKEAT 0237 – 14 – 2107
Bailii
England and Wales

Employment, Discrimination

Updated: 04 January 2022; Ref: scu.553150

University College London Hospitals NHS Foundation Trust v Thorbourne: EAT 21 Aug 2015

EAT Disability Discrimination – Appeal allowed in part. The Employment Tribunal did not properly address and/or did not give adequate reasons in respect of (1) whether the Claimant had a disability by reason of mental impairment prior to September 2011, (2) whether the Respondent knew or ought to have known of that disability prior to September 2011, (3) the reasonable adjustment claims, and (4) the issue of proportionality in respect of the claim for discrimination arising from disability.

[2015] UKEAT 0299 – 14 – 2108
Bailii
England and Wales

Employment, Discrimination

Updated: 04 January 2022; Ref: scu.552840

EAD Solicitors Llp and 7 Others v Abrams: EAT 5 Jun 2015

EAT Age Discrimination – Can a corporate body which is a member of an LLP claim to have suffered detriment because of the protected characteristic of an individual who happened to be its principal shareholder and member? An Employment Judge’s affirmative answer to this question was correct, and arguments that because only an individual could have a protected characteristic only an individual could raise a claim for discrimination under the Equality Act 2010 was rejected.

Langstaff P J
[2015] UKEAT 0054 – 15 – 0506, [2016] ICR 380, [2015] IRLR 978, [2015] BCC 882
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 04 January 2022; Ref: scu.552828

The Basildon Academies Trust v Polius-Curran: EAT 23 Jun 2015

EAT Race Discrimination : Continuing Act – JURISDICTIONAL POINTS – Extension of time: just and equitable
RACE DISCRIMINATION – Direct
Limitation – whether a continuing act – whether just and equitable to extend time.
Substantively, the Employment Tribunal failed to consider the Respondent’s explanation at Stage 2 of Igen v Wong.
Employer’s appeal allowed. Case remitted to same Employment Tribunal for reconsideration.

Peter Clark HHJ
[2015] UKEAT 0055 – 15 – 2306
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 04 January 2022; Ref: scu.552418