Agbenowossi-Koffi v Donvand Ltd (T/A Gullivers Travel Associates): CA 24 Jun 2014

The claimant, of Black African origin, was publicly described as a ‘monkey in silk’ which led to her suffering depression. The company responded that her claim was out of time.

Lord Dyson MR, Sullivan, Sharp LJJ
[2014] EWCA Civ 855, [2014] ICR D27, [2014] WLR(D) 282
Bailii, WLRD
Equality Act 2010 123
England and Wales
Citing:
Appeal fromAgbenowossi-Koffi v Donvand Ltd (T/A Gullivers Travel Associates) EAT 6-Sep-2013
EAT Practice and Procedure : Striking-out/dismissal
Estoppel or abuse of process
The Claimant issued her form ET1 in which she relied on an act of racial discrimination. The primary time limit had . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Limitation

Updated: 05 December 2021; Ref: scu.526985

Daler-Rowney Ltd v HM Revenue and Customs: EAT 25 Jun 2014

EAT Race Discrimination : Indirect – National Minimum Wage: An employer appealed a Notice requiring it to make payments of arrears of wages to 26 students, on the basis they had not received the national minimum wage (‘NMW’), and a further penalty. It contended that the students fell within an exemption from the NMW, provided for by regulation 12(8) of the NMW Regulations:
‘A worker who is undertaking a higher education course and before the course ends is required, as part of that course to attend a period of work experience not exceeding one year does not qualify for the National Minimum Wage in respect of work done for his employer as part of that course’.
A higher education course was so defined as to relate only to courses undertaken within the UK, and thus disproportionately excluded EU and foreign students who were not taking such courses from having as favourable an opportunity of gaining work experience. The ET decided that this was (indirectly) discriminatory, but justified as a proportionate means of preventing abuse of the NMW system, which was a legitimate aim. It was held entitled on appeal to reach this conclusion, and several other grounds of appeal were also rejected.

Langstaff J P
[2014] UKEAT 0273 – 13 – 2506
Bailii
England and Wales

Employment, Discrimination

Updated: 05 December 2021; Ref: scu.527199

Theatre Peckham v Browne: EAT 24 Jun 2014

EAT Victimisation Discrimination : Detriment – JURISDICTIONAL POINTS – Claim in time and effective date of termination
The Claimant claimed that she had been subjected to detriment for making a protected disclosure by putting forward a grievance about her treatment by another employee. The Tribunal considered 6 alleged detriments and found in the Claimant’s favour on detriments 2, 5 and 6 but against her on the others. The last detriment was the only one which occurred within the primary time limit. The Tribunal held that it formed the last of a series of acts and that the claim was, therefore, in time.
On appeal, held:-
1 The 6th detriment, as found by the Tribunal, was based on an act or acts which had not been pleaded or relied upon by the Claimant; the principle in Chapman v Simon applied; the finding in the Claimant’s favour could not stand.
2 The Respondents’ arguments that factual decisions of the Tribunal were perverse failed.
3 It had been open to the Tribunal to conclude that, by seeking to persuade the Complainant to leave on agreed terms, the Respondents had subjected her to detriment.
The Tribunal’s conclusion that the protected disclosure relied upon had caused or influenced the Respondents to act as they did was reached without considering the principle in NHS Manchester v Fecitt that where there was a dysfunctional situation and the employer claimed to have been acting to remedy it discrimination could only be inferred if the employer’s account was found to be false – as had not been found in this case.
5 The conclusion, on the basis of detriment 6 that there was a series of acts, so that all 3 detriments were not out of time was not perverse; but without detriment 6, which could no longer be relied upon (see para. 1 above), the claim was out of time. No case for an extension had been put forward or could, on the evidence, succeed.
6 Appeal allowed.

Jeffrey Burke QC
[2014] UKEAT 0154 – 13 – 2406
Bailii
England and Wales

Employment, Discrimination

Updated: 05 December 2021; Ref: scu.527202

Riley, Regina (on The Application of) v Secretary of State for Justice: Admn 11 Sep 2012

The prisoner claimant was severely disabled. He asserted that the Prison Service, acting under the Secretary of State for Justice, had failed to take reasonable steps to enable him to access to offender behaviour work. It is asserted, in particular, that they have failed to obtain appropriate medical advice and treatment for him and that appropriate adjustments to the ordinary prison regime for a prisoner who is approaching the end of a long sentence have not been made. In the round, it was asserted the Secretary of State and the prison have breached their public law duty and, furthermore, are in breach of the Equality Act 2010.
Held: The claima had been settled by agreement, but the court kept the case alive on the court lists to facilitate completion of the settlement.

Jeremy Richardson QC
[2012] EWHC 4407 (Admin)
Bailii

Prisons, Discrimination

Updated: 04 December 2021; Ref: scu.526590

O’Brien v Sim-Chem Ltd: HL 2 Jan 1980

The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of Government pay policy. The House was asked whether the claimant could regard herself for the purposes of the Act as rated as equivalent with her comparator when the scheme had not been implemented.
Held: She could. once the job evaluation study had been agreed so that it was possible to use it as a basis for comparing jobs, then it could be relied upon even although it had not in fact been implemented. A job evaluation study may not be enforced until it has been completed: ‘It is not the stage of implementing the study by using it as the basis of the payment of remuneration which makes the study complete: it is the stage at which it is accepted as a study. It is perfectly possible to accept the validity of a study at a stage substantially before it is implemented.’
Lord Russell stated: ‘In summary, therefore, I am of the opinion that the words in dispute cannot have the result extended for by the employers. We are offered a number of dictionary substitutes for ‘determine’ none of which appeal to me. The best that I can do is to take the phrase as an indication that the very outcome of the equivalent job rating is to show the term to be less favourable. The next best I can do is to echo the words of Lord Bramwell in Bank of England v Vagliano Bros [1981] AC 107 at 139: ‘This beats me’, and jettison the words in dispute as making no contribution to the manifest intention of Parliament.’

Lord Russell of Killowen
[1980] 3 All ER 132, [1980] 1 WLR 1011, [1980] ICR 573, [1980] IRLR 373
England and Wales
Citing:
Appeal fromO’Brien v Sim-Chem Ltd CA 1980
. .
CitedBank of England v Vagliano Brothers HL 5-Mar-1891
The court considered the interpretation of the 1882 Act, which was said to be a codifying Act.
Held: An Act is to be ascertained in the first instance from the natural meaning of its language and is not to be qualified by considerations . .

Cited by:
CitedPickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.200629

Islam v Abertawe Bro Morgannwg Local Health Board: EAT 12 Jun 2014

EAT Disability Discrimination : Justification – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
C was a consultant psychiatrist. A report by the National Clinical Assessment Service identified clinical and communication deficiencies and recommended that the C and his employing Trust agree a remediation programme to enable him to retrain for his consultant position. Such a programme was never put into effect and the employer eventually offered him a sub-consultant’s post or said that he would be given contractual notice. Meanwhile he was diagnosed as having Asperger’s Syndrome, which was agreed to be a disability. The disability was linked to the communication deficiencies but not the clinical deficiencies. In the circumstances, refusing to allow C to return to work as a consultant was not disability discrimination under section 15 Equality Act 2010 because it was a proportionate means of achieving a legitimate aim, i.e. protecting patients; nor was it a breach of the duty to make reasonable adjustments, since any reasonable adjustments relating to the Asperger’s Syndrome would not deal with the clinical deficiencies and would not therefore allow the Trust to employ him as a consultant.
In finding the Trust liable for arrears of pay under section 13 ERA 1996 the Employment Tribunal had proceeded unfairly because the C had not pursued such a claim and, although it was open to the ET to consider it, they had not given the Trust sufficient notice that they intended to consider it on the merits.

Shanks J
[2014] UKEAT 0200 – 13 – 1206
Bailii
Equality Act 2010 15
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526529

London Borough of Hillingdon v Meso: EAT 12 Mar 2014

EAT Race Discrimination – There were three linked appeals. The Claimant alleged she had been dismissed because of her race. The Employment Tribunal dismissed this claim, and was held entitled to do so.
The Respondent appealed findings that a named employee had been party to discrimination against C. She had not been accused of this before the hearing, and had not had the opportunity to appear before the Tribunal to rebut the finding.
Held: the finding was not clearly supported by evidence or allegation and should not have been made.
Finally, the Respondent appealed against a decision by the ET at a remedy hearing to reconsider whether it should accept jurisdiction – it had held at the liability hearing that there was a continuing act, but it changed its mind at the remedy hearing. It decided to hear the Claimant as to whether it should extend time on the basis that it was just and equitable to do so. The Respondent argued it could not do so, for to do so would be to admit evidence which did not satisfy the requirement of ‘fresh evidence’ under rule 34(3)(d) so should not be admitted under rule 34(3)(c) (‘interest of justice’) if the ET was exercising a power of review – but it did not identify what, if any, power it WAS exercising.
Held: that whether it was finishing an unfinished issue arising in the proceedings as a whole whilst they were still live, or applying rule 34, the ET was entitled to do as it did and the exercise of its discretion was permissible. Appeal rejected.

Langstaff J P
[2014] UKEAT 0450 – 13 – 1203
Bailii
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526522

Hainsworth v Ministry of Defence: CA 13 May 2014

The appellant was employed by the respondents working in Germany. Her daughter suffered chronic illness and she wished to care for her in England. She said that the refusal to allow her to return to work in the UK was discriminatory as associative discrimination.
Held: The suggestion that a carer for a disable person was entitled to reasonable adjustments to allow care for a family member with a disability was incorrect.

Laws, Tomlinson, Briggs LJJ
[2014] EWCA Civ 763
Bailii
Equality Act 2010 20(3), Council Directive 2000/78/EC 5
England and Wales
Citing:
Appeal fromHainsworth v Ministry of Defence EAT 16-Jul-2013
EAT Disability Discrimination : Reasonable Adjustments . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 04 December 2021; Ref: scu.526385

Commission of The European Communities v Czech Republic: ECJ 4 Dec 2008

ECJ (Judgment Of The Court (Fifth Chamber)) – Failure of a Member State to fulfil obligations – Directives 86/378/EEC and 96/97/EC – Equal treatment for men and women – Incomplete transposition
Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 9)

C-41/08, [2008] EUECJ C-41/08
Bailii
Directive 86/378/EEC, Directive 96/97/EC

European, Discrimination

Updated: 04 December 2021; Ref: scu.526333

Fraser v University of Leicester and Others: EAT 5 Jun 2014

EAT Application of the burden of proof: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337; Igen v Wong [2005] ICR 935; Laing v Manchester City Council [2006] ICR 1519; Madarassy v Nomura International plc [2007] ICR 867 followed.
Multiple allegations of discrimination requiring the Tribunal to determine each complaint whilst still taking a holistic – not a fragmented – approach, so as to enable it to see the bigger picture: Qureshi v Victoria University of Manchester [2001] ICR 863; Fearon v Chief Constable of Derbyshire [2004] UKEAT/0445/02; Rihal v London Borough of Ealing [2004] IRLR 642; and X v Y [2013] UKEAT/0322/12 applied.
In this case the Tribunal had correctly applied the burden of proof and demonstrated that it had considered the detail of the individual complaints; those complaints as part of more general themes and also the bigger picture more generally: it had kept sight of both the wood and the trees and no error of law was disclosed.
Appeal dismissed.

Eady QC J
[2014] UKEAT 0155 – 13 – 0506
Bailii
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526261

Reynolds v CLFIS (UK) Ltd and Others: EAT 21 May 2014

EAT Age Discrimination – The Claimant had worked for the Respondent for many years as a specialist in medical insurance. From 2006 she had a consultancy agreement with the Respondent. In 2010 it was decided to terminate that agreement. The Claimant contended that that decision was unlawful because it was taken on the ground of age. The Respondent denied that. The Employment Tribunal found that the Claimant had done enough on the evidence to shift the burden of proof to the Respondent to show that it had not discriminated against her. The Tribunal focussed entirely on the mental processes of the person who took the decision to terminate the agreement and no one else. The Claimant submitted on appeal that that was a misdirection of law, in particular having regard to the fact that the burden of proof was on the Respondent.
Held, allowing the appeal:
It was common ground that the decision to terminate the agreement had been shaped and informed by the views of other persons, in particular in a presentation given to the eventual decision-maker. In those circumstances, in particular having regard to the fact that the claim was brought against the Respondent organisation and not the individual decision-maker, and having regard to the fact that the burden of proof had shifted to the Respondent, the Employment Tribunal misdirected itself in law. It should also have considered the mental processes of those other persons who had influenced the decision to terminate in a significant way. The case would be remitted to a differently constituted tribunal to reconsider in accordance with the judgment of the appeal tribunal.

Singh J
[2014] UKEAT 0484 – 13 – 2105
Bailii
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526094

Morgan v Armadillo Managed Services Ltd: EAT 15 May 2014

EAT Disability Discrimination : Disability Related Discrimination – Section 13(1) of the Equality Act 2010 requires actual or constructive knowledge to permit a claimant to succeed in a claim for direct disability discrimination: Gallop v Newport City Council [2013] EWCA Civ 1583 followed. The Appellant was not permitted to resile from a concession to that effect before the Employment Tribunal. Appeal dismissed.

Birtles HHJ
[2013] UKEAT 0567 – 12 – 1505
Bailii
Equality Act 2010 13(1)
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526092

Griffiths v The Secretary of State for Work and Pensions: EAT 15 May 2014

EAT Disability Discrimination : Reasonable Adjustments – Disabled employee absent from work and made subject to the application of employer’s Attendance Policy resulting in written warning.
She seeks ‘reasonable adjustments’ to take future account of absences related to her disability and the withdrawal of the warning. Her employer declines.
Employment Tribunal find, by a majority, no breach of the duty to make reasonable adjustments because (1) there was no ‘substantial disadvantage’ established sufficient to trigger the duty and (2) the adjustments sought were not ‘reasonable adjustments’.
Appeal dismissed.
The Tribunal had correctly applied the relevant authorities on the question of whether or not a ‘substantial disadvantage’ had been established and had made no error in deciding that, on facts, the adjustments sought were not ‘reasonable’.

Luba QC Rec
[2014] UKEAT 0372 – 13 – 1505
Bailii
England and Wales
Cited by:
CitedGeneral Dynamics Information Technology Ltd v Carranza EAT 10-Oct-2014
EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal, by a majority, found that the Respondent was in breach of a duty to make . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526089

Betsi Cadwaladr University Health Board v Hughes and Others: EAT 28 Feb 2014

EAT Disability Discrimination : A senior nurse contracted Parkinson’s, and could no longer do clinical work. Her grade and pay was maintained by creating a non-clinical post for her, which initially was a meaningful job, but which by a series of events became menial. The Employment Tribunal considered that a number of matters, of which this was the principal one, constituted unwanted conduct which had the effect of violating her dignity and of creating a demeaning environment. Some of those matters taken individually did not justify that conclusion, in particular because it was not reasonable for them to have that effect – thus it was wrong to hold that a letter saying that as the recipients knew her health had deteriorated such that she could no longer do clinical work, and making references to an occupational health doctor, were acts of harassment. It was also unfair to find as part of the harassment that the Claimant had been told she would be ‘performance managed’ when that had not been alleged as an act of harassment in her ET1, at a CMD, in further particulars of her claim or in her witness statement, and when (the matter having come to light during evidence) it was argued about in relation to other grounds (direct discrimination and victimisation) both of which were dismissed on their merits. However, the central thrust of the finding was clear, and the conclusion of the ET as to jurisdiction on time grounds was one it was entitled to reach. Appeal allowed in part.

Langstaff P J
[2014] UKEAT 0179 – 13 – 2802
Bailii
England and Wales

Employment, Discrimination

Updated: 03 December 2021; Ref: scu.526079

Liller v Network Rail Infrastructure Ltd: EAT 30 Jan 2014

EAT Disability Discrimination : Section 15 – The only point on appeal was whether the Tribunal had failed to give a reasoned decision on the Claimant’s disability discrimination claim, in respect of his dismissal, under section 15 Equality Act 2010. The Respondent sought to argue that a decision was to be implied from other paragraphs in the judgment, but the appeal was upheld. There was no express finding in relation to a discrete claim, which was identified in advance of the hearing and addressed in the evidence and closing submissions.
The appeal was therefore allowed and the matter remitted for determination by the same Tribunal.

Cox DBE J
[2014] UKEAT 0353 – 13 – 3001
Bailii
England and Wales

Employment, Discrimination

Updated: 03 December 2021; Ref: scu.526078

Bone v North Essex Partnership NHS Foundation Trust: CA 15 May 2014

The claimant said that he was the representative of members of the Workers of England Trade Union at the respondent hospital. He claimed detriment, but the empoyer denied that it was an independent union allowing him protection under the Act. Since commencemet of proceedings, the Union had obtained certification.
Held: Protection under section 146 was not available only if the Union was independent. Other issues ould affect the assessment. The certificate of independence was retrospective in its effect for a proper period before the date of the certificate.

Jackson, Briggs, Christopher Clarke LJJ
[2014] EWCA Civ 652, [2014] 3 All ER 964, [2014] WLR(D) 214, [2014] IRLR 635, [2014] ICR 1053
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 146(1)
England and Wales
Citing:
Appeal fromNorth Essex Partnership NHS Foundation Trust v Bone EAT 30-Sep-2013
EAT Does the certificate of independent of the trade union given on 27 June 2013, for which the EAT had by statute to stay the instant appeal, provide protection to the Claimant for his activities and membership . .

Cited by:
Remitted fromNorth Essex Partnership NHS Foundation Trust v Bone EAT 10-Jul-2014
EAT Trade Union Rights : Action Short of Dismissal – PRACTICE AND PROCEDURE – Costs
The claimant, a member of WEU an independent trade union, made 21 claims of detriment for taking part in its activities, . .
See AlsoBone v North Essex Partnership NHS Foundation Trust CA 1-Feb-2016
The appellant was a political activist in the ‘Workers of England Union’ and a nurse employed by the respondent. He alleged race discrimination, and detriment for his membership of what he said was an independent trade union, saying that the . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 December 2021; Ref: scu.525616

Williams v Leukaemia and Lymphoma Research: EAT 6 Feb 2014

EAT Disability Discrimination : Disability – Decision of the Employment Judge that the Claimant had failed to establish recurring or fluctuation effects of his impairment for the requisite period or extent upheld. There was no error of law or perversity in the decision that the Claimant was not a disabled person within the meaning of section 6 of the Equality Act 2010.

Slade J DBE
[2014] UKEAT 0493 – 13 – 0602
Bailii
Equality Act 2010 6
England and Wales

Discrimination, Employment

Updated: 03 December 2021; Ref: scu.525186

The Lord Chancellor and Another v McCloud and Others: CA 20 Dec 2018

The LC had introduced changes to pension arrangements for public employees. In general pensions would be reduced, but provision had been made to protect those approaching retirement. He now appealed from a finding that the arrangement was discriminatory.

Longmore LJ, Sir Colin Rimer, Sir Patrick Elias
[2018] EWCA Civ 2844, [2019] WLR(D) 1
Bailii
Judicial Pensions Regulations 2015, Equality Act 2010, Firefighters Pension Scheme (England) Regulations 2014, Firefighters Pension Scheme (Wales) Regulations 2015
England and Wales

Discrimination, Employment

Updated: 03 December 2021; Ref: scu.632676

Vuckovic And Others v Serbia: ECHR 25 Mar 2014

Grand Chamber – Article 35-1 – Exhaustion of domestic remedies
Effective domestic remedy
Six month period
Failure to raise allegation of discrimination either expressly or in substance in proceedings before Constitutional Court: preliminary objection upheld
Facts – The applicants were former Yugoslav army reservists who claimed entitlement to per diem allowances in respect of military service they had performed between March and June 1999. The Serbian Government initially rejected the claims but, after protracted negotiations, in 2008 agreed to pay allowances to those reservists who resided in ‘underdeveloped’ municipalities. The applicants did not qualify for payment under the terms of this agreement as they were not resident in the municipalities concerned and so, in March 2009, brought civil claims for payment under the Rules on Travel and Other Expenses in the Yugoslav Army. They also alleged that the terms of the 2008 agreement were discriminatory. However, their claims were rejected at first instance and on appeal as being out of time. The applicants then lodged an appeal with the Constitutional Court challenging the application of the statutory limitation period in their cases. Although the Constitutional Court ruled in their favour as regards their complaints of judicial inconsistency in the application of the limitation period, it ruled that publication of its decision in the Official Gazette constituted sufficient redress. In the meantime in a number of similar cases that were decided between 2002 and early March 2009, first-instance and appellate courts across Serbia upheld certain reservists’ claims which had not been declared time-barred.
In their application to the European Court, the applicants complained of discrimination concerning the payment of the per diems following the 2008 agreement. In a judgment of 28 August 2012 a Chamber of the Court held by six votes to one that there had been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. Before the Grand Chamber the respondent Government argued that the applicants had not exhausted domestic remedies as they had failed to raise the issue of alleged discrimination before the Constitutional Court.
Law – Article 35 – 1: In so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, it is that remedy which should be exhausted. It is not sufficient that the applicant may have unsuccessfully exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of a violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of ‘effective remedies’.
The Court was satisfied that at the relevant time an appeal to the civil courts had constituted an effective domestic remedy for the purposes of Article 35-1 of the Convention. However, although the applicants had made use of that remedy, they had failed to comply with the applicable national prescription rules, which was one of the conditions that should normally be fulfilled in order to meet the requirement of exhaustion of national remedies. Although they had had gone on to challenge the civil courts’ application of the rules on statutory limitation in the Constitutional Court, they had not raised their discrimination complaint before that court, either expressly or in substance.
The Grand Chamber took note of three decisions the Constitutional Court had taken in comparable cases. In none of these cases had the Constitutional Court declined jurisdiction to examine the complaints made under Article 21 of the Constitution in relation to the allegedly discriminatory effects of the 2008 agreement. In two of them it had omitted to deal with the issue but had upheld the constitutional appeals in question on other grounds and in the remaining case, it had not determined the complaint because the appellants had failed to invoke Article 21 in conjunction with another constitutional provision.
In the Grand Chamber’s view, there was therefore nothing to show that the constitutional remedy would not have offered a reasonable prospect of success in respect of the applicants’ discrimination complaint had they sought to properly raise it before the Constitutional Court. Where legal systems provided constitutional protection of fundamental human rights and freedoms, it was in principle up to the aggrieved individual to test the extent of that protection and allow the national courts to develop those rights by way of interpretation. The existence of mere doubts as to the prospects of success of a particular remedy was not a valid reason for failing to exhaust that avenue of redress.
Consequently, although the civil and constitutional remedies had been sufficient and available to provide redress in respect of the applicants’ discrimination complaint, they had failed to exhaust these remedies.
Conclusion: preliminary objection upheld (fourteen votes to three).

17153/11 – Legal Summary, [2014] ECHR 387
Bailii
European Convention on Human Rights

Human Rights

Updated: 02 December 2021; Ref: scu.523676

Olayemi v Athena Medical Centre: EAT 8 Apr 2014

EAT Sex Discrimination : Burden of Proof – UNLAWFUL DEDUCTION FROM WAGES
The Employment Tribunal found that the Appellant was unfairly dismissed and discriminated against by reason of her sex. The Appellant’s claims for unlawful deduction of wages failed. The Appellant and the Respondent both appealed.
The EAT dismissed the Respondent’s appeal that the ET had erred (1) in its approach to the burden of proof when considering the complaints of discrimination: Hewage v Grampian Health Board [2012] ICR 1054 applied; and (2) in finding that deductions from the Appellant’s wages were made in breach of contract: Sim v Rotherham MBC [1987] ICH 216 applied. The Respondent failed to show the reason why there was reduced or no work and that it involved a breach of contract by the Appellant. However ET erred in failing to restrict its decision on harassment to the matters identified in the Agreed List of Issues.
Appellant’s appeal against unlawful deduction of wages from May 2007 succeeded and issue of quantum remitted to the ET for determination.

Supperstone J
[2014] UKEAT 0221 – 11 – 0804
Bailii
England and Wales

Employment, Discrimination

Updated: 02 December 2021; Ref: scu.523585

Crime Reduction Initiatives v Lawrence: EAT 17 Feb 2014

EAT Disability Discrimination : Disability Related Discrimination
The Claimant was dismissed on health grounds based on depression which was a disability. The Employment Tribunal found that the dismissal was unfair because the letter inviting her to a meeting to discuss capability was, because of an HR error, expressed to be an invitation to a disciplinary meeting, which the majority of the ET found was intimidating and put her off attending the meeting. The ET found unanimously that even if the Claimant had attended the meeting the employer would have dismissed her fairly.
In the light of those findings, the ET awarded the Claimant a basic award for unfair dismissal but no compensatory award. The majority also found that the employer was liable for disability discrimination under section 15 of the Equality Act 2010 and awarded her andpound;750 for injury to feelings arising from the dismissal.
The employer appealed on the basis that the majority were wrong to say that the dismissal was not a ‘proportionate means of achieving a legitimate aim’ in considering section 15. On the facts, it was clear that the dismissal was justified: the fact that the process by which the employer had reached that decision was flawed was irrelevant. The finding of disability discrimination and the award of andpound;750 set aside.
The Claimant’s cross-appeal that the finding that even if she had attended the meeting it would have made no difference was an appeal on fact and hopeless. Her cross-appeal against the award of only andpound;750 fell away.

Shanks J
[2014] UKEAT 0319 – 13 – 1702
Bailii
Equality Act 2010 15
England and Wales

Employment, Discrimination

Updated: 02 December 2021; Ref: scu.523364

City Facilities Management (UK) Ltd v Ling: EAT 5 Feb 2014

EAT Disability Discrimination : Disability – PRACTICE AND PROCEDURE – Case management
The approach to determining questions of the definition of disability. Whether the Employment Tribunal was entitled decline to determine this question in the absence of further expert medical evidence not sought by either party. Whether the Employment Tribunal was entitled to order the Respondent to pay the entirety of the costs of jointly instructed medical expert.

Eady QC J
[2014] UKEAT 0396 – 13 – 0502
Bailii
England and Wales

Employment, Discrimination

Updated: 02 December 2021; Ref: scu.523363

Konczak v BAE Systems (Operations) Ltd: EAT 13 Jan 2014

EAT Sex Discrimination : Other Losses – UNFAIR DISMISSAL – Compensation
DISABILITY DISCRIMINATION – Compensation
The Employment Tribunal had erred by not considering whether the psychiatric illness, which resulted in the loss in this case, had divisible causes and whether, if it did, the award fell to be apportioned. In concluding that there had been a failure to mitigate commencing three years after the date of dismissal the Employment Tribunal had failed to give any comprehensible account as to why that date had been chosen. Both of these matters raised on the Employer’s appeal were remitted for further consideration by the same Employment Tribunal on the evidence already heard and the facts already found.
On the cross-appeal mathematical errors of calculation in the judgment were remitted to the Employment Tribunal for reconsideration, but although the cross-appeal was also allowed in relation to a decision made by the Employment Tribunal wrongly limiting the scope of the cross-examination of the Employer’s psychiatric expert witness, no further order was made because the terms of the remission in relation to the appeal rendered the point academic.

Judge Hand QC
[2014] UKEAT 0277 – 13 – 1301
Bailii
England and Wales

Employment, Damages, Discrimination

Updated: 01 December 2021; Ref: scu.522638

Thames Honda Ltd v Purkis: EAT 10 Jan 2014

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – Employment Tribunal erred in making a finding on this question when the issue had been conceded by the Claimant and no opportunity given to the parties to address the possibility of a revision to the list of issues.
The ET having made findings on fairness in the alternative, however, the point was not fatal to the decision on unfair dismissal.
Fairness
The ET’s approach to the question of fairness upheld. It was entitled to have regard to the Respondent’s own procedures and to the ACAS Code. Its conclusions were not perverse.
HARASSMENT
SEX DISCRIMINATION – Burden of proof
Harassment related to sex: whether the ET erred in the application of the burden of proof in finding that the unwarranted conduct in question ‘related to’ the Claimant’s sex. Either insufficient reasoning provided to explain the ET’s conclusion or there had been a misapplication of the burden of proof in this case. Appeal allowed on this ground only and point remitted to same ET.
‘Unwanted’; ‘Course of employment’; ‘Reasonable steps’ defence
ET’s findings on these issues disclosed no error of law, were not perverse and were adequately explained. All other grounds of appeal dismissed.

Eady QC J
[2014] UKEAT 0265 – 13 – 1001
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522640

Onu 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 taken of their unlawful immigration status.
Held: Immigration status was not to be equated with ‘nationality’ for the purpose of the Race Relations and Equality Acts. There were many non-British nationals working in the United Kingdom who did not share the particular dependence and vulnerability of these migrant domestic workers. On the indirect discrimination claim, the court found that the mistreatment of migrant workers was not a PCP. This factual situation had nothing to do with the kind of mischief which indirect discrimination is intended to address.

Maurice Kay VP CA, Ryder, Underhill LJJ
[2014] EWCA Civ 279, [2014] Eq LR 243, [2014] IRLR 448, [2014] WLR(D) 128, [2014] ICR 571, [2014] 1 WLR 3636
Bailii, WLRD
Equality Act 2010 13(1)
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 . .
CitedRowstock Ltd v Jessemey EAT 5-Mar-2013
EAT UNFAIR DISMISSAL – Polkey deduction
AGE DISCRIMINATION – Dismissal
VICTIMISATION – Post-employment
FACTS
The employee was dismissed on grounds of retirement, having reached an age over . .

Cited by:
At CATaiwo 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 . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 01 December 2021; Ref: scu.522396

Wijesundera v Heathrow 3Pl Logistics Ltd (Debarred) and Another: EAT 5 Dec 2013

EAT Jurisdictional Points : Fraud and Illegality – A Sri Lankan woman agreed to work for the First and Second Respondents, but made it clear she could not do so unless and until she was sponsored by them to do so, so that she had a valid work permit. For some months she remained in contact with the Respondents, until eventually she began to work in anticipation of, but without, the necessary work permit. During that period – prior to her actually working – she was seriously sexually assaulted by the Second Respondent.
Her work permit did materialise but after she had worked for over a year, during which she had again been subjected to serious sexual harassment.
An Employment Tribunal dismissed her claims because either she was not an employee, and could not claim, or she was but was employed under an illegal contract, which it would not condone.
On an appeal at which the Respondents were debarred from appearing, held that the ET had failed to consider s.40(1)(b) of the Equality Act 2010 which protected applicants for employment (which she plainly was when the first assaults occurred); and had wrongly failed to identify the principles by which defences of illegality were to be considered when it wrongly asked whether the facts of the present case could be distinguished from two Court of Appeal authorities, neither of which established the applicable principles. Applying these principles as set out in Hall v Woolston Leisure, the claim save in respect of dismissal was not so inextricably bound up with the contract of employment or the illegality as to be defeated by the defence.
The ET had not resolved whether the First or Second Respondents were the employer, but the findings of fact justified only one answer. However, the question whether the First Respondent was liable under s.109 EqA 2010 for the actions of the Second Respondent who alone had been the sexual predator was remitted to the ET, with observations as to the approach it should adopt.

Langstaff P J
[2013] UKEAT 0222 – 13 – 0512
Bailii
Equality Act 2010 40(1)(b)
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522374

McCubbin v Perth and Kinross Council: EAT 16 Oct 2013

EAT Disability Discrimination : Disability – The Claimant claimed that he had been discriminated against in respect of disablement. A Pre-Hearing Review was held to decide if he was disabled, and if the Respondent was aware of his disability. The Employment Tribunal held that the Claimant was disabled from 13 July 2010 to 25 September 2012, the latter being the date from which the Respondent conceded that the Claimant is disabled. It held that the Respondent knew actively or constructively from 25 September 2012 that the Claimant is disabled. The Claimant argued that the ET had applied the wrong test in respect of constructive knowledge. Held that the ET had erred in law in applying the wrong test. The question of the knowledge of the Respondent is to be determined at the full hearing.

Lady Stacey
[2013] UKEAT 0025 – 13 – 1610
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522349

The Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil and Others: EAT 26 Nov 2013

EAT Disability Discrimination – Reasonable adjustments – C had a dormant condition of rheumatoid arthritis, which relapsed whilst she was in the employment of R. Her job involved working in a Job centre in Ealing some 1 hour and 20 minutes from home. She had childcare commitments. The added effect of her arthritis, making her slow to get moving in the morning and being fatiguing, made her repeatedly late for work. She asked for a job closer to home. The Employment Tribunal found that she had a disability, that the employer applied a PCP of requiring her to work at Ealing, and that this caused her a substantial disadvantage compared to those who did not suffer her disability. The employer had repeatedly refused a transfer to nearer her home. The ET thought that she had established a prima facie case that such a transfer would potentially be a reasonable adjustment. The employer provided no clear evidence why it had not made it. The ET however went on to say that there had been a refusal to transfer her more than 3 months prior to her ET1, although there was a policy to keep this under review; and also found that the employer had decided it did not want her to work at the branch close to home. The employer argued that this last contention was not advanced before the ET, which had decided it without hearing submissions from R, and that there was no evidence for it. This was rejected on the facts. It also argued that the refusal meant there was no continuing act/state of affairs, as the ET found; and a policy which was not itself discriminatory ((a) keeping the position under review; (b) not wanting her to work nearer home) was not intrinsically discriminatory, yet Cast v Croydon College required there to be a discriminatory policy for there to be a continuing act to bring allegations of disability discrimination with time. This was rejected; the focus should be on the law as derived from statute, and the ET judgment read as a whole made permissible findings.

Langstaff P J
[2013] UKEAT 0097 – 13 – 2611
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522360

Calmac Ferries Ltd v Wallace and Another: EAT 22 Oct 2013

EAT Equal Pay Act : Material Factor Defence and Justification – Possibly the first appellate consideration of the equal terms provisions of the Equality Act 2010.
The Claimants, two female port assistants claimed to be paid the same as outport clerks, one of whom was male and the other female, for performing like work. They expressly disavowed a claim that the pay arrangements were directly discriminatory. The Respondent applied to strike out the claim, arguing that it was for the Claimants to establish a prima facie case of indirect discrimination and that on the pleaded cases they could not do so: no PCP had been identified. The Employment Judge refused the application.
Held: she was entitled to do so, since although there had been confusion, the Claimants did not accept the reason the Respondent gave for the pay disparity. The material factor defence is fact specific.
Observations made about procedure, and a reminder that it may be unhelpful when considering the equal terms provisions of the Equality Act 2010 to talk in terms of direct or indirect discrimination without linking that closely to the statute. The distinction should not operate as a fetter on examining differences in terms and conditions which appear to affect one gender disproportionately.
The question whether Nelson v Carillion is good authority was resolved by the terms of the 2010 Act.

Langstaff P J
[2013] UKEAT 0014 – 13 – 2210
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522343

Heron v Sefton Metropolitan Borough Council: EAT 29 Oct 2013

EAT Age Discrimination – Whether local authority required by an enactment to treat female employee aged over 60 less favourably than younger colleagues in calculation of contractual redundancy payment set by reference to statutory scheme. No.

Mitting J
[2013] UKEAT 0566 – 12 – 2910
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522346

Napoli v Ministero Della Giustizia: ECJ 6 Mar 2014

ECJ (Judgment Of The Court) Reference for a preliminary ruling – Social policy – Directive 2006/54/EC – Equal treatment of men and women in matters of employment and occupation – Training course for acquiring the status of a public official – Exclusion on grounds of a prolonged absence – Absence attributable to maternity leave

C-595/12, [2014] EUECJ C-595/12
Bailii
Directive 2006/54/EC
European

Discrimination

Updated: 01 December 2021; Ref: scu.522270

Sinclair v Coventry and Warwickshire Partnership NHS Trust: EAT 28 Feb 2014

EAT UNFAIR DISMISSAL
Grounds of appeal that (a) Environment Agency v Rowan [2008] IRLR 20 not followed (b) a subjective test applied and (c) misdirection on constructive knowledge in a disability discrimination test failed on the facts.
Appeal dismissed.

Birtles J
[2014] UKEAT 0286 – 13 – 2802
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522141

Driskel v Peninsula Business Services Ltd and others: EAT 14 Apr 1999

Holland J
[1999] UKEAT 1120 – 98 – 1404
Bailii
England and Wales
Cited by:
See AlsoDriskel v Peninsula Business Services Ltd Michael Huss Anthony Sutcliffe, Peter Done EAT 17-Dec-1999
EAT The claimant said that she had been subjected to crass sexual banter by her senior manager. She refused to take up a post unless he was moved, and when he declined to so, she was dismissed.
The court . .
See AlsoDriskel v Peninsula Business Services Ltd and Another EAT 7-Dec-2001
The claimant sought leave to appeal against a finding that though there had been serious sex discrimination, the affect on her had been low, and the damages for injury to feelings reduced accordingly.
Held: The appeal was dismissed. The . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.205076

Van Winkelhof v Clyde and Co Llp and Another: EAT 26 Apr 2012

EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. Applying Lawson v Serco, Duncombe (No. 2) and Ravat, on any view Employment Tribunal entitled to conclude that it had jurisdiction territorially to entertain both whistleblowing claim (ERA) and claims under Equality Act 2010.

Peter Clark J
[2012] UKEAT 0568 – 11 – 2604
Bailii
Equality Act 2010 230(3)
England and Wales
Citing:
See AlsoClyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .

Cited by:
See AlsoClyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
See AlsoClyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.459933

Jivraj v Hashwani: ComC 26 Jun 2009

The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment was not within the Regulations, and was not a worker under the case law. He was instead an independent provider of services who was not in a relationship of subordination with the person who received the services. The purpose of the contract was not the only test for determining employment, though it can be relevant in arriving at the correct conclusion in particular cases. An arbitrator was a quasi-judicial adjudicator whose duty was not to act in the particular interests of either party. The main purpose of the appointment, where relevant, was the impartial resolution of the dispute.

David Steel J
[2009] EWHC 1364 (Comm), [2009] 1 CLC 962, [2010] 1 All ER 302, [2009] 2 All ER (Comm) 778
Bailii
Employment Equality (Religion or Belief) Regulations 2003
England and Wales
Cited by:
At first instanceJivraj 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 . .
Appeal fromJivraj v Hashwani (Rev 2) CA 22-Jun-2010
The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s . .
CitedClyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Contract, Arbitration, European

Updated: 30 November 2021; Ref: scu.347273

Deborah Lawrie-Blum v Land Baden-Wuerttemberg: ECJ 3 Jul 1986

The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’ and ‘All judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the president of the industrial tribunals or the Court Service, or more loosely arranged in collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment.’

Lord Chief Justice, Sir Robert Carswell
C-66/85, R-66/85, [1986] EUECJ R-66/85, [1986] ECR 2121, [1987] ICR 483
Bailii
Equal Treatment Directive (Council Directive 76/207/EEC
European
Cited by:
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 . .
CitedBarry v London Borough of Southwark CA 19-Dec-2008
The claimant a citizen of the Netherlands, appealed against the refusal to grant him housing assistance. He had been unemployed save for taking casual work during the Wimbledon championships, but the Authority had denied that he was a worker. He had . .
CitedO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
AppliedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
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 . .
CitedClyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
CitedX v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
CitedClyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

European, Discrimination, Legal Professions

Updated: 30 November 2021; Ref: scu.134064

The Solicitors Regulation Authority v Mitchell: EAT 17 Feb 2014

EAT Sex Discrimination : Direct – The Claimant and a male comparator were permitted to work from home on certain days each week to facilitate child care arrangements. The Claimant’s right to do so was revoked, although she was offered the facility of more flexible working hours. The explanation for the Claimant’s apparently less favourable treatment was rejected by the Employment Tribunal which went on to find that the reverse burden of proof in Section 63A of the Sex Discrimination Act 1975 had come into play and that the Respondent had failed so show a non-discriminatory reason for its treatment of the Claimant.
Evidence of unreasonable and less favourable treatment coupled with a difference in protected characteristic is not sufficient evidence in itself without ‘something more’ to reverse the burden of proof; [the Zafar trap]. Something more’ is required to entitle the Employment Tribunal to infer, in the absence of a satisfactory explanation, a discriminatory reason for the less favourable treatment and thus reverse the burden of proof.
In appropriate circumstances the ‘something more’ can be an explanation proffered by the Respondent for the less favourable treatment that is rejected by the Employment Tribunal.
The finding that the Respondent had given a false explanation for the less favourable treatment did therefore constitute ‘something more’ and the Employment Tribunal was accordingly entitled, if not bound, to conclude that the Claimant had suffered discrimination.
Dicta of Sedley LJ in Anya v University of Oxford [2001] IRLR 377, Elias J in Law Society v Bahl [2003] IRLR 640, and Langstaff J in Birmingham City Council v Millwood [2012] UKEAT 0564 followed.

Serota QC J
[2014] UKEAT 0497 – 12 – 1702
Bailii
Sex Discrimination Act 1975 63A
England and Wales

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.521653

Abertawe Bro Morgannwg University v Local Health Board and Another: EAT 18 Feb 2014

EAT Disability Discrimination : Reasonable Adjustments – EXTENSION OF TIME: JUST AND EQUITABLE
PERVERSITY
An employee, who suffered from the effects of a significant depressive illness, was subject to a PCP that she should attend work in her usual post. In deciding that an employer had failed in its duty to make reasonable adjustments in the light of her agreed disability, by failing to redeploy her to an alternative post ‘in line with’ the advice of its Occupational Health doctor, the ET erred, since as to a period before August 2011 it did not have any clear idea what features such a job would have to have to avoid the PCP causing substantial disadvantage to the claimant, and though it asked whether the adjustment would have done so, conspicuously failed to answer that question. (Though it thought that the failure to make the adjustment had caused additional difficulty to the Claimant, this did not answer the question whether to make it would have avoided the disadvantage in the first place). The answer was not self-evident. As to the period after August 2011 it wrongly assumed that the doctor was advising that she could work if only some adjustments were made in connection with a particular alternative post, whereas he was in fact saying (at the time) that she could not work at all and would only be able to do so if her condition improved. This same material misconception of fact vitiated a finding of discrimination related to disability.
Two findings of harassment were made which were also subject of appeal. The incidents giving rise to them arose in one case some three years before the claim was made. It was unclear whether the tribunal, when accepting in relation to that case that the approach of a manger in a meeting had caused the proscribed ‘environment’ had meant to say that it caused that during the meeting, but not more broadly, and since it did not refer to any evidence of ongoing consequence or perpetuated difficult atmosphere probably gave too wide a scope to ‘environment’ which refers to an ongoing state of affairs and not a short-lived one-off incident (Weeks v Newham College applied). The appeal in relation to the other finding was rejected.
Finally, the ET had erred in its exercise of discretion to extend time on the basis that it was just and equitable to do so: each allegation was separate, and should have been considered separately rather than globally; the ET had not considered a central question – the claimant’s reason in each case for being out of time ; and in reaching a decision that the matter was ‘finely balanced’, but that what tipped the balance was that otherwise the claimant would be denied well-founded claims, had taken into account a view of the merits of the claims that was (after this appeal) shown to be erroneous.
The appeal was allowed; the decision was in part reversed and the balance, including the issue of extension of time in all cases, remitted for further submissions and consideration in the light of the judgment.

Langstaff J P
[2014] UKEAT 0305 – 13 – 1802
Bailii
England and Wales

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.521649

SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others: CA 21 Feb 2014

The claimants challenged the manner of implementation of a benefits cap under the 2012 Act, sayig that it was discriminatory.

Lord Dyson MR, Longmore, Lloyd Jones LJJ
[2014] PTSR 619, [2014] WLR(D) 91, [2014] EWCA Civ 156
WLRD, Bailii
Benefit Cap (Housing Benefit) Regulations 2012, Welfare Reform Act 2012, European Convention on Human Rights 14 A1P1, Human Rights Act 1998
England and Wales
Citing:
Appeal fromJS and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others QBD 5-Nov-2013
The claimants challenged the benefits cap introduced under the 2012 Act, saying that it was discriminatory, affecting more women than men. Mr Eadie QC submitted on behalf of the Secretary of State that, as ‘an international instrument with no . .

Cited by:
Appeal fromSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .

Lists of cited by and citing cases may be incomplete.

Benefits, Human Rights, Discrimination

Updated: 30 November 2021; Ref: scu.521500

Kemeh v Ministry of Defence: CA 11 Feb 2014

The claimant, a British Army cook, had been racially abused whilst serving in the Falklands by a worker for an independent contractor and by a Sergeant. The EAT had overturned the finding that the respndent was liable for the acts of the first, and had reduced from andpound;12,000 the damages awrd for the second incident.

Elias, Lewison, Kitchin LJJ
[2014] EWCA Civ 91, [2014] IRLR 377, [2014] WLR(D) 59, [2014] Eq LR 259, [2014] ICR 625
Bailii, WLRD
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521134

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

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521101

Gebremariam v Ethiopian Airlines Enterprise (T/A Ethiopian Airlines): EAT 4 Feb 2014

EAT UNFAIR DISMISSAL – Constructive dismissal
SEX DISCRIMINATION – Inferring discrimination
There were multiple points in this appeal in which the Claimant appealed against the rejection of her claims for constructive unfair dismissal, direct discrimination, indirect discrimination and detriment by protected disclosure, and the Respondent cross appealed.
Held
(1) On the cross appeal, the so-called ‘Johnson exclusion zone’ did not apply to a case of constructive dismissal based on fundamental breach in the redundancy selection process when the Respondents had withdrawn their notice of dismissal as a result of the Claimant’s appeal, but the Claimant then resigned.
(2) The Employment Tribunal had erred in law in finding that the withdrawal of the notice of dismissal cured their breach: see Buckland (2010 IRLR 45); but
(3) The ET had not considered or made a finding as to whether the Claimant had affirmed the contract before she resigned; remission necessary.
(4) Of the 5 protected disclosures relied upon, which the ET had not addressed in their reasons, the third to fifth either made only allegations (see Geduld 2010 ICR 325) or did not lead to any detriment; but the first and second could not be disposed of in that way; remission necessary.
(5) The ET had permissibly found that the Respondents did not apply the PCP on which the indirect discrimination claim was based.
(6) As to direct discrimination, the ET had adequately considered the issues and were entitled to go, where they had, directly to the ‘reasons why’ question. Their reasoning should not be subjected to an ‘overly critical analysis’; see Hewage (2012 IRLR 70).

Burke QC J
[2014] UKEAT 0439 – 12 – 0402
Bailii
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521103

Veolia Environmental Services Uk v Gumbs: EAT 7 Feb 2014

EAT Race Discrimination : Inferring Discrimination – Burden of proof
The submission that both Madarassy v Nomura International plc [2007] ICR 867 and Hewage v Grampian Health Board [2012] ICR 1054 support the proposition that an Employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations as to the reason for demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given could not be accepted. Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account. When an account of lack of knowledge as to the employee’s ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

Judge Hand QC
[2013] UKEAT 0487 – 12 – 0702
Bailii
England and Wales
Citing:
CitedMadarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
CitedHewage v Grampian Health Board SC 25-Jul-2012
The claimant had been employed as a consultant orthodontist. She resigned claiming constructive dismissal and sex and race discrimination. The EAT reversed the findings on discrimination saying that they had not been sufficiently pleaded. The Court . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521104

Northumberland Tyne and Wear NHS Foundation Trust v Geoghegan: EAT 29 Jan 2014

EAT Disability Discrimination : Reasonable Adjustments – Sufficiency of reasons
VICTIMISATION DISCRIMINATION – Protected disclosure – Detriment – Sufficiency of reasons
Appeal allowed because (1) the Tribunal’s reasoning on the question of the Respondent’s actual and constructive knowledge of disability was flawed and insufficient; (2) the Tribunal did not give proper and sufficient reasons in respect of its findings that there were breaches of the duty to make reasonable adjustments; (3) the Tribunal did not apply Tarbuck v Sainsbury’s Supermarkets [2006] IRLR 664; (4) the Tribunal did not give proper and sufficient reasons in respect of its findings that the Claimant was subjected to detriment on the grounds of making protected disclosures; (5) certain findings made by the Tribunal were perverse, and these findings materially influenced the Tribunal’s assessment of the Respondent’s witnesses

[2014] UKEAT 0048 – 13 – 2901
Bailii
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.520830

Kirby v Manpower Services Commission: EAT 1980

The applicant, an employee at a job centre was demoted because he had disclosed confidential information about possible contraventions of the race relations legislation. He complained of race discrimination, saying his disclosure was a protected act.
Held: This was not victimisation within section 2. The relevant question was whether the employers had treated the complainant less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind. The claim failed, because the Manpower Services Commission would have treated in the same way any employee who gave away confidential information whatever its nature.

Slynn J
[1980] 3 All ER 334, [1980] 1 WLR 725, [1980] ICR 420
Race Relations Act 1976 2
England and Wales
Citing:
AppliedMinistry of Defence v Jeremiah CA 1980
The court considered the meaning of ‘detriment’ in discrimination law. Brightman LJ said: ‘I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment.’
Lord Justice . .

Cited by:
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 . .
CitedAziz v Trinity Street Taxis Ltd CA 26-Feb-1988
An Asian member of the respondent association of taxi cab operators secretly recorded conversations with other members to gather evidence for a claim under the Act. He was expelled from the association for this conduct. He alleged race . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 29 November 2021; Ref: scu.181287

McCarthy v Jaguar Cars Ltd: EAT 15 Nov 2013

EAT Disability Discrimination : Reasonable Adjustments – Claimant disabled employee on long term absence with depression. Redundancy situation. Selection for redundancy based on scores from assessment against detailed criteria. Claimant selected and dismissed. Claims unfair dismissal, direct disability discrimination and failure to make reasonable adjustments. Employment Tribunal finds fair process and procedure applied in genuine redundancy situation. Employer conceded scoring criteria would put Claimant at a substantial disadvantage. Made reasonable adjustment by applying criteria only to his pre-disablement employment record.
All claims dismissed.
Appeal on basis of failure to identify and strictly apply the approach to reasonable adjustment cases set out in Rowan v Environment Agency.
Appeal DISMISSED.
ET had expressly identified the PCP as the scoring criteria. Pool of comparators was obvious (others facing redundancy to whom same PCP applied but not disabled by depression). All parties knew of the concession that the PCP would put Claimant at substantial disadvantage. ET dealt fully with the real question in the case – did the adjustment remove the disadvantage – and gave sound reasons for finding that it did.

Luba QC
[2013] UKEAT 0320 – 13 – 1511
Bailii
England and Wales

Employment, Discrimination

Updated: 28 November 2021; Ref: scu.520032

Mangalore v London School of Economics and Political Science: EAT 1 Nov 2013

EAT Victimisation Discrimination – Although allegations of victimisation were made under section 27 of the Equality Act 2010 the Employment Tribunal had directed itself in terms of a comparator as if the case had been brought pursuant to section 2 of the Race Relations Act 1976. Whilst this was an apparently erroneous approach in fact the comparative approach had not really been used and the Employment Tribunal having asked itself why the Appellant had not been appointed had concluded that her rejection had not been because she had previously brought discrimination proceedings against the Respondent. This was a case where despite any misdirection the Employment Tribunal had been plainly and unarguably right as to the outcome (see Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329). Although the misdirection was similar to that in Woodhouse v West Northwest Homes Leeds Ltd UKEAT 0007/12/SM the latter was distinguishable on its facts. The appeal was dismissed.

Hand QC
[2013] UKEAT 0233 – 13 – 0111
Bailii
Equality Act 2010 27, Race Relations Act 1976 2
England and Wales

Employment, Discrimination

Updated: 28 November 2021; Ref: scu.520031

JM v United Kingdom: ECHR 28 Sep 2010

The applicant alleged that she had been the victim of discrimination on the basis of sexual orientation in the assessment by the authorities of her financial liability under the regulations on child support.

Lech Garlicki, P
[2010] ECHR 1361, 30 BHRC 60, [2010] Fam Law 1270, [2010] 3 FCR 648, [2011] 1 FLR 491, (2011) 53 EHRR 6
Bailii
European Convention on Human Rights, Child Support (Maintenance Assessments and Special Cases) Regulations 1992 1(2)
Citing:
See AlsoJM v United Kingdom ECHR 21-Nov-2008
. .
At Commissioner(Un-named) SSCS 1-Oct-2003
The mother had challenged payments required of her by way of child support. The Secretary of State now appealed.
Held: The appeal was rejected: ‘a gay relationship can be a family for the purpose of [A]rticle 8’. There was no reason, in the . .
At CASecretary of State for Work and Pensions v M CA 15-Oct-2004
M had challenged the Child Support Regulations saying that they discriminated against her. She was the liable parent, and in a monogomoud lesbian relationship. As such she said that she was treated worse than she would have been since the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Child Support

Updated: 28 November 2021; Ref: scu.519966

McGeadie v Bhateja and Another: SCS 10 Dec 2013

The pursuer has raised proceedings against the first and second defenders in which he seeks reparation for loss, injury and damage that he alleges to have sustained as a result of his dealings with the defenders. The damages sought are andpound;250,000. In February and March 2012 the second defenders provided services to the Department for Work and Pensions, by assessing applicants for employment and support allowance on their behalf. The first defender is a physiotherapist who was employed by the second defenders at that time.

Lord Drummond Young
[2013] ScotCS CSIH – 106
Bailii
Scotland

Discrimination

Updated: 27 November 2021; Ref: scu.519243

EB And Others v Austria: ECHR 7 Nov 2013

ECHR Article 14
Discrimination
Refusal to amend criminal record despite Constitutional Court ruling that provision under which applicants had been convicted was unconstitutional: violation
Facts – Between 1983 and 2001 the applicants were convicted of offences under Article 209 of the Criminal Code, a provision that made homosexual relations between adults and consenting males aged between 14 and 18 illegal. Article 209 was subsequently abolished following a Constitutional Court ruling of 21 June 2002 that it led to arbitrary results and was not objectively justified. The provision was also found to be discriminatory by the European Court, as it applied only to homosexual relations between males, not females*. Following abolition of the offence the applicants applied to have their convictions deleted from their criminal records, but this was refused on the grounds that the Federal Ministry of the Interior had no power to delete a conviction that had been lawfully entered in the record.
Law – Article 14 in conjunction with Article 8: In view of its sensitive nature and the impact it could have on the person concerned, information contained in a criminal record was closely linked to private life, even though based on a court judgment delivered in public. Article 14 read in conjunction with Article 8 was therefore applicable.
It was within the normal course of events for provisions of the criminal law to be amended or repealed in order to adapt to changing circumstances within society. The mere fact that a criminal conviction that occurred in the past was based on a legal provision which had since lost force of law would normally have no bearing on whether the conviction should remain on a person’s criminal record, as it concerned essentially a fact from the past. Abolishing an offence or substantially modifying its essential elements did not mean that the provision, at the time it was in force and applied, did not meet all the requirements under constitutional law.
The situation was different, however, in the applicants’ case. Parliament had repealed and replaced Article 209 of the Criminal Code by a substantially different provision because the Constitutional Court had found that it was not objectively justified and was therefore unconstitutional. The European Court had found that convictions under that provision were discriminatory. The new provision of the Criminal Code had thus been introduced not as part of a general process of adapting the Criminal Code to the needs of a changing society, but to eliminate a provision that was in contradiction with the Constitution. That particular feature of the applicants’ case had required a different response by the legislature. Since keeping an Article 209 conviction on criminal records could have particularly serious consequences for the persons concerned, when amending it in order to bring it into conformity with modern standards of equality between men and women, the legislature should have provided for appropriate measures, such as introducing exceptions to the general rule of maintaining convictions on the record. The Government had not, however, provided any explanation for the failure to do so.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of the applicants’ right under Article 13 of the Convention to an effective remedy.
Article 41: EUR 5,000 to each applicant in respect of non-pecuniary damage.

31913/07 – Legal Summary, [2013] ECHR 1312
Bailii
European Convention on Human Rights
Human Rights

Discrimination

Updated: 27 November 2021; Ref: scu.519052

Frederic Hay v Credit Agricole Mutuel De Charente-Maritime Et Des Deux-Sevres: ECJ 12 Dec 2013

ECJ Directive 2000/78/EC – Equal treatment – Collective agreement which restricts a benefit in respect of pay and working conditions to employees who marry – Exclusion of partners entering into a civil solidarity pact – Discrimination based on sexual orientation

C-267/12, [2013] EUECJ C-267/12
Bailii
Directive 2000/78/EC

European, Discrimination, Employment

Updated: 27 November 2021; Ref: scu.518963

Gallop v Newport City Council: CA 11 Dec 2013

An employer was not absolutely bound by the views of an Occupational Health Practitioner.

Longmore, Rimer LJJ, Sir John Mummery
[2013] EWCA Civ 1583
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
LeaveGallop v Newport City Council CA 31-Jan-2013
Application for leave to appeal – allowed. . .

Cited by:
CitedStoke On Trent City Council v Savigar (Debarred) EAT 15-May-2015
EAT Unfair Dismissal – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
Though the Claimant’s complaint was that . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 November 2021; Ref: scu.518905

Halawi v WDFG UK Ltd (T/A World Duty Free) and Another: EAT 4 Oct 2013

EAT Contract of Employment : Whether Established – The Claimant worked in a World Duty Free outlet at an airport, selling Shiseido cosmetic products airside. Her security clearance to do so was withdrawn by R1, and she claimed that she had thereby been unfairly dismissed and discriminated against. To claim this she had to show that she was an employee or worker, to do which required her to show that she had a contract with R1, or with R2 if employed by them, by which she undertook to work personally for that party. The Employment Tribunal found she could not do so, because she provided her services through a limited company which she had incorporated for the purpose (and her relationship with that company need to be, but never was, established in evidence). They were provided to R2 whose role was in effect that of an agent supplying workers to a third party (Shiseido) to work in retail space controlled by R1. There was thus no contract between C and either R1 or R2. The ET found that the arrangements were such that C was not required to work personally at her job, but could get another person to substitute for her: a power which was not merely theoretical, since she had in fact exercised it. It might appear to a member of the public passing through the airport that she appeared to be working exactly as any employee would, and for that reason the appeal had been permitted to proceed to a full hearing. However, it was held that on existing appellate authority, which was unaffected by European law, she could not have had a contract of employment with either R1 or R2, since she had a contract with neither; nor could she be a ‘worker’ since that too required (i) a contract, under which (ii) she agreed to work personally.

Langstaff P J
[2013] UKEAT 0166 – 13 – 0410
Bailii
Equality Act 2010
England and Wales
Cited by:
Appeal fromHalawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 November 2021; Ref: scu.518532

Hainsworth v Ministry of Defence: EAT 16 Jul 2013

EAT Disability Discrimination : Reasonable Adjustments

Langstaff J P
[2013] UKEAT 0227 – 13 – 1607
Bailii
Equality Act 2010
England and Wales
Cited by:
Appeal fromHainsworth v Ministry of Defence CA 13-May-2014
The appellant was employed by the respondents working in Germany. Her daughter suffered chronic illness and she wished to care for her in England. She said that the refusal to allow her to return to work in the UK was discriminatory as associative . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 November 2021; Ref: scu.518522

Brewster v Northern Ireland Local Government Officers’ Superannuation Committee: CANI 1 Oct 2013

Appeal by the Committee and the Department of the Environment for Northern Ireland from a decision allowing the respondent’s application for judicial review of a decision by the Superannuation Committee not to pay a survivor’s pension to the respondent following the death of her cohabiting partner.
Held: The appeal succeeded. Higgins LJ found that the nomination requirement was not unjustified or disproportionate; and Coghlin LJ also concluded that the requirement had not been shown to be manifestly without reasonable justification.

Higgins LJ, Girvan LJ and Coghlin LJ
[2013] NICA 54
Bailii
Local Government Pension Scheme (Benefits, Membership
and Contributions) Regulations 2009
, European Convention on Human Rights 14
Northern Ireland
Citing:
Appeal fromBrewster, Re Judicial Review QBNI 9-Nov-2012
The applicant challenged the decision of the respondent Northern Ireland Local Government Officers’ Superannuation Committee (‘NILGOSC’) made on 1 July 2011, by which it declined to pay a survivor’s pension to the applicant following the death of . .

Cited by:
Appeal fromBrewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .

Lists of cited by and citing cases may be incomplete.

Family, Financial Services, Discrimination, Human Rights

Updated: 26 November 2021; Ref: scu.517770

Vallianatos And Others v Greece: ECHR 7 Nov 2013

Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life and amounted to unjustified discrimination between different-sex and same-sex couples, to the detriment of the latter.
Held: The introduction of registered partnerships only for different sex couples, to exist alongside marriage which was also only open to different sex couples, constituted a breach of article 14 read with article 8 of the Convention

Dean Spielmann, P
29381/09, [2013] ECHR 1110, 32684/09, 36 BHRC 149, (2014) 59 EHRR 12
Bailii
European Convention on Human Rights 8 14
Human Rights
Citing:
Legal SummaryVallianatos And Others v Greece (LS) ECHR 7-Nov-2013
ECHR (Grand Chamber) Article 14
Discrimination
Exclusion of same-sex couples from ‘civil unions’: violation
Facts – The first application was lodged by two Greek nationals, and the second by six . .

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 . .
CitedSteinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Discrimination

Updated: 25 November 2021; Ref: scu.517642

The Environment Agency v Donnelly: EAT 18 Oct 2013

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
DISABILITY DISCRIMINATION – Reasonable adjustment
The Employment Tribunal concluded that the Respondents had been guilty of disability discrimination in three respects, in failing to allocate to her a parking space in the car park where she worked, in harassing her by an e-mail and by dismissing her ostensibly for capability reasons. The appeal was brought against all three conclusions.
As to the first conclusion, the Claimant was entitled to work flexitime hours. She chose to arrive at work, as she was entitled to do at 9.30; but the car park was, by that time, full; the Respondent’s case was that there was no PCP that she had to walk from a distant car park despite her disability; it was open to the Claimant to come to work at 9am, at which time there would be a parking space in the main park and that the ET had erred in law in their conclusion as to the PCP and that there had been a failure to make a reasonable adjustment. Held that the ET had not erred in law. It was open to them to find the PCP as they had. The Claimant had the right to cone into work at any time within the flexitime arrangements. It was not for her but for the Respondents to make reasonable adjustments; the Tribunal had considered the relevant factors and had made a decision which was open to them.
As to harassment, this was a rare case in which there was perversity; the terms of the e-mail could not reasonably be seen as falling within the definition of harassment in section 3B of the Equality Act 2010.
As to dismissal, perversity was not overwhelmingly demonstrated; but the ET had not directed themselves to the range of reasonable responses test and appeared to have substituted their own view. By agreement the discrimination finding based on the dismissal fell if the unfair dismissal finding fell.
Finding that there was no harassment substituted. Dismissal issues remitted.

Jeffrey Burke QC
[2013] UKEAT 0194 – 13 – 1810
Bailii
Equality Act 2010 3B
England and Wales

Employment, Discrimination

Updated: 25 November 2021; Ref: scu.517548

Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins (Disability Discrimination : Reasonable Adjustments): EAT 25 Oct 2013

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The duty to make adjustments. The Tribunal did not identify the correct PCP. The Tribunal did not identify the disadvantage which the adjustment was to avoid and did not assess to what extent the adjustment would be effective to avoid the disadvantage. Discussion of the concept of a PCP in the setting of section 20(3) of the Equality Act 2010; and of the different elements which the Tribunal must address in considering section 20(3).
Section 98(4). The Tribunal did not apply the ‘range of reasonable responses’ test in a critical paragraph of its reasons, starting from its own view that an unreasonable offer had been made, and failing to ask whether the decision maker was reasonable in concluding that a proper plan had been put in place with which the Claimant should have complied.

David Richardson J
[2013] UKEAT 0579 – 12 – 2510
Bailii
England and Wales

Employment, Discrimination

Updated: 23 November 2021; Ref: scu.517225

Aspire Defence Services Ltd v Hutchings (Unfair Dismissal : Reasonableness of Dismissal): EAT 12 Jul 2013

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
DISABILITY DISCRIMINATION ACT
Employment Tribunal held Claimant had been unfairly dismissed and unlawfully discriminated against contrary to Equality Act 2010, sections 13, 15 and 20.
On appeal Claimant accepted that finding of direct discrimination had to be set aside in the light of ET’s finding that the reason for the dismissal was the Claimant’s ‘manner or personality’. It was also accepted that ET erred in finding that there was a failure to make reasonable adjustments without considering the provision, criterion or practice applied by the Appellant or considering the nature and extent of the substantial disadvantage suffered by the Claimant.
EAT found that finding of discrimination arising from disability cannot be sustained, nor can the finding of unfair dismissal. Further, in relation to both discrimination arising from disability and unfair dismissal the ET decision was not Meek compliant. In the circumstances ET’s findings in relation to reasonable adjustments, discrimination arising from disability and unfair dismissal are to be remitted to a freshly constituted tribunal for consideration.

Supperstone J
[2013] UKEAT 0442 – 12 – 1207
Bailii
Equality Act 2012 13 15 20
England and Wales

Employment, Discrimination

Updated: 23 November 2021; Ref: scu.517220

Croft Vets Ltd and Others v Butcher: EAT 2 Oct 2013

EAT Disability Discrimination : Disability Related Discrimination – Reasonable adjustments – The Respondent was employed by the Appellants as a reception and finance manager. She suffered from work-related stress and severe depression. She resigned from her employment when the Appellants did not act on the recommendations made by the clinical psychiatrist to whom they referred her. The Employment Tribunal held her claims that the Appellants failed to make reasonable adjustments to be well-founded, that she was unfairly constructively dismissed and that her dismissal was an act of discrimination arising from disability. The EAT dismissed the Appellants’ appeal on liability (save for the finding that the dismissal was an act of discrimination arising from disability as that was not one of the agreed issues before the ET) and the appeal on remedies against the award of compensation. The EAT, inter alia, found that there was no error by the ET in identifying the relevant PCP (‘provision, criteria or practice’); and the ET correctly found that the Appellants had not made reasonable adjustments by failing to pay for the Respondent to have private psychiatric services and counselling. The issue was not the payment of private medical treatment in general, but, rather, payment for a specific form of support to enable the Respondent to return to work and cope with the difficulties she had been experiencing at work

Supperstone J
[2013] UKEAT 0430 – 12 – 0210
Bailii
England and Wales
Citing:
CitedArchibald v Fife Council HL 1-Jul-2004
The claimant was employed as a street sweeper. She suffered injury to her health making it difficult to do her work. She was dismissed, and claimed that being disabled, the employer had not made reasonable adjustments to find alternative work for . .
CitedSecretary of State for the Department for Work and Pensions v Alam EAT 9-Nov-2009
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
Section 4A(1) and (3) of the Disability Discrimination Act 1995.
The Tribunal found that employer had failed to make a reasonable adjustment . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 21 November 2021; Ref: scu.516226

Graham v University College London Hospitals NHS Foundation Trust and Others: EAT 23 Jul 2013

EAT RACE DISCRIMINATION
The appeal had proceeded on two grounds:
(1) That the Employment Tribunal had failed to deal expressly in its judgment with one identified issue relating to a complaint of race discrimination: that was so but it was also clear that the Claimant had not produced any evidence to support her complaint; the EAT therefore formally recorded that the particular complaint was dismissed under section 35(1)(a) of the Employment Tribunals Act 1996;
(2) That costs should not have been awarded against the Claimant: although there was jurisdiction to award costs and there could be no criticism of the amount, the justifications relied on by the ET in exercising that jurisdiction were irrelevant and/or or based on an unfair criticism of the Claimant; the EAT accordingly set aside the ET’s decision and allowed the Respondent to renew its application for costs; the EAT rejected the application on the basis that the EAT did not find her culpable in continuing with her claims; the EAT took into account that she was self-represented and that the claims were allowed to proceed at a CMD but no general principle was laid down: the EAT’s decision turned on the particular circumstances of this case including the impression the Claimant made on the EAT.

Shanks J
[2013] UKEAT 0130 – 13 – 2307
Bailii
England and Wales

Employment, Discrimination

Updated: 21 November 2021; Ref: scu.516029

Osei-Adjei v RM Education Ltd: EAT 24 Sep 2013

EAT DISABILITY DISCRIMINATION – Compensation
The Claimant suffered an act of disability discrimination by reason of the Respondent’s failure to make a reasonable adjustment. He was for a time unfit to work but at the time of the termination of his Employment he was fit to return to work, his job was open to him and all reasonable adjustments had been or would be made. He resigned and asserted that there had been a constructive unfair dismissal. The Employment Tribunal held that he had not been dismissed and that the resignation broke the chain of causation so far as any future loss of earnings was concerned. The Claimant sought to argue on the authority of Prison Service v Beart no 2 [2005] ICR 1206 that the termination of his employment could not amount to a novus actus interveniens that broke the chain of causation. The Employment Appeal Tribunal held that Beart was authority for the proposition that an employer who had unfairly dismissed a claimant could not rely upon its wrongful act to minimise the claimant’s compensation. That principle did not apply in cases where the termination of the employment was brought about by the voluntary act of the claimant; Ahsan v Labour Party (2011) UKEAT/0211/10 applied.
Where a claimant suffered psychological or other injury as a result partly of the wrongful act of his employer and partly for reasons that were not the fault of the employer the compensation stood to be assessed by reference to the relative contribution of the employer’s wrongful act to the injury in question and discounting from the award the effect of other contributing causes. On the facts of this case the Claimant’s award stood to be reduced.

Serota QC
[2013] UKEAT 0461 – 12 – 2409
Bailii
England and Wales
Citing:
CitedBeart v HM Prison Service CA 26-Apr-2005
The claimant had been dismissed by reason of disability and so was entitled to compensation for the associated psychological injury. She was then dismissed unfairly, and the employer sought to argue that the dismissal constituted a novus actus and . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 21 November 2021; Ref: scu.516002

HK Danmark v Experian A/S: ECJ 26 Sep 2013

ECJ Principle of non-discrimination on grounds of age – Charter of Fundamental Rights of the European Union – Article 21(1) – Directive 2000/78/EC – Article 6(1) and (2) – Occupational pension scheme – Increases in the amount of contributions on the basis of age

R. Silva de Lapuerta, P
C-476/11, [2013] EUECJ C-476/11, [2014] EUECJ C-476/11
Bailii, Bailii
Directive 2000/78/EC
European

Human Rights, Discrimination

Updated: 20 November 2021; Ref: scu.515583

Dansk Jurist-Og Okonomforbund v Indenrigs-Og Sundhedsministeriet: ECJ 26 Sep 2013

ECJ Equal treatment in employment and occupation – Prohibition of discrimination on grounds of age – Directive 2000/78/EC – Article 6(1) and (2) – Refusal to grant availability pay to civil servants who have reached the age of 65 and are entitled to a pension

C-546/11, [2013] EUECJ C-546/11, [2014] 1 CMLR 41, [2013] WLR(D) 360, [2014] ICR 1, [2013] Eq LR 1099, [2014] IRLR 37
Bailii, WLRD
European
Cited by:
CitedMirga v Secretary of State for Work and Pensions, Samin v Westminster City Council SC 27-Jan-2016
The claimants, a Polish national and an Austrian national, appealed against decisions of the Court of Appeal upholding decisions that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 20 November 2021; Ref: scu.515578

Drew v Walsall Healthcare NHS Trust: EAT 20 Sep 2013

EAT Religion or Belief Discrimination : UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellant was dismissed from his employment as a paediatric consultant. He worked in a multicultural and multi-faith department. Problems within the department arose because the Appellant habitually used Christian references in his professional communications. An internal investigation made a recommendation, among others, that he should keep his personal views and religious beliefs to himself and should not impose them on others. The Appellant did not accept the recommendation and took out a grievance. It was agreed that the Loyal College should carry out an independent review; the College appointed a panel of 2 consultants and an HR practitioner. The panel, after investigation, produced a report which made a number of recommendations; one of them was that the Appellant should refrain from any religious references in his professional communications.
All the relevant staff accepted the panel’s recommendations, except the Appellant who refused to accept the recommendation set out above and maintained that position when a 3rd investigation, carried out by an independent HR consultant advised disciplinary proceedings, which were carried out and led to the Appellant’s dismissal.
The Appellant claimed that he had been discriminated against on religious grounds in 14 respects, had been victimized and had been unfairly dismissed. The Employment Tribunal rejected his claims.
On appeal multiple grounds were argued; all failed. The ET had correctly directed themselves to follow the guidance given by the EAT in Ladele (2009 IRLR 154) and had correctly applied that guidance. They had identified correctly a hypothetical comparator (having rejected the Appellant’s actual comparator, a conclusion which was not attacked on appeal) as someone whose relevant circumstances were the same as those of the Appellant save for his protected characteristic, described by the Appellant as that of being an ‘orthodox Christian’, and who acted as the Appellant had done but used terms relating to his own religious belief system or non-religious or atheist belief system and were entitled to conclude that such a comparator would have been treated in the same way. Much of the appeal was or amounted to arguments of perversity; but the ET had reached factual conclusions which it was open to then to reach. The ET’s conclusions on all claims were not based on error of law.

Jeffrey Burke QC
[2013] UKEAT 0378 – 12 – 2009
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515406

Abegaze v Shrewsbury College of Arts and Technology: EAT 10 Sep 2013

EAT Race Discrimination : Direct – For a one-off act of race discrimination in refusing to employ him in 1999, an Employment Tribunal in 2012 awarded the Claimant a total of andpound;25,787. While below the andpound;1.6m figure (before interest) sought, the awards were within the Vento and other proper scales. The Employment Tribunal correctly moderated the award to reflect the contemporaneous disappointment the Claimant would have felt at the rejection of his other job applications, and the large number of Employment Tribunal claims dismissed. It did not err in stopping his award for loss of earnings when he obtained new work from which he was dismissed for misleading the new employer. Dench applied.

McMullen QC
[2013] UKEAT 0368 – 12 – 1009
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515404

Little v Richmond Pharmacology Ltd: EAT 20 Sep 2013

EAT Sex Discrimination : Indirect – Whether Claimant suffered indirect sex discrimination in circumstances where her request for flexible working following a return from maternity leave was initially refused and then granted on appeal.
Held: Employment Tribunal entitled to find that she did not.

Peter Clark J
[2013] UKEAT 0490 – 12 – 2009
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515407

Fullah v Medical Research Council and Another: EAT 10 Jun 2013

EAT Race Discrimination : Direct – Detriment – The Claimant did not specify race discrimination in his internal complaint about his manager. Applying Waters and Durrani, the context did not admit of a generous interpretation of his language. There was no protected act. There was no unfavourable treatment as the Claimant accepted the manager treated black and white employees in the same unfavourable way. There was no detriment to the Claimant as the decisions on acting up and a permanent position were made without reference to race or any protected act. The Claimant’s appeal was dismissed.

McMullen QC
[2013] UKEAT 0586 – 12 – 1006
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515385

X v Y: EAT 4 Jun 2013

EAT Race Discrimination : Direct – SEX DISCRIMINATION – Burden of proof – The Employment Tribunal found that the Claimant had been unfairly dismissed on the basis of 10 or so breaches of the implied term of trust and confidence. Although in the circumstances the Employment Tribunal on the same findings ‘could’ have concluded that the Claimant had established a prima facie case of discrimination on the grounds of race, it dismissed that claim. The ET did not stand back to look at the cumulative effect of all of its findings and did not adequately explain how it came to accept that the detriments/less favourable treatments were not discriminatory.

Serota QC J
[2013] UKEAT 0322 – 12 – 0406
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515388

Brito-Babapulle v Ealing Hospital NHS Trust: EAT 14 Jun 2013

EAT DISABILITY DISCRIMINATION – Disability
UNFAIR DISMISSAL – Reasonableness of dismissal
A consultant had both private and NHS patients. Whilst certificated sick and receiving sick pay from her NHS employers she worked for her private patients. She was dismissed for doing so, the employer thinking this could be described as fraud. An Employment Tribunal dismissed her claim that her dismissal was unfair. Her appeal on the ground that the employer could not properly regard the conduct as fraud, or had no reasonable basis for doing so, was dismissed on those grounds. The Claimant was dismissed for what she had done – labels such as fraud were emotive but uninformative of the essential facts – and the ET and employer entitled to regard it as gross misconduct. However, the ET went straight from a conclusion that there was gross misconduct to a decision that dismissal for that reason was inevitably within the band of reasonable responses. It did not ask whether the employer’s decision was nonetheless unfair as being unreasonable in the light of all the personal mitigation available to the Claimant, since it appeared to think that the conclusion that there was gross misconduct inevitably answered the question of fairness. The EAT was persuaded, if reluctantly, that the matter should be remitted for the ET to decide if it was reasonable (in all the circumstances) within s.98(4) Employment Rights Act 1996 to dismiss this Claimant for the gross misconduct found.

Langstaff P
[2013] UKEAT 0358 – 12 – 1406
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment, Discrimination

Updated: 19 November 2021; Ref: scu.515067

Newham Sixth Form College v Sanders: EAT 2 Jul 2013

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Employment Tribunal did not apply the structured approach in Rowan and Ashton to the Claimant’s claim for reasonable adjustments, or show that it considered s.4A(1) or (3) Disability Discrimination Act 1995, and did not answer a crucial question in its list of issues. The judgment and the consequential remedy judgment were set aside. Case remitted to a different Employment Tribunal.

McMullen QC J
[2013] UKEAT 0610 – 12 – SM – 0207
Bailii
Disability Discrimination Act 1995
England and Wales

Employment, Discrimination

Updated: 19 November 2021; Ref: scu.515072

Blockbuster Entertainment Ltd v James: CA 25 May 2006

The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a strike-out order, there were two cardinal conditions at least one of which must be met. Either the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps or it has made a fair trial impossible. If one of these conditions is met, the court must then also consider whether striking out is a proportionate response.
Sedley LJ discussed the power to strike a case out: ‘This power, as the employment tribunal reminded itself, is a Draconian power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge [2000] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.
and
‘It is common ground that, in addition to fulfilling the requirements outlined above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was ‘the only proportionate and fair course to take’. This aspect of their determination played no part in Mr James’s grounds of appeal and accordingly plays no part in this court’s decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us.
It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.’

Sedley LJ
[2006] EWCA Civ 684, [2006] IRLR 630
Bailii, Bailii
Employment Tribunals (Constitution and Rules etc) Regulations 2004
England and Wales
Citing:
CitedArrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
CitedDe Keyser Limited v Wilson EAT 20-Mar-2001
The claimant appealed against an order striking out her claim.
Held: The right to respect for private life is qualified by the right for both parties to have a just trial of the issues between them; and it has to be borne in mind that it was . .
CitedBolch v Chipman EAT 19-May-2003
EAT The EAT considered the consequences, of a decision to strike out a Notice of Appearance under Rule 15(2)(d).
Held: The EAT will require an employment tribunal, among other things, to consider the . .
Appeal fromJames v Blockbuster Entertainment Ltd EAT 6-Oct-2005
EAT Practice and Procedure
Strike out case. ET struck out two claims for failing to comply with tribunal orders. Whether a proportionate sanction; whether they erred on a proper understanding of facts. . .

Cited by:
See AlsoJames v Blockbuster Entertainment Ltd EAT 18-Aug-2006
EAT Practice and Procedure – Costs
Costs orders for andpound;10,000 and andpound;1000 did not exceed the statutory maximum order Reg 14. Order for andpound;10000 made after striking-out order; that order was . .
See AlsoJames v Blockbuster Entertainment Ltd CA 23-Oct-2008
The claimant renewed his application for leave to appeal.
Held: The claimant’s first ground was unarguable. His original application failed to comply with the requirements of the 2002 Act. On the second ground, the tribunal had disagreed with . .
CitedRidsdill and others v Smith and Nephew Medical, Duffy, Whittleton EAT 22-Jun-2006
EAT Practice and Procedure – Striking-out/dismissal.
Chairman’s decision to strike out claims which had not been actively pursued and when there had been failure to comply with Tribunal orders. The appeal . .
CitedTisson v Telewest Communications Group Ltd EAT 19-Feb-2008
The claimant’s claim had been struck out for his failure to comply with an order to serve a list of documents.
Held: The appeal failed. The principles applied under the Civil Procedure Rules should be applied in Employment Tribunals. The . .
CitedAbegaze v Shrewsbury College of Arts and Technology CA 20-Feb-2009
In 2000 the claimant succeeded in his claim for discrimination, but had not pursued his remedy. He now appealed against a refusal to allow him to take it further. He had initially failed to pursue the matter for ill health. He later refused to . .
CitedSt Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
CitedChambers-Mills v Allied Bakeries CA 26-Nov-2009
The claimant renewed orally her request for leave to appeal against the EAT which had upheld loss of her claim, after the Employment Tribunal had found her conduct of the proceedings unreasonable in failing to co-operate in a medical enquiry into . .
CitedEmuemukoro v Croma Vigilant (Scotland) Ltd and Another (Practice and Procedure) EAT 22-Jun-2021
Response Properly Struck Out – Non-compliance
On the first day of a five-day hearing to consider the Claimant’s claims of unfair dismissal, wrongful dismissal and holiday pay, the Tribunal struck out the Respondents’ Response for failing to comply with the Tribunal’s orders. Those failures . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 November 2021; Ref: scu.245865

Costco Wholesale UK v Newfield: EAT 22 May 2013

EAT Disability Discrimination : Reasonable Adjustments – Equality – Disability – Duty to make adjustments – PCP – substantial disadvantage
The Tribunal adopted a PCP of its own, different to the PCPs defined by the issues, without addressing important evidence relevant to the existence of that PCP. The Tribunal did not give sufficient reasons for holding that the Claimant was at a substantial disadvantage although there was substantial and conflicting evidence on this issue.
Failure to provide written particulars – section 38 of the Employment Act 2002
The Tribunal did not err in law in its assessment of the appropriate award.

David Richardson J
[2013] UKEAT 0617 – 12 – 2205
Bailii
Employment Act 2002 38
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514345

Copeland v E Coomes (Holdings) Ltd (Age Discrimination): EAT 13 Jun 2013

EAT AGE DISCRIMINATION
UNFAIR DISMISSAL
Automatically unfair reasons
Reason for dismissal including substantial other reason
The reason for the Claimant’s dismissal was retirement. The Employment Tribunal erred in holding that the Claimant’s claim of age discrimination failed by application of Regulation 30 of the Employment Equality (Age) Regulations 2006 when the 2006 regulations had been repealed (save for Schedules 6 and 8) by the implementation on 1 October 2010 of Schedule 27 of the Equality Act 2010 by Equality Act 2010 (Commencement No 4) Order 2010 para 2(15)(f). Further the ET erred in interpreting the pre-condition for the application of the savings provisions in Reg 5 of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 inconsistently with that of Schedule 6 para 2 of the 2006 Regulations as interpreted by the CA in Bailey v R and R Plant (Peterborough) Ltd [2012] EWCA Civ 410. The effect was that where notice of impending retirement did not include a reference to the need for the employee to apply under Reg 5 of the 2006 Regs to be allowed to remain in employment, para 8 of Schedule 9 of the Equality Act did not apply nor did the Employment Rights Act 1996 s. 98ZG and 98(2)(ba). Once this legislative trail was explained by the Employment Appeal Tribunal to the parties, the Respondent conceded that the appeal must succeed. Cross appeal against the finding of automatic unfair dismissal under ERA s.98ZG allowed as that provision had been repealed and the saving provision in reg 5 of the 2011 Regs did not apply. Case remitted to a differently constituted ET to determine the age discrimination and unfair dismissal claims.

Slade J
[2013] UKEAT 0606 – 12 – 1306
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514348

Revenue and Customs v Whiteley (Disability Discrimination : Reasonable Adjustments): EAT 10 May 2013

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
Employee contended that employers failed to make a reasonable adjustment to allow for her asthma when subjecting her to consideration under their absence policy – Employment Tribunal misunderstood and misapplied the expert evidence about the issue – remitted for hearing to freshly constituted Tribunal.

Mitting J
[2013] UKEAT 0581 – 12 – 1005
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514287

Taiwo v Department for Education (Disability Discrimination : Reasonable Adjustments): EAT 29 May 2013

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
SEX DISCRIMINATION – Direct
Multiple claims of sex race and disability discrimination were dismissed by the Employment Tribunal which had carefully case managed the complex issues. No error of law was found to be reasonably arguable. Opinions of appellate judges on the sift confirmed.

McMullen QC
[2013] UKEAT 1802 – 11 – 2905
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514168

Chief Constable of Essex Police v Kovacevic (Race Discrimination): EAT 22 Mar 2013

EAT RACE DISCRIMINATION
On a claim for unfair dismissal, the Claimant applied on the opening day of the hearing for permission to amend the claim form to include numerous claims of race discrimination. The hearing was adjourned. The Employment Judge was not provided with the text of the proposed amendment but when outlined to him it was clear that many of the claims were out of time. The Judge allowed the amendment application and extended time to bring the claim. Employer’s appeal allowed.
The Judge ought not to have entertained the application without seeing the terms of the proposed amendment. Even if the terms had been sufficiently outlined, the Judge has failed to apply the right test when considering the application.
Application to amend (when formulated) to be considered afresh by different Judge.

Recorder Luba QC
[2013] UKEAT 0126 – 13 – RN – 2203
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514151

Patel v South Tyneside Council and Others (Redundancy : Definition): EAT 5 Apr 2013

EAT REDUNDANCY – Definition
RACE DISCRIMINATION – Direct
The Employment Tribunal did not err in dismissing the Claimant’s 27 complaints of race discrimination and determining the correct reason for his dismissal was redundancy.

McMullen QC
[2013] UKEAT 0491 – 12 – 0504
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514156

Dakin v Brighton Marina Residential Management Company Ltd and Another (Disability Discrimination : Disability): EAT 26 Apr 2013

EAT JURISDICTIONAL POINTS – Worker, employee or neither
DISABILITY DISCRIMINATION – Disability
An Employment Tribunal dismissed claims for holiday pay and unfair dismissal apparently on the basis that the Claimant was not a worker within the Working Time Regulations nor an employee within s.230 Employment Rights Act 1996. The principal reason for doing so was a lack of proof of mutuality of obligation; though the Employment Judge also considered whether there was a right to substitution he did not clearly resolve the point, and observed (inconsistently, if he had found an unfettered right of substitution) that the Claimant ‘might well’ have been a worker, without resolving that either. He was also unclear whether he considered the Claimant was actually integrated into his putative employer’s business.
He was held to have taken the wrong approach to mutuality by looking for evidence of precision in the hours and days to be worked rather than asking whether the history of the relationship showed it had been agreed there was an obligation to do at least some work and a correlative obligation on the Respondent to pay for it; to have illogically appeared to consider that the rate of pay (andpound;15 ph) assisted in deciding whether the Claimant was an employee or was rather a worker (or neither); and had failed to make necessary findings such as whether the Claimant was a worker, or was entitled (as a matter of inferred agreements) to substitute another’s labour for his in performing the work.
The question of status (employee, worker or neither) was remitted for fresh determination by a different Judge.

Langstaff P J
[2013] UKEAT 0380 – 12 – 2604
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514153

Matinpour v Rotherham Metropolitan Borough Council (Disability Discrimination : Reasonable Adjustments): EAT 19 Apr 2013

EAT DISABILITY DISCRIMINATION
Reasonable adjustments
Direct disability discrimination
A case was appealed successfully to the EAT, and remitted. The Employment Tribunal came to the same conclusion, but giving more detailed reasons where the EAT had required it. The Claimant appealed again; but raised as grounds of appeal matters which challenged decisions of the Tribunal in respect of which it had repeated conclusions it had reached in the first decision which had not been subject to appeal to the earlier EAT. The Appellant was not permitted to raise these arguments. A ground he was entitled to raise was that the Respondent employer should not have dismissed him since he should have been held suitable for ill health retirement. This was rejected, since the employer did not consider him as suitable, nor had any material at the time of dismissal to think that he was. Observations made about the applicability of First West Yorkshire v Haigh.

Langstaff P J
[2013] UKEAT 0537 – 12 – 1904
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514154

Johnson v Solihull: CA 6 Jun 2013

Arden, Jackson McCombe LJJ
[2013] EWCA Civ 752
Bailii
Housing Act 1996
England and Wales
Citing:
CitedRegina v London Borough of Camden ex parte Pereira CA 20-May-1998
When considering whether a person was vulnerable so as to be treated more favourably in applying for rehousing: ‘The Council should consider such application afresh applying the statutory criterion: The Ortiz test should not be used; the dictum of . .

Cited by:
Appeal FromHotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .

Lists of cited by and citing cases may be incomplete.

Housing, Discrimination

Updated: 17 November 2021; Ref: scu.513682

Imam, Regina (on The Application of) v The London Borough of Croydon: Admn 26 Mar 2021

Conditions for Anonymity Orders

The claimant sought judicial review of the Defendant’s failure to provide suitable accommodation under its duty under section 193(2) of the 1996 Act. The Defendant admitted breach of its statutory duty because the accommodation that it was providing was not suitable. The parties now disputed the relief: she contended that a mandatory order should be made requiring the Defendant to provide suitable accommodation to her. The Claimant also raised other challenges, including alleged breaches of the Equality Act and an allegation of unlawfully failing to determine the Claimant’s request to be given Band 1 priority under the Defendant’s housing allocation scheme.
The reasonable adjustments duty involves disciplined sequence of steps, a ‘stepped approach’.

Deputy Judge Mathew Gullick QC
[2021] EWHC 739 (Admin)
Bailii
Housing Act 1996 193(2), Equality Act 2010
England and Wales
Citing:
See AlsoImam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .

Cited by:
See AlsoImam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .
CitedRowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. The parties agreed that the steps taken for later broadcasts had satisfied the . .
CitedMoney v AB ChD 10-Nov-2021
Anonymity – balance in favour of open justice
Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do . .

Lists of cited by and citing cases may be incomplete.

Housing, Discrimination, Litigation Practice

Updated: 17 November 2021; Ref: scu.660061

Stefanko and Others v Maritime Hotel Ltd and Another (Contract of Employment : Race Discrimination): EAT 25 Sep 2018

CONTRACT OF EMPLOYMENT – Written particulars
RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Comparison
The Employment Tribunal erred in concluding that an employee who has more than one but less than two months’ service is not entitled to a section 1 Employment Rights Act 1996 statement of terms and conditions of employment. It does not follow from the flexibility afforded to an employer by section 1(2) as to when the statement of initial employment particulars CONTRACT OF EMPLOYMENT – Written particulars

RACE DISCRIMINATION – Direct

RACE DISCRIMINATION – Comparison

The Employment Tribunal erred in concluding that an employee who has more than one but less than two months’ service is not entitled to a section 1 Employment Rights Act 1996 statement of terms and conditions of employment. It does not follow from the flexibility afforded to an employer by section 1(2) as to when the statement of initial employment particulars must be provided, that there is no requirement to provide a statement if the contract ends within two months.

The Employment Tribunal’s dismissal of the Second Claimant’s claim under section 1 and refusal to make an award under section 38 Employment Act 2002 is set aside and substituted with a finding that the First Respondent was in breach of section 1. The case is remitted to a different Tribunal to calculate the award under section 38.

The Employment Tribunal erred in its approach to the Claimants’ complaints of direct race discrimination in (1) not considering whether the manner, as well as the fact of dismissal, constituted direct race discrimination; and (2) in its application of the burden of proof to the evidence in its conclusion that the fact of dismissal did not constitute direct race discrimination. The complaint of direct race discrimination in dismissal is remitted to a new Tribunal for re-hearing. be provided, that there is no requirement to provide a statement if the contract ends within two months.
The Employment Tribunal’s dismissal of the Second Claimant’s claim under section 1 and refusal to make an award under section 38 Employment Act 2002 is set aside and substituted with a finding that the First Respondent was in breach of section 1. The case is remitted to a different Tribunal to calculate the award under section 38.
The Employment Tribunal erred in its approach to the Claimants’ complaints of direct race discrimination in (1) not considering whether the manner, as well as the fact of dismissal, constituted direct race discrimination; and (2) in its application of the burden of proof to the evidence in its conclusion that the fact of dismissal did not constitute direct race discrimination. The complaint of direct race discrimination in dismissal is remitted to a new Tribunal for re-hearing.

[2018] UKEAT 0024 – 18 – 2509
Bailii
England and Wales

Employment, Discrimination

Updated: 15 November 2021; Ref: scu.631853