Preston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc: ECJ 16 May 2000

ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence.

Citations:

[2001] 2 AC 415, C-78/98, [2000] IRLR 06, [2000] EUECJ C-78/98

Links:

Bailii

Jurisdiction:

European

Citing:

Reference FromPreston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
See AlsoFletcher and others and Preston and others v Midland Bank Plc and Wolverhampton Healthcare NHS Trust Secretary of State for Health and others EAT 24-Jun-1996
EAT Equal Pay Act – Addendum to principal judgment. Part timers’ claims for membership of pension schemes only made out of time.
EAT Equal Pay Act – (no sub-topic). . .
See AlsoPreston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .

Cited by:

Returned from ECJPreston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
CitedNorth Cumbria University Hospitals NHS Trust v Fox and Others CA 30-Jun-2010
The employer had altered existing employment contracts. The claimants having commenced discrimination claims then sought to add to the existing proceedings comparators from different job groups. The tribunal had been asked whether, given that this . .
At ECJPreston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
At ECJBainbridge and others v Redcar and Cleveland Borough Council EAT 23-Mar-2007
EAT Practice and Procedure – Compromise
Equal Pay Act – Work rated equivalent; Damages/Compensation
This case raises three issues, two of which are of particular significance in the field of equal . .
See AlsoPreston and others v Wolverhampton Healthcare NHS Trust and Others (No 3) CA 7-Oct-2004
The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time.
Held: The effect of . .
See AlsoPowerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
CitedBirmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 22 May 2022; Ref: scu.231720

Fletcher and others and Preston and others v Midland Bank Plc and Wolverhampton Healthcare NHS Trust Secretary of State for Health and others: EAT 24 Jun 1996

EAT Equal Pay Act – Addendum to principal judgment. Part timers’ claims for membership of pension schemes only made out of time.
EAT Equal Pay Act – (no sub-topic).

Judges:

The Honourable Mr Justice Mummery

Citations:

Times 02-Jul-1996, EAT/6/96, EAT/5/96, [1996] UKEAT 5 – 96 – 2406

Links:

EAT, Bailii

Statutes:

Equal Pay Act 1970 1

Jurisdiction:

England and Wales

Cited by:

See AlsoPreston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .
See AlsoPreston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
See AlsoPreston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
See AlsoPreston and others v Wolverhampton Healthcare NHS Trust and Others (No 3) CA 7-Oct-2004
The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time.
Held: The effect of . .
See AlsoPreston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 May 2022; Ref: scu.171352

Archibald v Fife Council: IHCS 9 Dec 2003

The applicant was a roadsweeper. She complained of disability discrimination, when after becoming unable to walk, her employer after considering her for other posts dismissed her for incapacity.
Held: The ability to walk was a part of the irreducible minimum capacity required of the job. The Code of Practice could not be used as an aid to interpreting the statute. It offered practical guidance only, and itself acknowledged that the primary onus of interprtation fell on courts and tribunals. The offer of entirely different work was not a requirement of the statute.

Judges:

Lord Hamilton And Lord Macfadyen And Lord Mccluskey

Citations:

[2003] ScotCS 308, Times 23-Jan-2004

Links:

Bailii

Statutes:

Employment Tribunal Act 1996 37, Disability Discrimination Act 1996 6

Jurisdiction:

Scotland

Citing:

Appeal fromArchibald v Fife Council EAT 12-Dec-2002
EAT Disability Discrimination – Adjustments
EAT Disability Discrimination – Reasonable adjustments. . .

Cited by:

Appeal fromArchibald 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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 May 2022; Ref: scu.190762

Johnston v Chief Constable of the Royal Ulster Constabulary: ECJ 15 May 1986

The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which underlies the constitutional traditions common to the member states and which is laid down in articles 6 and 13 of the Convention, does not allow a certificate issued by a national authority stating that the conditions for derogating from the principle of Equal Treatment for men and women for the purposes of protecting public safety are satisfied to be treated as conclusive evidence so as to exclude the exercise of any power of review by the courts. The provision contained in article 6 to the effect that all persons who consider themselves wronged by discrimination between men and women must have an effective judicial remedy may be relied upon by individuals as against a member state which has not ensured that it is fully implemented in its internal legal order. It is not permissible to read into the treaty, regardless of the specific cases envisaged by certain of its provisions, a general proviso covering any measure taken by a member state for reasons of public safety. Recognition of such a general proviso might impair the binding nature of community law and its uniform application. It follows that acts of sex discrimination done for reasons related to the protection of public safety must be examined in the light of the derogations from the principle of equal treatment of men and women. Since article 2 (2) of Directive 76/207 authorizes derogations from the right to equal treatment as regards access to employment and working conditions, it must be interpreted strictly and applied in accordance with the principle of proportionality. In deciding whether, by reason of the context in which the activities of a police officer are carried out, the sex of the officer constitutes a determining factor for that occupational activity, it is not excluded that a member state may take into consideration, subject to control by the national courts, requirements of public safety in order to restrict general policing duties, in an internal situation characterized by frequent assassinations, to men equipped with fire-arms. Since article 2 (3) of directive 76/207 authorizes derogations from the right to equal treatment as regards access to employment and working conditions, it must be interpreted strictly. The protection of women which it envisages does not include protection against the risks and dangers, such as those to which any armed police officer is exposed when performing his duties in a given situation, that do not specifically affect women as such. In all cases in which a directive has been properly implemented its effects reach individuals through the implementing measures adopted by the member states concerned. The member states ‘ obligation to achieve the result envisaged by a directive and their duty under article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of the member states including, for matters within their jurisdiction, the courts. It follows that, in applying national law, and in particular the provisions of national legislation specifically introduced in order to implement a directive, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189 of the eec treaty. Individuals may claim the application, as against a state authority charged with the maintenance of public order and safety acting in its capacity of employer, of the principle of equal treatment for men and women laid down in article 2 (1) of directive 76/207 to the matters referred to in articles 3 (1) and 4 concerning the conditions for access to posts and to vocational training and advanced vocational training in order to have a derogation from that principle contained in national legislation set aside in so far as it exceeds the limits of the exceptions permitted by article 2 (2).

Citations:

C-222/84, [1986] ECR 1651, [1987] QB 129, [1986] 3 WLR 1038, [1987] ICR 83, [1986] 3 All ER 135, R-222/84, [1986] EUECJ R-222/84

Links:

Bailii

Statutes:

Council Directive 76/207 6

Cited by:

CitedRegina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
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 . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
CitedBarracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
CitedHome Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
CitedDoughty v Rolls Royce Plc CA 19-Dec-1991
The claimants sought to assert their rights under the Equal Treatment Directive, whoch had not been implemented. She had been made to retire at 60, but said that had she been a man she would not have had to retire until she reached 65 years old. She . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination, Human Rights

Updated: 22 May 2022; Ref: scu.133964

Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland: ECJ 6 Jul 1982

The general scheme and content of Directive 75/117, whose essential purpose is to implement the principle of equal pay for men and women, indicate that it is the responsibility of the member states to guarantee the right to receive equal pay for work of equal value even in the absence of a system of job classification. To that end they must make use of appropriate laws, regulations and administrative provisions in such a way that all employees in the community may be protected in these matters. It follows that where there is disagreement as to the application of the concept of ‘work to which equal value is attributed’ within the meaning of the first paragraph of article 1 of the directive, the worker must be entitled to claim before an appropriate authority that his work has the same value as other work and, if that is found to be the case, to have his rights under the treaty and the directive acknowledged by a binding decision. Each member state must therefore endow an authority with the requisite jurisdiction to decide whether work has the same value as other work.

Citations:

C-61/81, [1982] ICR 578, [1982] EUECJ C-61/81

Links:

Bailii

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.

European, Discrimination

Updated: 21 May 2022; Ref: scu.133210

Susan Jane Worringham and Margaret Humphreys v Lloyds Bank Limited: ECJ 11 Mar 1981

Europa A contribution to a retirement benefits scheme which is paid by an employer on behalf of employees by means of an addition to the gross salary and which therefore helps to determine the amount of that salary constitutes ‘pay’ within the meaning of the second paragraph of article 119 of the EEC treaty. Directive 75/117/EEC is based on the concept of ‘pay’ as defined in the second paragraph of article 119 of the EEC Treaty. Although article 1 of the directive explains that the concept of ‘same work’ contained in the first paragraph of article 119 of the treaty includes cases of ‘work to which equal value is attributed’, it in no way affects the concept of ‘pay’ contained in the second paragraph of article 119 but refers by implication to that concept. Article 119 of the EEC treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question, without national or community measures being required to define them with greater precision in order to permit of their application. The forms of discrimination which may be thus judicially identified include cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. This is the case where the requirement to pay contributions to a retirement benefits scheme applies only to men and not to women and the contributions payable by men are paid by the employer on their behalf by means of an addition to the gross salary the effect of which is to give men higher pay within the meaning of the second paragraph of article 119 than that received by women engaged in the same work or work of equal value.

Citations:

C-69/80, [1981] 1 WLR 950, [1981] ICR 558, [1981] 2 All ER 434, R-69/80, [1981] EUECJ R-69/80

Links:

Bailii

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.

European, Discrimination, Employment

Updated: 21 May 2022; Ref: scu.133026

Macarthys Ltd v Smith: ECJ 27 Mar 1980

The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by the article in question. Cases where men and women receive unequal pay for equal work carried out in the same establishment or service are among the forms of discrimination which may be thus judicially identified. In such a situation the decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing ‘equal work’ within the meaning of article 119. That concept is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question. Its scope may not therefore be restricted by its being confined to situations in which men and women are contemporaneously doing equal work for the same employer. It cannot, however, be ruled out that a difference in pay between two workers occupying the same post but at different periods in time may be explained by the operation of factors which are unconnected with any discrimination on grounds of sex. That is a question of fact which it is for the court or tribunal to decide. In cases of actual discrimination falling within the scope of the direct application of article 119 comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service. The principle of equal pay enshrined in article 119 therefore applies to the case where it is established that, having regard to the nature of her services, a woman has received less pay than a man who was employed prior to the woman ‘ s period of employment and who did equal work for the employer.

Citations:

C-129/79, [1981] QB 180, [1980] 3 WLR 929, [1980] ICR 672, [1981] 1 All ER 111, R-129/79, [1980] EUECJ R-129/79

Links:

Bailii

Statutes:

Council Directive 75/117/EEC

Citing:

Reference FromMacarthys Ltd v Smith CA 1980
The employee had taken on a job substantially similar to that of a previous male employee, but had been paid less. She succeeded in a claim under the 1971 Act before the industrial tribunal and Employment Appeal Tribunal. The employer appealed . .
At EATSmith v Macarthys Ltd EAT 14-Dec-1977
Mrs Smith was employed by the respondents, wholesale dealers in pharmaceutical products, as a warehouse manageress at a weekly salary of andpound;50. She complained of discrimination in pay because her male predecessor whose post she took up after . .

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 . .
CitedSharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
CitedSodexo Ltd v Gutridge and others EAT 31-Jul-2008
EAT EQUAL PAY ACT
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
At ECJMacarthys Ltd v Smith (No.2) CA 17-Apr-1980
The parties had disputed a difference in payment between the woman applicant and men doing similar work. After a lengthy dispute the parties now disputed the costs.
Held: The company had correctly been ordered to pay the costs. . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination, Employment

Updated: 21 May 2022; Ref: scu.132902

Defrenne v Sabena Airlines: ECJ 15 Jun 1978

LMA Ms Defrenne was an air hostess employed by SABENA, a Belgian airline company. She brought an action against the airline based on Art.119 [now141] EC. Ms Defrenne claimed that in paying their male stewards more than their air hostesses, when they performed identical tasks, Sabena were in breach of Art.119EC. The question to the ECJ was whether, and in what context, Art.199EC was directly effective. The ECJ held ‘the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals’
Europa Article 119 of the EEC Treaty, which is limited to the question of pay discrimination between men and women workers, constitutes a special rule, whose application is linked to precise factors. It cannot be interpreted as prescribing, in addition to equal pay, equality in respect of the other working conditions applicable to men and women. The fact that the fixing of certain conditions of employment – such as a special age-limit – may have pecuniary consequences is not sufficient to bring such conditions within the field of application of article 119, which is based on the close connection which exists between the nature of the services provided and the amount of remuneration.
Fundamental personal human rights form part of the general principles of community law, the observance of which the court has a duty to ensure. The elimination of discrimination based on sex forms part of those fundamental rights. However, it is not for the court to enforce the observance of that rule of non-discrimination in respect of relationships between employer and employee which are a matter exclusively for national law.

Citations:

[1979] ECR 1365, C-149/77, R-149/77, [1978] EUECJ R-149/77

Links:

Bailii

Citing:

see alsoGabrielle Defrenne v Belgian State ECJ 25-May-1971
ECJ The concept of pay as defined in article 119 of the EEC Treaty does not include social security schemes or benefits directly governed by legislation without any element of agreement within the undertaking or . .
See alsoDefrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Discrimination

Updated: 21 May 2022; Ref: scu.132571

Abbey Life Assurance Company Limited v Tansell: CA 6 Apr 2000

Appeal about the scope of protection conferred by the 1995 Act on ‘contract workers’, workers who do work for the alleged discriminator, but not employed by him. They are employed by someone else and their services are contracted out.
The case turns on the interpretation of section 12 of the 1995 Act which makes it unlawful to discriminate against disabled contract workers. The point arises as a preliminary issue in an application to the Employment Tribunal in the field of employment for a reason relating to his disability.

Judges:

Stuart-Smith, Ward, Mummery LJJ

Citations:

[2000] IRLR 387, [2000] EWCA Civ 107, [2000] ICR 789

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 20 May 2022; Ref: scu.115986

Carver (Nee Mascarenhas) v Saudi Arabian Airlines: CA 17 Mar 1999

The applicant was recruited in Saudi Arabia in 1986 as a flight attendant under a contract expressed to be subject to Saudi Arabian law. After being trained in Jeddah, and then employed in India for four years, she was transferred to be based in London, from which all her tours of duty as a flight attendant thereafter commenced, and at which they ended. She complained of unfair dismissal and of sex discrimination.
Held: By reference to the relevant test at the time for the jurisdiction of UK tribunals in relation to unfair dismissal, she did not ordinarily work in Great Britain. So far as concerned the sex discrimination claim, the applicant’s appeal was allowed to the extent that the issue was remitted to a differently constituted tribunal to determine where the applicant wholly or mainly did her work at the relevant time. When a tribunal has to decide where an employee ‘ordinarily works’, the tribunal must look to the entire period of the contract, and not to some smaller, artificial, part. A contract begun and substantially worked in Jeddah was not subject to UK law. As to the term ‘ordinarily’: ‘Here the position was quite different. The Tribunal had to consider where at the time of the alleged discrimination the appellant was ‘wholly or mainly’ working [our underlining]. See Haughton v Olau Line (UK) Ltd [1986] ICR 357 in the Court of Appeal. However, the tribunal decided jurisdiction on where the applicant was ordinarily working. That was impermissible. Insofar as the tribunal purported to make a finding of fact as to where the applicant was wholly or mainly working, it seems to me that it did so without any evidential basis. The tribunal appears to have taken the monthly, minimum, flying time, namely 72 hours, required of the applicant and set it against a notional working week of 40 hours. By such a comparison it would seem that the applicant worked most of her time within Great Britain. But neither the 72 hours minimum flying time nor the notional 40-hour week had any relevance to the question which had to be determined. Consequently I would hold the finding to be without any foundation and as such to amount to an error of law. I would be minded therefore, to remit the question of jurisdiction under the Sex Discrimination Act 1975 to the tribunal, differently constituted, with a direction to determine the question of jurisdiction on the basis of where the applicant wholly or mainly did her work at the relevant time.’

Judges:

Mantell LJ, Beldam LJ and Ward LJ

Citations:

Times 24-Mar-1999, Gazette 27-Jun-1999, [1999] EWCA Civ 1002, [1999] ICR 991

Links:

Bailii

Statutes:

Employment Rights Act 1996 196

Jurisdiction:

England and Wales

Citing:

DistinguishedTodd v British Midland Airways CA 2-Jan-1978
The court discussed the test to be applied to an employment to see whether a British court had jurisdiction over it: ‘But in other cases there is more difficulty. I refer particularly to the type of case we have here of the airline pilot. He is . .

Cited by:

CitedSerco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
CitedSaggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
CitedSaggar v Ministry of Defence CA 27-Apr-2005
The claimant sought to bring an action for race discrimination. The defendant argued that the alleged acts of discrimination took place whilst he was on a posting abroad in Cyprus after serving 16 years in England, and that therefore the tribunal . .
CitedCrofts and others v Cathay Pacific Airways Ltd and others CA 19-May-2005
The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
Held: The pilots were employed . .
CitedSerco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Lists of cited by and citing cases may be incomplete.

Employment, Jurisdiction, Discrimination

Updated: 20 May 2022; Ref: scu.118485

Yorkshire Blood Transfusion Service v Plaskitt: EAT 17 Aug 1993

An employer paying the wrong salary by mistake, led to worse treatment but not by any difference of sex which might justify or base a claim of sex discrimination. There was no reason why an employer’s own mistake could not be a sufficient factor without there being any discrimination.

Citations:

Ind Summary 30-Aug-1993, Times 17-Aug-1993, [1993] UKEAT 108 – 93 – 3006

Links:

Bailii

Statutes:

Equal Pay Act 1970 1(3)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 May 2022; Ref: scu.90668

Wardman v Carpenter Farrer Partnership: EAT 14 May 1993

Industrial Tribunals to receive European guidance on sexual harassment.

Citations:

Times 31-May-1993, [1993] UKEAT 62 – 93 – 1405

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 1(1)(a)

Citing:

CitedMeek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 20 May 2022; Ref: scu.90304

Smith v Safeway Plc: EAT 9 Dec 1994

A male employee had been unlawfully discriminated against when he had been dismissed for having long hair, where the same requirements would not have been made of female employees.

Citations:

Ind Summary 16-Jan-1995, Times 16-Dec-1994, [1994] UKEAT 185 – 93 – 0912

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 20 May 2022; Ref: scu.89342

Sirdar v Army Board and Another: ECFI 27 Oct 1999

It was possible for the Royal Marine unit to exclude the employment of a woman as a chef. The requirement not to discriminate was overriding save where the nature of the work makes the sex of the worker a determining factor. The nature and rules of a marine unit, required interoperability, in that any member could be called upon to fulfil any role. The marines occupied a particular status and role which made such discrimination necessary and proper.

Citations:

Times 27-Oct-1999, C-273/97, [1999] EUECJ C-273/97, ECLI:EU:C:1999:523, [1999] ECR I-7403

Links:

Bailii

Statutes:

EC Treaty art 234, Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment etc

Jurisdiction:

European

Citing:

See AlsoSirdar v Ministry of Defence EAT 15-Sep-1995
The claimant had brought a sex discrimination claim, saying that she had bee refused opportunity to work as a chef with the Royal Marines. She and the defendants had had sought an adjournment of the claim, but this had been refused.
Held: . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 20 May 2022; Ref: scu.89281

Regina v Dyfed County Council Ex Parte S (Minors): CA 25 Jul 1994

No objection was to be taken for English children sent to mainly Welsh speaking school. They were not entitled to transport to a school with a greater number of English speakers.

Citations:

Independent 12-Aug-1994, Times 25-Jul-1994

Jurisdiction:

England and Wales

Citing:

Appeal fromRegina v Dyfed County Council Ex Parte S (Minors) QBD 21-Dec-1993
No Judicial Review was available for English speaking children who had allocated to a Welsh speaking school. . .

Cited by:

CitedJones, Regina (on the Application of) v Ceredigion County Council Admn 22-Jun-2004
The parents lawfully chose to send their child to a Welsh language school. The authority refused to provide free transport on the basis that a nearer school was available even though it was not a Welsh language school.
Held: Provided the . .
Lists of cited by and citing cases may be incomplete.

Education, Discrimination

Updated: 20 May 2022; Ref: scu.86597

Cary v Commissioner of Police for The Metropolis Equality and Human Rights Commission: CA 17 Jul 2014

In a claim for sex discrimination by the police the court was asked whether the judge in the Central London County Court was right to overrule Mr Cary’s objection to a particular individual acting as an assessor on the ground that, for this type of case, an assessor is required to have specific experience and expertise in relation to issues of discrimination on the grounds of same sex sexual orientation.

Citations:

[2014] EWCA Civ 987, [2014] WLR(D) 320, [2014] CP Rep 42, [2015] ICR 71, [2014] Eq LR 707

Links:

Bailii, WLRD

Statutes:

Equality Act (Sexual Orientation) Regulations 2007

Jurisdiction:

England and Wales

Discrimination, Litigation Practice

Updated: 20 May 2022; Ref: scu.534415

Walker v Innospec Ltd and Others: SC 12 Jul 2017

The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was precisely the same as that which would have been paid to a heterosexual man. There was no reason for the company to anticipate that it would not become liable to pay a survivor’s pension to his lawful spouse. The date when that pension will come due, provided Mr Walker and his partner remain married and his partner does not predecease Mr Walker, is the time at which denial of a pension would amount to discrimination on the ground of sexual orientation.
‘it is vital to keep the two concepts distinct. ‘No retroactivity’ and ‘future effects’ are principles of law which apply to all EU legislation, unless a contrary intention can be found. The Barber exception is an example of a technique used by the CJEU to limit the generally retroactive application of its judgments, which it will only exercise in the most exceptional circumstances and where the impact would be truly ‘catastrophic’. The court limits the temporal application of its judgments in cases where reliance has been placed on a different understanding of the law and legitimate expectations may be upset, but only in the most special circumstances. Therefore, how the court exceptionally applies a temporal limitation to one of its rulings has no inevitable bearing on the temporal application of legislation as a matter of principle.’
‘Mr Walker’s husband, provided he does not predecease him, and that they remain married at the time of Mr Walker’s death, is entitled under the Framework Directive to a spouse’s pension calculated on the basis of all the years of Mr Walker’s service with Innospec. On that account, paragraph 18 of Schedule 9 is incompatible with the Framework Directive. In particular, paragraph 18(1)(b) which authorises a restriction of payment of benefits based on periods of service before 5 December 2005 cannot be reconciled with what I consider to be the plain effect of the Directive.’

Judges:

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath, Lord Hughes JJSC

Citations:

[2017] UKSC 47, [2017] IRLR 928, [2017] ICR 1077, [2017] WLR(D) 477, UKSC 2016/0090

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170308am Video, SC 20170308pm Video, SC 20170317am Video, SC 20170317pm Video

Statutes:

Civil Partnership Act 2004, Council Directive 2000/78/EC

Jurisdiction:

England and Wales

Citing:

CitedBull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
CitedDefrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
CitedAndersson and Wakeras-Andersson v Svenska Staten ECJ 15-Jun-1999
(External relations) Article 234 EC (ex-Article 177) – EEA Agreement – Jurisdiction of the Court of Justice – Accession to the European Union – Directive 80/987/EEC – Liability of a State
Advocate General Jacobs said: ‘Retroactive effect . .
CitedBilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
CitedBarber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
CitedVroege v Nciv Instituut Voor Volkshuisvesting Bv and Stichting Pensioenfonds Nciv ECJ 28-Sep-1994
1. Social policy – Male and female workers – Equal pay – Pay – Concept – Right to join a private occupational pension scheme – Included – Exclusion of married women from membership – Not permissible – Exclusion of part-time workers – Part-time staff . .
Appeal fromO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
CitedInnospec Ltd and Others v Walker EAT 18-Feb-2014
EAT Sex Discrimination : Sexual Orientation discrimination / transexualism : The recipient of an occupational pension since 2003, under the terms of a pension scheme which provided survivor’s benefits to spouses . .
CitedChester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
CitedLand Nordrhein-Westfalen v Pokrzeptowicz-Meyer ECJ 29-Jan-2002
External relations – Europe Agreement between the Communities and Poland – Interpretation of the first indent of Article 37(1) – Prohibition of discrimination based on nationality as regards conditions of employment or dismissal for Polish workers . .
CitedMaruko v Versorgungsanstalt der deutschen Buhnen ECJ 6-Sep-2007
ECJ Pension paid by a compulsory occupational pension – Refusal survival due to the absence of marriage to same-sex partners Directive 2000/78 / EC Scope Exclusion of social security benefits Concept of pay – . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedParris v Trinity College Dublin and Others ECJ 24-Nov-2016
No retrospection for pensions of civil partnership
ECJ (Judgment) Reference for a preliminary ruling – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2 – Prohibition of discrimination on grounds of sexual orientation and age – . .

Cited by:

CitedMiller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 20 May 2022; Ref: scu.589262

The Ministry of Justice v O’Brien: EAT 4 Mar 2014

EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a matter of law, take into account only his period of service since the Directive had to be brought into force, 7th April 2000, and not any earlier period of service when discrimination against part-time workers had not been rendered unlawful under the Directive. This follows from many decisions of the ECJ/CJEU on occupational pensions and reflects the principle well-established in European law of legal certainty. This legal position is acte clair and no reference to the CJEU is required.
However, the Claimant was, as a matter of pleading, entitled to argue that his pension calculations should reflect a notional full-day’s pay for a full-day’s training, even though the fees actually paid had only been for a half-day.
For the purposes of comparison with the position of a full-time circuit judge and the pro-rata calculation of pension for the part-timer, the full-time judge should be taken to work for 210 days per annum.
Appeal by the Ministry of Justice allowed in part.

Judges:

Sir David Keene

Citations:

[2014] IRLR 440, [2014] UKEAT 0466 – 13 – 0403, [2014] ICR 773

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
At SC (1)O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .

Cited by:

Appeal fromO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
At EATO’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
At EATMinistry Of Justice v O’Brien and Others CA 9-Nov-2015
. .
At EATMiller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Discrimination

Updated: 20 May 2022; Ref: scu.522144

O’Brien v Ministry of Justice: SC 12 Jul 2017

The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a retirement pension falls due for payment. The directive applies ratione temporis where the pension falls due for payment after the directive has entered into force. In so far as part of the period of service took place prior to the directive’s entry into force, the directive applies to the future effects of that situation.’
Case referred to the ECJ: ‘Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non-discrimination, require that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part-time worker, if they would be taken into account when calculating the pension of a comparable full-time worker?’

Judges:

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath, Lord Hughes JJSC

Citations:

[2017] UKSC 46, [2017] WLR(D) 478, [2017] IRLR 939, [2017] ICR 1101

Links:

Bailii, Bailii Summary, WLRD

Statutes:

Council Directive 97/81/EC, Judicial Pensions Act 1981, Judicial Pensions and Retirement Act 1993, Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Citing:

See AlsoDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
See AlsoO’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At ECJO’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SC(1)O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
At EATThe Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
Appeal fromO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
CitedIstituto nazionale della previdenza sociale (INPS) v Lotti, Matteucci (Social Policy) ECJ 10-Jun-2010
EU Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
CitedIstituto nazionale della previdenza sociale (INPS) v Bruno, Pettini (Social Policy) ECJ 10-Jun-2010
Europa Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
CitedCommission v Moravia Gas Storage ECJ 26-Mar-2015
Judgment – Appeals – Internal market in natural gas – Obligation of natural gas undertakings – Organisation of a system of negotiated third party access to gas storage facilities – Decision of the Czech authorities – Temporary exemption for future . .
CitedTen Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .

Cited by:

Reference to ECJMiller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Discrimination

Updated: 20 May 2022; Ref: scu.589261

O’Brien v Ministry of Justice and Others: CA 6 Oct 2015

The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no retroactivity’ principle of EU law was ‘that EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect. The purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.’ The Part Time Workers Directive did not apply retrospectively so as to bring periods of service performed before the directive came into effect into the calculation of the claimant’s pension entitlement.
Lewison LJ identified two relevant principles of EU law. First was the ‘no retroactivity’ principle and the ‘future effects’ principle. The first of these principles prescribed that ‘EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected’. Having found that to require payment of a spouse’s pension to Mr Walker’s husband, after Mr Walker’s death, would be to give the Framework Directive retrospective effect, it concluded that the no retroactivity principle precluded this. The second principle was that amending legislation applies immediately to the future effects of a situation which arose under the law as it stood before amendment, unless there was a specific provision to the contrary.

Judges:

Lord Dyson MR, Lewison, Underhill LJJ

Citations:

[2015] EWCA Civ 1000, [2016] ICR 182, [2015] WLR(D) 406, [2015] Pens LR 543, [2016] 1 CMLR 28, [2015] IRLR 1005

Links:

Bailii, WLRD

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 1(2)(3), Council Directive 97/81/EC

Jurisdiction:

England and Wales

Citing:

See AlsoDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
See AlsoO’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At ECJO’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SC (1)O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Appeal fromThe Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
CitedDefrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .

Cited by:

CitedEmerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Appeal fromO’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
Appeal fromWalker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
CitedMiller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 20 May 2022; Ref: scu.553048

Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment): ECJ 6 Oct 1993

Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, benefits provided for by private occupational pension schemes] that there is a time-lag between the accrual of entitlement to the pension, which occurs gradually throughout the employee’s working life, and its actual payment, which is deferred until a particular age . . Given the reasons explained in para 44 of the Barber judgment for limiting its effects in time, it must be made clear that equality of treatment in the matter of occupational pensions may be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, the date of the Barber judgment . .’

Citations:

Times 12-Oct-1993, C-109/91, [1993] EUECJ C-109/91, [1995] ICR 74, [1993] ECR I-4879, [1993] IRLR 601, [1995] 2 CMLR 357

Links:

Bailii

Jurisdiction:

European

Citing:

CitedTen Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
CitedBarber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .

Cited by:

CitedTen Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
CitedO’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
CitedMiller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 20 May 2022; Ref: scu.160690

Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another: QBD 1995

(Divisional and Court of appeal) The claimants sought judicial review of a condition requiring an employee to have had two years of continuous employment before becoming eligible to make a claim for unfair dismissal. This condition was neutrally expressed and all employees, regardless of age, had to satisfy it in order to qualify to bring unfair dismissal claims. Statistics, however, showed that proportionately fewer women employees than male employees were able to satisfy it and, accordingly, that a higher proportion of women than of men were disadvantaged by it. The dicisional court dismissed the request, but it succeeded at appeal.
Balcombe LJ summarised the arguments placed before the Divisional Court: ‘So the first question we have to resolve is: What is the test which the Court should apply in deciding whether the effect of the two-year qualifying period prima facie discriminates against women? On behalf of the Secretary of State Mr Richards submits that the comparison is between the proportion of women who can comply with the qualification and the proportion of men who can comply with the qualification, and the former proportion must be considerably smaller than the latter. On behalf of the applicants Mr Allen submits that the essential comparison is between the proportion of women who cannot comply with the qualification (ie those who are disadvantaged by the qualification) and the proportion of men who cannot comply with the qualification, and then to consider the ratio between these two proportions. An example taken from the evidence will illustrate the difference between these two approaches. In the year 1985, out of a total workforce of some 18.73 million persons, 61% were male and 39% female; 77.4% of the male workers had two years’ service or more, but only 68.9% of the female workforce. So the proportion of females to males with two years’ or more service was 89:100. If, on the other hand, one looks at those with less than two years’ service, 31.1% of the female workforce had less than two years’ service compared with 22.6% of the male workforce, ie about 3:2.’ . . And ‘In my judgment Mr Allen’s submission cannot be correct unless it is qualified – which, to be fair to him, he concedes may be necessary. In paragraph 17 of his second affidavit on behalf of the Secretary of State, Mr Peter Parker makes the following point:
‘If the question is asked whether a considerably greater proportion of women than of men cannot comply with a given requirement or condition . . the results can be seriously misleading. If a hypothetical requirement is considered which 99.5% of men can comply with but only 99% of women, it follows that the proportion of women who cannot comply with the requirement is twice as great as the proportion of men who cannot comply. The figures relevant to the present proceedings are very much less extreme; nevertheless the arguments advanced . . are of the same kind and are, it is contended, similarly misleading.’
The logic of this argument is unanswerable and, indeed, unanswered by the applicants or their expert witnesses.’
McCulloch J said: ‘My conclusion is that, in considering whether there is considerable disparity, the court should look both at the relative percentages of those who meet the requirement and at the relative percentages of those who do not. Of these, the more important group will be those who qualify. The following example makes the point. If 98% of men qualify and 2% do not, and if 96% of women qualify and 4% do not, it would not be right to conclude that the disparity was considerable. But if only 4% of men and only 2% of women qualified the opposite conclusion might well be correct.’
The Court of Appeal allowed the appeal and declared that the Statutory Instrument (SI) introducing the two year qualifying period was incompatible with the Equal Treatment Directive. They did nor adjudicate on the question whether or not the SI infringed what was then Article 119 of the Treaty:’Despite our anxieties, however, we have been forced to the conclusion that on the material before us it has been demonstrated that for the period leading up to the dismissals of the two applicants there had been and continued to be a considerable and persistent difference in the numbers and percentages of men and women in the groups that did comply and the groups that did not comply with the two year qualification period.’

Judges:

Balcombe LJ, McCulloch J

Citations:

[1995] ICR 889

Jurisdiction:

England and Wales

Cited by:

Appeal fromRegina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another CA 3-Aug-1995
The rule which extended to two years, the time before the vesting of employment rights was discriminatory, since it affected more women than men. . .
See AlsoRegina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 19 May 2022; Ref: scu.211369

Lodwick v London Borough of Southwark: EAT 7 Mar 2003

The applicant was employed by the respondent and sought leave to work for the CAB for a year, requesting a sabbatical. Leave was refused. He applied to the employment tribunal, but objected that the chairman had, in a previous case, indicated his strong dislike of the applicant. The chairman refused to recuse himself.
Held: The proposed appeal was not on a question of law, and the EAT did not have jurisdiction to hear the appeal. ‘The claim based on the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Directive 97/81 EC seems to me to have been entirely misconceived. Those provisions were designed to protect part-time workers from being discriminated against when compared with full-time workers. They do not give a right to an employee who wants to go and work for somebody else to insist that his original employer continues to employ him part-time. ‘

Citations:

[2003] EAT 1285 – 02 – 0703, [2003] UKEAT 1285 – 02 – 0703

Links:

Bailii, Bailii

Statutes:

Employment Tribunals Act 1996 21(1)

Jurisdiction:

England and Wales

Citing:

Appealed toLodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .

Cited by:

Appeal fromLodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 May 2022; Ref: scu.189318

Marshall v Southampton and South West Hampshire Area Health Authority (No 2): ECJ 2 Aug 1993

The UK law limiting awards of damages in sex discrimination cases is unlawful, and fails to implement European directive fully. Financial compensation must be at a level adequate to achieve equality between the workers identified.

Citations:

Independent 04-Aug-1993, Times 04-Aug-1993, C-271/91, [1993] ECR 1-4367, [1993] EUECJ C-271/91, [1994] QB 126

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 65

Jurisdiction:

European

Cited by:

CitedKhatun, Zeb, Iqbal v London Borough of Newham Admn 10-Oct-2003
Each applicant had been accepted as homeless by the respondent, but was then offered alternative accomodation under terms which they found unacceptable. They argued that the Regulations applied. The council had disapplied one statutory guidance in . .
CitedPreston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
CitedAlabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
CitedAutologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
CitedP v Commissioner of Police of The Metropolis SC 25-Oct-2017
This appeal concerns the directly effective right of police officers under EU law to have the principle of equal treatment applied to them. The question raised is whether the enforcement of that right by means of proceedings in the Employment . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 19 May 2022; Ref: scu.160799

Preston and others v Wolverhampton Healthcare Trust Secretary of State for Health: CA 13 Feb 1997

Citations:

[1997] EWCA Civ 1013

Jurisdiction:

England and Wales

Citing:

See AlsoFletcher and others and Preston and others v Midland Bank Plc and Wolverhampton Healthcare NHS Trust Secretary of State for Health and others EAT 24-Jun-1996
EAT Equal Pay Act – Addendum to principal judgment. Part timers’ claims for membership of pension schemes only made out of time.
EAT Equal Pay Act – (no sub-topic). . .

Cited by:

Appeal fromPreston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
See AlsoPreston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
See AlsoPreston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
See AlsoPreston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
See AlsoPreston and others v Wolverhampton Healthcare NHS Trust and Others (No 3) CA 7-Oct-2004
The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time.
Held: The effect of . .
See AlsoPowerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 19 May 2022; Ref: scu.141409

Magorrian and Cunningham v Eastern Health and Social Services Board and Department of Health and Social Services: ECJ 11 Dec 1997

Pension entitlements for part time workers discriminated against were to be re-calculated to allow for wrongful treatment since 1976
Europa Reference for a preliminary ruling: Office of the Industrial Tribunal and the Fair Employment Tribunal, Belfast – United Kingdom. Equal pay for men and women – Article 119 of the EC Treaty – Protocol No 2 annexed to the Treaty on European Union – Occupational social security schemes – Exclusion of part-time workers from status conferring entitlement to certain additional retirement pension benefits – Date from which such benefits are payable – National procedural time-limits.

Citations:

Times 22-Dec-1997, C-246/96, [1997] EUECJ C-246/96

Links:

Bailii

Statutes:

EC Treaty Art 177

Jurisdiction:

European

Citing:

CitedSteenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen ECJ 27-Oct-1993
Europa Community law does not preclude the application of a national rule of law according to which benefits for incapacity for work are payable no more than one year before the date of claim, in the case where . .

Cited by:

CitedPreston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 19 May 2022; Ref: scu.161915

Regina v White: CACD 14 Feb 2001

The court asked whether calling a woman an ‘African bitch’ was capable in law of demonstrating hostility towards the complainant, who came from Sierra Leone, as being a member of a racial group.
Held: The meaning of ‘racial group’ was not so tied down by the Act as to be restricted to dictionary definitions. Accordingly the language was to be given a broad and non-technical meaning. The term ‘African’ could therefore refer to a racial grouping for the purposes of the Act. The Act was not phrased so as to excuse members of a racial group insulting racially another member of the same racial group: ‘. . In our judgment, the word African does describe a ‘racial group’ defined by reference to race. In ordinary speech, the word African denotes a limited group of people regarded as of common stock and regarded as one of the major divisions of humankind having in common distinct physical features. It denotes a person characteristic of the blacks of Africa, to adopt a part of the definition in the dictionary.’ The Court distinguished the terms ‘African’ from ‘South American’: ‘Reference was made to South America in the course of argument and we mention it to make a distinction. Whereas the word African has a racial connotation, the expression South American, in England and Wales, probably does not. The range of physical characteristics in the populations of that continent, and the absence of prominence of any one group, is such that the use of the expression South American does not bring to mind particular racial characteristics. We would not expect there to be a common perception in England and Wales of a South American racial group.’

Judges:

Pill, Pitchford LJJ

Citations:

Times 13-Mar-2001, [2001] EWCA Crim 216, [2001] 1 WLR 1352

Links:

Bailii, Bailii

Statutes:

Public Order Act 1986 4, Crime and Disorder Act 1998 31

Cited by:

CitedRogers, Regina v CACD 10-Nov-2005
The defendant appealed his conviction for racially aggravated abusive or insulting words or behaviour with intent to cause fear or to provoke violence. He was driving his motorised scooter and came across three Spanish women. In the course of an . .
CitedRogers, Regina v HL 28-Feb-2007
The House was asked whether the use of the phrases ‘bloody foreigners’ and ‘get back to your own country’ counted to make a disturbance created by the defendant a racially aggravated crime.
Held: (Baroness Hale of Richmond) ‘The mischiefs . .
Lists of cited by and citing cases may be incomplete.

Crime, Discrimination

Updated: 19 May 2022; Ref: scu.88706

Rhys-Harper v Relaxion Group plc: CA 3 May 2001

A sex discrimination claim involving a claim by an employee for damages for sexual harassment, had to be made during the period of employment. An employer’s failure to deal properly with an allegation of sexual harassment could itself be a detriment under the Act and Directive. The fact that the statutes against sex discrimination and race discrimination might have some disparities did not mean, that for this purpose at least, they could not be read similarly. The EAT had therefore been correct to follow the decision in Adekeye in this case.

Judges:

Lord Justice Pill, Lord Justice Mantell And Lord Justice Buxton

Citations:

Times 12-Jun-2001, Gazette 14-Jun-2001, [2001] EWCA Civ 634, [2001] 2 CMLR 44, [2001] IRLR 460, [2001] ICR 1176, [2001] Emp LR 646

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Jurisdiction:

England and Wales

Citing:

AppliedPost Office v Adekeye CA 13-Nov-1996
Race discrimination which took place after a dismissal was not unlawful within the section, since that first required the context of employment, and after the dismissal, the applicant was no longer in that employment. The natural meaning of the . .
Appealed toRelaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
CitedCoote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .

Cited by:

Appeal fromRelaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.88769

Rovenska v General Medical Council: EAT 22 Sep 1994

The complainant said that the respondent’s rules imposing language skills testing on doctors with recognised foreign qualifications were discriminatory.
Held: Discriminatory rules are a continuing act and the complaint was not barred by time limit. The complaint was not time-barred because it was: ‘about the maintenance and operation of a scheme for exemption which extends over a period, that period being the currency of the scheme or rules.’

Judges:

Mummery J

Citations:

Independent 22-Sep-1994, [1994] UKEAT 163 – 93 – 1103

Links:

Bailii

Cited by:

Appeal fromRovenska v General Medical Council CA 4-Dec-1996
A Czechoslovakian doctor complained against the General Medical Council under Section 12(1)(a) of the 1976 Act 1976 in respect of the most recent of a series of refusals, under its rules for the grant of limited registration as a medical . .
CitedCast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.88876

Regina v Immigration Appeal Tribunal and Another ex parte Shah: HL 25 Mar 1999

Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as visitors for six months. Both applicants subsequently applied for asylum on the ground that having been abandoned by their husbands, lacking any other male protection and condemned by the local community for sexual misconduct, they feared that if they were returned to Pakistan they would suffer persecution in the form of physical and emotional abuse. They would be ostracised and unprotected by the authorities. Indeed they might even be liable to death by stoning in accordance with Pakistani Sharia law. Asylum was rejected on the basis that they did not form part of a social group.
Held: Discrimination against women and a refusal to protect them against domestic violence, could make them a social grouping, and therefore two women facing accusations of adultery, which might lead to their being stoned to death if returned to their home country, were properly found to be refugees. Each claim to refugee status case must always depend on the evidence.
Lord Hoffmann said: ‘The concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect.’ and ‘ Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race. It offends against their rights as human beings to equal treatment and respect.’ In general, there can only be a ‘particular social group’ if that group exists independently of the persecution alleged.
Lord Steyn considered the decision in Acosta: ‘I am satisfied that for the reasons given in Acosta’s case the restrictive interpretation of ‘particular social group’ by reference to an element of cohesiveness is not justified. In 1951 the draftsman of article 1A(2) of the Convention explicitly listed the most apparent forms of discrimination then known, namely the large groups covered by race, religion, and political opinion. It would have been remarkable if the draftsman had overlooked other forms of discrimination. After all, in 1948 the Universal Declaration had condemned discrimination on the grounds of colour and sex. Accordingly, the draftsman of the Convention provided that membership of a particular social group would be a further category. It is not ‘an all-encompassing residual category:’ Hathaway, The Law of Refugee Status, p 159. Loyalty to the text requires that one should take into account that there is a limitation involved in the words ‘particular social group.’ What is not justified is to introduce into that formulation an additional restriction of cohesiveness. To do so would be contrary to the ejusdem generis approach so cogently stated in Acosta’s case.’

Judges:

Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Millett

Citations:

Gazette 28-Apr-1999, Times 26-Mar-1999, [1999] UKHL 20, [1999] 2 AC 629, [1999] 2 All ER 545, [1999] Imm AR 283, 6 BHRC 356, [1999] 2 WLR 1015, [1999] INLR 144

Links:

Bailii

Statutes:

Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171) 1A(2)

Jurisdiction:

England and Wales

Citing:

Appeal fromRegina v Immigration Appeal Tribunal Secretary of State for Home Department ex parte Shah and Others CA 23-Jul-1997
Even the justified fears of being stoned to death for adultery did not create a particular separate group from which protection from persecution could be claimed in support of an application for asylum. A ‘social group’ for refugee applicants, had . .
CitedA v Minister for Immigration and Ethnic Affairs and Another 1997
(Australia) A claim to refugee status was made by a husband and wife who had come from China to Australia. They said that they feared sterilization under the ‘one child policy’ of China if they were returned.
Held: There is a general principle . .
CitedSavchenko v Secretary of State for the Home Department CA 1996
The alleged group of Russian security guards at a hotel who feared victimisation by the mafia, did not exist independently of the persecution and were not protected as a group under the Convention: ‘The Secretary of State submits . . that the . .
CitedEmpress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .
CitedIn re Acosta 1985
US Board of Immigration Appeals –
Held: ‘We find the well-established doctrine of ejusdem generis, meaning literally, ‘of the same kind,’ to be most helpful in construing the phrase ‘membership in a particular social group.’ That doctrine . .

Cited by:

AppliedChoudhrey v Immigration Appeal Tribunal Admn 1-Aug-2001
The applicant sought to review refusal of his request to appeal in turn the refusal of his request for asylum as an Ahmadi from Pakistan. He had twice been assaulted by a non-government racist group. There was legislation having the effect of . .
AppliedRegina (Ivanauskiene) v A Special Adjudicator CA 31-Jul-2001
The applicant had sought asylum. Her case had been refused, according to the law as stated at that time, but the decision then binding on the adjudicator (Shah), had been reversed in the House of Lords. It had now been held that the women of a . .
CitedRegina v Secretary of State for the Home Department, ex parte Sivakumar HL 20-Mar-2003
The appellant sought asylum. He had fled Sri Lanka. He was a Tamil and feared torture if he returned. His application had been rejected because the consequences flowed from his suspected involvement in terrorism, and that was not a Convention . .
CitedRegina (Husan) v Secretary of State for the Home Department QBD 24-Feb-2005
The applicant sought asylum from Bangladesh. His application was refused, and the respondent issued a certificate to say that his claim was hopeless. He sought judicial review.
Held: There was so much evidence that Bangladesh suffered . .
CitedHoxha and Another v Secretary of State for the Home Department HL 10-Mar-2005
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . .
AppliedChun Lan Liu v Secretary of State for the Home Department CA 17-Mar-2005
The applicant for refugee status said she had a well founded fear of persecution if returned to China, saying that as a pregnant mother of a third child, the foetus had been removed at eight months against her will. She had refused sterilisation, . .
CitedFornah v Secretary of State for the Home Department CA 9-Jun-2005
The applicant sought refugee status, saying that if returned home to Sierra Leone, she would as a young woman be liable to be circumcised against her will.
Held: Female sexual mutilation ‘is an evil practice internationally condemned and in . .
CitedSecretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
CitedHJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same SC 7-Jul-2010
The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by . .
CitedRT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
CitedEvans, Regina v CACD 23-Jan-2013
The defendant appealed against his conviction in a case concerning the use of a false passport. The central issue was whether the appellant had a defence based upon the proposition that he was a refugee entitled to asylum in this country. He had . .
Lists of cited by and citing cases may be incomplete.

Immigration, Discrimination, Human Rights

Updated: 19 May 2022; Ref: scu.88505

Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc: HL 26 Feb 1998

‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice.

Judges:

Lord Slynn of Hadley, Lord Goff of Chieveley Lord Nolan Lord Hope of Craighead Lord Clyde

Citations:

Times 09-Feb-1998, Gazette 26-Feb-1998, [1998] UKHL 6, [1998] 1 All ER 528, [1998] 1 WLR 280, [1998] ICR 227

Links:

House of Lords, Bailii

Statutes:

Equal Pay Act 1970 2(4), Occupational Pension Schemes (Equal Access to Membership) Regulations 1976 (1976 No 142) 12

Jurisdiction:

England and Wales

Citing:

Appeal fromPreston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .
CitedBarber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
CitedDefrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
CitedFisscher v Voorhuis Hengelo and Stichting Bedrijfspensioenfonds voor de Detailhandel ECJ 28-Sep-1994
Europa The right to join an occupational pension scheme, the rules of which were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and all that the . .
CitedRewe Zentralfinanz v Landwirtschaftskammer Westphalen-Lippe ECJ 11-Oct-1973
ECJ Customs duties – charges having an effect equivalent to – meaning – phyto-sanitary examination – charges – imposition – prohibition (EEC Treaty, article 13 (2)) Pecuniary charges, whatever their amount, . .
CitedMarshall v Southampton and South West Hampshire Area Health Authority (No 2) ECJ 2-Aug-1993
The UK law limiting awards of damages in sex discrimination cases is unlawful, and fails to implement European directive fully. Financial compensation must be at a level adequate to achieve equality between the workers identified. . .
CitedLevez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
CitedEmmott v Minister for Social Welfare and Attorney General ECJ 25-Jul-1991
Europa So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after . .
CitedMagorrian and Cunningham v Eastern Health and Social Services Board and Department of Health and Social Services ECJ 11-Dec-1997
Pension entitlements for part time workers discriminated against were to be re-calculated to allow for wrongful treatment since 1976
Europa Reference for a preliminary ruling: Office of the Industrial . .

Cited by:

CitedAmica v Rhone-Poulenc Chemicals Ltd CA 28-Nov-2003
Applications for permission to appeal. . .
Reference FromPreston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
See AlsoPreston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
See AlsoPowerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
CitedUnison v Allen and others EAT 26-Jul-2007
EAT Equal pay Act – Out of time
The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.85026

O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School: EAT 7 Jun 1996

The dismissal by a Roman Catholic school of a teacher who was pregnant by a priest, was on the grounds of pregnancy, and for an inadmissible reason. The pregnancy was an effective cause of the adverse treatment of the Appellant by her employer.

Judges:

Mummery P

Citations:

Gazette 12-Sep-1996, Times 07-Jun-1996, [1996] IRLR 372, [1996] UKEAT 1180 – 94 – 304, [1997] ICR 33

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Citing:

See AlsoO’Neill v Governors of St Thomas More RC School EAT 12-Oct-1995
The claimant had lodged an appeal against a rejection of her claim of sex discrimination, and against the amount of damages awarded on the success of her claim of unfair dismissal. After rejection of her request for a review, her counsel had lodged . .

Cited by:

AppliedMartin v Goldsobel EAT 6-Sep-2001
The employee had been dismissed. She alleged that it was because of her pregnancy, and was automatically unfair. The employers, a firm of solicitors, alleged that it related to her standards of work.
Held: To establish sex discrimination a . .
CitedMurphy v Sheffield Hallam University EAT 11-Jan-2000
The claimant challenged refusal of his claim of discrimination. He was profoundly deaf. He applied for work, and indicated his disability, but no provision was made for a signer to appear at the interview. The interview was re-arranged, but he . .
CitedA C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.84460

Morse v Wiltshire County Council: EAT 1 May 1998

A tribunal considering a claim of disability discrimination should best consider the various statutory elements in the order given in the Act, so as to avoid confusion in unraveling what is a complex statutory structure. The wide language of section 6(2) and 6(3) is capable of applying to a ‘dismissal situation’. Although section 6 makes no express mention of dismissal, termination of service or redundancy, the Code of Practice assumes that section applies to a dismissal in the circumstances of the applicant in that case. ‘Arrangements on which employment . . is offered or afforded’ include alternatives to dismissal, such as are mentioned in section 6(3)-allocation of the disabled person’s duties to another person, assigning him to a different place of work or transferring him to fill an existing vacancy.

Judges:

Bell J

Citations:

Times 11-May-1998, [1998] UKEAT 1279 – 97 – 0105, [1998] ICR 1023

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 5 6

Cited by:

CitedClark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
CitedRothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 May 2022; Ref: scu.83862

Handels Og Kontorfunktionaerernes Forbund I Danmark (Acting On Behalf of Pedersen) v Faellesforeningen for Danmarks Brugsforeninger (Acting On Behalf of Kvickly Skive): ECJ 19 Nov 1998

It was discriminatory to refuse payment of maternity benefits where a worker suffered a pathological illness connected to a pregnancy with an allowance of benefits where someone ordinarily sick would receive full pay.

Citations:

Times 01-Dec-1998, C-66/96, [1998] EUECJ C-66/96

Links:

Bailii

Statutes:

Council Directive 75/117/EEC on Equal Pay for Men and Women

Discrimination, European

Updated: 19 May 2022; Ref: scu.81215

Halfpenny v IGE Medical Systems Ltd: CA 18 Dec 1998

Where an employee had taken extended maternity leave but was then unable to return for post-natal depression, but she was dismissed, the resumption of her contract on issuing her notice of intention to return revived her sickness rights anew.
The applicant had had her claims of unfair dismissal and sex discrimination had been rejected by the Tribunald and by the EAT. She had been refused the right to return to work after maternity leave after she had extended her maternity. The employers now conceded that the recent decision of the CA in the Kwik Save case was indistinguishable.
Held: Under section 56, there had been a dismissal and such dismissal was unfair.

Judges:

Hirst, Ward and Robert Walker LJJ

Citations:

Times 04-Jan-1999, Gazette 03-Feb-1999, Gazette 06-May-1999, [1999] ICR 834, (1999) IRLR 177, [1998] EWCA Civ 3537, [1999] 1 FLR 944, [1999] Disc LR 265, (2000) 52 BMLR 153

Links:

Bailii

Statutes:

Employment Rights Act 1996 79(2), Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Citing:

CitedKwik Save Stores Limited v Greaves; Crees v Royal London Mutual Insurance Society Limited CA 20-Jan-1998
Women had taken extended maternity leave, but having followed the procedures, had been unable for illness to return to work on the day they had notified. The employer then asserted that the claimants had resigned. The EAT had confirm that they had . .

Cited by:

Appeal fromHalfpenny v IGE Medical Systems Ltd HL 19-Dec-2000
A woman who had taken maternity leave was deemed to have returned to work following the completion of that leave when, on the appropriate date she provided medical certificates in accordance with the contract of employment. The applicant had given . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.81142

Halfpenny v IGE Medical Systems Ltd: HL 19 Dec 2000

A woman who had taken maternity leave was deemed to have returned to work following the completion of that leave when, on the appropriate date she provided medical certificates in accordance with the contract of employment. The applicant had given notice of her intention to return after maternity leave, but obtained an extension of four weeks. She requested a further extension, but this was refused by her employers. She did not attend.
Held: The right to return could not be dependent on the simple ability to return on the day notified. Nor could the simple service of a notice under the section create a return to work. In this case, however, the employee had demonstrated her intention to comply with the requirements of the contract of employment, and that was sufficient to constitute a return to work under the Act even though she did not physically attend on the notified day.

Judges:

Lord Hope of Craighead Lord Mackay of Clashfern Lord Goff of Chieveley Lord Browne-Wilkinson Lord Clyde

Citations:

Times 19-Dec-2000, [2000] UKHL 64

Links:

House of Lords, Bailii

Statutes:

Sex Discrimination Act 1975, Employment Protection (Consolidation) Act 1978

Jurisdiction:

England and Wales

Citing:

Appeal fromHalfpenny v IGE Medical Systems Ltd CA 18-Dec-1998
Where an employee had taken extended maternity leave but was then unable to return for post-natal depression, but she was dismissed, the resumption of her contract on issuing her notice of intention to return revived her sickness rights anew.
CitedKwik Save Stores Limited v Greaves; Crees v Royal London Mutual Insurance Society Limited CA 20-Jan-1998
Women had taken extended maternity leave, but having followed the procedures, had been unable for illness to return to work on the day they had notified. The employer then asserted that the claimants had resigned. The EAT had confirm that they had . .
CitedKelly v Liverpool Maritime Terminals Limited CA 1988
An employee had no valid claim for unfair dismissal if illness prevented her from returning to work before the end of the twenty-nine week period after her confinement, allowing for only one statutory extension of 4 weeks. The applicant’s maternity . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.81144

Hallam and Another v Cheltenham Borough Council and Others: HL 27 Mar 2001

‘Aid’ under the section meant something more than mere helpfulness. The complainants arranged a wedding in premises owned by a defendant. The police respondents advised the owner that the wedding was for gypsies, whereupon the defendants unlawfully discriminated against the applicants. Nevertheless, the acts of the police did not go beyond an attempt to be helpful, and they were not responsible for how the owners dealt with the information.

Judges:

Lord Bingham of Cornhill Lord Browne-Wilkinson Lord Steyn Lord Hope of Craighead Lord Millett

Citations:

Times 27-Mar-2001, Gazette 24-May-2001, [2001] ICR 408, [2001] BLGR 278, [2001] IRLR 312, [2001] 1 WLR 655, [2001] UKHL 15

Links:

House of Lords, Bailii

Statutes:

Race Relations Act 1976 33(1)

Citing:

Appeal fromHallam and Another v Avery and Another CA 7-Jan-2000
A Romany family booked a council hall for a wedding. Police later approached the council and made misleading assertions about the character of the family resulting in the imposition of additional conditions on the contract. There was however no . .

Cited by:

Appealed toHallam and Another v Avery and Another CA 7-Jan-2000
A Romany family booked a council hall for a wedding. Police later approached the council and made misleading assertions about the character of the family resulting in the imposition of additional conditions on the contract. There was however no . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 19 May 2022; Ref: scu.81167

Goodwin v Patent Office: EAT 21 Oct 1998

An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of guidance resolves this ambiguity in favour of the latter alternative. The employment tribunal would: ‘wish to examine how the applicants abilities had actually been affected at the material time, whilst on medication, and then to address their minds the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicants ability to carry out normal day to day activities [are] clearly the more than trivial.’
The tribunal should consider four conditions: ‘(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?
(2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?
(3) The substantial condition. Is the adverse effect (upon the applicant’s ability) substantial?
(4) The long-term condition. Is the adverse effect (upon the applicant’s ability) long-term?’ He continued: ‘Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one’s eye off the whole picture.’

Judges:

Morison J

Citations:

Times 11-Nov-1998, [1998] UKEAT 57 – 98 – 2110, [1999] ICR 302, [1999] IRLR 4

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Citing:

See alsoGoodwin v Patent Office EAT 3-Feb-1999
Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not . .

Cited by:

See alsoGoodwin v Patent Office EAT 3-Feb-1999
Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not . .
CitedConoco Ltd v Kevan Booth EAT 30-Jan-2001
EAT The employer appealed against a finding of unfair dsmissal and unlawful disability discrimination. He claimant suffered post traumatic stress after a fire at the appellant’s premises, and the employer was . .
CitedJ v DLA Piper UK Llp EAT 15-Jun-2010
EAT DISABILITY DISCRIMINATION – Disability
Job offer to Claimant withdrawn allegedly as a result of her disclosing a history of depression – On a preliminary issue Tribunal holds that at the material time . .
CitedEast Sussex County Council v Hancock EAT 5-Nov-2003
EAT The Council appealed against a finding that the respondent, their employee, was disabled under the 1995 Act. He suffered from a long term mixed anxiety and depression disorder, but the Council disputed that . .
CitedKapadia v London Borough of Lambeth EAT 27-May-1999
The claimant appealed against rejection of his claim for disability discrimination which had been on the ground that his condition did not amount to a disability within section 1(1). He suffered from anxiety, stress, tension and depression.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 May 2022; Ref: scu.80923

Deliege v Ligue Francophone De Judo et Disciplines Associees Asbl and Others: ECJ 11 Apr 2000

It was not an unlawful discriminatory provision to restrict those who might take part in professional sports activities in another member state to be first authorised or selected by their own national federation where such competition was not on a national representative team level. If it was derived from a proper need inherent in the organisation of such a competition it could be proper. A selection system might favour some athletes over others, but need not constitute a restriction on the provision of services: ‘a rule requiring professional or semi-professional athletes or persons aspiring to take part in a professional or semi-professional activity to have been authorised or selected by their federation in order to be able to participate in a high-level international sports competition, which does not involve national teams competing against each other, does not in itself, as long as it derives from a need inherent in the organisation of such a competition, constitute a restriction on the freedom to provide services prohibited by Article 49 (ex 59) of the Treaty.’

Citations:

Times 19-Apr-2000, C-51/96, C-191/97, [2000] ECR I-2549, [2000] EUECJ C-191/97, [2000] EUECJ C-51/96

Links:

Bailii, Bailii

Statutes:

ECTreaty Art 234 49

Cited by:

CitedMeca-Medina and Majcen v Commission ECFI 30-Sep-2004
ECJ Competition – Freedom to provide services – Anti-doping legislation adopted by the International Olympic Committee (IOC) – Purely sporting legislation
The claimants were athletes who complained that . .
CitedAdidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination

Updated: 19 May 2022; Ref: scu.79891

Deutsche Telekom Ag v Vick and Another; Same v Schroder; Deutsche Post Ag v Sievers and Another: ECJ 28 Mar 2000

The social purposes of the Treaty in article 119 (141 EC) overrode the economic aims of the Treaty. Accordingly the article did not preclude a requirement upon a member state which imposed obligations to satisfy that social aim, even though it migt have economic consequences which risked an adverse effect upon that member states international competitiveness.

Judges:

R. Schintgen, P

Citations:

Times 28-Mar-2000, Case C-50/96, C-271/97, C-270/9, C-234/96, [2000] EUECJ C-271/97, [2000] EUECJ C-234/96

Links:

Bailii, Bailii

Statutes:

EC Treaty Art 141

Cited by:

CitedUnison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 19 May 2022; Ref: scu.79944

D Lowery and Chelsea Village Management Ltd v Omar M Said Ali: EAT 24 Nov 2000

The applicant had been dismissed with another. He claimed race discrimination. The employer appealed, saying that the tribunal’s award had been described in such a way as not to allow them to identify the various elements in the findings.
Held: The Tribunal had failed properly to apply the test. They should, first have identified a protected characteristic, and then identified adverse treatment so as to raise the issue of racial discrimination. Then the reasons for the treatment in question should have been scrutinised, including any reasons put forward in evidence. Finally, it if was found that the reasons were insufficient, there were inferences to be drawn, and evidence sought, with regard to comparators. The decision on unfair dismissal stood, but the finding of race discrimination was remitted to be reheard before a different tribunal.

Judges:

His Honour Judge H Wilson

Links:

Bailii

Statutes:

Race Relations Act 1976

Citing:

Appealed toLambert v Lowery and Another CA 2-Feb-2001
Renewed application for leave to appeal.
Held: No error of law had been shown. . .

Cited by:

Appeal fromLambert v Lowery and Another CA 2-Feb-2001
Renewed application for leave to appeal.
Held: No error of law had been shown. . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 19 May 2022; Ref: scu.79755

Burrett v West Birmingham Health Authority: EAT 6 Dec 1993

Female nurses had to wear a cap whereas male nurses did not, though male nurses had to wear a tunic with epaulettes. They claimed discrimination.
Held: A requirement for female to wear a nurse’s cap where no similar rule applied for men, was not discriminatory. The fact that one feature of the female nurses’ uniform (which was believed by the applicant to be demeaning to women) was not required for male nurses did not amount to less favourable treatment of the female nurses than the male nurses.

Judges:

Knox J

Citations:

Ind Summary 06-Dec-1993, [1994] IRLR 7

Citing:

AppliedSchmidt v Austick’s Bookshops EAT 1977
The bookshop company’s employment rules prohibited trousers for female workers, a dress code which was upheld by the Tribunal.
Held: There was no detriment. As there was no comparable restriction for men it was not possible to say that women . .

Cited by:

Appeal fromBurrett v West Birmingham Health Authority CA 3-Mar-1994
Application for leave to appeal. . .
CitedHM Land Registry v Grant EAT 15-Apr-2010
hmlr_grantEAT10
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction /Reasons /Burns-Barke
An Employment Tribunal accepted that 6 out of 12 . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 19 May 2022; Ref: scu.78754

Burton and Another v De Vere Hotels: EAT 3 Oct 1996

Two black waitresses, clearing tables in the banqueting hall of a hotel, were made the butt of racist and sexist jibes by a guest speaker entertaining the assembled all-male company at a private dinner party.
Held: The employer of the waitresses had racially discriminated against the waitresses. Had the assistant managers in charge for the evening been properly instructed, the two young women would not have suffered embarrassment. They could, and should, have been withdrawn from the room. An hotel is liable, as an employer to its employees who had been offended by racially charged or offensive material uttered by a guest speaker by a guests’ guest speaker. The employer could have taken steps to intervene, but did not do so.

Judges:

Smith J, R Chapman, Lord Gladwin

Citations:

Times 03-Oct-1996, [1997] ICR 1, [1996] IRLR 596, Independent 04-Nov-1996

Statutes:

Race Relations Act 1976 4

Jurisdiction:

England and Wales

Cited by:

CitedChief Constable of Bedfordshire Police v Liversidge EAT 21-Sep-2001
The Chief Constable appealed against a refusal to strike out a claim by the respondent that he had racially discriminated against her. Force members had used code words for racially abusive terms about her. The claim was that he was vicariously . .
OverruledMacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
DoubtedS S Hussain v HM Prison Service EAT 1-Mar-2002
EAT Race Discrimination – Direct . .
CitedChief Constable of Kent County Constabulary v Baskerville CA 3-Sep-2003
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done . .
CitedConteh v Parking Partners Ltd EAT 17-Dec-2010
EAT HARASSMENT – Conduct
Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 May 2022; Ref: scu.78768

Brown v Rentokil Ltd: IHCS 10 Mar 1995

Mrs Brown was employed by Rentokil as a driver, transporting and changing ‘Sanitact’ units in shops. In her view, it was heavy work. She told Rentokil that she was pregnant. She had difficulties associated with the pregnancy. From 16 August 1990 onwards, she submitted a succession of four-week certificates mentioning various pregnancy-related disorders. She did not work again after mid-August 1990. Rentokil’s contracts stipulated that, if an employee was absent because of sickness for more than 26 weeks continuously, he or she would be dismissed. On 9 November 1990, Rentokil told her, and confirmed in writing, that half of the 26-week period had run and that her employment would end on 8 February 1991 if, following an independent medical examination, she had not returned to work by then.
She did not go back to work. The parties agree that there was never any question of her being able to return to work before the end of the 26-week period. By letter of 30 January 1991, which took effect on 8 February 1991, she was accordingly dismissed while pregnant. Her child was born on 22 March 1991.
Held: As a preliminary conclusion, it was not sex discrimination where a woman dismissed for absences from illness arising out of pregnancy, but not actual pregnancy. Since the Court of Justice had drawn a clear distinction between pregnancy and illness attributable to pregnancy, Mrs Brown, whose absence was due to illness and who had been dismissed on account of that illness, could not succeed.

Citations:

Times 10-Mar-1995

Statutes:

Sex Discrimination Act 1975 1(1), Employment Protection (Consolidation) Act 1978 33

Cited by:

Appeal from – ReversedBrown v Rentokil Ltd ECJ 30-Jun-1998
Dismissal for any illness associated with pregnancy is for a sex related reason, and is discriminatory, and unlawful irrespective of the contractual right being otherwise applied equally to men suffering illness. Pregnancy is a period during which . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 18 May 2022; Ref: scu.78708

Brown v Rentokil Ltd: ECJ 30 Jun 1998

Dismissal for any illness associated with pregnancy is for a sex related reason, and is discriminatory, and unlawful irrespective of the contractual right being otherwise applied equally to men suffering illness. Pregnancy is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to take absolute rest for all or part of her pregnancy. Those disorders and complications, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition

Judges:

C. Gulmann, P

Citations:

Times 02-Jul-1998, Gazette 09-Sep-1998, [1998] IRLR 445, C-394/96, ECJ/CFI Bulletin 18/98, 1, [1998] EUECJ C-394/96, [1998] ECR I-4185, [1998] ICR 790, [1998] Fam Law 597, [1999] 1 FCR 49, [1998] 2 FLR 649, [1998] 2 CMLR 1049, [1998] CEC 829

Links:

Bailii

Statutes:

EC Treaty Art 177, Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment etc

Citing:

Appeal from – ReversedBrown v Rentokil Ltd IHCS 10-Mar-1995
Mrs Brown was employed by Rentokil as a driver, transporting and changing ‘Sanitact’ units in shops. In her view, it was heavy work. She told Rentokil that she was pregnant. She had difficulties associated with the pregnancy. From 16 August 1990 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 18 May 2022; Ref: scu.78709

Burghartz v Switzerland: ECHR 22 Feb 1994

It was sex discrimination to prevent a husband using his and his wife’s surnames, but not to prevent the wife doing the same. The use of name is a means of personal identity and of linking it to a family.
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 14+8; Not necessary to examine Art. 8; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings

Judges:

R. Ryssdal, P

Citations:

Times 08-Apr-1994, [1994] ECHR 2, 16213/90, (1994) 18 EHRR 101

Links:

Worldlii, Bailii, HUDOC

Cited by:

CitedMarper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
CitedAttorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Human Rights

Updated: 18 May 2022; Ref: scu.78749

British Coal Corporation v Smith and Others: HL 23 May 1996

The phrase ‘common terms of employment’ means broadly comparable terms. There is no need for them to be identical, and the phrase should be construed liberally, though there can be no general commonality where there is no commonality in terms and conditions between comparative establishments.
Lord Slynn said that the terms had to be sufficiently similar to allow a fair comparison to be made: ‘generally’ does not necessarily mean ‘all’.
A genuine material factor defence, between different collective bargaining pay structures for claimant and comparator work groups, can become discriminatory: ‘Whilst accepting that differences in rates of pay historically were due to separate bargaining processes, which themselves were untainted by sex, the question remained whether at the relevant date (January 1986) the difference between workers had been shown by the Corporation to be objectively justified on grounds other than sex.’

Judges:

Lord Slynn

Citations:

Times 23-May-1996, Gazette 12-Sep-1996, Gazette 03-Jul-1996, [1996] ICR 515

Statutes:

Equal Pay Act 1970 1(6), Employment Protection Act 1970 1(2)(c)

Citing:

CitedLeverton v Clwyd County Council HL 1989
The claimant, employed as a nursery nurse by the respondent in an infant school sought to compare herself with clerical staff employed by the respondent, but not in schools.
Held: The employee’s appeal succeeded. The majority of the Employment . .

Cited by:

CitedWhite v Burton’s Foods Ltd EAT 6-Jul-2010
EAT EQUAL PAY ACT – Like work
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site. She brought a claim under the Equal . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 18 May 2022; Ref: scu.78619

British Coal Corporation v Smith and Others: EAT 23 Feb 1993

An application of equal pay involved consideration of 150 comparators, and at great cost to all involved. The industrial members of the tribunal, with the support of the legal member, criticised the delay and complexity of Employment law. The growing complexity of industrial law was operating against the interests of those seeking to work within it in industry.

Citations:

Times 23-Feb-1993

Statutes:

Equal Pay Act 1970 208, Sex Discrimination Act 1975, Equal Pay (Amendment) Regulations 1983 (1983 No 1794)

Employment, Discrimination

Updated: 18 May 2022; Ref: scu.78623

British Sugar Plc v Kirker: EAT 3 Feb 1999

The Tribunal was not wrong to find disability discrimination where an employee was selected for redundancy drawing inferences from events which had occurred before the Act came into force. No need in this law for comparison with treatment of comparitors.

Citations:

Gazette 03-Feb-1999, [1998] IRLR 624

Statutes:

Disability Discrimination Act 1995

Employment, Discrimination

Updated: 18 May 2022; Ref: scu.78635

British Telecommunications Plc v Williams: EAT 3 Jun 1997

Sexual harassment was defined as ‘unwanted conduct of a sexual nature, or other conduct based upon sex affecting dignity at work’. It would be no defence to a complaint of sexual harassment that a person of the opposite sex would have been similarly treated. In general in cases of sexual harassment there is no necessity to look for a comparison with a particular person of the opposite sex.

Judges:

Morison J

Citations:

Gazette 14-Jan-1998, [1997] IRLR 668, [1997] UKEAT 1340 – 95 – 0306

Links:

Bailii

Cited by:

DisapprovedMacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
CitedPearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 18 May 2022; Ref: scu.78649

Bossa v Nordstress Ltd: EAT 13 Mar 1998

The defendant company had refused to employ the complainant at Heathrow on the basis that he was Italian, and relied upon exemptions in the 1976 Act.
Held: A Statutory provision which permitted discrimination against a worker employed in Europe operated against the Treaty obligation to afford free movement of workers and is to be ignored.

Citations:

Times 13-Mar-1998

Statutes:

Race Relations Act 1976 8, EC Treaty Art 48

Discrimination, European

Updated: 18 May 2022; Ref: scu.78497

Atkins v Wrekin District Council and Another: ECJ 11 Jul 1996

A concessionary fares scheme did not fall within the scope of sex discrimination laws. Equal treatment of men and women – Concessionary fares on public passenger transport services – Scope of Directive 79/7/EEC – Link with retirement age.
ECJ On a proper interpretation of Article 3(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, a scheme under which concessionary fares on public passenger transport services are granted to certain classes of persons, including certain elderly persons, does not fall within the scope of the Directive.
First, a benefit consisting of concessionary fares on public passenger transport services does not afford direct and effective protection against one of the risks listed in Article 3(1) and the fact that the recipient of a benefit is, as a matter of fact, because of his age, in one of the situations envisaged by that article does not suffice to bring that benefit as such within the scope of the Directive.
Secondly, it cannot be concluded from the fact that, besides referring to the field of social security, Article 1 of Directive 79/7 refers to other elements of social protection provided for in Article 3 and that Article 3(1)(a) refers to statutory schemes which provide protection against the risks listed, without specifying that those schemes must fall under social security, that the scope of the Directive extends to social protection as a whole, and consequently to measures such as the said concessionary fares. In view of the unequivocal terms of the title of Directive 79/7, the various recitals in its preamble and Article 1 thereof, which all state that the Directive is intended to ensure the progressive implementation of the principle of equal treatment for men and women in matters of social security, the reference to other elements of social protection provided for in Article 3 cannot be interpreted otherwise than as referring to provisions concerning social assistance, which generally fall outside the area of social security but fall within the scope of the Directive pursuant to Article 3(1)(b) where they are intended to supplement or replace the schemes referred to in Article 3(1)(a).

Judges:

G.C. Rodriguez Iglesias, P

Citations:

Times 02-Aug-1996, C-228/94, [1996] EUECJ C-228/94

Links:

Bailii

Statutes:

Transport Act 1985 93(7), Directive 79/7/EEC

Discrimination, European, Transport

Updated: 17 May 2022; Ref: scu.77938

Angestelltenbetriebsrat Der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse: ECJ 20 May 1999

Where two groups worked doing similar work, but one had superior qualifications, those qualifications could justify a pay differential. They were not to be treated as doing the same work.

Citations:

Times 20-May-1999, C-309/97, [1999] EUECJ C-309/97, [2000] ICR 1134

Links:

Bailii

Statutes:

Council Directive 75/117/EEC on the approximation of laws relating to equal pay for men and women., EC Treaty Art 234

Cited by:

CitedMatthews and others v Kent and Medway Towns and Fire Authority and others HL 1-Mar-2006
Retained or part-time firefighters sought parity of working conditions with full time firefighters.
Held: The retained firefighters’ appeal succeeded (Lords Carswell and Mance dissenting). The test was whether the part-time and full time . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 17 May 2022; Ref: scu.77799

City of Bradford Metropolitan District Council v Pratt: EAT 4 Oct 2006

EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the basis for the grievance. Held, allowing the appeal, that the employee had not done so.

Judges:

His Honour Judge Richardson

Citations:

UKEAT/0391/06

Links:

EATn

Statutes:

Employment Act 2002

Citing:

CitedShergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
CitedCanary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
CitedGrimmer v KLM Cityhopper UK EAT 17-Mar-2005
Claimant provided appropriate details of the claim
EAT Application to ET rejected by ET under Rules 1-3 of the 2004 Rules of Procedure contained in Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 because claimant did . .
CitedAlexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .

Cited by:

See AlsoCity of Bradford Metropolitan District Council v Pratt EAT 9-Jan-2007
bradford_prattEAT2007
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
CitedRiley v First Choice Homes Oldham Ltd EAT 30-Apr-2008
riley_firstEAT2008
EAT Statutory Discipline and Grievance Procedures – Whether applicable – Whether infringed – Was the modified or standard grievance procedure applicable? The Employment Tribunal found the former, and held that . .
CitedClyde Valley Housing Association Ltd v Macaulay EAT 3-Apr-2008
clyde_macaulayEAT2008
EAT Jurisdictional Points: 2002 Act and pre-action requirements
Statutory grievance procedure. Modified procedure. Whether letter from claimant’s solicitor set out the basis for her grievance. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 17 May 2022; Ref: scu.257999

London Borough of Southwark v Jiminez: EAT 17 Apr 2002

EAT Contract of Employment – Breach of Contract.

Judges:

The Honourable Mr Justice Bell

Citations:

EAT/1326/99

Links:

EAT

Cited by:

At EATLondon Borough of Southwark v Jiminez CA 31-Jul-2002
Renewed application for leave to appeal – granted on limited grounds . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 17 May 2022; Ref: scu.255970

Deria v General Council of British Shipping: 1986

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

Citations:

[1986] ICR 172

Jurisdiction:

England and Wales

Citing:

Appeal fromGeneral Council of British Shipping v Deria and Others 1985
Where an Industrial Tribunal’s decision could not be reviewed because under the rules, the new evidence had been available, a review based on the new evidence should only be granted where there existed some mitigation causing the failure to bring . .

Cited by:

CitedSaggar v Ministry of Defence CA 27-Apr-2005
The claimant sought to bring an action for race discrimination. The defendant argued that the alleged acts of discrimination took place whilst he was on a posting abroad in Cyprus after serving 16 years in England, and that therefore the tribunal . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 17 May 2022; Ref: scu.224765

Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another: CA 1993

Citations:

[1993] 1 WLR 872, [1993] ICR 251

Jurisdiction:

England and Wales

Cited by:

Appeal fromRegina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
CitedArcher and Watkins v Registrar General and Another PC 24-Jun-2004
(The Bahamas) The claimants challenged the way the respondent had allowed a company to alter its register of shareholders to their detriment.
Held: The responsibility for maintaining the share register rested on the company and its officers, . .
Lists of cited by and citing cases may be incomplete.

Company, Discrimination

Updated: 16 May 2022; Ref: scu.198488

Kelly v Liverpool Maritime Terminals Limited: CA 1988

An employee had no valid claim for unfair dismissal if illness prevented her from returning to work before the end of the twenty-nine week period after her confinement, allowing for only one statutory extension of 4 weeks. The applicant’s maternity leave entitlement had come to an end and so had her contract of employment on the date at the end of the four week extension to her maternity leave on medical grounds. ‘The statutory scheme in relation to maternity leave entitles the employee to return to work within 29 weeks after the birth if appropriate notice is given. That period can be extended by four weeks once, but only once.’ and ‘I conclude that the contract terminated when the four-week extension of the maternity leave expired.’ and ‘In the event it was the problems with the pain in her back which prevented her from returning to work within the 29 week period after her confinement’

Judges:

Taylor LJ, Glidewell LJ

Citations:

[1988] IRLR 310

Jurisdiction:

England and Wales

Cited by:

CitedKwik Save Stores Limited v Greaves; Crees v Royal London Mutual Insurance Society Limited CA 20-Jan-1998
Women had taken extended maternity leave, but having followed the procedures, had been unable for illness to return to work on the day they had notified. The employer then asserted that the claimants had resigned. The EAT had confirm that they had . .
CitedHalfpenny v IGE Medical Systems Ltd HL 19-Dec-2000
A woman who had taken maternity leave was deemed to have returned to work following the completion of that leave when, on the appropriate date she provided medical certificates in accordance with the contract of employment. The applicant had given . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 16 May 2022; Ref: scu.194002

Regina v Commission for Racial Equality (ex parte Westminster City Council): QBD 1984

The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the employer’s motives are wholly unobjectionable, he is clearly treating the black employee less favourably on racial grounds and is clearly guilty of unlawful discrimination under the Act.’

Judges:

Woolf J

Citations:

[1985] ICR 827, [1984] IRLR 230

Statutes:

Race Relations Act 1976 1

Jurisdiction:

England and Wales

Cited by:

CitedEuropean Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
CitedA C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
CitedJames v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
CitedAmnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 16 May 2022; Ref: scu.182465

Skyrail Oceanic Ltd v Coleman: CA 1981

Damages in respect of an unlawful act of discrimination may indeed include compensation for injury to feelings.
In contrast to a jury, the Tribunal is expected to give reasons and hence can be judged by those reasons.
Lawton LJ said that: ‘any injury to feelings must result from the knowledge that it was an act of sex discrimination . .’

Judges:

Lawton LJ

Citations:

[1981] ICR 864, [1981] IRLR 398

Jurisdiction:

England and Wales

Cited by:

CitedBennett T/A Foxbar Hotel v Reid EAT 26-Sep-2001
The employer appealed an award of ten thousand pounds for injured feelings, following a finding of sex discrimination. It was said that the award went beyond compensation to punishment. To vary such an award, the EAT must find some error of . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 16 May 2022; Ref: scu.181280

Clarke v Secretary of State for the Environment, Transport and the Regions and Another: QBD 9 Oct 2001

When assessing whether a gypsy should be granted planning permission to park his caravan on a site, the authority could not take into account the fact that he had earlier refused an offer of permanent housing, where acceptance of that offer would have been contrary to the applicant’s traditional way of life. The appellant and his family were Romanies who lead a nomadic way of life. The Inspector should consider whether: he lived in a caravan; he was a Romany; he was nomadic for a substantial part of the year; the itinerancy was linked to his livelihood; and he had an aversion to conventional housing.

Judges:

Burton J

Citations:

Times 09-Nov-2001

Statutes:

European Convention on Human Rights Art 8 and 14, Town and Country Planning Act 1990

Jurisdiction:

England and Wales

Discrimination, Human Rights, Housing, Planning

Updated: 16 May 2022; Ref: scu.166861

Lupetti v Wrens Old House Ltd: EAT 1984

The applicant was given notice on 3rd February 1983 terminating his employment on 28th February 1983. The question arose on appeal whether the date of the notice or the date when he left employment was the relevant date.
Held: With a discriminatory dismissal, time does not run until the notice of dismissal has expired and the employment ceased: ‘ The act complained of here is the dismissal of the applicant and the short point is: for the purposes of the Race Relations Act 1976, did that dismissal occur on 3 February, when notice was given, or 28 February, when the employment was terminated? We have been referred, in this context, to Dedman v. British Building and Engineering Appliances Ltd. [1974] I.C.R. 53, which dealt with the effective date of termination of a contract, and we find that decision and, indeed, definitions which occur in the Employment Protection (Consolidation) Act 1978 of no help to us in this case, because Dedman’s case is dealing with a different section, and the definitions in the Act of 1978 cover matters on which the Race Relations Act 1976 is silent. It appears to us that we have to approach the construction of the Act of 1976 by considering what was the mischief that Parliament was intending to cover by providing that it was unlawful to discriminate against an employee by dismissing him.
Putting it quite shortly, it seems to us that the mischief which Parliament was intending to cover by those provisions was that of a person finding himself out of a job because of racial or other discriminatory grounds. If that be right (and it appears to us that it is), then the act complained of is the termination of employment and accordingly the effective date for considering when time starts to run is the date when the man finds himself out of job rather than the date when he is given notice.’
Balcombe LJ said: ‘That is sufficient to dispose of this appeal but, in case it goes elsewhere and in order to give proper respect to the able arguments which were presented to us by both counsel in this case, it is right that we should deal with the two other grounds of appeal. The second ground of appeal was that section 68(7)(b) of the Act of 1976 provides that any act extending over a period should be treated as done at the end of that period. Mr Cofie, for the applicant, argues that the act of dismissal extended over the period between the giving of notice and the date when the notice expired. Accordingly, under that subsection, it should be treated as having occurred at the end of the period.
We accept Mr Jeremy’s submissions on that ground of appeal both that it is inconsistent with the earlier argument which we have accepted – although that does not of itself render the earlier argument the less effective – but secondly this was not an act done over a period. It was an act of dismissal. Either that act took place when the notice was given or, as we have held, when the employment terminated. So we reject that ground of appeal.’

Judges:

Balcombe LJ

Citations:

[1984] ICR 348

Statutes:

Race Relations Act 1976 68(1)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 16 May 2022; Ref: scu.616315

Smith and Chymyshyn v Knights of Columbus and others: 2005

British Columbia Human Rights Tribunal – Alesbian couple had hired a hall owned by the Roman Catholic Church and let out on its behalf by the Knights in order to hold a reception after their marriage. The hall was available for public hire and they did not know of its connections with the Church. The letting was cancelled when the Knights learned of their purpose.
Held: The Knights could not be compelled to act in a manner contrary to their core belief that same sex marriages were wrong, but they had nevertheless failed in their duty of reasonable accommodation. They did not consider the effect their actions would have on the couple, did not think of meeting them to explain the situation and apologize, or offer to reimburse them for any expenses they had incurred or to help find another solution.

Citations:

2005 BCHRT 544

Jurisdiction:

Commonwealth

Cited by:

CitedBull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 15 May 2022; Ref: scu.540517

Goodwin v Patent Office: EAT 3 Feb 1999

Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not impaired. ‘The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. ‘ and ‘the tribunal must consider whether the adverse effect is substantial. This is a word which is potentially ambiguous. ‘Substantial’ might mean ‘very large’ or it might mean ‘more than minor or trivial’. Reference to the Guide shows that the word has been used in the latter sense’ and ‘The Tribunal will wish to examine how the applicant’s abilities had actually been effected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant’s abilities to carry out normal day to day activities is clearly more than trivial.’

Judges:

Morison P

Citations:

Times 03-Feb-1999, [1999] IRLR 4, [1999] ICR 302

Statutes:

Disability Discrimination Act 1995 1

Jurisdiction:

England and Wales

Citing:

See alsoGoodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .

Cited by:

CitedRugamel v Sony Music Entertainment UK Ltd; McNicol v Balfour Beatty Rail Maintenance Ltd EAT 28-Aug-2001
Both cases questioned the extent, as a disability, of functional or psychological ‘overlay’, where there may be no medical condition underlying the symptoms which the employee claims to be present. Neither claimant had asserted any psychological . .
See alsoGoodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .
Cited1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .
CitedMurphy v Sheffield Hallam University EAT 11-Jan-2000
The claimant challenged refusal of his claim of discrimination. He was profoundly deaf. He applied for work, and indicated his disability, but no provision was made for a signer to appear at the interview. The interview was re-arranged, but he . .
CitedCouncil of the City of Manchester v Romano, Samariz CA 1-Jul-2004
The authority sought to evict their tenant on the ground that he was behaving in a way which was a nuisance to neighbours. The tenant was disabled, and claimed discrimination.
Held: In secure tenancies, the authority had to consider the . .
CitedA McKenzie v East Sussex County Council EAT 13-Dec-1999
EAT Disability Discrimination – Disability
The parties sought to settle the appeal by consent. The Tribunal was obliged to consider the merits before making an order. In this case the order requested was . .
CitedLondon Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
CitedAbadeh v British Telecommunications Plc EAT 19-Oct-2000
EAT The claimant appealed dismissal of his claim under the 1995 Act. He was a telephone operator injured after a sudden shriek in his ear. They had found him not to be disabled within the 1995 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 May 2022; Ref: scu.80924

Ciasse Nationale D’Assurance Vieillesse Des Travailleurs Salries v Thibault: ECJ 13 May 1998

Rules which precluded an employee who was absent for maternity reasons from taking part in performance assessments affecting future promotion rights were breach of Council Directive.

Citations:

Times 13-May-1998

Statutes:

Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment Art 2(3) Art 5(1)

Discrimination, European

Updated: 15 May 2022; Ref: scu.79129

Abdoulaya and Others v Regie Nationale Des Usines Renault SA: ECJ 20 Oct 1999

A payment of a lump sum to female workers taking maternity leave so as to offset occupational disadvantage from the taking of that leave was not an infringement of equal pay provisions. The claim was that the payment went beyond making allowance for physical differences accompanying maternity to recompense for social disadvantage was equally felt by both men and women. The payment was proper since it did reflect real differences arising from the absence from work.

Citations:

Times 20-Oct-1999, C-218/98, [1999] EUECJ C-218/98

Links:

Bailii

Statutes:

EC Treaty Art 14

Discrimination, European

Updated: 15 May 2022; Ref: scu.77607

BL Cars Ltd v Brown: EAT 1983

A black employee of the defendant had been arrested and granted bail. The defendant feared that he would attempt to re-enter the plant under a false name. The Chief Security Officer issued instructions to the gates, to include a thorough check on the identity of every black employee trying to enter the premises. Some 28 people complained that this instruction subjected them to a detriment which contravened the 1976 Act. Some of these were employed by BL and some by contractors. The Commission for Racial Equality also issued a complaint that the instruction was unlawful. An Industrial Tribunal decided as a preliminary point that the mere issue of a written instruction could occasion detriment to individual employees.
Held: The employer’s appeal failed.

Citations:

[1983] ICR 143

Statutes:

Race Reltins Act 1976

Cited by:

CitedDe Souza v Automobile Association CA 19-Dec-1985
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as ‘the wog’. She said that this was sufficient to mean that she suffered a detriment. The employer replied that . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 15 May 2022; Ref: scu.270154