Category: Discrimination

Baldeh v Churches Housing Association of Dudley and District Ltd: EAT 11 Mar 2019

DISABILITY DISCRIMINATION – Disability related discrimination
The Claimant was dismissed by the Respondent at the end of a six-month probationary period. It was accepted that she was disabled by depression. She claimed that her dismissal was an act of disability related discrimination under section 15 EqA 2010.
The ET rejected the claim because:
(a) They found that the Respondent did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal;
(b) They said there was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) ‘arose in consequence of’ her disability;
(c) There were other reasons for her dismissal in addition which were sufficient;
(d) The dismissal was justified under section 15(1)(b) EqA 2010.
The EAT allowed the appeal because of errors in relation to each stage of the reasoning:
(a) Although the Respondent did not know about the Claimant’s disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it before the rejection of her appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining;
(b) There was in fact some evidence that her depression caused the relevant behaviour which the ET ought to have considered;
(c) It was sufficient for the ‘something arising in consequence’ of the disability to have a ‘material influence’ on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim;
(d) The ET failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response.
The EAT therefore remitted to a fresh ET the issue whether the rejection of the Claimant’s appeal was an act of discrimination under section 15 EqA 2010.

Citations:

[2019] UKEAT 0290 – 18 – 1103

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 July 2022; Ref: scu.637645

W v Leeds City Council and SENDIST: CA 29 Jul 2005

The court recognised a distinction between educational and non-educational provision as it affected a statement of special educational needs. Judge LJ: ‘Consistent with the relevant statutory provision, Part 3 of the Statement must make provision for the educational needs specified in Part 2: no more, no less. Provision is not required to be made in Part 3 for matters of background and comment, nor even for needs which in the judgment of SENDIST do not amount to educational needs.’
Wall LJ discussed the need for reasons to be given by SENDIST: ‘I do not think it necessary for this court to add to the already substantial jurisprudence on this topic. Speaking for myself, I have always regarded the judgment of Sir Thomas Bingham MR (as he then was) in this court in Meek v Birmingham City Council [1987] IRLR 250 (even though it substantially antedates the incorporation into English Law of ECHR) as the definitive exposition of the attitude superior courts should adopt to the reasons given by Tribunals. Whilst, of course, some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged, I see no reason, in this context, to distinguish between Employment Tribunals and what are now SENDISTs. ‘

Judges:

Judge LJ, Wall LJ

Citations:

[2005] EWCA Civ 988

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited – Union of Construction, Allied Trades and Technicians (UCATT) v Brain CA 1981
The Court discussed how to evaluate whether the employers acted reasonably: ‘Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity – and that, of course, means common . .

Cited by:

Cited – K v The School and the Special Needs and Disability Tribunal CA 6-Mar-2007
The child was subject to the school eventually declined to clean and change him. The mother claimed that the school was discriminating.
Held: The mother had understated the frequency of the bowel accidents. The school was not properly equipped . .
Cited – H v East Sussex County Council and Others CA 31-Mar-2009
The claimant had a statement of special educational needs, which she sought to have altered to specify a different school. She appealed from a refusal to amend the statement, saying that the Tribunal had not given sufficient weight to educational . .
Lists of cited by and citing cases may be incomplete.

Education, Discrimination

Updated: 01 July 2022; Ref: scu.229212

Suzanne Bunning v G T Bunning and Sons Ltd: CA 27 Jul 2005

Judges:

Lord Justice Latham Lord Justice Brooke Lord Justice Maurice Kay

Citations:

[2005] EWCA Civ 983

Links:

Bailii

Statutes:

Management of Health & Safety at Work Regulations 1999

Jurisdiction:

England and Wales

Citing:

Leave – Bunning v G T Bunning and Sons Limited CA 9-Feb-2005
Application for leave to appeal. Leave granted but claimant warned as to likelihood of success. . .
Appeal from – Bunning v G T Bunning and Sons Ltd EAT 1-Jul-2003
EAT Unfair Dismissal – Contributory fault . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Health and Safety

Updated: 01 July 2022; Ref: scu.229024

Dr Thatcher v Middlesex University, Secretary of State for Education: EAT 10 Jun 2005

EAT Equal Pay Act – Part-time worker’s pension. – The Employment Tribunal Chairman erred in concluding the claim was submitted out of time when a stable employment relationship had been established. The analysis of the contractual differences alone was inaccurate, and this failure to consider and apply unchallenged evidence was an error.
McMullen J said that: ‘a stable employment relationship ceases where the terms of the new contract or (and I emphasise the word ‘or’) the work done under it radically differs.’

Judges:

His Honour Judge McMullen QC

Citations:

UKEAT/0134/05, [2005] UKEAT 0134 – 05 – 1006, [2005] All ER(D) 82

Links:

Bailii, EATn

Statutes:

Equal Pay Act 1970 2 2ZA

Cited by:

Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Cited – North 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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 July 2022; Ref: scu.228617

Douglas v Manchester City Council and Another: EAT 28 Sep 2004

EAT Race Discrimination – Victimisation – Whether the Appellant was victimised by reason of previous litigation against the Respondent and others and whether there was direct and / or indirect discrimination on grounds of race.
EAT Race Discrimination – Victimisation.

Judges:

Her Honour Judge Wakefield

Citations:

[2004] UKEAT 0839 – 03 – 2809, UKEAT/0839/03

Links:

Bailii, EAT

Discrimination, Employment

Updated: 01 July 2022; Ref: scu.228653

The Blackpool Fylde and Wyre Society for the Blind v Begg: EAT 31 Mar 2005

EAT Practice and Procedure -and- Disability Discrimination
Appellant’s application to raise a new point on appeal (that the Law Reform (Contributory Negligence) Act 1945 applies to Disability Discrimination Act 1995 section 8(3) damages) was refused as the Employment Tribunal had already decided, at its liability hearing, to deduct 40% from unfair dismissal compensation and had not said the same in respect of disability discrimination and this was not appealed. Alternatively, no exceptional circumstance existed: Kumchyk applied. Appeal allowed by consent on deducting incapacity benefit: Morgans applied. If the principle of contributory conduct approved in Fife Council v McPhee EAT/750/00 were to be applied, it would be useful first to have the intervention of the statutory commissions.

Judges:

His Honour Judge McMullen QC

Citations:

UKEAT/0035/05, [2005] UKEAT 0035 – 05 – 3103

Links:

Bailii, Bailii, EATn

Citing:

Cited – Fife Council v McPhee EAT 21-Feb-2001
EAT The council appealed against a finding of unfair dismissal and disability discrimination, subject to a deduction of 50% for the claimant’s contribution. He had been found to have breached a council policy for . .

Cited by:

Cited – Unison v Leicestershire County Council CA 29-Jun-2006
The council had dismissed all workers within a group of employees, and invited them to re-apply for their jobs. The council now appealed a protective award made on the basis that there had been inadequate consultation with the union.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 01 July 2022; Ref: scu.228622

Ibrahim v Ethnic Minority Enterprise Centre and others: EAT 18 May 2005

EAT PRACTICE AND PROCEDURE – Costs – Case management – Claim for disability discrimination and breach of contract. Preliminary hearing at which claimants’ solicitors found liable in expenses and pre hearing review fixed under Rule 7 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001. Claimant appealed against both determinations. Employment Appeal Tribunal held that award of expenses against claimant’s solicitor was incompetent but that the Employment Tribunal had not erred in determining that there should be a pre- hearing review.

Citations:

[2005] UKEAT 0073 – 04 – 1805, EATS/0073/04

Links:

Bailii, EAT

Statutes:

Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 July 2022; Ref: scu.227024

Mensah v Heatherwood and Wexham Park Hospitals NHS Trust and others: EAT 5 Jul 2002

Citations:

[2002] UKEAT 1393 – 01 – 0507

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Mensah v Heatherwood and Wrexham Park Hospitals NHS Trust and others EAT 12-May-2003
. .

Cited by:

Appeal from – Mensah v Heatherwood and Wexham Park Hospitals NHS Trust and others CA 1-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 July 2022; Ref: scu.203000

Johnson v Bank of England: EAT 10 Apr 2003

EAT Disability Discrimination – Less favourable treatment
EAT Disability Discrimination – Less favourable treatment.

Judges:

The Honourable Mr Justice Mitting

Citations:

EAT/334/02, [2003] EAT 0334 – 02 – 1004, [2003] UKEAT 0334 – 02 – 1004

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.184358

Lisk-Carew v Birmingham City Council, Sharp: EAT 21 Oct 2003

EAT Race Discrimination – Indirect

Judges:

His Hon Judge Richardson

Citations:

UKEAT/779/02, [2003] UKEAT 0779 – 02 – 2110

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Lisk-Carew v Birmingham City Council Dr S Sharp CA 25-Apr-2004
The claimant’s complaints of unfair dismissal and race discrimination had been dismissed, but a claim of victimisation had succeeded.
Held: There was no inconsistency in the findings. In such a case, damages should be limited to the sum for . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 30 June 2022; Ref: scu.190550

Gbaja-Biamila v DHL International (UK) Ltd and others: EAT 1 Mar 2000

EAT Race Discrimination – Injury to Feelings
EAT Race Discrimination – Injury to feelings.

Judges:

Mr Justice Lindsay (President)

Citations:

EAT/1224/98, [2000] UKEAT 1224 – 98 – 0103

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Gbaja-Biamila v DHL International (UK) Ltd and others EAT 10-Feb-1999
. .

Cited by:

Compared – Bennett 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 . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.171777

Leavers v The Victoria University of Manchester: EAT 21 Feb 2000

EAT Sex Discrimination – Direct
EAT Sex Discrimination – Direct

Judges:

His Honour Judge Peter Clark

Citations:

EAT/167/99, [2000] EAT 167 – 99 – 2102

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Deman v Victoria University of Manchester EAT 28-Sep-1998
The claimant asserted the appearance of prejudice in the tribunal which had heard his claim.
Held: The claim was unfounded. Courts should acknowledge that there was always a risk of causing suspicion if untoward remarks were made, and a court . .
See Also – Deman v Victoria University of Manchester EAT 28-Sep-1999
. .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.171750

Uzowuru v London Borough of Tower Hamlets: EAT 2 Mar 2005

EAT Race Discrimination – Victimisation. Appeal in respect of victimisation based on incorrect application of Barton; and of unfair dismissal under both Section 99 and Section 98 of the Employment Rights Act 1996 – we found Employment Tribunal had applied itself correctly on all matters and appeal dismissed.
EAT Race Discrimination – Victimisation.

Judges:

His Honour Judge Prophet

Citations:

UKEAT/0869/04, [2005] UKEAT 0869 – 04 – 0203

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 98 99

Jurisdiction:

England and Wales

Citing:

Cited – Qua v John Ford Morrison (Solicitors) EAT 14-Jan-2003
The claimant appealed the refusal of her claim for a finding that her dismissal was automatically unfair. She had been employed for less than a year, and had taken several absences to care for her child. She claimed protection saying that her . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.225909

Abbey National Plc v Dutton: EAT 20 Jan 2005

EAT Disability Discrimination
Employment Tribunal Chairman sitting alone hearing a preliminary issue as to whether Claimant was disabled erred in refusing to allow cross-examination of Claimant on what she did and could do at work, such matters also appearing on the joint expert’s report. Law Hospitals NHS Trust v Rush [2001] IRLR 611 applied. Remitted to fresh three-person Employment Tribunal.

Judges:

His Honour Judge Mcmullen QC

Citations:

UKEAT/0879/04, [2005] UKEAT 0879 – 04 – 2001

Links:

Bailii, EAT

Citing:

Applied – Law Hospitals NHS Trust v Rush SCS 13-Jun-2001
The claimant had said that the effect of her dyslexia was to inhibit her career progress.
Held:It was right for a tribunal to have regard to how an applicant could carry out duties at work in deciding whether she was within the Disability . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 30 June 2022; Ref: scu.225380

Home Office v Collins: CA 19 May 2005

Disability discrimination and unfair dismissal.

Judges:

Pill LJ, May LJ, Ouseley J

Citations:

[2005] EWCA Civ 598

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 30 June 2022; Ref: scu.225006

Hoyland v Asda Stores Ltd: EAT 22 Feb 2005

EAT Equal Pay Act – Article 141 – Pro rata reduction of annual bonus for period of absence on ordinary maternity leave neither sex discrimination nor pregnancy-related detriment.

Judges:

The Honourable Mr Justice Bean

Citations:

EATS/0058/04, [2005] UKEAT 0058 – 04 – 2202

Links:

Bailii, EAT

Jurisdiction:

Scotland

Employment, Discrimination

Updated: 30 June 2022; Ref: scu.224695

Saggar 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 did not have jurisdiction. The EAT considered that the question had to be looked at as at the date of the alleged act.
Held: The claimant’s appeal succeeded The statute was not explicit. The indications were however that the court was to look at the entire course of the employment to see whether the court had jurisdiction. ‘The history of the employment relationship has a greater bearing on protection from racial discrimination than the geography of where the alleged discriminatory acts occurred or where the applicant was when they occurred.’ Carver had been misinterpreted by the EAT, and other authorities were not binding.

Judges:

Mummery Tuckey Clarke LJJ

Citations:

[2005] EWCA Civ 413, Times 09-May-2005

Links:

Bailii

Statutes:

Race Relations Act 1976 891)

Jurisdiction:

England and Wales

Citing:

Appeal from – Saggar 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, . .
Cited – Archibald 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 . .
Cited – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
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 . .
Cited – 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 . .
Cited – Haughton v Olau Line (UK) Ltd CA 1986
The applicant was a cashier on a ship. She made a complaint of sex harassment and discrimination. The defendant denied that the court had jurisdiction because she worked abroad.
Held: Her work was done mainly outside Great Britain.
Neill . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 29 June 2022; Ref: scu.224480

Beart v HM Prison Service: CA 26 Apr 2005

The claimant had been dismissed by reason of disability and so was entitled to compensation for the associated psychological injury. She was then dismissed unfairly, and the employer sought to argue that the dismissal constituted a novus actus and ended the period for which she was entitled to compensation for loss of earnings.
Held: An employer who had unfairly dismissed a claimant could not rely upon its wrongful act to minimise the claimant’s compensation.
Rix LJ said that: ‘There was the clearest evidence in this case that the psychiatric harm caused by the act of discrimination and its impact on the respondent’s ability to work continued far beyond the date of the unfair dismissal and in the absence of a fair dismissal we see no reason why the chain of compensation should be broken at that date.
I agree. Indeed, despite the skill and enthusiasm with which Mr Underwood has presented his submissions, the argument that the Prison Service’s own act of unfair dismissal can be said to break the chain of causation is very puzzling to me. This is the language of new intervening act, but I do not understand how it is said that the unfair dismissal is an ‘intervening’ act, when it is the act of the tortfeasor itself. Nothing in the submissions began to explain this to me; indeed, we were not shown any authority or learning on the concept of new intervening act. McGregor on Damages, 17th edn, 2003, speaks in this context of the intervening acts of a third party (at paras 6-031ff) and of the claimant (at paras 6-057ff) but not of the tortfeasor. Nor do I understand why the mere act of dismissal, even if it were justified which of course it was not, could do more to wash away the long-lasting effects of the prior discriminatory act than merely to prevent the damages for loss of earnings being measured by a comparison with earnings under the old employment.’
and he went on to distinguish such a case from one in which the claimant’s employment had come to an end by reason of a repudiatory breach of contract of the claimant: ‘Of course, if a claimant commits a repudiatory breach of his own contract of employment, thereby entitling a defendant employer to terminate that contract by dismissing him, then it is possible, if necessary, to describe that as a new intervening repudiation as bringing the contract to an end, does not make his reaction the critical new act: it is the repudiatory conduct of the claimant which is significant, unless perchance it is waived. In any event, the repudiatory conduct might have taken place even prior to the tort of discrimination and be discovered only later: but if the contract was already potentially doomed to be lost upon discovery of the repudiatory conduct, then again the claimant has lost the value of that contract, once the employer had acted as he was entitled to do properly to accept the repudiation as bringing the contract to an end.’

Judges:

Rix, Wall, Hooper LJJ

Citations:

[2005] EWCA Civ 467, [2005] ICR 1206, [2005] IRLR 568

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – HM Prison Service v Beart EAT 14-Sep-2004
EAT Disability Discrimination – Compensation . .
See Also – H M Prison Service v J A Beart EAT 13-Mar-2002
EAT Disability Discrimination – Disability . .
See Also – Beart v HM Prison Service CA 23-Jan-2003
. .

Cited by:

Cited – Osei-Adjei v RM Education Ltd EAT 24-Sep-2013
EAT DISABILITY DISCRIMINATION – Compensation
The Claimant suffered an act of disability discrimination by reason of the Respondent’s failure to make a reasonable adjustment. He was for a time unfit to work . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Damages

Updated: 29 June 2022; Ref: scu.224382

Robertson and others v Department for Environment Food and Rural Affairs: CA 22 Feb 2005

The claimants argued that civil servants in one government department could establish that civil servants in another department could stand as comparators in their equal pay claim.
Held: It was not necessarily the person with whom the workers have contracts of employment that determines comparability. The relevant body is the one ‘which is responsible for the inequality and which could restore equal treatment’. The body responsible for the state of affairs will often be the same employer of both the applicants and the comparators, but that is not necessarily so.

Judges:

Mr Justice Gage The Honerable Mr Justice Maurice Kay Lord Justice Mummery Mr Justice Gage The Honerable Mr Justice Maurice Kay Lord Justice Mummery

Citations:

[2005] EWCA Civ 138, [2005] ICR 750, [2005] IRLR 363,

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Considered – Lawrence and others v Regent Office Care Ltd and Others ECJ 17-Sep-2002
The employees claimed sex discrimination, and sought to have as comparators, male employees of an employer who had previously employed some of them, before a TUPE transfer of the services supplied. The Court of Appeal referred to the court the . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

Cited by:

Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 29 June 2022; Ref: scu.222866

D’Souza v London Borough of Lambeth and Another: EAT 22 Jul 1998

Judges:

Peter Clark HHJ

Citations:

[1998] UKEAT 199 – 98 – 2207, [1998] UKEAT 360 – 96 – 2207

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – D’Souza v Lambeth Borough Council CA 10-Dec-1997
. .
See Also – D’Souza v London Borough of Lambeth EAT 1-May-1995
. .
See Also – D’Souza v Lambeth Borough Council EAT 18-Oct-1995
The employment tribunal held that it had not been practicable for the council to reinstate Mr D’Souza. He had succeeded in a claim for unfair dismissal and sought reinstatement, but this had been refused.
Held: An award of damages was made for . .
See Also – D’Souza v Lambeth Borough Council CA 3-Mar-1996
The claimant challenged a decision that the council could properly refuse to re-instate him after a wrongful dismissal. . .
See Also – D’Souza v London Borough of Lambeth EAT 2-Jul-1997
. .
Cited – D’Souza v London Borough of Lambeth EAT 9-Oct-1997
. .
Cited – D’Souza v London Borough of Lambeth EAT 14-Jan-1998
A re-instatement award after a finding of racial discrimination is in two stage process. The first part consisting of the order for re-instatement stays the balance of the award provisionally until the order for re-instatement has been complied with . .
Cited – D’Souza v London Borough of Lambeth EAT 1-Jul-1998
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 June 2022; Ref: scu.206560

Bennett v London Borough of Southwark: CA 21 Feb 2002

Mrs Bennet was employed by the respondent. She had made complaints of race and sex discrimination. She was then dismissed, and claimed this was victimisation. Part way through the hearing, her representative failed in an application for an adjournment, and said that if he had been white, his application would have been granted. The tribunal refused to continue because of the allegation of discrimination made against itself. The case was to be relisted, but the respondent to make any application strike out the claim to the new tribunal. The claim was later struck out for the ‘scandalous’ behaviour of the advocate. The EAT eventually decided that it was wrong for the tribunal to have recused itself.
Held: The tribunal ought to have given the advocate an opportunity to withdraw his remark. His behaviour fell short of being scandalous, and the striking out was not proportionate. However it was not open to the EAT to have substituted its own decision, and the case must be reheard.

Judges:

Lord Justice Ward, Lord Justice Sedley, And, Lord Justice Longmore

Citations:

Times 28-Feb-2002, [2002] EWCA Civ 223, [2006] ICR 655, [2002] IRLR 407, [2002] ICR 881

Links:

Bailii

Statutes:

Employment Tribunals Rules of Procedure 1993 13(2)(e), Employment Tribunals (Constitution etc.) Regulations 1993, Employment Tribunals Act 1996 35(1)

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 29 June 2022; Ref: scu.167643

Manson, Regina (on the Application Of) v Ministry of Defence: Admn 17 Feb 2005

Judges:

Moses J

Citations:

[2005] EWHC 427 (Admin)

Links:

Bailii

Statutes:

Part-time Worker’s (Prevention of Less Favourable Treatment) Regulations 2000

Citing:

See Also – Manson v Ministry of Defence EAT 30-Oct-2002
. .

Cited by:

Appeal from – Manson v Ministry of Defence CA 4-Nov-2005
. .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 29 June 2022; Ref: scu.223849

Home Office v Bailey and others: CA 22 Mar 2005

Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the comparators was genuinely due to a material factor which is not the difference of sex and which is a material difference. The Home Office did not accept that it was obliged by s. 1 (3) of the 1970 Act objectively to justify any such difference.
Held: Lord Justice Peter Gibson: ‘the ET is concerned to determine whether what on its face is a gender-neutral practice may be disguising the fact that female employees are being disadvantaged as compared with male employees to an extent that signifies that the disparity is prima facie attributable to a difference of sex. ‘ there was ‘no justification for the imposition of a high threshold for satisfying the test of prima facie discrimination. ‘ Lord Justice Waller: ‘where a difference in pay is established, and statistics seem to indicate a possibility of a disproportionate impact on women when looking at both the advantaged and disadvantaged groups as a whole, those statistics must provide sufficient evidence to get those carrying the burden over the hurdle of placing the onus on the employer to show that there were material factors which were not the difference in sex. ‘

Judges:

Peter Gibson LJ

Citations:

Times 08-Apr-2005, [2005] EWCA Civ 327

Links:

Bailii

Statutes:

Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

Appeal from – The Home Office v A Bailey and others EAT 2-Jul-2004
EAT Equal Pay Act – Material factor defence
The EAT allowed an appeal by the Home Office from a decision of an Employment Tribunal which had determined as a preliminary issue that the Home Office was . .
Cited – Glasgow City Council and Others v Marshall and Others HL 8-Feb-2000
Although instructors in special schools, carried out work of a broadly similar nature to qualified teachers, and the majority were women, they were not entitled to an equality of pay clause, since there was no evidence of sex discrimination, and the . .
Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Cited – Regina 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 . .
Cited – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .

Cited by:

See Also – The Home Office v A Bailey and others EAT 2-Nov-2005
EAT Practice and Procedure: Permission to Appeal Further and Costs
Test for granting/refusing permission to appeal. Whether power to make partial order for costs. . .
Cited – South Tyneside Metropolitan Borough Council v Anderson and others EAT 26-Mar-2007
The council appealed a finding that there was no genuine material factor justifying a difference in pay, and in particular the availability of bonus schemes. . .
Lists of cited by and citing cases may be incomplete.

Prisons, Discrimination

Updated: 29 June 2022; Ref: scu.223778

Talbot v WAGN Railways West Anglia and Great Northern Railways: EAT 30 Nov 2004

EAT Disability Discrimination
ET decision on section 6 of the Disability Discrimination Act reversed because of decision of House of Lords in Archibald v Fife Council 2004] IRLR 651. ET had followed decision in Court of Session that House of Lords reversed.

Judges:

His Honour Judge Serota QC

Citations:

UKEAT/0770/04, [2004] UKEAT 0770 – 04 – 3011

Links:

Bailii, EAT

Discrimination, Employment

Updated: 29 June 2022; Ref: scu.223158

Murphy v Slough Borough Council Governing Body of Langleywood School: CA 16 Feb 2005

The court was asked as to who was the appropriate respondent when a claim for disability discrimination is brought by a teacher employed at a maintained community school with a delegated budget. The teacher’s contract of employment is with the local education authority, but the Governing Body of such a school is given extensive employment powers by the legislation, and in certain respects employment by the LEA is to be treated as if it were employment by the Governing Body.
Keene LJ (with whom Neuberger LJ agreed) commented on the effect of the relevant legislation, stating that: ‘One needs to bear in mind that the governing body of a school with a delegated budget is patently given the power by Schedule 16 to the 1998 Act to appoint, suspend and dismiss a teacher, and that the LEA has no power to prevent suspension or dismissal of a teacher from employment at the school in question. In those circumstances it would be an absurdity if the governing body were not to be held to have the power to grant [maternity] leave to a teacher at its school, whether on compassionate grounds or for any other proper purpose, and to decide whether or not such leave should be paid or unpaid. Its financial powers granted by section 50(3) of the 1998 Act confirm that: see para 10 above. I am satisfied therefore that, for all these reasons, the governing body of such a school has that power and only the governing body of such a school has that power.’

Judges:

Lord Justice Pill Lord Justice Keene Lord Justice Neuberger Lord Justice Pill Lord Justice Keene Lord Justice Neuberger

Citations:

[2005] IRLR 382, [2005] EWCA Civ 122, Times 06-Apr-2005, [2005] ICR 721

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 5(1) 5(2), School Standards and Framework Act 1998

Jurisdiction:

England and Wales

Citing:

Appeal from – Shahina Murphy v Slough Borough Council Governing Body of Langley Wood School EAT 26-May-2004
EAT Disability Discrimination – Reasonable adjustments . .
Cited – Green v The Governing Body Victoria Road Primary School Kent County Council EAT 24-Feb-2003
EAT Jurisdiction – appeal from an Employment Tribunal held at Ashford, Kent, who, following a Preliminary Hearing on 27 February 2002, unanimously decided that the named second Respondents, Kent County Council, . .

Cited by:

Cited – Davies v London Borough of Haringey QBD 17-Oct-2014
The claimant had been employed as a teaching assistant. She came to work with the union, eventually being released from her work full time to undertake the role within the union. The defendant suspended the claimant from her role for alleged . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Education

Updated: 29 June 2022; Ref: scu.223103

Office of the Parliamentary Commissioner for Administration and Health Service Commissioners v Fernandez: EAT 15 Feb 2005

EAT Race Discrimination
1. The employer’s appeal against the majority ET’s judgment upholding the Claimant’s unfair dismissal claim was dismissed. The ET did not substitute its own judgment for that of the employer when it decided this procedurally fair dismissal was a sanction which no reasonable employer would have adopted.
2. The ET erred in law when it declined to follow binding precedent of the EAT and so misapplied the reverse burden of proof for sex and race discrimination cases.
3. Having made firm findings that the employer’s actions lacked reality and were absurd, it was perverse not to carry those findings across in its examination of the explanations given by the employer for its treatment of the Claimant.
4. The case was remitted to a fresh ET with a narrower remit to determine the sex and race discrimination claims in the light of: the direction of law, the findings on unfair dismissal being upheld, the abandonment of certain grounds of appeal and, on the EAT’s finding of an error, the EAT’s substitution of a finding.
5. The ET’s observations about the lack of proportionality in this case were accepted and a plea issued for conciliation to be considered by the parties.

Citations:

[2005] UKEAT 0573 – 04 – 1502, UKEAT/0573/04 and UKEAT/0574/04

Links:

Bailii, EAT

Citing:

See Also – Parliamentary Commissioner for Administration and the Health Commissioner v J Fernandez EAT 11-Jun-2003
EAT Equal Pay Act – Article 141
The applicant began work as a case worker at a lower salary than a female case worker employed by different departments in the same office. The female case worker was . .
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 June 2022; Ref: scu.223095

Secretary of State for Work and Pensions v Carlos Bobezes: CA 16 Feb 2005

The Regulations provided that income support was not payable for a dependent child for any period of four weeks or more where the child was outside Great Britain. The claimant, a Portuguese national had come to Great Britain but had been incapable of work for incapacity. His child returned to Portugal to stay with his grandmother from time to time. He said that the regulatins discriminated indirectly against migrant workers.
Held: The Regulations were indirectly discriminatory Where it was otherwise clear that such a regulation affected a significant number of people in this way statistical evidence might not be necessary to support a claim. The test was through a comparison between the children of resident and migrant workers.

Judges:

Lord Justice Pill, Lord Justice Buxton and Lord Slynn Of Hadley

Citations:

[2005] EWCA Civ 111, Times 14-Mar-2005

Links:

Bailii

Statutes:

Income Support (General) regulations 1987 (1987 No 1967)

Jurisdiction:

England and Wales

Citing:

Applied – O’Flynn v Adjudication Officer ECJ 23-May-1996
A condition on the making of a funeral grant that the deceased be buried in that country was unlawful. Article 7(2) of Regulation No 1612/68 on freedom of movement for workers within the Community precludes a rule of a Member State which makes grant . .
Lists of cited by and citing cases may be incomplete.

Benefits, Discrimination, European

Updated: 29 June 2022; Ref: scu.222713

Williams v J Walter Thompson Group Ltd: CA 17 Feb 2005

In giving their decision, the court reminded tribunals when preparing their judgments, to make sure the reasons were user friendly. Here time had been wasted with confusion about the Roman Numerals used to number the reasons.

Judges:

Mummery LJ, Chadwick LJ, Tuckey LJ

Citations:

[2005] EWCA Civ 133, Times 05-Apr-2005, [2005] IRLR 376

Links:

Bailii

Statutes:

Disability Discrimination Act 1996

Jurisdiction:

England and Wales

Cited by:

Cited – High Quality Lifestyles Ltd v Watts EAT 10-Apr-2006
EAT The Employment Tribunal had erred in its construction of direct discrimination under s3A(5) of the Disability Discrimination Act 1995 as amended when it failed to construct a correct hypothetical comparator . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 June 2022; Ref: scu.222730

Commission v Austria: ECJ 1 Feb 2005

ECJ (Social Policy) Failure of a Member State to fulfil its obligations – Articles 249 EC and 307 EC – Articles 2 and 3 of Directive 76/207/EEC – Equal treatment for men and women – Prohibition of the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work

Citations:

C-203/03, [2005] EUECJ C-203/03

Links:

Bailii

Statutes:

EC 249 307, Directive 76/207/EEC 2 3

Jurisdiction:

European

Discrimination

Updated: 29 June 2022; Ref: scu.222063

Bangs v Connex South Eastern Ltd: CA 27 Jan 2005

The failure of a tribunal to promulgate its decision was a matter of fact not of law, and could not therefore itself be a ground of appeal to the EAT. The EAT had allowed an appeal on the fair trial provision of the Convention. A failure to promulgate an opinion in a timely manner could lead to a claim against the state for failing to provide a fair trial, but not to an appeal. There was no incompatibility between the rule and convention rights.

Judges:

Dame Elizabeth Butler-Sloss, Mummery, Dyson LJJ

Citations:

[2005] EWCA Civ 14, Times 15-Feb-2005

Links:

Bailii

Statutes:

Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Appeal from – Kwamin v Abbey National Plc; Birminingham City Council v Mtize; Martin v London Borough of Southwark; Connex South Eastern Ltd vBangs EAT 9-Feb-2004
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke.
Four cases of delay in promulgation of ET decisions. Three allowed (7.5 months, 12 months, 14.5 months) and one dismissed (4 months). . .
Cited – Cobham v Frett PC 18-Dec-2000
(British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination

Updated: 29 June 2022; Ref: scu.222039

Hockenjos v Secretary of State for Social Security (No 2): CA 21 Dec 2004

The claimant shared child care with his former partner, but claimed that the system which gave the job-seeker’s child care supplement to one party only was discriminatory.
Held: In such cases the supplement usually went to the mother, and this had a diverse impact on men. It was for the Secretary of State to justify the discrimination. He had not done so. The rule was indirectly discriminatory against fathers; and the link with child benefit could not be justified. Treating only one parent as responsible in a shared care situation could not be justified.

Judges:

Ward LJ, Arden LJ, Scott Baker LJ

Citations:

[2004] EWCA Civ 1749, Times 04-Jan-2005, [2005] IRLR 471, [2005] 1 FCR 286, [2005] Eu LR 385, [2005] 1 FLR 1009, [2005] Fam Law 464

Links:

Bailii

Statutes:

Jobseeker’s Allowance Regulations 1996, Equal Treatment dDirective 79/7/EEC A4, Social Security Contributions and Benefits Act 1992 141

Jurisdiction:

England and Wales

Citing:

Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – Regina (Barber) v Secretary of State for Work and Pensions Admn 17-Jul-2002
The claimant challenged the refusal of the respondent, under authority of the regulations, to divide payment of child benefit between himself and his former partner. The child stayed with both parents. Other benefits flowed from the allocation of . .
Cited – Inge Nolte v Landesversicherungsanstalt Hannover ECJ 14-Dec-1995
Europa Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that persons in employment which is . .
Cited – Ingrid Rinner-Kuehn v Fww Spezial-Gebaudereinigung Gmbh and Co. Kg ECJ 13-Jul-1989
The Court heard a complaint about a German statute providing that an employer need not pay sick pay to a part-time worker. In at least seven member states part-time workers were predominantly women (the percentages ranging from 89% in the Federal . .
Cited – Megner and Scheffel v Innungskrankenkasse Vorderpfalz ECJ 14-Dec-1995
The mere fact that the legislative provision affects far more women than men at work cannot be regarded as a breach of Article 119 of the Treaty. . .
Cited – Jorgensen v Foreningen Speciallaeger and another ECJ 6-Apr-2000
Mrs Jorgensen, a specialist rheumatologist, complained about a rule which meant that, if she sold her practice, it would, because of its turnover, be treated as a part-time practice and subject to a cap on the fees it could receive from the Danish . .
Cited – Regina 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 . .
See Also – Hockenjos v Secretary of State for Social Security CA 2-May-2001
Issues relating to Job Seekers’ Allowance provide for the risks of unemployment, and fell within the Equal Treatment Directive. The scheme failed to treat equally with his wife, a man who was separated from her, but whose children stayed with him . .

Cited by:

Cited – Humphreys v Revenue and Customs SC 16-May-2012
Separated parents shared the care of their child. The father complained that all the Child Tax Credit was given to the mother.
Held: The appeal failed. Although the rule does happen to be indirectly discriminatory against fathers, the . .
Lists of cited by and citing cases may be incomplete.

Benefits, Discrimination

Updated: 28 June 2022; Ref: scu.221015

Hillman v BBC Resources Ltd: CA 29 Nov 2004

Citations:

[2004] EWCA Civ 1760

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Hillman v BBC Resources Ltd EAT 30-Mar-2004
EAT Alleged failure by the ET to make appropriate findings of fact, to deal properly with issue of comparators, and to follow the process indicated in the Barton case in respect of the transfer of the burden of . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 28 June 2022; Ref: scu.220653

Ross v Ryanair Ltd and Another: CA 21 Dec 2004

The claimant said that the airline and airport had failed to provide proper access arrangements for him as a disabled person. No wheelchair had been provided to transfer him through the airport to the airplane.
Held: It was the duty of both defendants to provide such facilities. It was no defence that better facilities were provided for more seriously disabled travellers, and the claimants financial ability to provide his own services was equally irrelevant. Both defendants were 100% liable, and the damages were to be paid equally.

Judges:

Lord Justice Brooke Vice-President Of The Court Of Appeal (Civil Division) Lord Justice Jonathan Parker And Lord Justice Keene

Citations:

[2004] EWCA Civ 1751, Times 11-Jan-2005, [2005] 1 WLR 1349

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Citing:

Cited – Roads v Central Trains Ltd CA 5-Nov-2004
The court considered the meaning of the ‘duty to provide a reasonable alternative method’.
Held: The policy of the 1995 Act was to provide access to a service as close as it was reasonable possible to get to the standard offered to the public . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Transport

Updated: 27 June 2022; Ref: scu.220527

Wheeler v Sungard Sherwood Systems Group Ltd: EAT 18 Oct 2004

EAT Disability Discrimination – Justification

Judges:

His Honour Judge Ansell

Citations:

UKEAT/0459/04, [2004] UKEAT 0459 – 04 – 1511

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 27 June 2022; Ref: scu.219846

Williams v Home Office: EAT 11 Oct 2004

EAT Race discrimination in respect of payment while off work sick, and upon a phased return to work. It is open to a Tribunal to disbelieve a manager and find the Respondent liable for one act of discrimination and yet find him/ it not responsible for a second alleged act. Employment Tribunal decision upheld.
Directions given for remedy hearing. Settlement/ conciliation encouraged.

Judges:

His Honour Judge Mcmullen QC

Citations:

[2004] UKEAT UKEAT – 0525 – 1110, [2004] UKEAT – 0525 – 1110, UKEAT/0525/04

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 27 June 2022; Ref: scu.219848

Culshaw v Eldonian Group Ltd: EAT 30 Sep 2004

EAT Maternity Rights and Parental Leave – Sex discrimination – No error in ET majority (Chairman dissenting) finding that as a matter of fact the treatment of the Applicant was not related to her pregnancy or maternity leave.

Judges:

His Honour Judge Mcmullen QC

Citations:

[2004] UKEAT 0272 – 04 – 3009, UKEAT/0272/04

Links:

Bailii, EAT

Employment, Discrimination

Updated: 27 June 2022; Ref: scu.219735

Sadler v Portsmouth Publishing and Printing Ltd: EAT 22 Sep 2004

EAT Sex Discrimination – Other losses – Sex discrimination – compensation. Deductions because of pre-existing condition and chance of further illness in any event

Judges:

His Honour Judge Ansell

Citations:

[2004] UKEAT 0280 – 04 – 1510, UKEAT/0280/04

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Discrimination, Damages

Updated: 27 June 2022; Ref: scu.219097

Jeffrey-Shaw v Shopshire County Premier Football League Shopshire County Football Association: EAT 17 Aug 2004

EAT Race Discrimination – Discrimination by other bodies – Race Discrimination
Section 12 Race Relations Act 1976. Definition of qualifying body and profession of vocation. Did it apply to amateur footballer and local football league authorities?

Judges:

His Honour Judge Ansell

Citations:

[2004] UKEAT 0320 – 04 – 1609, UKEAT/0320/04

Links:

Bailii

Statutes:

Race Relations Act 1976 12

Discrimination

Updated: 27 June 2022; Ref: scu.218791

Shamoon v Chief Constable of the Royal Ulster Constabulary: CANI 3 May 2001

Emplaw In sex and race discrimination cases an employee must generally be able to show that he or she has been treated less favourably than a person of the opposite sex who is in comparable circumstances. If there is no such comparator then in the absence of some evidence pointing to the conclusion that a person of the other sex would have been treated differently there cannot be discrimination even if the treatment afforded to the complaining employee was andquot; unsatisfactory or even harshandquot;.
Outline facts:-
Ms Joan Shamoon was a Chief Inspector in the Royal Ulster Constabulary with 22 years service. After a complaint from two constables about the way in which she conducted appraisals of their performance, her superior officer removed her responsibilities in respect of staff appraisals. Also an inspector was appointed to assist with her administrative duties generally. She claimed that she had been singled out from other Chief Inspectors who continued to perform such appraisal duties, that the appointment of an inspector to help her undermined her position and that this was all unfavourable treatment afforded to her because she was a woman.
Ms Shammon won her sex discrimination case at the industrial tribunal and the Police appealed to the Northern Ireland Court of Appeal.
Decision:-
The Police won the appeal.
The main point made by the NI Court of Appeal in overruling the decision of the industrial tribunal was that, in their view, Ms Shamoon had not suffered any andquot; detrimentandquot;, quoting with approval from the EAT’s judgment in Coker and Osamor v The Lord Chancellor, Lord Irvine 2001 ICR 507 that ‘there has to be some physical or economic consequence as a result of discrimination to constitute a detriment in this context, which is material and substantial’. An unjustified sense of grievance could not amount to a detriment.
Although this was enough to dispose of the case nevertheless the NI Court of Appeal went on to consider other issues. One of these was the question of who were valid comparators. The Court of Appeal held that there were none in this case as no complaints had been made about appraisals conducted by the other Chief Inspectors and that ‘it had not been established that the RUC had treated her less favourably than it would have treated any other officer in the same circumstances’
Editor’s note:
The report of this case suggests that no reference was made to Mishriki v West Midlands Health Authority 2000, CA 20th June 2000 (unreported) which provides support for the contrary proposition that if no valid comparator can be found it would be legitimate to make a comparison with a hypothetical comparator.

Judges:

Carswell LCJ

Citations:

[2001] NICA 23

Links:

Bailii

Statutes:

Sex Discrimination (Northern Ireland) Order 1976 (1976 No 1042 NI)

Jurisdiction:

Northern Ireland

Citing:

See Also – Shamoon v Chief Constable of the Royal Ulster Constabulary CANI 28-Jun-2001
. .

Cited by:

Appeal from – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
See Also – Shamoon v Chief Constable of the Royal Ulster Constabulary CANI 28-Jun-2001
. .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 27 June 2022; Ref: scu.201972

Taylor v Northern Health and Social Care (01372): FENI 27 Aug 2020

Discrimination – Religious Belief/ Political Opinion

Citations:

[2020] NIFET 01372 – 19FET

Links:

Bailii

Jurisdiction:

Northern Ireland

Cited by:

See Also – Taylor v Northern Health and Social Care (01398) FENI 27-Aug-2020
Discrimination – Religious Belief/ Political Opinion . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 27 June 2022; Ref: scu.657059

Taylor v Northern Health and Social Care (01398): FENI 27 Aug 2020

Discrimination – Religious Belief/ Political Opinion

Citations:

[2020] NIFET 01398 – 19FET

Links:

Bailii

Jurisdiction:

Northern Ireland

Citing:

See Also – Taylor v Northern Health and Social Care (01372) FENI 27-Aug-2020
Discrimination – Religious Belief/ Political Opinion . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 27 June 2022; Ref: scu.657060

Mensah, Application for Permission; Mensah v Royal Berkshire and Battle Hospitals NHS Trust: CA 26 Jan 2001

Citations:

[2001] EWCA Civ 98

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Mensah v Royal Berkshire and Battle Hospitals NHS Trust EAT 12-Dec-1997
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Discrimination, Employment

Updated: 27 June 2022; Ref: scu.217945

Mensah v Heatherwood and Wexham Park Hospitals NHS Trust and others: CA 1 Nov 2002

Citations:

[2002] EWCA Civ 1610

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Mensah v Heatherwood and Wrexham Park Hospitals NHS Trust and others EAT 12-May-2003
. .
Appeal from – Mensah v Heatherwood and Wexham Park Hospitals NHS Trust and others EAT 5-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 27 June 2022; Ref: scu.217852

Deman v Association of University Teachers: CA 1 Nov 2002

Application for permission to appeal.

Citations:

[2002] EWCA Civ 1732

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Deman v Association of University Teachers and others EAT 5-Feb-2002
EAT Race Discrimination – Inferring Discrimination
EAT Race Discrimination – Inferring discrimination. . .
See Also – Deman v Association of University Teachers CA 14-Mar-2003
The appellant challenged dismissal of his claim for race discrimination. In the midst of a dispute with the employer University. He was dissatisfied with the support given by his union. He was refused legal assistance save through a firm of lawyers . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 27 June 2022; Ref: scu.217809

Seray-Wurie v Skinners’ Company School for Girls and Another: CA 6 Sep 2002

The claimant sought leave to appeal against rejection of her appeals against dismissal of her claims for race discrimination and unfair dismissal.
Held: The Tribunal had properly dealt with the allegations of bias. The EAT had also made appropriate enquireis and satisfied itself on the point. Leave refused.

Judges:

Tuckey LJ

Citations:

[2002] EWCA Civ 1393

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 June 2022; Ref: scu.217614

Asselman (Nee Coxon) v Rank Xerox UK Ltd: CA 1 Jul 2002

Citations:

[2002] EWCA Civ 971

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – J Coxon (Now Asselman) v Rank Xerox UK Ltd EAT 7-Mar-2002
EAT Sex Discrimination – Indirect . .
See Also – Coxon (Aka Asselman) v Rank Xerox (UK) Ltd CA 11-Oct-2001
. .

Cited by:

See Also – Coxon v Rank Xerox Ltd EAT 4-Oct-2002
EAT Sex Discrimination – Direct
The applicant appealed a finding that she had been fairly dismissed from her employment for gross misconduct.
Held: There was a clear distinction between a finding of a . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 23 June 2022; Ref: scu.217351

Melbourne v Ministry of Defence: CA 26 Apr 2002

Renewed application for permission to appeal from a ruling of the Employment Appeal Tribunal.

Judges:

Buxton LJ, Jackson J

Citations:

[2002] EWCA Civ 754

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – J L Melbourne v Ministry of Defence EAT 26-Nov-2001
EAT Race Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Armed Forces

Updated: 23 June 2022; Ref: scu.217070

Deman v Association of University Teachers: CA 1 Mar 2002

Application for permission to appeal against a decision of the Employment Appeal Tribunal

Citations:

[2002] EWCA Civ 426

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – John Hardie v the City of Edinburgh Council for Judicial Review of A Decision To Remove the Petitioner From the List of Supply Teachers By the City of Edinburgh Cou SCS 10-Nov-1999
. .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 23 June 2022; Ref: scu.216912

Lawal v Northern Spirit Ltd: CA 15 Jan 2002

Application for leave to appeal

Judges:

Keene LJ

Citations:

[2002] IRLR 228, Times 29-Jan-2002, [2002] EWCA Civ 17

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Full Appeal – AA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
See also – Lawal v Northern Spirit Ltd EAT 15-Feb-1999
The appellant wished to pursue an appeal against the striking out of his claim, and objected that contrary to the Rules, a member of the board who had heard the pre-hearing review had also sat on the full hearing.
Held: The appeal should be . .
See Also – Lawal v Northern Spirit Ltd EAT 6-Oct-1999
The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. . .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .

Cited by:

Application for leave – AA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
See Also – Lawal v Northern Spirit Ltd CA 30-Oct-2002
. .
See Also – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
See Also – Lawal v Northern Spirit Ltd CA 19-Feb-2004
. .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 23 June 2022; Ref: scu.216716

Wippel v Peek and Cloppenburg GmbH and Co. KG: ECJ 12 Oct 2004

ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and organisation of working-time.
A part-time worker was engaged under a framework contract of employment which lasted in the event from October 1998 to June 2000, but under it the duration and scheduling of any work was determined by agreement (in practice from week to week) between the parties and she was paid on an hourly basis for any hours she was asked and agreed to work (plus sales commission on sales thereby achieved). Her contention was that she was discriminated against because her contract did not contain a fixed weekly working time with a predetermined salary, whether or not she did or did not work for the whole of that working time.
Held: That argument was dismissed. Advocate General (Kokott) stated: ‘Consequently, for the purposes of the Framework Agreement, the term ‘worker’ is not a Community law concept. Indeed, the personal scope of application of the Framework Agreement is defined by reference to the national law applicable in each case. The term ‘worker’ therefore has to be defined in reliance on the law, collective agreements and practices in force in each member state. The member states have wide discretionary powers in this respect. Only the very broadest limits can be determined in this respect by reference to Community law. It could therefore constitute a breach of the duty of co-operation (article 10 EC) if a member state were to define the term ‘worker’ so narrowly under its national law that the Framework Agreement on part-time work were deprived of any validity in practice and achievement of its purpose, as stipulated in Clause 1, were greatly obstructed. However, there is no sign of that here.’

Judges:

Advocate General (Kokott)

Citations:

[2005] IRLR 211, [2004] EUECJ C-313/02, [2005] ICR 1604, [2005] 1 CMLR 9

Links:

Bailii

Statutes:

Equal Treatment Directive (Council Directive 76/207/EEC, Directive 76/207/EEC, Directive 97/81/EC

Jurisdiction:

European

Cited by:

Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Matthews 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 . .
Cited – O’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 . .
Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 23 June 2022; Ref: scu.216593

Secretary of State for Work and Pensions v M: CA 15 Oct 2004

M had challenged the Child Support Regulations saying that they discriminated against her. She was the liable parent, and in a monogomoud lesbian relationship. As such she said that she was treated worse than she would have been since the Regulations did not that her relationship as constituting a family. The Secretary of State appealed against the finding that the regulations were discriminatory. The second claimant had challenged a similar result in her claim for Housing Benefits.
Held: The court upheld the Commissioner’s decision.
Lord Justice Sedley considered that the applicant’s previous family life (i.e. the relationship between herself, her former husband and her children) was not within the ambit of Article 8. As for her relationship with her partner, he read the ECHR decision in Estevez to establish that the question whether same-sex relationships fall within Article 8 is a matter of domestic law. Several domestic precedents treated same-sex couples as no different from heterosexual couples in certain contexts, and the applicant’s relationship constituted family life for the purposes of the case. Any discrimination against the applicant on the grounds of her sexual orientation called for compelling and proportionate justification. The child support scheme impinged in some significant degree on the family life of the applicant and her partner, bringing their situation within the ambit of Article 8. As the scheme discriminated against the applicant on grounds of her sexual orientation, Article 14 was also engaged. He rejected the argument that the scheme came within the ambit of the applicant’s private life, since the scheme did not set out to recognise the applicant’s sexual orientation. Regarding Article 1 of Protocol No. 1, he considered it unnecessary to decide if it too was engaged, although he doubted that it was. He found that the Government had not provided any acceptable justification for the discrimination against the applicant. He rejected the arguments advanced on behalf of the Secretary of State about the difficulty of correcting a problem that was but one instance of a distinction applied throughout the wider social security system, observing that there was no doctrine of justification by the logistics of reform. As for a remedy, he considered that the appropriate course was to disapply (in effect delete) the definition in the regulations of an unmarried couple so as to eliminate the requirement of heterosexuality.

Judges:

Kennedy, Sedley, Neuberger LJJ

Citations:

[2004] EWCA Civ 1343, [2005] 2 WLR 740, [2006] QB 380

Links:

Bailii

Statutes:

Child Support Act 1991, Child Support (Maintenance Assessments and Special Cases) Regulations 1992 1(2), Housing Benefit (General) Regulations 1987, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Appeal from – (Un-named) SSCS 1-Oct-2003
The mother had challenged payments required of her by way of child support. The Secretary of State now appealed.
Held: The appeal was rejected: ‘a gay relationship can be a family for the purpose of [A]rticle 8’. There was no reason, in the . .
Cited – Mata Estevez v Spain ECHR 10-May-2001
The claimant complained that the state did not give proper recognition of his relationship with his deceased same sex partner.
Held: The court noted the growing tendency in a number of European states towards the legal and judicial recognition . .

Cited by:

At CA – JM v United Kingdom ECHR 21-Nov-2008
. .
At CA – JM v United Kingdom ECHR 28-Sep-2010
The applicant alleged that she had been the victim of discrimination on the basis of sexual orientation in the assessment by the authorities of her financial liability under the regulations on child support. . .
Lists of cited by and citing cases may be incomplete.

Child Support, Discrimination, Benefits

Updated: 23 June 2022; Ref: scu.216576

Graysons Restaurants Ltd v Jones and Others: CA 17 Apr 2019

The court was asked whether a claim for equal pay which has not been determined when the employer becomes insolvent can constitute ‘arrears of pay’ payable by the Secretary of State under Part XII of the Employment Rights Act 1996.

Citations:

[2019] EWCA Civ 725

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination, Insolvency

Updated: 23 June 2022; Ref: scu.636082