Application for hearing to be postponed.
Langstaff QC Rec
[2001] UKEAT 1111 – 01 – 1809
See Also – Commissioner of Police of the Metropolis v Harley EAT 19-Feb-2001
Appeal against a finding that a claim of disability discrimination was in time. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.204186
The applicant had complained of disability discrimination, and failed. He had been ordered to pay a sum towards the costs of the respondent. He appealed that order. He had previously issued a complaint, and lost that complaint, being warned then of the possibility of such an order. This second complaint was of victimisation, but the decision makers knew nothing of his first complaint. His complaint was dismissed. The tribunal recognised the unreasonableness of his complaint, and the substantial cost to the respondent, and awarded pounds 250 costs. The respondent cross appealed, saying that the award should not have been so limited.
Held: In making that decision the tribunal had taken into account a suggestion that the appellant had had all relevant evidence available to him from an early stage. The nature of victimisation complaints is that they are difficult to prove, and it may often be proper for a complainant to rely upon the hope of cross examination.
EAT Procedural Issues – Employment Tribunal.
Mrs Recorder Cox QC
EAT/417/00, [2001] UKEAT 417 – 00 – 0805
Employment Tribunals Constitution and Procedure Regulations 1993 Sch 1 r 12
England and Wales
Cited – M J Benyon and others v David Scadden and others EAT 14-Jun-1999
The tribunal had found that the claimants and their union had pursued their case, even though they recognised the weakness of the case, with the additional intention of persuading their employer to recognise their union, UNISON. Such behaviour was . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.203899
[2001] UKEAT 1346 – 00 – 0405
Disability Discrimination Act 1996
England and Wales
See Also – A 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 . .
See Also – A 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.203890
[2001] UKEAT 210 – 00 – 0905
England and Wales
Updated: 14 June 2022; Ref: scu.203832
Preliminary ex parte hearing to decide whether appeal was to go ahead to full hearing.
[2001] UKEAT 746 – 99 – 3004
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 and others EAT 5-Feb-2002
EAT Race Discrimination – Inferring Discrimination
EAT Race Discrimination – Inferring discrimination. . .
See Also – Deman v Association of University Teachers and Another EAT 6-Jun-2001
Appeal against order of tribunal for adjournment to allow vexatious litigant application against the applicant. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.203780
Appeal against a finding that a claim of disability discrimination was in time.
Charles J
[2001] UKEAT 518 – 00 – 1902, EAT/518/00
Disability Discrimination Act 1995
See Also – Harley v Commissioner of Police of the Metropolis EAT 18-Sep-2001
Application for hearing to be postponed. . .
Cited – Meikle v Nottinghamshire County Council EAT 19-Aug-2003
EAT Disability Discrimination – Less favourable treatment. The appellant brought proceedings against the Respondents alleging that they had failed to make adjustments to her workplace and conditions so as to . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.203494
Appeal against dismissal of race discrimination claim
Lindsay P J
[2001] UKEAT 1185 – 99 – 2201
Updated: 14 June 2022; Ref: scu.203382
Appeal from rejection of claim for constructive unfair dismissal and of discrimination.
Timothy Brennan QC Rec
[2002] UKEAT 0071 – 02 – 1812
Disability Discrimination Act 1995
England and Wales
Cited – Ministry of Defence v Jeremiah CA 1980
The court considered the meaning of ‘detriment’ in discrimination law. Brightman LJ said: ‘I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment.’
Lord Justice . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.203346
race discrimination and disability discrimination in recruitment.
[2002] UKEAT 0762 – 02 – 0811
England and Wales
See Also – Sahota v Wolverhampton City Council 0415 EAT 15-Aug-2003
Two preliminary hearings in relation to a decision and a refusal to review of an Employment Tribunal which unanimously decided that the Applicant’s claim for racial discrimination was dismissed on the grounds of jurisdiction and specifically on the . .
Cited – Sahota v Wolverhampton City Council (0414) EAT 15-Aug-2003
Claimant’s application for leave to appeal from dismissal of claims for disability and race discrimination.
Held: rejected. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.203256
[2002] UKEAT 0806 – 02 – 0611
England and Wales
Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 June 2022; Ref: scu.203207
[2016] NIIT 00062 – 15FET
Northern Ireland
Updated: 14 June 2022; Ref: scu.657106
[2017] NIIT 00104 – 16FET
Northern Ireland
Updated: 14 June 2022; Ref: scu.657094
[2017] NIFET 00039 – 16FET
Northern Ireland
Updated: 14 June 2022; Ref: scu.657089
[2017] NIIT 00070 – 16FET
Northern Ireland
Updated: 14 June 2022; Ref: scu.657091
DISABILITY DISCRIMINATION – Disability related discrimination
The Claimant was employed by the Respondent to work in its warehouse. She was a disabled person for the purposes of the Equality Act 2010 (‘EqA’) by reason of suffering osteoarthritis. It was her perception (supported by her GP) that her symptoms worsened in cold and damp weather. When the Respondent changed its working practices, and asked that the Claimant (and other warehouse workers) be prepared to move between benches, including those situated nearest the loading doors, the Claimant refused because she believed this would require her to work in colder, damper conditions and thus exacerbate her symptoms. The Respondent’s investigations showed this was an erroneous belief – in fact, the temperature and humidity levels were not materially different throughout the warehouse – and the Respondent considered the Claimant’s refusal to obey the instruction was unreasonable and issued her with a final written warning (subsequently downgraded on appeal to a written warning).
The Claimant brought ET proceedings, complaining that this amounted to disability discrimination contrary to section 15 EqA. The ET upheld that claim, finding that, while the Claimant’s belief in the temperature and humidity differences in the warehouse was mistaken, her refusal to accept the Respondent’s instruction was because she believed compliance would adversely impact on her health and that was a condition of osteoarthritis, which was a disability; the essential components of section 15 EqA were thus established. The Respondent appealed.
Held: allowing the appeal and setting aside the ET’s Judgment on the claim under section 15 EqA.
A broad approach was to be adopted when determining whether the ‘something’, that had led to the unfavourable treatment, had arisen in the consequence of the complainant’s disability for the purposes of section 15 EqA. It was an objective test and the requisite connection could arise from a series of links (City of York v Grosset [2018] EWCA Civ 1105 and Sheikholesami v University of Edinburgh [2018] IRLR 1090 EAT applied). That said, there still had to be some connection between the ‘something’ (here the refusal to obey the Respondent’s instruction to work at benches near the loading doors) and the Claimant’s disability (osteoarthritis); the former had to arise in some way as a consequence of the latter. Allowing that the Claimant’s perception that her condition might worsen if she was required to work in colder and damper conditions might arise from her disability, the ET had not found that this was what the Respondent was requiring her to do. The ET had accepted that the evidence showed that, objectively speaking, there was no material difference in the conditions at the different work benches; it had found that the Claimant was mistaken in her belief in this regard and had failed to explain how it had then concluded that this erroneous belief arose in consequence of her disability. This was not simply a failure to provide adequate reasons. Allowing that an ET might find that an employee’s judgment was impaired as a result of (say) stress or pain suffered in consequence of disability, that was not how the Claimant had put her case in these proceedings (either before the ET or on appeal) and it was not an inference that might legitimately be drawn from the ET’s reasoning. The ET’s written reasons revealed no basis for finding a causal connection between the Claimant’s disability and the erroneous belief that had led her to refuse to accept the Respondent’s instruction. In the circumstances, the section 15 claim must fail.
[2019] UKEAT 0167 – 18 – 0301
England and Wales
Updated: 14 June 2022; Ref: scu.635151
UNFAIR DISMISSAL – Contributory fault
UNFAIR DISMISSAL – Polkey deduction
Following a finding that the Claimant had been unfairly dismissed, an Employment Tribunal erred at the Remedy stage in failing to give adequate reasons for the sequential reductions to a compensatory award it made (i) under Polkey and (ii) by way of contributory fault. It also erred in failing to explain why no similar reduction was applied to the basic award, and why no uplift was applied for breaches of the ACAS code identified in the Liability Judgment.
[2018] UKEAT 0180 – 18 – 0712
England and Wales
Updated: 14 June 2022; Ref: scu.635146
Whether a Chief Constable can be made liable under the 1975 Act for sexual harassment and other acts of discrimination committed by one of his officers against another of his officers.
[2003] EWCA Civ 1354, [2003] ICR 1463, [2003] Po LR 437
England and Wales
Updated: 13 June 2022; Ref: scu.461732
[2003] NIFET 375 – 02
Northern Ireland
Updated: 13 June 2022; Ref: scu.237354
[2002] NIFET 469 – 01
Northern Ireland
Updated: 13 June 2022; Ref: scu.237397
The claimant appealed against dismissal of her unfair dismissal and of her maternity related discrimination claim.
Held: The appeal succeeded: ‘it does not appear that the tribunal gave any separate consideration to whether the pregnancy was an effective cause of the adverse treatment of Mrs Gbokoyi and, insofar as it relied on the reasons which it had set out for rejecting the unfair dismissal claim, those reasons were flawed.’
Mr Recorder Burke QC
[2002] UKEAT 1282 – 00 – 1801, EAT/1282/00
England and Wales
Leave – Gbokoyi v Bennette’s Eco-Inverter (Environmental Services) Ltd EAT 22-Mar-2001
Preliminary hearing – leave to appeal granted . .
Cited – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 2) HL 20-Oct-1995
The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact . .
Cited – O’Neill v Symm and Co Ltd EAT 10-Jun-1998
An employer dismissing an employee for sickness absences, and who was unaware that the sickness had come to be a disability, did not discriminate under the Act. The reason for the dismissal was to be looked for in the mind of the employer. . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.202426
EAT ‘This case concerns the correct test to be applied when an allegation of victimisation is made under the Race Relations Act; and the correct approach to handling a series of allegations of race discrimination said to constitute a single regime of discrimination.’
UKEAT/445/02, [2004] UKEAT 0445 – 02 – 1601
England and Wales
Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.202421
Appeal from dismissal of sex discrimination and unfair dismissal claims.
[2002] UKEAT 1302 – 00 – 2501
England and Wales
Updated: 13 June 2022; Ref: scu.202406
Appeal by way of case stated against the decision of an industrial tribunal dated 9 August 1999, whereby it dismissed the appellant’s claim against the respondent for compensation for sex discrimination and/or victimisation. The net issue in the appeal is whether an employee who has brought a complaint of such treatment against her employer is entitled to pursue it against him when she has come to a settlement with the transferee employer who has succeeded to his liabilities in consequence of a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 apply.
[2000] NICA 2
Updated: 13 June 2022; Ref: scu.201919
Failure to give proper reference. ECJ judgment giving right to make complaint only if cause was result of complaint over health and safety matters.
Held: The appeal failed. The section did not protect former workers: ‘section 44 does not, on its proper construction, apply in the circumstances relied upon by Mr Fadipe. The section is in the part of the Act that affords protection from suffering detriment in employment. Its purpose is to protect employees while they are still employed from suffering detriment, short of dismissal, by reason of having brought to their employer’s attention health and safety matters of the kind referred to in section 44(1)(c). If it is a dismissal case the section does not apply: see section 44(4). ‘ Nor was it possible now to raise issues not pleaded before the tribunal.
[2001] EWCA Civ 1885, [2005] ICR 1760
Council Directive on the introduction of measures to encourage improvement in the safety and health of workers at work, 89/391/EEC, Employment Rights Act 1996 44
England and Wales
See also – Fadipe v Reed Nursing Personnel CA 19-Feb-2001
Failure to give proper reference for former employee. . .
Cited – Coote 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 – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
Cited – Woodward v Abbey National Plc CA 22-Jun-2006
The claimant appealed refusal to award damages after an alleged failure to give a proper reference, saying that the decision in Fadipe could not stand with the later decision in Rhys-Harper. She said that she had suffered victimisation after making . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.201554
Leave to appeal refused.
Keene LJ
[2001] EWCA Civ 1719
England and Wales
See Also – Abegaze v British Telecommunications Plc EAT 9-Jul-1997
. .
See Also – Abegaze v British Telecommunications Plc EAT 20-Feb-1998
. .
See Also – Abegaze v British Telecommunications Plc EAT 15-Jul-1999
. .
See Also – Abegaze v British Telecommunications Plc EAT 12-May-2000
. .
See Also – Abegaze v British Telecommunications Plc CA 29-Jan-2001
Renewed application for permission to appeal. . .
See Also – Abegaze v British Telecommunications Plc EAT 30-Apr-2001
Preliminary hearing on appeal – application for adjournment. Dismissed on papers. . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.201458
Application for leave to appeal.
Mummery LJ
[2001] EWCA Civ 1761
England and Wales
See Also – Rajendra Chaudhary v Royal College of Surgeons of Great Britain and Ireland and others CA 8-Nov-2001
Application for leave to appeal. . .
See Also – Rajendra Chaudhary v Royal College of Surgeons of Great Britain and Ireland and others CA 8-Nov-2001
Application for leave to appeal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.201478
Peter Gibson LJ
[2001] EWCA Civ 1555
England and Wales
Updated: 13 June 2022; Ref: scu.201383
[2001] EWCA Civ 1182
England and Wales
See Also – Mensah v West Middlesex University Hospital NHS Trust and others EAT 16-Jul-1997
. .
See Also – Mensah v West Middlesex University Hospitals and others EAT 27-Feb-1998
. .
See Also – Mensah v West Middlesex University Hospitals and others EAT 1-May-1998
. .
See Also – Mensah v West Middlesex University Hospital NHS Trust and others EAT 23-Jul-1999
. .
See Also – Mensah v West Middlesex University Hospital NHS Trust and Another EAT 18-Jun-2003
. .
Lists of cited by and citing cases may be incomplete.
Updated: 13 June 2022; Ref: scu.201266
Henry LJ
[2001] EWCA Civ 1177
England and Wales
Updated: 13 June 2022; Ref: scu.201241
Application for leave to appeal – refused.
Keene LJ
[2001] EWCA Civ 697
England and Wales
See Also – Jack v Pinkerton Security Services Ltd EAT 23-Jun-2000
. .
Appeal from – William Jack v Pinkerton Security Services Ltd EAT 7-Dec-2000
EAT Race Discrimination – Direct . .
Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
See Also – Jack v Pinkerton Security Services Ltd EAT 16-Apr-2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.201058
Renewed application for leave to appeal.
Held: No error of law had been shown.
[2001] EWCA Civ 138
England and Wales
Appeal from – 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.
Appealed to – 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.
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.200817
Renewed application for permission to appeal.
Mummery LJ
[2001] EWCA Civ 74
England and Wales
See Also – Abegaze v British Telecommunications Plc EAT 9-Jul-1997
. .
See Also – Abegaze v British Telecommunications Plc EAT 20-Feb-1998
. .
See Also – Abegaze v British Telecommunications Plc EAT 15-Jul-1999
. .
See Also – Abegaze v British Telecommunications Plc EAT 12-May-2000
. .
See Also – Abegaze v British Telecommunications Plc EAT 30-Apr-2001
Preliminary hearing on appeal – application for adjournment. Dismissed on papers. . .
See Also – Abegaze v British Telecommunications Plc CA 5-Nov-2001
Leave to appeal refused. . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.200717
The claimant worked part time. She said that she should have been paid at the same rate as her male full time equivalents, the failure being incompatible with her rights under Article 119.
Held: The scope of Article 119 EEC covers not only direct but also indirect discrimination. The difference between part-time and full-time work is by itself ‘a material difference’ for the purposes of Section 1(3). The decision of the European Court of Justice clearly establishes that a differential in pay cannot be justified simply by showing that the women are part-time workers, and, where the circumstances are such that part-time workers are wholly or mainly women, an employer cannot justify paying less for like work to a part-time woman than to a full-time man by simply relying on the fact that the woman is a part-time employee.
Browne-Wilkinson J P
[1981] 1 WLR 1485, [1981] ICR 715, [1981] UKEAT 145 – 79 – 1906, [1981] 2 CMLR 24, [1981] IRLR 228, [1981] ECR 911
Equal Pay Act 1970, EEC Treaty 119
Cited – J P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .
Mentioned – Pickstone 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 . .
Cited – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.200625
The claimant had made a complaint of race discrimination. The complaint was dismissed. Some time later the company dismissed him, and he again lodged a complaint. The tribunal found him unfairly dismissed, but again not discriminated against.
Held: The Tribunal had been wrong to ignore any motive for the action taken. When it found no discrimination, it was obliged to give reasons for that finding. It had done so. Whilst the claimant had been treated less favourably than others, it appeared not to have arisen from his race. ‘Tribunals are not required to draw inferences. They may do so. If they either think that that there is no evidence from which inferences can properly drawn, or if they think the evidence does not warrant the drawing of inferences, they should say so.’ The reason here was the reason was a long standing personality clash between himself and another worker.
Wall LJ said: ‘I do not accept the argument that the hypothetical comparator in a case under RRA 1976 must be, in effect, a clone of the applicant in every respect (including personality and personal characteristics) except that he or she is a different race. Nothing that I read in the speeches in Shamoon leads me to that conclusion, nor does the statute.’
Lord Justice Ward The Right Honourable Lord Justice Hooper Lord Justice Wall
[2004] EWCA Civ 1178, [2005] IRLR 46
England and Wales
Cited – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Cited – 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 . .
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
See Also – Madden v Preferred Technical Group-Cha Ltd and Another EAT 14-Feb-2000
. .
See Also – Madden v Preferred Technical Group – Cha Limited, Michael Guest EAT 21-Jan-2001
EAT Race Discrimination – Victimisation
EAT Race Discrimination – Victimisation. . .
See Also – Madden v Preferred Technical Group – CHA Limited, Guest EAT 22-Jan-2001
EAT Race Discrimination – Direct
EAT Race Discrimination – Direct . .
Appeal from – Madden v Preferred Technical Group- Cha Ltd M Guest EAT 1-Dec-2003
EAT Race Discrimination – Victimisation . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.200654
EAT Sex discrimination: compensation – An award of compensation for injury to feelings, pursuant to a finding of unlawful discrimination on the grounds of gender or victimisation is to be made without reference to taxation. The Tribunal correctly decided this matter.
Where an employee had, in mitigation of her losses, undertaken an education course, it was a question of fact for the Tribunal to decide whether or not such step was reasonable. The Respondent’s appeal against this Decision was dismissed.
The calculation of loss of pension should be based upon the guidelines to Employment Tribunal Chairmen and, where such pension loss is claimed to extend beyond two years, the substantial loss formula rather than the ‘simplified approach’ should be adopted. Remitted for written submissions to the Employment Tribunal.
McMullen QC HHJ
[2004] UKEAT 0801 – 03 – 1208, UKEAT/0801/03(2), [2004] IRLR 857, [2005] ICR 374
England and Wales
See Also – Vince-Cain v Orthet Ltd EAT 5-Mar-2004
Unfair Dismissal – Reason for dismissal – Refusal of an application by an employer to argue that it is wrong in law under SDA 1975 section 65 to gross up an award for compensation when its own submission to the opposite effect had been accepted by . .
Cited – Timothy James Consulting Ltd v Wilton EAT 5-Mar-2015
EAT Harassment – SEX DISCRIMINATION – Injury to feelings
SEX DISCRIMINATION – Other losses
The Claimant resigned from the Respondent company and was found by the Employment Tribunal to have been . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.200577
EAT Disability Discrimination – Less favourable treatment. – Dismissal of claim for disability discrimination on basis that Applicant not disabled.(i) No perversity and proper application of Morgan in finding that the mental impairment was not a clinically well-recognised illness.
(ii) It is inappropriate to give a rolled-up answer to the 3 questions of (a) effect on day to day activities (b) substantial (c) long term. But in the light of finding on (i) appeal fell to be dismissed.
The Honourable Mr Justice Burton
[2004] UKEAT 0032 – 04 – 1207, UKEAT/0032/04
England and Wales
Updated: 11 June 2022; Ref: scu.200575
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
The applicant alleged, in particular, that civil proceedings brought by him were not determined within a reasonable time.
J-P Costa P
39197/98, [2002] ECHR 687, (2003) 36 EHRR 15
Human Rights
Appeal from – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Appeal from – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.177456
DISABILITY DISCRIMINATION – Compensation
DISABILITY DISCRIMINATION – Loss/mitigation
DISABILITY DISCRIMINATION – Burden of proof
The Law Reform (Contributory Negligence) Act 1945 can apply to some discrimination claims, but reduction of an award for contributory negligence would rarely, if ever, be justified because of the difficulties in applying the concept of ‘fault’ to the victim of a discrimination claim and the fact that the discriminator may have acted without ‘fault’ in the sense of the 1945 Act.
The obiter dictum in Way v Crouch [2005] ICR 1362, EAT at [11] that ‘compensation in a sex discrimination case (and by analogy in other discrimination claims) is subject to the [1945] Act’ is too broad. The essence of the right not to be discriminated against could be impaired by over-wide application of the 1945 Act. A contributory negligence argument in a discrimination claim may be more appropriately treated as an allegation of failure to mitigate loss.
The tribunal had not erred in its assessment of the quantum of non-financial loss (psychiatric injury and injury to feelings) for disability discrimination. The awards for injury to feelings and psychiatric damage were not flawed by misdirection in relation to causation of loss; nor were they perversely high or flawed by double counting.
The tribunal had rightly rejected the Claimant’s invitation to impose a financial penalty on the First Respondent under section 12A(1) of the Employment Rights Act 1996 for deliberate and repeated breaches of employment law.
The tribunal had also rightly rejected the invitation of the Claimant to award aggravated damages. The Appeal Tribunal shared the lack of enthusiasm for such awards expressed by the Appeal Tribunal in Commissioner of Police for the Metropolis v Shaw [2012] ICR 464.
[2018] UKEAT 0056 – 18 – 0612
Law Reform (Contributory Negligence) Act 1945
England and Wales
Updated: 11 June 2022; Ref: scu.635147
DISABILITY DISCRIMINATION – Reasonable adjustments
The Tribunal erred in its approach to the Respondent’s policy on parking, which was clearly a relevant factor to be taken into account in determining the claim on reasonable adjustments. The Tribunal also erred in its assessment of the reasonableness of the adjustment in question in that it failed to focus on the particular disadvantage suffered by the Claimant, namely the stress of having to look for a parking place.
The case would be remitted to the Tribunal to reconsider the reasonable adjustment issue.
[2018] UKEAT 0150 – 18 – 0712
England and Wales
Updated: 11 June 2022; Ref: scu.635148
ECJ Article 157 TFEU – Directive 79/7/EEC – Directive 97/81/EC – Framework Agreement on part-time work – Directive 2006/54/EC – Contributory retirement pension – Equal treatment for male and female workers – Indirect discrimination on grounds of sex
C Toader
C-385/11, [2012] EUECJ C-385/11
Directive 97/81/EC, Directive 79/7/EEC
European
Updated: 11 June 2022; Ref: scu.465995
Mr Justice Collins
[2004] EWHC 1923 (Admin)
England and Wales
Updated: 11 June 2022; Ref: scu.200004
EAT 1. Employment Tribunal Chairmen should always number the paragraphs of their decisions and use consecutive paragraph numbering in doing so (and with as few subparagraphs as possible, but if using such should continue the main paragraph number e.g. 12.1, 12.2 etc).
2. Employment Tribunal failed to comply with Zafar and Bahl in finding direct (while rejecting indirect) race discrimination and without setting out and rejecting non-discriminatory justifications: remitted to fresh tribunal: Applicant’s cross-appeal on quantum dismissed.
Burton J P
[2004] UKEAT 0083 – 03 – 2704
Updated: 11 June 2022; Ref: scu.200018
EAT Sex Discrimination and Disability Discrimination – Victimisation
The ET gave no weight to relevant admissible probative evidence because of a misapprehension of the circumstances of its being adduced. Its Decision is set aside and remitted to a fresh tribunal as a fair trial was not held. The ET also failed to apply correctly the principles in Morse relating to the duty to make reasonable adjustments. Its finding of bad faith, though not an issue at the hearing, did not vitiate its rejection of the victimisation claims. Its award of costs of andpound;10,000 fell with the substantive decision.
His Honour Judge McMullen QC
UKEAT/1223/02 – 2007, [2004] UKEAT 1223 – 02 – 2007
See Also – Kahn v University of Warwick and others EAT 20-Jul-2004
. .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.199910
EAT Sex Discrimination
A complaint of direct sex discrimination on the grounds of sexual harassment brought by a woman requires a male comparator, either actual or hypothetical. Furthermore, see decision of House of Lords in MacDonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield Secondary School do not conflict with European law.
His Honour Judge Birtles
[2004] UKEAT 1004 – 03 – 2707, UKEAT/1004/03
Updated: 11 June 2022; Ref: scu.199895
EAT Disability Discrimination – Justification – This appeal involves alleged errors by the Employment Tribunal in its finding that the Appellant was disabled under section 1 of the DDA 1995 in respect of his ability to perform normal day-to-day activities as defined by section 4(1) of DDA.
EAT hold no error of law, thus entitled to reach its conclusion on the facts.
His Honour Judge Birtles
UKEAT/0767/03, [2004] UKEAT 0767 – 03 – 1706
Updated: 11 June 2022; Ref: scu.199889
A teacher of Hong Kong national origin was refused qualified teacher status in this country because the Secretary of State had not exercised a power conferred on him by the relevant regulations to treat her Hong Kong qualifications as equivalent to the necessary UK qualifications. The refusal was alleged to constitute indirect racial discrimination. The Secretary of State argued, and the majority in the Court of Appeal had held, that the Secretary of State was entitled to rely on s. 41 (1) (b) because the decision complained of was taken under powers conferred by a statutory instrument.
Held: A discriminatory act is only saved by the subsection if it is mandated by the statutory provision, or by the arrangements in question.
Lord Lowry
[1990] ICR 511, [1991] 1 AC 171, [1990] 3 WLR 42, [1990] UKHL 15, [1990] 2 All ER 513, [1990] IRLR 302
England and Wales
Appeal from – Hampson v Department of Education and Science CA 1989
Balcombe LJ said: ‘In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.’ The task of the Tribunal hearing such a complaint is . .
Cited – Mohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was . .
Cited – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Cited – Amnesty 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.
Updated: 11 June 2022; Ref: scu.199767
His Hon Judge Mcmullen QC
[2004] UKEAT 0820 – 03 – 2807, UKEAT/820/03
England and Wales
See Also – Pallett v Pent Valley Foundation School EAT 5-Jan-2004
EAT Equal Pay Act – Material factor defence . .
See also – Miranda Jane Pallett v Pent Valley Foundation School EAT 18-May-2004
EAT Race Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.199683
The claimant worked at a school in London operated by the respondent, and he was paid by them. Spanish teachers received relocation allowances, and he complained that this was discriminatory. The respondent had failed to comply with the order made by the EAT.
Held: The failure by the respondent to comply with the order meant that it was now debarred form seeking to rely upon a defence of objective justification. Spanish civil servants relocated here received a higher overall income than their English counterparts. The EAT had erred in finding no detriment to the claimant. In doing so it had readmitted at the back door the defence of objective justification turned away at the front.
Lord Justice Ward Lord Justice Wall The Right Honourable Lord Justice Hooper
[2004] EWCA Civ 1046, Times 10-Sep-2004
England and Wales
Appeal from – Spicer v Government of Spain EAT 10-Oct-2003
EAT Race Discrimination – Indirect . .
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.199626
The respondent resisted a claim of unfair dismissal and race discrimination on the basis that the employment contract was illegal since the claimant was an immigrant and unable to work without a work permit.
Held: The Court of Appeal upheld a defence of illegality to a teacher’s complaint against a school of unlawful discrimination by dismissal on racial grounds. The teacher was an asylum-seeker who was not entitled to work in the UK without a work permit, which he never obtained. This not a case where the applicant has been working in good faith in the belief that it was lawful for him to work. As to the illegal conduct here (a) it was that of the applicant; (b) it was criminal; (c) it went far beyond the manner in which one party performed what was otherwise a lawful employment contract; (d) it went to the basic content of an employment situation-work; (e) the duty not to discriminate arises from an employment situation which, without a permit, was unlawful from top to bottom and from beginning to end. The teacher’s employment ‘was unlawful from top to bottom and from beginning to end’.
The court had ‘to consider whether the applicant’s claim arises out of or is so clearly connected or inextricably bound up or linked with the illegal conduct of the applicant that the court could not permit the applicant to recover compensation without appearing to condone that conduct.’ Mummery LJ analysed the inextricable link test: ‘Although Hall’s case . . uses some of the familiar language of legal and factual causation (‘connection’, ‘link’), the test does not restrict the tribunal to a causation question. Matters of fact and degree have to be considered: the circumstances surrounding the applicant’s claim and the illegal conduct, the nature and seriousness of the illegal conduct, the extent of the applicant’s involvement in it and the character of the applicant’s claim are all matters relevant to determining whether the claim is so ‘inextricably bound up with’ the applicant’s illegal conduct that, by permitting the applicant to recover compensation, the tribunal might appear to condone the illegality.’
Lord Justice Mummery President, The Vice President Lord Justice Brooke
[2004] EWCA Civ 1065, Times 28-Sep-2004, [2004] 4 All ER 1056, [2005] 1 CMLR 3, [2005] ICR 231
Immigration Act 1971 24, Race Relations Act 1976 (Amendment) Regulations 2003, Council Directive 2000/43/EC
England and Wales
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Appeal from – V v Addey and Stanhope School and others EAT 25-Nov-2003
EAT Race Discrimination – Detriment . .
Cited – Leighton v Michael and Another EAT 26-Oct-1995
A sex discrimination claim stood despite unlawful elements of employment contract. The claim was not barred by the applicant’s knowledge that the employer was not making the required deductions from wages. . .
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 – National Union of Teachers and others v Governing Body of St Mary’s Church of England (Aided) Junior School and others CA 12-Dec-1996
The acquired rights directive applies to a board of governors of a school since it is an ’emanation of state’.
LMA This was a claim by teachers who had lost their jobs. They claimed the protection of te . .
Cited – Witkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.199632
Appeal by claimant against a decision on a preliminary point by an Employment Tribunal at which it was determined that the Appellant was a disabled person within the meaning of Section 1(1) of the Disability Discrimination Act 1995 in the period 23 November 1998 to 15 September 2000 but was not such a person in the subsequent period 16 September 2000 to 10 January 2003.
Wakefield J
[2004] UKEAT 0832 – 03 – 1803
Updated: 11 June 2022; Ref: scu.199405
EAT Disability Discrimination: meaning of disability
The combination of Section 1 of, and Schedule 1 paragraph 8 to, of the Disability Discrimination Act 1995 means that if the Appellant has a progressive condition, and has an insubstantial impairment for 12 months, and a further substantial impairment, he is not required to prove the latter is likely to last 12 months.
McMullen QC HHJ
[2004] UKEAT 0967 – 03 – 2603, UKEAT/0967/03
Updated: 11 June 2022; Ref: scu.199406
EAT Equal Pay Act – Material factor defence
The Honourable Mr Justice Burton
UKEAT/0461/04, [2004] UKEAT 0461 – 04 – 0107
See Also – S Villalba v Merrill Lynch and Co Inc and others EAT 26-Jul-2005
EAT Sex Discrimination – Victimisation.
EAT Sex Discrimination – Direct . .
See Also – Villalba v Merrill Lynch and Co Inc and others EAT 31-Mar-2006
EAT Victimisation discrimination. Tribunal found victimisation discrimination to a limited extent. Did the Tribunal apply the right test when determining whether such discrimination had arisen? Did it reach . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.199283
The claimant sought damages for discrimination by the respondent, who replied that as a professional he was not a ‘worker’ within the legislation.
Held: The respondents were a society providing advice and representation to its members. It was an organisation of workers. To fall within the ambit of the category of ‘any other organisation’ the society could have fallen within either of the other sub-sections. It could not fall into two sub sections, and the decision of the tribunal and EAT were wrong in law. A professional worker was still a worker, and the society fell within paracgraph 11(1)(a). S78 defined a worker as including ‘any vocation or occupation’ The employment tribunal had jurisdiction to hear the complaint.
Kay, Lord Justice Kay Lord Justice Latham The President Of The Family Division
[2004] EWCA Civ 865, Times 02-Sep-2004
England and Wales
Appeal from – The Medical Protection Society Dr S Bown Dr Hickey v Dr Saher Sadek EAT 4-Nov-2003
EAT Race Discrimination – Discrimination by other bodies
EAT Race Discrimination – Discrimination by other bodies. . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.198682
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, and that jurisdiction was not created by minimal presence here.
Held: The provisions as to jurisdiction in the two Acts are identical. The jurisdiction had to be founded at the date of the hearing. A minimal presence in the United Kingdom could not be used to found jurisdiction.
The Honourable Mr Justice Burton
UKEAT/1385/01, [2004] UKEAT 1385 – 01 – 1006
Race Relations Act 1976, Sex Discrimination Act 1975
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 – Carter (Formerly McDonagh (General Secretary of, and on Behalf the Labour Party v Ahsan EAT 11-Feb-2004
EAT Practice and Procedure – Appellate jurisdiction . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others, Dyson and Another v Leeds City Counci CA 11-Dec-2001
Where a claimant suffered mesothelioma, contracted whilst working with asbestos, but the disease may have been contracted from inhalation at different times, and with different employers, his claim must fail since it was not possible to identify . .
Cited – Duke v GEC Reliance Systems Limited CA 16-Feb-1987
The court was said to have failed to have proper regard to a European Directive.
The court discussed the meaning of the phrase ‘per incuriam’: ‘I have always understood that the doctrine of per incuriam only applies where another division of . .
Cited – Regina v Immigration Appeal Tribunal, Ex parte Kassam CA 1980
Discrimination was alleged against the immigration authorities.
Held: In dealing with people coming in under the immigration rules, the immigration authorities were not providing ‘services’ within the meaning of the Act. The words the . .
Cited – Savjani v Inland Revenue Commissioners CA 1981
The question arose as whether the Inland Revenue were concerned with the provision of services in their activities relating to the adminsitration of the taxation system, so as to bring them within section 20 of the 1976 Act.
Held: They were . .
Cited – Regina v Entry Clearance Officer, Bombay, Ex parte Amin HL 1983
The House was asked whether the grant of special vouchers under the special voucher scheme introduced came within section 29 of the 1975 Act. Acts performed pursuant to a government function did not come within the meaning of service. Discrimination . .
Cited – The Confederation of Passenger Transport UK v The Humber Bridge Board and the Secretary of State for Transport Local Government and the Regions CA 25-Jun-2003
Regulations specifying the tolls for the Humber Bridge did not mention a charge for large buses.
Held: The same rules had to be applied in construing statutory instruments as applied in construing statutes. The explanatory note issued with the . .
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 – General 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 – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 June 2022; Ref: scu.198441
EAT Sex Discrimination – Vicarious liability
1. The reference to agency in the SDA and RRA is to agency at common law. There is no alternative construction, in order to give effect to the purpose of the ET Directive.
2. A police officer appointed as investigating or supervising officer in statutory police disciplinary proceedings is not the agent of the chief officer of police who is not liable for unlawful discrimination by those officers. A civilian officer may be an agent or may be carrying out management functions for which the chief officer is responsible.
3. Delay in re-fixing an adjourned hearing may make the Decision unsafe.
McMullen QC HHJ
UKEAT/0310/03, [2004] UKEAT 0310 – 03 – 2805
Updated: 11 June 2022; Ref: scu.198456
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 context of child support legislation, to distinguish between families according to the sexual orientation of the partners. The purpose of the regulations was to determine the financial obligation of the absent parent, a matter on which his or her sexual orientation should have no bearing. Accordingly, the applicant’s situation was within the ambit of the right to respect for family life. The court rejected, however, the applicant’s argument that the situation also came within the ambit of Article 1 of Protocol No. 1. As to Article 14, the Commissioner found that, in the context of child support payments, the applicant’s situation was analogous to that of an absent parent living with a heterosexual partner, who, all other things being equal, would have been required to pay around GBP 14 per week instead of almost GBP 47. The Government had not advanced any justification for treating the applicant differently and therefore the child support scheme violated the applicant’s Convention right under Article 14 read in conjunction with Article 8. Concerning the remedy, the Commissioner disagreed with the approach of the Appeals Tribunal. Instead, since the regulations defined the various terms used by the regulations ‘unless the context otherwise requires’, he considered that, with the entry into force of the Human Rights Act on 2 October 2000, the ‘context’ now included the absent parent’s Convention rights. Therefore, the definition of an unmarried couple (‘a man and a woman who are not married to each other but are living together as husband and wife’) did not apply in this situation.
[2003] UKSSCSC CCS – 1153 – 2003
European Convention on Human Rights, Child Support (Maintenance Assessments and Special Cases) Regulations 1992 1(2)
Appeal from – 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 . .
At Commissioner – JM v United Kingdom ECHR 21-Nov-2008
. .
At Commissioner – 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.
Updated: 11 June 2022; Ref: scu.197368
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 again. The employer argued that usung the ordinary and natural meaning of the words in the Act, a former employee was not a possible comparator.
Held: The CA framed four questions to be referred to the ECJ: ‘1. Is the principle of equal pay for equal work, contained in article 119 of the eec treaty and article 1 of the eec council directive of 10 february 1975 (75/117/eec), confined to situations in which men and women are contemporaneously doing equal work for their employer? 2. If the answer to question 1 is in the negative, does the said principle apply where a worker can show that she receives less pay in respect of her employment from her employer: (a) than she would have received if she were a man doing equal work for the employer ; or (b) than had been received by a male worker who had been employed prior to her period of employment and who had been doing equal work for the employer? 3. If the answer to question 2(a) or (b) is in the affirmative, is that answer dependent upon the provisions of article 1 of the said directive? 4. If the answer to question 3 is in the affirmative, is article 1 of the said directive directly applicable in member states?’
[1981] QB 180, [1980] 3 WLR 929, [1981] 1 All ER 111, [1980] ICR 672
England and Wales
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Appeal from – Smith 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 . .
Reference From – 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 . .
At CA (1) – Macarthys 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.
Updated: 11 June 2022; Ref: scu.200626
The claimant had ben made bankrupt. The defendant argued that his claim vested in the trustee.
Held: A discrimination claim was hybrid in nature rather than purely personal, and so it vested in the trustee. However the real issue was the actual claim made. In this case the claimant could seek only the personal elements for damages to injured feelings. If the claim was so limited, it would cease to be a hybrid claim, and he would have the right to bring the action.
The Hon Mrs Justice Arden Dbe Lord Justice Buxton Lord Justice Wall
[2004] EWCA Civ 624, Times 28-May-2004
England and Wales
Cited – Ord v Upton CA 7-Jan-2000
A bankrupt labourer (aged 30) after the bankruptcy order issued a writ against a doctor who had treated him for back pain before the bankruptcy order, claiming damages for negligence, including damages for pain and suffering as well as damages for . .
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
See Also – Khan v Trident Safeguards Ltd and others EAT 6-Nov-2000
. .
See Also – Khan v Trident Safeguards Ltd and others EAT 22-Oct-2001
. .
Cited – Khan v Trident Safeguards Ltd and others EAT 24-Jun-2002
. .
See Also – Khan v Trident Safeguards Ltd EAT 15-Jan-2003
. .
See Also – Khan v Trident Safeguard Ltd, North British Housing; Noke Rodgers EAT 25-Feb-2003
EAT Insolvency
EAT Insolvency – (no sub-topic) . .
See Also – Khan v Trident Safeguards Limited, Shaw, King, Wright, Harman EAT 6-May-2005
EAT Race Discrimination – Direct – Victimisation. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.197050
Trinidad and Tobago – The Board was asked whether the Commissioner of Police (the Commissioner) had treated the appellant unequally and/or unfairly and had discriminated against him in refusing to recommend him for promotion from the rank of constable to that of corporal, contrary to section 4(b) and (d) of the Constitution.
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
[2004] UKPC 21
Commonwealth
Updated: 10 June 2022; Ref: scu.197089
Unfair Dismissal – Reason for dismissal – Refusal of an application by an employer to argue that it is wrong in law under SDA 1975 section 65 to gross up an award for compensation when its own submission to the opposite effect had been accepted by the Employment Tribunal.
McMullen QC HHJ
[2004] UKEAT 0801 – 04 – 0503, UKEAT/801/03
Sex Discrimination Act 1975 65
See Also – Orthet Ltd v Vince-Cain EAT 12-Aug-2004
EAT Sex discrimination: compensation – An award of compensation for injury to feelings, pursuant to a finding of unlawful discrimination on the grounds of gender or victimisation is to be made without reference . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.196810
The MOD (the Appellants) contend that the Employment Tribunal erred in law in holding, in a Decision promulgated on 17 September 2002 after a preliminary hearing, that they had not established a ‘material factor’ defence to the Respondents’ claims for equal pay, pursuant to the provisions of the Equal Pay Act 1970 and Article 141 of the Treaty of Rome.
Cox J
[2004] UKEAT 1239 – 02 – 0704, [2004] UKEAT 1239 – 02 – 0704, [2004] IRLR 672
England and Wales
Updated: 10 June 2022; Ref: scu.196814
Rimer J
[2004] UKEAT 0347 – 03 – 2304
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.
Updated: 10 June 2022; Ref: scu.196815
EAT Sex Discrimination – Lady members of local club not allowed to be associates of CIU (umbrella organisation). S. 12 of Sex Discrimination Act 1975 not applicable as CIU not relevant organisation and ‘associates’ are not members.
he Honourable Mr Justice Burton
[2004] UKEAT 0782 – 03 – 1003, UKEAT/782/03/ILB
Updated: 10 June 2022; Ref: scu.196807
The court identified ‘a conscious or unconscious racial attitude which involves stereotyped assumptions’ underlying discrimination. Statistical evidence may be used to establish a discernible pattern in the treatment of a particular group such as to give rise to an inference of discrimination.
Balcombe LJ
[1988] 1 WLR 730, [1988] ICR 614
England and Wales
Cited – European 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 . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.182464
Discrimination – Disability Discrimination – Religious Belief/ Political Opinion
[2018] NIFET 00026 – 17FET
Northern Ireland
Updated: 10 June 2022; Ref: scu.657083
Discrimination – Religious Belief/ Political Opinion Unfair Dismissal
[2020] NIFET 01267 – 19FET
Northern Ireland
Updated: 10 June 2022; Ref: scu.657058
Discrimination – Race Discrimination – Religious Belief/ Political Opinion Redundancy Payment Unfair Dismissal
[2020] NIFET 00004 – 20FET
Northern Ireland
Updated: 10 June 2022; Ref: scu.657061
Discrimination – Disability Discrimination – Religious Belief/ Political Opinion Discrimination – Sexual Orientation Unfair Dismissal
[2020] NIFET 01408 – 19FET
Northern Ireland
Updated: 10 June 2022; Ref: scu.657055
Discrimination – Religious Belief/ Political Opinion Breach of Contract Unauthorised Deduction of Wages Unfair Dismissal
[2020] NIFET 00251 – 20FET
Northern Ireland
Updated: 10 June 2022; Ref: scu.657057
Discrimination – Religious Belief/ Political Opinion Unauthorised Deduction of Wages
[2020] NIfet 00062 – 18fet
Northern Ireland
Updated: 10 June 2022; Ref: scu.657053
Discrimination – Religious Belief/ Political Opinion
[2020] NIFET 00595 – 20FET
Northern Ireland
Updated: 10 June 2022; Ref: scu.657056
Discrimination – Disability Discrimination – Religious Belief/ Political Opinion
[2020] NIFET 00503 – 20FET
Northern Ireland
Updated: 10 June 2022; Ref: scu.657054
The question under section 49A is whether the relevant public body has in substance incorporated the thought processes required.
[2009] EWHC 688 (Admin)
Disability Discrimination Act 1995 49A
England and Wales
Cited – Gill, Regina (on The Application of) v Secretary of State for Justice Admn 26-Feb-2010
Failure to provide programme discriminated
The claimant prisoner who had a learning disability said that he had been unable to complete the offending behaviour programmes because of his disability, that he had been kept in prison for much longer than he should have been as a consequence, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.401937
Application To Vary Order
[2002] NIFET 555 – 98
Northern Ireland
Updated: 10 June 2022; Ref: scu.237399
Religious and Political Discrimination/Sex Discrimination
[2003] NIFET 209 – 00
Northern Ireland
Updated: 10 June 2022; Ref: scu.237357
(Victimisation)
[2003] NIFET 3
England and Wales
Updated: 10 June 2022; Ref: scu.196419
(Religious/Political Discrimination)
[2002] NIFET 23
Northern Ireland
Updated: 10 June 2022; Ref: scu.196405
[2002] NIFET 7
Northern Ireland
Updated: 10 June 2022; Ref: scu.196387
[2002] NIFET 28
Northern Ireland
Updated: 10 June 2022; Ref: scu.196406
(Discrimination Religious Belief)
[2002] NIFET 30
England and Wales
Updated: 10 June 2022; Ref: scu.196410
EAT Equal Pay Act – Material factor defence
His Hon Judge McMullen QC
UKEAT/820/03, [2004] UKEAT 0820 – 03 – 0501
England and Wales
See also – Miranda Jane Pallett v Pent Valley Foundation School EAT 18-May-2004
EAT Race Discrimination – Direct . .
See Also – Pallett v Pent Valley Foundation School EAT 28-Jul-2004
. .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194449
[2004] EWCA Civ 208
England and Wales
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 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. . .
See Also – Lawal v Northern Spirit Ltd CA 15-Jan-2002
Application for leave to appeal . .
See Also – Lawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
See Also – 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194133
The claimant was a social work student. He attended a work experience placement, and challenged the report given by the defendants on that placement, saying it was discriminatory and defamatory. He appealed a strike out of his claim.
Held: The occasion was one of qualified privilege. The claimant had to establish malice to defeat that defence, and that had not been done. What matters was that there was no evidence that the defendants did not believe the report to be true.
Tugendhat J
[2004] EWHC 408 (QB)
Sex Discrimination Act 1975, Race Relations Act 1976
England and Wales
Cited – Adam v Ward HL 1917
The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the . .
Cited – Regina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Alexander v Arts Council of Wales CA 9-Apr-2001
In a defamation action, where the judge considered that, taken at their highest, the allegations made by the claimant would be insufficient to establish the claim, he could grant summary judgment for the defence. If the judge considered that a . .
Cited – Kearns and Others v The General Council of the Bar CA 17-Mar-2003
The claimants had sought to recover from the General Council of the Bar damages for libel in a communication from the head of the Bar Council’s Professional Standards and Legal Services Department to all heads of chambers, their senior clerks and . .
Cited – Branson v Bower QBD 2001
The objective test for fair comment is whether it would be perverse for a jury to hold that the comments are not such that an honest person could express them in the light of the facts known by the Defendants at the date of publication. Hard-hitting . .
Cited – Horrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
Cited – Telnikoff v Matusevitch CA 1991
The court considered the element of malice in a defamation defence: ‘If a piece of evidence is equally consistent with malice and the absence of malice, it cannot as a matter of law provide evidence on which the jury could find malice. The judge . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 June 2022; Ref: scu.194156
Can an employer’s failure to make adjustments to accommodate a disabled employee be unreasonable but justified?
Held: The justification under 5(2)(b) must be something other than the circumstances which are taken into account for the purpose of section 6(1): ‘The clear purpose of s.5(5) is to deny to an employer who has treated a disabled employee less favourably than others any defence of justification which depends directly or indirectly on a breach by the employer of his s.6 duty to make adjustments.’
Lord Justice Sedley Lord Justice Brooke Lord Justice Latham
[2004] 2 All ER 851, [2004] EWCA Civ 144
Disability Discrimination Act 1995 4 5(2)(b) 6(1)
England and Wales
Appeal from – Royal National Theatre Board Ltd v Collins EAT 29-Apr-2003
Appeal against finding of unfair dismissal and disability discrimination. . .
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 – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – 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 – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 June 2022; Ref: scu.193584
EAT Disability Discrimination – Reasonable adjustments
EAT Disability Discrimination – Reasonable adjustments.
His Hon Judge Clark
[2004] UKEAT 0352 – 03 – 2201, UKEAT/352/03, UKEAT/357/03
England and Wales
Updated: 09 June 2022; Ref: scu.192671
CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term
DISABILITY DISCRIMINATION – Compensation
DISABILITY DISCRIMINATION – Loss/mitigation
The Respondent appealed the decision of an Employment Tribunal on remedy for disability related discrimination and unfair dismissal that the Claimant should be awarded compensation for loss of long term disability benefits until retirement age or earlier death as the other terminating provision ‘return to work’ meant return to the job he was performing when he went sick and the evidence was that he would never again be able to perform those duties. The Employment Tribunal did not err in their construction of ‘return to work’ or in doing so in taking into account the terms of the Insurance Policy which was referred to in the incorporated Employee Booklet on such benefits as being provided by such a policy. Jowitt v Pioneer Technology (UK) Ltd [2003] IRLR 356 considered. Appeal of the Respondent dismissed.
The Employment Tribunal erred by failing to make an award for injury to feelings or by failing to give adequate reasons for not doing so. Appeal by the Claimant allowed.
Claim remitted to the Employment Tribunal for determining compensation for loss of long term and associated benefits and the issue of mitigation. Claim for aggravated damages also remitted for determination.
[2019] UKEAT 0133 – 18 – 2703
England and Wales
Updated: 09 June 2022; Ref: scu.635155
[2004] UKEAT 0631 – 03 – 0103
England and Wales
Updated: 09 June 2022; Ref: scu.194769
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded to a partner.
Held: The effect of the law was discriminatory. Legislation which prevented such a mariage was in principle discriminatory. ‘The decision to restrict certain benefits to married couples while excluding all persons who live together without being married is either a matter for the legislature to decide or a matter for the national courts as to the interpretation of domestic legal rules, and individuals cannot claim that there is discrimination on grounds of sex, prohibited by Community law . . .’ and ‘Transsexuals suffer the anguish of being convinced that they are victims of an error on the part of nature. Many have chosen suicide. At the end of a long and painful process, in which hormone treatment is followed by delicate surgery, medical science can offer them partial relief by making their external physical features correspond so far as possible to those of the sex to which they feel they belong. To my mind it is wrong that the law should take refuge in purely technical expedients in order to deny full recognition of an assimilation which has been so painfully won.’
Times 16-Jan-2004, [2004] EUECJ C-117/01
European
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – D and Kingdom of Sweden v Council of the European Union ECJ 31-May-2001
Europa The intention of the Community legislature was to grant entitlement to the household allowance under Article 1(2)(a) of Annex VII to the Staff Regulations only to married couples. Only the legislature can, . .
Appeal from – KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal Admn 23-Apr-2002
Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
Held: Article 5.5 did not make an award of . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Distinguished – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Appealed to – KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal Admn 23-Apr-2002
Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
Held: Article 5.5 did not make an award of . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 June 2022; Ref: scu.192230