Rules which precluded an employee who was absent for maternity reasons from taking part in performance assessments affecting future promotion rights were breach of Council Directive.
Times 13-May-1998
Updated: 15 May 2022; Ref: scu.79129
A payment of a lump sum to female workers taking maternity leave so as to offset occupational disadvantage from the taking of that leave was not an infringement of equal pay provisions. The claim was that the payment went beyond making allowance for physical differences accompanying maternity to recompense for social disadvantage was equally felt by both men and women. The payment was proper since it did reflect real differences arising from the absence from work.
Times 20-Oct-1999, C-218/98, [1999] EUECJ C-218/98
Updated: 15 May 2022; Ref: scu.77607
A black employee of the defendant had been arrested and granted bail. The defendant feared that he would attempt to re-enter the plant under a false name. The Chief Security Officer issued instructions to the gates, to include a thorough check on the identity of every black employee trying to enter the premises. Some 28 people complained that this instruction subjected them to a detriment which contravened the 1976 Act. Some of these were employed by BL and some by contractors. The Commission for Racial Equality also issued a complaint that the instruction was unlawful. An Industrial Tribunal decided as a preliminary point that the mere issue of a written instruction could occasion detriment to individual employees.
Held: The employer’s appeal failed.
[1983] ICR 143
Cited – De Souza v Automobile Association CA 19-Dec-1985
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as ‘the wog’. She said that this was sufficient to mean that she suffered a detriment. The employer replied that . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.270154
The court considered an allegation of discrimination made as to the appointment of a wages clerk by a district council.
Held: Lord Lowry said: ‘It must not be forgotten that when the Act uses the word ‘discrimination or ‘discriminate’ it is referring to an employer who makes a choice between one candidate and another on the ground of religious belief or political opinion; it is not speaking of an incidental disadvantage which is due to a difference between the religion of the employer and of the candidate but of a deliberate, intentional action on the part of the appointing body or individual.
Here I must dispose of a misleading argument which was raised before the learned county court judge but not seriously pursued in this court. An action may be deliberate without being malicious. Most acts of discrimination are both, but the only essential quality is deliberation. If a Protestant employer does not engage a Roman Catholic applicant because he genuinely believes that the applicant will not be able to get on with Protestant fellow workmen, he is discriminating against the applicant on the ground of his religious belief, although that employer’s motives may be above reproach. If women are allowed to stop work five minutes early in order to avoid being endangered when the day’s work ends, it has been decided that the men in the workforce are discriminated against on the ground that they are men. The employer’s decision to keep the men at work longer, though reached in good faith, was deliberately based on the fact that they were men.
Accordingly, it can be stated that, although malice (while often present) is not essential, deliberate intention to differentiate on the ground of religion, politics, sex, colour or nationality (whatever is aimed at by the legislation) is an indispensable element in the concept of discrimination. The distinction is sometimes expressed as one between motive and intention. In Peake v. Automotive Products Ltd. [1977] Q.B. 780, the case about releasing women early from their work, Phillips J. stated, at p. 787: ‘it seems to us that [counsel] is confusing the motive or the purpose of the act complained of with the factual nature of the act itself. Section 1(1)(a) requires one to look to see what in fact is done amounting to less favourable treatment and whether it is done to the man or the woman because he, is, a man or a woman. If so, it is of no relevance that it is done with no discriminatory motive.’ This idea runs through all the cases.’
Lowry LJ
[1983] NI 346
Fair Employment (Northern Ireland) Act 1976 16(2)
Updated: 15 May 2022; Ref: scu.264031
EAT Equal Pay Act – Article 141 – A fixed bonus and attendance allowance payable for performance of a contractual duties during normal working hours are payable under a distinct part or term of a contract, together with the hourly rate, and not separate parts or terms. Correspondingly, for the purposes of an equal pay comparison, all three are to be aggregated, by direction by the number of hours normally worked, an hourly rate calculated. It is with the hourly rate that the comparison is to be made.
EAT Equal Pay Act – Article 141
The Honourable Mr Justice Mitting
UKEAT/321/04/SM, UKEAT/0321/04, [2004] UKEAT 0321 – 04 – 2707
England and Wales
Updated: 15 May 2022; Ref: scu.222399
Unfair dismissal – Automatically unfair reasons/ Reasonableness of dismissal
Appeal on the grounds that the Employment Tribunal had not applied the correct statutory tests of causation under s.103A Employment Rights Act 1996 and s.4(1) Sex Discrimination Act 1975 upheld. The Employment Tribunal erred in finding only a causation link and failed to apply the statutory tests in each case. Case remitted to the same Employment Tribunal to apply the correct statutory tests in the light of its findings of fact.
[2007] UKEAT 0369 – 06 – 2205
Employment Rights Act 1996 103A, Sex Discrimination Act 1975 4(1)
England and Wales
See Also – Redcar and Cleveland Borough Council v Scanlon EAT 27-Feb-2007
EAT Unfair Dismissal – Automatically unfair reasons. . .
See Also – Redcar and Cleveland Borough Council v Scanlon EAT 20-May-2008
EAT VICTIMISATION DISCRIMINATION: Whistleblowing / Protected disclosure
Employment Tribunal did not go beyond the remit directed by the Employment Appeal Tribunal in further considering the Claimant’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.252475
[2005] ICR 222
England and Wales
Appeal from – Powerhouse Retail Ltd and others v Burroughs and others CA 7-Oct-2004
The court considered the non-admission of part time workers to pension scheme benefits after a transfer of employment.
Held: (Pill LJ) While the effect of TUPE was that the continuing contract of employment was deemed always to have been with . .
At EAT – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 May 2022; Ref: scu.239030
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the Parliamentary history of the legislation as the proposal and rejection of amendments. It is the sole right of the Committee to decide who was entitled to receive the Writ of Summons and Lord Lyndhurst said that if a person is entitled to a writ, but the Crown does not issue one, then his remedy is to petition the House.
Lord Birkenhead LC said: ‘The rule that the words of an instrument shall be taken most strictly against the party employing them – verba chartarum fortius accipiuntur contra proferentem – does not apply to the Crown such a grant is construed most strictly against the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words.’ It was the duty of the Committee for Privileges to consider whether she was entitled to receive a Writ of Summons: ‘The writ is not to be issued capriciously or withheld capriciously at the pleasure of the Sovereign or of this House. It is to be issued, or withheld, according to the law relating to the matter, and if, under that law, it appears that there is a debt of justice to the petitioner in that matter, the writ will issue and, if not, it cannot issue.’
Lord Lyndhurst said: ‘If a Writ of Summons is improperly withheld, your Lordships can insist upon its being issued. You may address the Crown for that purpose if you think proper. If that address to the Crown is unavailing, there is a remedy that in a remarkable case has been resorted to and which was effectual to attain its object. The Peers in Parliament, in that case, refused to proceed to business until the Writ of Summons was issued and until the House was properly constituted, and the historian who records this fact says that the means adopted were so effectual that the King was induced to issue the Writ of Summons and that the abuse of which they complained never occurred again. That is a remedy when the Writ of Summons is withheld. On the other hand, when a party has obtruded himself upon the House in which he has no right to sit, the remedy is equally plain. It is your duty to direct your Officers to refuse to administer the oaths, or allow the party to take his seat.’
Viscount Haldane, Lord Birkenhead LC
[1922] 2 AC 339
Sex Disqualification (Removal) Act 1919
England and Wales
Cited – The Wensleydale Peerage HL 22-Feb-1856
Sir James Parke, a distinguished judge of the Court of the Exchequer, was created a Life Peer but the House of Lords refused to allow him to sit and vote in the House because, they decided, that as the law then stood, the creation of Life Peers was . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .
Cited – Mereworth v Ministry of Justice ChD 23-May-2011
The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited the title objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out . .
Cited – Lynn Shellfish Ltd and Others v Loose and Another SC 13-Apr-2016
The court was asked as to the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.231154
Kilner Brown J
[1978] IRLR 532
England and Wales
Cited – Showboat Entertainment Centre v Owens EAT 28-Oct-1983
The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal ‘on racial . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.229842
James Goudie QC
[2005] EWHC 753 (Admin)
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.224545
The court was asked as to the meaning of ‘qualification’ when considered under the Act: ‘It is our view that the word ‘qualification’ itself and the other words in the definition viz ‘authority, recognition, registration, enrolment, approval and certification’ convey with reasonable clarity the idea of (a) some sort of status conferred on an employee or self-employed person in relation to his work, or the work which he proposes to do; and as respects a self-employed person, in relation to his trade, profession or calling or to what he proposes to be his trade, profession or calling; (b) a status which relates only to a person carrying on that work or trade, profession or calling; and (c) is either necessary for the lawful carrying on thereof or making that carrying on more advantageous.’
Unreported, 15 September 1993
Northern Ireland
Cited – Kelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive HL 29-Jul-1998
Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.194285
‘In my judgment the Employment Appeal Tribunal were correct to hold that there was an error of law in the decision of the Employment Tribunal as identified by the Employment Appeal Tribunal. In a situation in which it is expressly found that there was no deliberate or conscious racial discrimination, it is necessary, before drawing the inference sought to be drawn, to set out the facts relied on and the process by which the inference is drawn. In some cases that process of reasoning need only be brief; in other cases more detailed reasoning will be required. The Employment Appeal Tribunal approached the matter in this way: ‘… we do suggest that the less obvious the primary facts are as pointers or the more inconclusive or ambivalent the explanations given for the events in issue are as pointers, the more the need for the Employment Tribunal to explain why it is that from such primary facts and upon such explanations the inference that they have drawn has been drawn. The more equivocal the primary facts, the more the Employment Tribunal needs to explain why they have concluded as they have.’ and ‘As we have mentioned the tribunal repeatedly said that there had been no intention to discriminate. That, of course, is not in itself an answer but it is likely to lead to a position in which the reasons for the inference of racial discrimination need to be fully explained.’
Pill LJ
[2001] EWCA Civ 2056
England and Wales
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.185542
The tribunal’s decision was found to have confused unreasonable treatment with discriminatory treatment. ‘It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no evidence or material from which it can properly make such in inference. See North West Thames Regional Health Authority v Noone [1988] ICR 813, [1988] IRLR 530 at p.824 of the former report. Although an employment tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person who makes it. In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to arise from conscious or subconscious influences operating in the mind of the alleged discriminator.’
Mummery LJ, Mantell and Kennedy LJJ
Unreported 5 November 1999
England and Wales
Appeal from – Alexandra Healthcare NHS Trust and Another v Effa EAT 21-Apr-1998
The Trust appealed against a finding of race discrimination. He was a doctor working as a locum. He had been summarily dismissed in breach of the respondent’s own procedures and professional standards.
Held: The appeal succeeded. The tribunal . .
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – Ugiabe v Tower Hamlets Primary Care Trust (Race Discrimination : Direct) EAT 9-May-2013
EAT RACE DISCRIMINATION – Direct
The Claimant’s appeal argued that the Employment Tribunal had failed to follow through the inferences that it had drawn as to the conduct of the Medical Director of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.185536
The court dismissed the claimant’s claim for damages for racial discrimination for acts occurring after the termination of his employment by the respondents.
Held: Applying Adekeye, the claim was dismissed, but the court saw ‘some force’ in the submission that the decision in Adekeye’s case could have gone the other way.
Schiemann and Robert Walker LJJ and Lloyd J
[2001] EWCA Civ 794
England and Wales
Cited – Post Office v Adekeye CA 13-Nov-1996
Race discrimination which took place after a dismissal was not unlawful within the section, since that first required the context of employment, and after the dismissal, the applicant was no longer in that employment. The natural meaning of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.183745
Registration procedure for disability discrimination claims – refusal to register part of a claim as `time barred’ in plainly disputed issue – ignorance or oversight of relevant law (Equality Act 2010, Schedule 17, paras 4(5)(b) (conduct extending over a period) and 4(3) (discretion to extend time) – refusal tantamount to striking out without protection of relevant Procedure Rules – decision made unilaterally by judge without argument – requirement to exercise a statutory discretion consciously – lay appellant – standard paragraphs in information in Directions both misleading and in regrettably small print – was unfairness at interlocutory stage made good by F-tT at the hearing?
Discrimination arising from disability (s. 15) – more than one cause – when is a cause operative – more than trivial – structured approach to findings on proportionality – materiality.
Reasonable adjustments (s20 – 21) – need for structured approach – failure to find a PCP or a comparator – claim should have failed in limine
Extent of interaction of Children and Families Act 2014 duties and Equality Act 2010 duties. F-T v The Governors of Hampton Dene Primary School (SEN) [2016] UKUT 468 (AAC) distinguished and disapproved.
[2020] UKUT 278 (AAC)
England and Wales
Updated: 12 May 2022; Ref: scu.656581
Education, Health and Care Plan – whether provision ordered by First-tier Tribunal in relation to speech and language therapy was unlawful because not properly specified – review of the decided cases from L v Clarke and Somerset County Council onwards – use of specialist knowledge and expertise – balance between precision and flexibility in statement of provision.
[2020] UKUT 217 (AAC)
England and Wales
Updated: 12 May 2022; Ref: scu.656573
EAT Race Discrimination – Inferring Discrimination
EAT Race Discrimination – Inferring discrimination.
The Honourable Mr Justice Lindsay (P)
EAT/746/99
England and Wales
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
. .
See Also – Deman v Association of University Teachers EAT 30-Apr-2001
Preliminary ex parte hearing to decide whether appeal was to go ahead to full hearing. . .
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. . .
Cited – Deman v Association of University Teachers EAT 12-Jan-2000
. .
Appeal from – 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 . .
See Also – Deman v Association of University Teachers CA 1-Nov-2002
Application for permission to appeal. . .
See Also – Deman v Association of University Teachers EAT 30-Apr-2001
Preliminary ex parte hearing to decide whether appeal was to go ahead to full hearing. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.172119
EAT Sex Discrimination – Injury to Feelings
His Hon Judge Mcmullen QC
EAT/360/01
England and Wales
Updated: 12 May 2022; Ref: scu.171291
The employer appealed against a finding of disability discrimination. The tribunal was claimed not to have taken account of the codes of practice and the need for a risk assessment.
Held: The absence of a risk assessment mean that no adjustment had been considered, and no justification was available. The finding was essentially under 5(1). The appeal was dismissed. The appeal against the award of damages calculated over two years was also dismissed. The EAT specifically criticised the minority chairman’s readiness to make allowance for a possible award of damages for the accident which led to the disability. To do so would defeat entirely the purpose of the legislation.
The Honourable Lord Johnston
EAT/220/01
Disability Discrimination Act 1995 5
England and Wales
Approved – P B Baynton v Saurus General Engineers Ltd EAT 14-Jul-1999
The Tribunal set out the order of questions to be established in a claim of disability discrimination: ‘The statutory sequence for establishing justification in a s.5(1)(a) claim is as follows: (1) The disabled appellant shows less favourable . .
Cited – Buxton v Equinox Design Ltd EAT 19-Nov-1998
Where a tribunal had found unfair dismissal and was considering an award of damages for injury to feelings under the Disability Discrimination Act, it had to recognise the different needs of unlimited awards, and take great care in assessing factual . .
Cited – the Post Office v S C Jones EAT 9-Feb-2000
EAT Disability Discrimination – Adjustments . .
Cited – H J Heinz and Co Ltd v Kendrick 2000
. .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.166530
The six months time limit for presenting a claim under the Act, ran from the cessation of employment, and not necessarily the date at which she ceased to be involved in the work in question. The words of the statute clearly referred to six months from the date of termination of employment. The words ‘work’ and ’employment’ were used together in the same section in a way which implied a distinction in meaning.
Gazette 30-Nov-2000, Times 23-Nov-2000
England and Wales
Updated: 11 May 2022; Ref: scu.90678
An employee pursuing a claim of racial discrimination against his employers requested time off to see his adviser on the claim. The company refused, he took the time off, and was later dismissed. Since the company normally allowed on short notice short periods of absence for domestic reasons, to refuse because he was pursuing a claim was victimisation, and the dismissal was unfair. The correct comparator group was not determined by looking at the reason behind the request, but at the nature of what was requested.
Times 18-Apr-2000, Gazette 18-May-2000, [2001] ICR 182
England and Wales
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.89906
A local councillor deselected for a forthcoming election by his political party had the capacity to claim racial discrimination in respect of the deselection, since the holding of office as a councillor could amount to engagement in a profession, and the political party had the power to confer the qualification by selection to go forward for election.
Times 21-Sep-1999
England and Wales
Updated: 11 May 2022; Ref: scu.89034
The plaintiffs, who were both women, wanted to stand and drink at the bar in the defendants’ wine bar but the barman refused to serve them and said that, if they sat at a table, the drinks would be brought to them. That was because only men were permitted to stand and drink at the bar.
Held: The plaintiffs were the victims of unlawful discrimination contrary to the Sex Discrimination Act 1975
Griffiths LJ said: ‘But if a woman wishes to go to El Vino’s, she is not allowed to join the throng before the bar. She must drink either at one of the two tables on the right of the entrance, or she must pass through the throng and drink in the smoking room at the back. There is no doubt whatever that she is refused facilities that are accorded to men, and the only question that remains is: is she being treated less favourably than men? I think that permits of only one answer: of course she is. She is not being allowed to drink where she may want to drink, namely standing up among the many people gathered in front of the bar. There are many reasons why she may want to do so. Her friends may be there. She may not want to break them up and force them to move to some other part of the premises where she is permitted to drink. Or she may wish, if she is a journalist, to join a group in the hope of picking up the gossip of the day. If male journalists are permitted to do it, why shouldn’t she? If she is denied it she is being treated less favourably than her male colleagues.’
Sir Roger Ormrod said: ‘The question posed by section 29(1)(a) of the Act of 1975 is unusually simple compared with most questions posed by statutes. We are enjoined simply to ask whether on this evidence the plaintiffs in this case were ‘treated less favourably’ than a man or men would have been. To my mind, the fact that men have the three options which Griffiths LJ has mentioned makes only one answer to that question possible. Men have these options and the options are valuable to them, and I find it impossible to say, where one sex has an option and the other has not, that there is not a differentiation between them and, prima facie, a differentiation which results in less favourable treatment.’
Griffiths LJ, Sir Roger Ormrod
[1983] 1 QB 423 I
England and Wales
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.597256
South African Constitutional Court – Sachs J said: ‘While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined.’
Sachs J
1999 (1) SA 6
England and Wales
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.540519
Waite J said: ‘The concept of a contract for the engagement of personal work or labour lying outside the scope of a master-servant relationship is a wide and flexible one, intended by Parliament in our judgment to be interpreted as such.’ The concept could include somebody who was self-employed providing personal services.
Waite J
[1984] ICR 525
Sex Discrimination Act 1975, Equal Pay Act 1970
England and Wales
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.442571
Ward, M oore-Bick, Elias LJJ
[2011] EWCA Civ 648
Disability Discrimination Act 1995
England and Wales
Updated: 11 May 2022; Ref: scu.440221
The claimants sought to challenge the legislation which removed their employment rights upon attaining the age of 65, arguing that this was discriminatory against men. The Secretary of State appealed the tribunal’s decision.
Held: The tribunal had selected the wrong set of comparators. In cases where the issue related to the entitlement to redundancy payments and unfair dismissal, the proper pool was the entire work force. Though the question no longer arose strictly the court considered obiter whether any such discrimination would be objectively justified. It would have found such a justification. The government would have a margin of appreciation in setting such rules, and the tribunal had failed to take account of the consultation process.
Wall J, Ezekiel, Springer
Times 08-Oct-2003, Gazette 06-Nov-2003
Employment Rights Act 1996 109(1)(b) 156(1)(b)
England and Wales
Applied – 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 – Harvest Town Circle Ltd v Rutherford EAT 10-Jul-2001
In a case alleging indirect sex discrimination in the differing rules denying entitlement to redundancy payments for men over 65, the tribunal should be ready to look at a wide range of statistics. The test is whether the rule imposed some condition . .
Applied – 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 – Manchester University v Jones 1993
The court prescribed a broad and expansive concept of the pool of comparators in discrimination cases. . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.186635
No Judicial Review was available for English speaking children who had allocated to a Welsh speaking school.
Independent 21-Dec-1993
Appeal from – Regina v Dyfed County Council Ex Parte S (Minors) CA 25-Jul-1994
No objection was to be taken for English children sent to mainly Welsh speaking school. They were not entitled to transport to a school with a greater number of English speakers. . .
Cited – Jones, Regina (on the Application of) v Ceredigion County Council Admn 22-Jun-2004
The parents lawfully chose to send their child to a Welsh language school. The authority refused to provide free transport on the basis that a nearer school was available even though it was not a Welsh language school.
Held: Provided the . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.86598
The applicant had been unable to complete her vocational course, after pregnancy related illness and absence. She was not allowed an extension of time to complete the course, and claimed she had been discriminated against. A judge granting a judicial review of the decision of the University was wrong to pronounce on the availability of county court proceedings. Nevertheless, the claim of sex discrimination against a University could not be brought in the employment tribunal, but must be in the County Court, which would have the powers of the High Court to make orders.
Times 19-Sep-2000, Gazette 19-Oct-2000
England and Wales
Updated: 11 May 2022; Ref: scu.85562
Swedish students on vocational courses in the UK had received loans from their home country, but were denied the grants towards their course fees which were made to English students. They claimed race discrimination. Although the withholding of grants was an indirect discrimination, it fell outside the Act and was not actionable because the acts of discrimination were done in pursuance of an enactment or statutory instrument. It was wrong to try to use the Race Relations Act to try to give effect to unrelated European legislation.
Gazette 24-Feb-2000, Times 15-Mar-2000
Race Relations Act 1976 41(1)(b)
England and Wales
Updated: 11 May 2022; Ref: scu.84152
An action for damages for race discrimination survived the death of the complainant, and could be prosecuted by the complainant’s personal representatives. The statutes which applied were different from those in other discrimination cases. However the Law Reform (Miscellaneous Provisions) Act 1934 provided that any cause of action except defamation should survive the death of the complainant. There was no sufficient reason to distinguish between an action brought in the County Courts, and one begun in the employment tribunal.
Times 28-Mar-2000, Gazette 14-Apr-2000
Race Relations Act 1976, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
Updated: 10 May 2022; Ref: scu.83051
An award of 358,288 pounds for racial discrimination was overturned. The removal of the limit on compensation operated after 3 July 1994. The finding was before that, even though the eventual order was afterwards.
Gazette 26-May-1999
England and Wales
Updated: 10 May 2022; Ref: scu.83163
When looking at whether a person was a gypsy so as to qualify for additional consideration, the test was to be applied at the time when the decision was made and not when the application was made. It was acknowledged that an applicant could change status from time to time, and that this might lead to some logical inconsistency, but the statute was clear and no supporting guidance suggested otherwise.
Times 10-Nov-1999
Caravan Sites and Control of Development Act 1960
England and Wales
Appeal from – Hearne v Secretary of State for Wales and Carmarthenshire County Council Admn 25-May-1999
. .
Cited – Wrexham County Borough v The National Assembly of Wales, Michael Berry, Florence Berry CA 19-Jun-2003
A traditional gypsy family had settled because of ill health, and sought to establish a caravan site. The authority claimed they were no longer to be treated as Gypsy and having the entitlement under the Act.
Held: The Act defined ‘Gypsies’ as . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.81295
A Romany family booked a council hall for a wedding. Police later approached the council and made misleading assertions about the character of the family resulting in the imposition of additional conditions on the contract. There was however no evidence that the officers had acted in any overtly racist motive, but rather from a concern for the public interest and order. The police had no control over decisions taken by the authority about the terms of the contract and were not responsible for those decisions. Caution is required before the principles relating to the liability of secondary parties under the criminal law are used for the purposes of construing section 33(1).
Judge LJ
Gazette 07-Jan-2000, Times 07-Feb-2000, [2000] 1 WLR 966
England and Wales
Appealed to – Hallam and Another v Cheltenham Borough Council and Others HL 27-Mar-2001
‘Aid’ under the section meant something more than mere helpfulness. The complainants arranged a wedding in premises owned by a defendant. The police respondents advised the owner that the wedding was for gypsies, whereupon the defendants unlawfully . .
Appeal from – Hallam and Another v Cheltenham Borough Council and Others HL 27-Mar-2001
‘Aid’ under the section meant something more than mere helpfulness. The complainants arranged a wedding in premises owned by a defendant. The police respondents advised the owner that the wedding was for gypsies, whereupon the defendants unlawfully . .
Cited – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.81168
The Employment Appeal Tribunal had been wrong to allow an employee to add a claim for damages for racial discrimination, where the issues were those already decided at the tribunal. It was important to bring all claims together.
Times 20-May-1998, Gazette 03-Jun-1998, Gazette 30-Sep-1998, (1998) IRLR 525
England and Wales
Updated: 10 May 2022; Ref: scu.80068
School catering assistants did work which had been valued equally with that of men, but their jobs had been contracted out to direct service companies who paid them less.
Held: Market pressure which required the payment of lower wages to women was a ‘material factor’ and the worse treatment did not arise from a difference of sex. The applicant had to show that the full terms of comparitors were the same. Mere similarity was insufficient.
Times 11-May-1994, Independent 11-May-1994
England and Wales
Appeal from – North Yorkshire County Council v Ratcliffe and others EAT 21-Jan-1993
School catering assistants claimed equal pay under the Act. Their work had been valued as equal to that of men, but following a contracting out procedure, they earned less than men.
Held: The Council had failed to show that the difference was . .
Appeal from – Ratcliffe and Others v North Yorkshire County Council HL 7-Jul-1995
Three school dinner ladies had been employed by the Council at National Rates of pay and conditions. Their work which was almost exclusively carried out by females had been rated as of equal value to that of men employed by the council at various . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.78615
A university was not acting in a racially discriminatory manner because of the acts of its student union in dismissing two workers after the university had itself expelled them as students. The term ‘knowingly aided’ in the Act was not to be read so widely. The expulsion by the applicants made the termination of employment almost inevitable, but it could not be said to be ‘aiding’ the dismissal. Even assuming the appellants’ account of the facts to be correct it could not be said that the university had knowingly aided the student union to dismiss the appellants
Laws LJ said: ‘The facts alleged by the [appellants] are vigorously contested, but must be taken as true for the purposes of this appeal, since the university’s argument amounts to an application to strike out the case against it. The question for this court, as it seems to me, is whether on those alleged facts the university can conceivably be said to have ‘knowingly aided’ the [appellants’] dismissal by the union. In expelling the [appellants] and barring them from the union premises, the university brought about a state of affairs in which the employment contracts were bound to be terminated. In my judgment it is a plain affront to the language of the Act of 1976 to suggest that in such circumstances the university ‘aided’ the dismissal of the [appellants]. The verb ‘aid’ (to which no special definition is ascribed by the statute) means ‘help’ or ‘assist’. Its use contemplates a state of affairs in which one party, being a free agent in the matter, sets out to do an act or achieve a result, and another party helps him to do it. The first party is the primary actor. The other is a secondary actor. The simplest example may be found in the criminal law. A breaks into a house in order to burgle it. B keeps watch outside or is ready to drive off the get-away car. Plainly B ‘aids’ A. But here, the university is the prime mover. It did not ‘aid’ (or ‘help’) the union to dismiss the [appellants]. It may well be said that it brought about their dismissal. But that is altogether a different thing.’
Butler-Sloss LJ said: ‘But, for my part, I am unable, in applying the natural meaning to the word ‘aids’, to attribute to it a meaning which distorts it. In ordinary language a person who aids another person is one who helps, supports or assists the prime mover to do the act. On the present facts the university took steps to expel the [appellants] for its own reasons, justified or unjustified. Those expulsions, carrying with them the prohibition against entering any part of the university buildings including the students’ union, cannot in ordinary language be said to be knowingly aiding the students’ union to dismiss the [appellants] within section 33(1). In this case the prime mover of the dismissal of the [appellants] was the students’ union but its acts were effectively dictated to it by the prior decision of the university to expel the [appellants]. It seems clear to me that the students’ union had no alternative but to dismiss the [appellants] after the university expelled them. In ordinary language can that conceivably be said to be knowingly aiding? I would answer ‘No’.’
Pill LJ said: ‘Even taking a narrow definition of the word ‘aids’, the acts complained of, suspension, expulsion and dismissal, and the alleged conduct of the university and the union which preceded each of them, are so entangled upon the facts alleged that it would not be appropriate to separate them at this stage. On any view, the dismissal is intimately connected with the suspension and expulsion. An environment of racial prejudice is alleged to have been ‘encouraged and allowed to thrive by the university and the union’ (Mr Anyanwu). The union are alleged to have been ‘conniving with the university to remove me’ (Mr Ebuzoeme). In further and better particulars given at the request of the university, Mr Anyanwu said that ‘in all cases the acts of racial discrimination were carried out collectively by the respondents’ (that is the university and the union).’
Butler-Sloss and Laws LJJ, Pill LJ dissenting
Gazette 10-Nov-1999, Times 04-Nov-1999, [2000] ICR 221
England and Wales
See Also – Regina v South Bank University ex parte Anyanwu Admn 27-Jun-1996
The university was concerned at the way it saw the students’ union being run, and imposed a constitution which resulted in the claimants being dismissed. The claimants sought judicial review of the imposition of the new constitution, but that was . .
Leave – Anyanwu and Another v South Bank Students’ Union South Bank University CA 19-Mar-1999
The applicants sought an extension of time to apply to set aside leave to appeal given to their opponents.
Held: The cause of the respondent seemed weak, but raised a point of law which needed determination and the appeal should be allowed to . .
See Also – Anywanwu and Another v South Bank Students Union and others EAT 12-Sep-1997
. .
Appeal from – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.77829
It was not sex discrimination to calculate severance pay for an employee on her current part time earnings.
Times 25-Oct-1996
Sex Discrimination Act 1975 6(2)
See Also – Barry v Midland Bank Plc EAT 2-Feb-1996
Appeal from rejection of sex discrimination claim . .
Appeal from – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
See Also – Barry v Midland Bank Plc EAT 2-Feb-1996
Appeal from rejection of sex discrimination claim . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.78264
(South African Constitutional Court) Prospective adoptive parents were a same-sex couple who challenged laws preventing them from adopting. The court said: ‘In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent same-sex life partnerships and who would otherwise meet the criteria set out in section 18 of the Child Care Act . . Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child’s development, which can be offered by suitably qualified persons . . Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle [of the paramountcy of the interests of the child] . . It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions . . thus deprive children of the possibility of a loving and stable family life . . The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children.’
(2002) 13 BHRC 187, [2002] ZACC 20, CCT 40/01
England and Wales
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.270010
A woman school technician was subjected to a campaign of sexual harassment by two fellow male non-managerial technicians. She sought a transfer.
Held: The real question was whether the sexual harassment was to the detriment of the applicant within section 6(2)(b). The claim of sex discrimination succeeded.
Lord McDonald said: ‘It was argued on behalf of the applicant that the words ‘subjecting her to any other detriment’ were so universal that they covered acts of sexual harassment committed against her during her employment, without reference to any consequences thereof so far as her employment was concerned. The mere fact that they had been committed automatically placed her employers, perhaps vicariously, in breach of section 6(2)(b) and section 1(1) of the Act of 1975.
We do not think this interpretation is correct. The Act of 1975 does not outlaw sexual harassment in the field of -employment or elsewhere. That is left to the common law in an appropriate case. What it does outlaw in the field of employment is discrimination against a woman within the terms of her contract of employment on the ground of her sex. In certain cases sexual harassment may be relevant in this connection. An employer who dismisses a female employee because she has resisted or ceased to be interested in his advances would, in our view, be in breach of section 6(2)(b) and section 1(1) of the Act of 1975 for reasons arising from sexual harassment. Similarly if, for the same reason, he takes other disciplinary action against her short of dismissal, he would also be in breach. This action could be suspension, warning, enforced transfer, etc., all of which would be to the detriment of the female employee although open to an employer under her contract of service in a genuine case not associated with sexual harassment.
If this is a correct interpretation of the statute we ask ourselves what detriment, if any, within her contract of employment, the applicant suffered in the present case. The answer, we feel, is not far to seek. It lies in the fact that on 4 August 1983 she felt obliged to seek transfer from Bellahouston Academy to another school, and this was duly granted with effect from 19 September 1983. The campaign of harassment, including sexual harassment, with the objective of making the applicant apply for transfer had succeeded.’
Lord McDonald
[1986] ICR 564, [1986] SC 137, [1985] ICR 1977
Sex Discrimination Act 1975 1(1)(a) 6(2)b)
Cited – De Souza v Automobile Association CA 19-Dec-1985
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as ‘the wog’. She said that this was sufficient to mean that she suffered a detriment. The employer replied that . .
Appeal from – Strathclyde Regional Council v Porcelli SCS 1986
Mrs Porcelli was employed as a science laboratory technician at a school in Glasgow. Two technicians in the same department pursued a vindictive campaign against her for the deliberate purpose of making her apply for a transfer to another school. . .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.270155
EAT Unfair Dismissal – Reason for dismissal including substantial other reason – assessment of compensation for future losses following unfair dismissal and sex discrimination.
His Hon Judge McMullen Qc
UKEAT/128/03
Updated: 10 May 2022; Ref: scu.256767
The tenant was guilty of nuisance, but her misbehaviour was attributable to her psychotic state – her ‘disability’ within the 1995 Act.
Held: Though a very pertinent factor to be taken into account may be a housing authority’s obligations to other tenants on a housing estate and the interests of those other tenants, though the situation may be affected by the Act when the tenant suffers some mental impairment: ‘on the facts of the present case, the issue is one of fact: whether the breach of the tenancy terms was caused by the disability’. Since the evidence showed that the tenant ‘was unable [due to her disability] to prevent herself from behaving in [the objectionable] manner’ the 1995 Act was engaged, and the landlord had to establish sufficient justification to satisfy section 24(1)(b) of that Act if an order for possession was to be made. The 1995 Act did not bar all evictions but ‘only those which were not justified in the specific circumstances set out in section 24 and it ‘furnishes its own code for justified eviction which requires a higher threshold’, a threshold higher than that in the Housing Act 1988.
David Steel J
[2003] HLR 905, [2003] EWHC 574 (QB)
Housing Act 1988, Disability Discrimination Act 1995
England and Wales
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Cited – Knowsley Housing Trust v McMullen CA 9-May-2006
The defendant tenant appealed an order for possession of her flat. She was disabled and living with her 19 year old son. He had been made subject to an anti-social behaviour order. The court had found that she could have required him to leave. The . .
Cited – London Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.234717
Lord Denning MR
[1973] 1 QB 815
England and Wales
See Also – Ealing London Borough Council v Race Relations Board HL 16-Dec-1971
The council operated a housing policy which required applicants for housing tbe British nationals. Mr Zesko, a Polish national, complained that this was race discrimination.
Held: The House declined to interpret ‘national origins’ in the list . .
Cited – Showboat Entertainment Centre v Owens EAT 28-Oct-1983
The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal ‘on racial . .
Appeal from – Applin v Race Relations Board HL 27-Mar-1974
A couple cared for children without fee who were referred to them by a local authority. The children they cared for included coloured children. Two individuals sought to prevent the couple caring for coloured children. The question for the House of . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.229841
The court considered what actions could found a claim for racial discrimination: ‘What has to be enquired into is the reason why a particular course was adopted: the question is was it on racial grounds?’ The court deprecated any consideration of motive: ‘It will be discriminatory even though the motive lying behind it did not necessarily involve a prejudice of a racial kind.’
Browne-Wilkinson P
[1982] IRLR 281, [1982] ICR 256
England and Wales
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
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: 10 May 2022; Ref: scu.229843
(High Court of Hong Kong) ‘what may be true of a group may not be true of a significant number of individuals within that group’.
Hartmann J
[2001] 2 HKLRD 690
England and Wales
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.220682
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 an interval of four months, received a salary of andpound;60 per week. She brought proceedings before the industrial tribunal on the basis of the 1970 Act. The tribunal held that the applicant was employed on like work with her predecessor and ordered Macarthys to pay the applicant a salary equal to his salary.
Held: The employer’s appeal was dismissed.
Unreported, 14 December 1977
Equal Pay Act 1970, Council Directive 75/117/EEC
Applied – 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 – Macarthys Ltd v Smith CA 1980
The employee had taken on a job substantially similar to that of a previous male employee, but had been paid less. She succeeded in a claim under the 1971 Act before the industrial tribunal and Employment Appeal Tribunal. The employer appealed . .
At EAT – 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 EAT – 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: 09 May 2022; Ref: scu.200627
The court set down tests for what was ‘less favourable treatment’ under the Act. The court had to regard as relevant those circumstances on which a reasonable person would place some weight in determining how to treat another.
Carswell LCJ
[2000] NI 261
Fair Employment (Northern Ireland) Act 1976
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: 09 May 2022; Ref: scu.207076
[1980] 2 All ER 307, [1980] 1 WLR 734, [1980] ICR 429
England and Wales
Appeal from – O’Brien v Sim-Chem Ltd HL 2-Jan-1980
The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.200628
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 Brandon said: ‘I do not regard the expression ‘subjecting . . to any other detriment’ as meaning anything more than ‘putting under a disadvantage’.’
Brightman LJ, Brandon LJ, Denning LJ MR
[1980] QB 87, [1980] ICR 13
Sex Discrimination Act 1975 4(2)(c)
England and Wales
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 – St Helens Borough Council v Derbyshire and others HL 25-Apr-2007
The claimants were pursuing an action for equal pay. Several others settled their own actions, and the respondents then wrote direct to the claimants expressing their concern that the action ws being continued and its possible effects. The claimants . .
Applied – Kirby v Manpower Services Commission EAT 1980
The applicant, an employee at a job centre was demoted because he had disclosed confidential information about possible contraventions of the race relations legislation. He complained of race discrimination, saying his disclosure was a protected . .
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 . .
Cited – HM Land Registry v Grant EAT 15-Apr-2010
hmlr_grantEAT10
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction /Reasons /Burns-Barke
An Employment Tribunal accepted that 6 out of 12 . .
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Cited – Bayliss v London Borough of Hounslow CA 21-Mar-2002
. .
Cited – Turner v Scope (A Registered Charity) EAT 18-Dec-2002
Appeal from rejection of claim for constructive unfair dismissal and of discrimination. . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.207077
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 injured feelings (in this case andpound;5,000).
Kennedy, May, Hooper LJJ
Times 07-Jun-2004, Gazette 20-May-2004
Race Relations Act 1976 1 2(1)
England and Wales
Appeal from – Lisk-Carew v Birmingham City Council, Sharp EAT 21-Oct-2003
EAT Race Discrimination – Indirect . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.199547
EAT Sex Discrimination – Injury to feelings
His Hon Judge Clark
UKEAT/307/03
England and Wales
Updated: 09 May 2022; Ref: scu.192669
Disability related discrimination
DISABILITY DISCRIMINATION – Reasonable adjustments
The Tribunal had erred in only one material respect by making the wrong comparison when comparing, in a reasonable adjustments claim, the impact of erratic payment of sick pay on the Claimant with its impact on others on sick leave for reasons other than mental health related disability such as that from which the Claimant suffered. That issue would be remitted.
The Tribunal had also erred by not dealing adequately with the issue of ‘legitimate aim’ and proportionality when applying to the Claimant’s dismissal the justification test in section 15(1)(b) of the Equality Act 2010. But its error was not material as it cannot have affected the result.
The Tribunal had been entitled to find that the Claimant was not treated unfavourably by reason of something arising in consequence of his disability when deciding that the reason for erratic and incorrect sick pay payments was not something arising in consequence of his disability but in consequence of technical and administrative difficulty in the operation of the sick pay payment system.
[2018] UKEAT 0184 – 18 – 1611
England and Wales
Updated: 09 May 2022; Ref: scu.633790
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done also by the employer under section 41(2). The law had been changed after Liversidge. A chief constable must delegate his responsibilities, and the court could not say that what occurred fell outside the scope of s41(2), and it was therefore a question of fact for the tribunal.
Sir Andrew Morritt VC, Peter Gibson, Kay LJJ
Times 10-Sep-2003, Gazette 16-Oct-2003
Sex Discrimination Act 1975 17(1) 41(2), Police Act 1996 10
England and Wales
Distinguished – Chief Constable of Bedfordshire Police v Liversidge EAT 21-Sep-2001
The Chief Constable appealed against a refusal to strike out a claim by the respondent that he had racially discriminated against her. Force members had used code words for racially abusive terms about her. The claim was that he was vicariously . .
Cited – Burton and Another v De Vere Hotels EAT 3-Oct-1996
Two black waitresses, clearing tables in the banqueting hall of a hotel, were made the butt of racist and sexist jibes by a guest speaker entertaining the assembled all-male company at a private dinner party.
Held: The employer of the . .
Cited – Hendricks v The Commissioner of Police of the Metropolis CA 27-Nov-2002
The appellant appealed a finding of the Employment Appeal Tribunal against her. She had complained of sex and race discrimination. She alleged that the Tribunal had concentrated on the issues of policy within the respondent police force.
Held: . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
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 – Farah v Commissioner of Police for Metropolis CA 9-Oct-1996
Individual officers, but not the police force itself are answerable in a race discrimination claim. The force is not vicariously liable for an individual officer’s acts. . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.186305
The court prescribed a broad and expansive concept of the pool of comparators in discrimination cases.
[1993] ICR 474
Cited – Secretary of State for Trade and Industry v Rutherford and Another; Same v Bentley EAT 2-Oct-2003
The claimants sought to challenge the legislation which removed their employment rights upon attaining the age of 65, arguing that this was discriminatory against men. The Secretary of State appealed the tribunal’s decision.
Held: The tribunal . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.186636
The appellants claimed housing benefit. They appealed against rejection of their claims that the imposition of limits to the maximum sums payable, ‘the bedroom tax’, was unlawful on equality grounds. The claimants either had disabilities, or lived with dependent family with disabilities, or live in what are known as ‘sanctuary scheme’ homes (accommodation specially adapted to provide protection for women at severe risk of domestic violence). They were all tenants of registered social landlords and they all receive or received HB.
Held: The appeal of Carmichael the appeal succeeded, but the other benefits claimants failed. The standard test in cases involving questions of economic and social policy was whether the discrimination was ‘manifestly without reasonable foundation’. How to deal with the impact of Reg B13 on individuals with disabilities was just such a question of economic and social policy; the housing benefit cap scheme was integral to the structure of the welfare benefit scheme. The Court of Appeal was therefore correct to apply this test
Otherwise: Daly and Others, Regina (on the application of) (formerly known as MA and others) v Secretary of State for Work and Pension
Regina (Carmichael) v Secretary of State for Work and Pensions
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Hughes, Lord Toulson
[2016] UKSC 58, [2016] WLR(D) 582, UKSC 2014/0129, [2016] PTSR 1422, (2017) 20 CCL Rep 103, [2016] 1 WLR 4550, [2017] 1 All ER 869, [2016] HRLR 24
Summary
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summ Video, SC290216 am, SC290216 pm, SC010316 am, SC010316 pm, SC020316 am, SC020316 pm
Housing Benefit Regulations 2006, European Convention on Human Rights 8 14, Equality Act 2010 149
England and Wales
Appeal from – Rutherford and Others, Regina (on The Application of) v Secretary of State for Work and Pensions CA 27-Jan-2016
Challenge to lawfulness of regulations applying a discount to payments of housing benefits when there was deemed to be a spare bedroom.
Held: The appeal succeeded in part. . .
At first instance – MA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others QBD 30-Jul-2013
Ten disabled claimants challenged the changes to the 2006 Regulations introduced by the 2012 Regulations. The changes restricted the ability to claim Housing Benefit for bedrooms deemed extra. The claimants said that in their different ways each had . .
Appeal from – MA and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions CA 21-Feb-2014
The claimants were in recipet of housing benefit. They claimed that the new benefits cap (‘bedroom tax’) discriminated against them when additional space was need for the care of family members with disabilities . .
Cited – Burnip v Birmingham City Council and Another CA 15-May-2012
The court considered an allegation of discrimination in the application of housing benefit for a disabled person.
Held: The claimants had established a prima facie case of discrimination under Article 14 of the ECHR, and that the Secretary of . .
Cited – Bracking and Others v Secretary of State for Work and Pensions CA 6-Nov-2013
Application for permission to appeal against refusal of leave to bring judicial review of decision by the respondent to close the Independent Living Fund.
Held: McCombe LJ summarised the application of section 149 of the 2010 Act: ‘1 . . . .
Cited – JS and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others QBD 5-Nov-2013
The claimants challenged the benefits cap introduced under the 2012 Act, saying that it was discriminatory, affecting more women than men. Mr Eadie QC submitted on behalf of the Secretary of State that, as ‘an international instrument with no . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – RR v Secretary of State for Work and Pensions SC 13-Nov-2019
Housing benefit regulations had been found unlawful and were amended. The Court now considered what payments should have been made before the amendments came into effect.
Held: The appeal was allowed, and RR’s housing benefit entitlement is to . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.570982
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or an adopter, and that she should be similarly entitled.
Held: The regulations were discriminatory, and a declaration was granted. ‘we are bound to apply the test suggested by the House of Lords and to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic. ‘ and ‘administrative convenience cannot in itself be a sufficient justification for discrimination without some other justification as to why those in an analogous or relevantly similar situation are being excluded.’ Where the Secretary of State relies on administrative convenience and ‘bright line’ rules he must still show some ‘serious adverse consequences’ to justify the discrimination.
Auld LJ, Moore-Bick LJ, Sir Peter Gibson
[2005] EWCA Civ 1303, Times 17-Nov-2005, [2006] 1 WLR 3202
European Convention on Human Rights 14, Social Fund Maternity and Funeral Expenses (General) Regulations 1987 5
England and Wales
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – The National and Provincial Building Society, The Leeds Permanent Building Society And The Yorkshire Building Society v The United Kingdom ECHR 23-Oct-1997
There was no breach of human rights by the retrospective removal of a right to reclaim overpaid tax. Such a decision was within the general power of a government to impose and collect tax. Not every difference in treatment will amount to a violation . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Stewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
Cited – RR v Secretary of State for Work and Pensions SC 13-Nov-2019
Housing benefit regulations had been found unlawful and were amended. The Court now considered what payments should have been made before the amendments came into effect.
Held: The appeal was allowed, and RR’s housing benefit entitlement is to . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.234694
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal succeeded. The Regulations infringed the claimant’s rights because the evidence was that in fact the expenses of caring for a very sick child increased when he was admitted to hospital. This had been particularly so for C. Parents were now expected or indeed required to be with him. The Regulations were based upon the contrary assumption.
The Regulations automatically suspending DLA after he had been an in-patient in an NHS hospital for more than 84 days, were held by the Supreme Court to unlawfully discriminate against a severely disabled child who was required to remain in hospital for periods longer than 84 days, in comparison with other severely disabled children who were not required to remain in hospital for such long periods.
Lord Mance said that broadly drawn rules are an important feature of the benefit system; the rules cannot be framed to address individual cases.
Lord Wilson, having reviewed the authorities, said: ‘It is clear that, if the alleged discrimination falls within the scope of a Convention right, the ECtHR is reluctant to conclude that nevertheless the applicant has no relevant status, with the result that the inquiry into discrimination cannot proceed.
Decisions both in our courts and in the ECtHR therefore combine to lead me to the confident conclusion that, as a severely disabled child in need of lengthy in-patient hospital treatment, Cameron had a status falling within the grounds of discrimination prohibited by article 14. Disability is a prohibited ground (Burnip v Birmingham City Council [2012] EWCA Civ 629, [2013] PTSR 117). Why should discrimination (if such it be) between disabled persons with different needs engage article 14 any less than discrimination between a disabled person and an able-bodied person? Whether, as in Cameron’s case, the person is born disabled or whether he becomes disabled, his disability is or becomes innate; and insofar as in the RJM case Lord Walker seems to have had three circles in mind, Cameron’s case falls either within the narrowest of them or at least within the one in the middle.’
Lady Hale, Deputy President, Lord Mance, Lord Clarke, Lord Wilson, Lord Reed
UKSC 2014/0166, [2015 UKSC 47, [2015] WLR(D) 296, [2015] 1 WLR 3250, (2015) 39 BHRC 372, [2016] 1 All ER 779, (2015) 146 BMLR 1
Bailii, Bailii Summary, SC, SC Summary, WLRD
Social Security (Disability Living Allowance) Regulations 1991, European Convention on Human Rights, Disability Living Allowance and Disability Working Allowance Act 1991
England and Wales
At UT – AM (By Appointee Mr CM) v Secretary of State for Work and Pensions UTAA 15-Jan-2013
Human rights law – article 8 (private and family life) – disability living allowance . .
Appeal from – AM (By His Father CM) v The Secretary of State for Work and Pensions CA 5-Feb-2014
The child suffered serious conditions requiring care from his parents. He received Disability Living Allowance, but this was withdrawn when he had a lengthy stay in hospital. He had since died. The parents had given considerable assistance in the . .
Cited – Cockburn v Chief Adjudication Officer and Another and Secretary of State for Social Services v Fairey HL 21-May-1997
The provision of an interpreter for a deaf person was included in range of care needed for attendance for Disability Living Allowance. Dealing with his soiled laundry was not so included: ‘In my opinion it is not enough to ask whether the act in . .
Cited – Sidabras And Dziautas v Lithuania ECHR 27-Jul-2004
Former KGB officers complained that they were banned, not only from public sector employment, but also from many private sector posts. This ‘affected [their] ability to develop relationships with the outside world to a very significant degree, and . .
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
Cited – Clift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .
Cited – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
Cited – Burnip v Birmingham City Council and Another CA 15-May-2012
Disability is a prohibited ground for discrimination
Henderson J said: ‘ . . it is necessary to draw a clear distinction between the benefits which Mr Burnip was entitled to claim for his subsistence, and those which he was entitled to claim in . .
Cited – Vincent and Others, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 23-Jul-2020
. .
Cited – Cornerstone (North East) Adoption and Fostering Service Ltd (T/A Cornerstone), Regina (on The Application of) v The Office for Education, Children’s Services and Skills Admn 27-Jul-2020
. .
Cited – Stott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – Samuels v Birmingham City Council SC 12-Jun-2019
The appellant had been provided with emergency accommodation after losing her assured shorthold tenancy, but the court was now asked ‘whether the council adopted the correct approach in determining that the accommodation was ‘affordable’ for those . .
Cited – RR v Secretary of State for Work and Pensions SC 13-Nov-2019
Housing benefit regulations had been found unlawful and were amended. The Court now considered what payments should have been made before the amendments came into effect.
Held: The appeal was allowed, and RR’s housing benefit entitlement is to . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.549908
A barman in a public house with Protestant customers in a ‘loyalist’ area of Belfast was constructively dismissed because he was a Roman Catholic.
Held: That was discrimination ‘on the ground of religious belief’ within the section. The employer’s conduct did not cease to be discrimination on that ground because the employer would have treated in the same way a Protestant barman in a public house with Roman Catholic customers. That showed only that the employer would be guilty of religious discrimination against both barmen.
Sir Brian Hutton LCJ
[1996] IRLR 84
Fair Employment (Northern Ireland) Act 1976 16
Northern Ireland
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.183867
The East Ham South Conservative Club had refused on racial grounds to admit Mr Amarjit Singh Shah as a member. The Board brought proceedings under section 2(1). But the club said that they were not supplying anything to the public. They were a private club which offered services only to members.
Held: The defence succeeded. The club’s members to whom the club’s services were provided were not a section of the public. The phrase ‘to the public or a section of the public’ were words of limitation.
Lord Reid said that he could not see any reasonable or workable dividing line so long as there was operated a genuine system of personal selection of members.
Lord Reid, Hodson L
[1973] AC 868
England and Wales
Cited – Ali and Another v Triesman (McDonagh) CA 7-Feb-2002
The applicants sought selection as candidates for the Labour Party. The respondent asserted that such issues were not ones of employment, and therefore not covered by the Act, and appealed a finding of the EAT against them.
Held: Sawyer was . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.183445
The claimant suffered asymptotic prostate cancer, but after a prostatectomy, had suffered urinary incontinence. He appealed a finding of the tribunal and EAT that his condition was not a disability within the Act.
Held: The Schedule enlarged upon the definition of disability to give statutory protection to those with progressive conditions. The urinary incontinece was a consequence of that condition, and was within the Act. The situation would differ from case to case.
Pill, Scott Baker, LJJ, Wilson J
Times 28-Apr-2003
Disability Discrimination Act 1995 8(1)
England and Wales
Appeal from – D H Kirton v Tetrosyl Limited EAT 17-Jul-2002
EAT Disability Discrimination – Disability . .
Appealed to – D H Kirton v Tetrosyl Limited EAT 17-Jul-2002
EAT Disability Discrimination – Disability . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.181620
In presenting its judgment on the applicant’s sex and race discrimination case, the employment tribunal had stated that the applicant had been over sensitive.
Held: Tribunals should avoid making aspersive comments about the parties before them. This area is one necessarily involving strong emotions, and no case could be helped by such comments. A tribunal can and should make its views known, but need not do so in this way.
Gibson, Arden LLJ, Cresswell J
Times 22-Oct-2002
England and Wales
Updated: 08 May 2022; Ref: scu.177482
The claimant sought damages for racial discrimination by her employers. At the Employment Tribunal, the claimant’s representative conceded that only one act was within the limitation period, but claim had been made to support that allegation, beyond the evidence. The Employment Appeal Tribunal directed a rehearing for the Tribunal to consider the facts alleged in the claim.
Held: The EAT had no power to order the tribunal to consider facts not alleged in the original claim, and only in the evidence at the tribunal.
Lords Justice Kennedy, Mummery and Sedley
Gazette 26-Sep-2002
England and Wales
Updated: 08 May 2022; Ref: scu.175508
The claimant sought aggravated damages for the aggressive way the respondent firm had defended her action for sex discrimination.
Held: In exceptional circumstances, and this was one, the tribunal could award additional damages where a respondent behaved in his defence in an over-enthusiastic way: ‘If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim. It is easy to imagine cases in which the misconduct amounting to victimisation might only arise at a late stage of the proceedings, perhaps only during the hearing. It seems to us that it would be regrettable if such victimisation could only be compensated by the commencement of further proceedings.’ Generally a party should be warned in advance that this might be considered, and such awards should remain the exception.
The defendant said that the tribunal had not demonstrated its independence, but had restricted his cross examination of the claimant and had made many interruptions. The EAT found the allegation of bias unfounded.
Though there had been a delay of three months before promulgation of the decision, there was no reason to think that it was undermined. The defendant had not met the test for alleging perversity as set down in Yeboah.
‘overenthusiastic litigants and litigants in Employment Tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. ‘
Mr Justice Maurice Kay, Dr D. Grieves and Mr P. R. A. Jacques
Times 01-Aug-2002, EAT/827/00, EAT/451/00, [2002] IRLR 697
Sex Discrimination Act 1975 65
See Also – Zaiwalla and Co and Another v Walia EAT 16-Nov-2000
. .
See Also – Zaiwalla and Co and Another v Walia EAT 18-Sep-2001
. .
Cited – Hauschildt v Denmark ECHR 24-May-1989
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
Cited – Nash v Chelsea College of Art and Design QBD 11-Jul-2001
A student’s appeal against her examination marking was heard, but the reasons were only given some months later.
Held: When looking to see whether those reasons should be admitted, a court should be careful before accepting late reasons, . .
Applied – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Armitage Marsden and HM Prison Service v Johnson EAT 1997
The tribunal set out the relevant principles for assessing awards for injury to feelings for unlawful discrimination. The principles are: ‘(1) Awards for injury to feelings are compensatory. They should be just to both parties. They should . .
Cited – The Chief Constable of West Yorkshire Police v Vento EAT 4-Dec-2001
EAT Sex Discrimination – Direct . .
Cited – Ministry of Defence v Fletcher EAT 9-Oct-2009
mod_fletcherEAT2009
EAT SEX DISCRIMINATION
Injury to feelings
SEXUAL ORIENTATION DISCRIMINATION
Where there is overlap between the basis of aggravated damages and compensation for injury to feelings, double counting . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.174744
Europa The term ‘ dismissal ‘ contained in article 5(1) of directive no 76/207 must be given a wide meaning ; an age limit for the compulsory redundancy of workers as part of a mass redundancy falls within the term ‘ dismissal ‘ construed in that manner, even if the redundancy involves the grant of an early retirement pension.
In view of the fundamental importance of the principle of equality of treatment for men and women, article 1 (2) of directive no 76/207 on the implementation of that principle as regards access to employment and working conditions, which excludes social security matters from the scope of the directive, must be interpreted strictly. It follows that the exception to the prohibition of discrimination on grounds of sex provided for in article 7 (1)(a) of directive no 79/7 on the progressive implementation of the principle of equal treatment in matters of social security applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.
Article 5 (1) of directive no 76/207 must be interpreted as meaning that a contractual provision which lays down a single age for the dismissal of men and women under a mass redundancy involving the grant of an early retirement pension, whereas the normal retirement age is different for men and women, does not constitute discrimination on grounds of sex, contrary to community law.
C-151/84
Updated: 08 May 2022; Ref: scu.133906
The applicant had been taken on to stand in for an employee taking maternity leave. She herself became pregnant, and she was dismissed. Her clam for sex discrimination had been rejected by the industrial tribunal and EAT.
Held: Since a man who had been recruited in the same situation would have been dismissed if he taken substantial time off for sickness, there was was no sex discrimination. The dismissal of a temporary replacement employee working in the place of an employee on maternity leave who in turn became pregnant was not discriminatory.
Gazette 11-Mar-1992, [1992] 1 All ER 43
Sex Discrimination Act 1975 1(1)
England and Wales
Appeal from – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
At CA – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.90351
The appellant, a male delicatessen assistant, was dismissed by his employers because his hair, which he wore in a ponytail style, breached the employers’ rules for male staff, which stipulated tidy hair not below collar length and no unconventional hair styles.
Held: He had not been discriminated against on the grounds of sex. A dress code requiring each respective sex to dress conventionally was not discriminatory. He had not been treated less favourably than female staff who were allowed to have their hair long.
Phillips LJ said: ‘Discrimination is defined as being treated less favourably. In my judgment, this is plainly the meaning of discrimination in the Directive and the Act of 1975 fully reflects that Directive. In many instances discrimination between the sexes will result in treating one more favourably than the other, but this will not necessarily be the case. If discrimination is to be established, it is necessary to show not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other . . As [counsel for the employers] has pointed out, a code which made identical provisions for men and women but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode. Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick, would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards? I put that question to [counsel for the applicant], and he accepted that such a requirement would operate unfavourably towards men. The reason for that is that the appropriate criterion to be applied when considering that question is: what is the conventional standard of appearance? Indeed, it seemed to me that [the applicant’s counsel] implicitly conceded that when he submitted to us that what is discrimination can change as society changes. A code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an even-handed approach between men and women and not one which is discriminatory.’
Leggatt LJ said: ‘Discrimination consists, not in failing to treat men and women the same, but in treating those of one sex less favourably than those of the other. That is what is meant by treating them equally. If men and women were all required to wear lipstick, it would be men who would be discriminated against. Provided that an employer’s rules, taken as a whole, do not result in men being treated less favourably than women, or vice versa, there is room for current conventions to operate.’
Phillips LJ, Peter Gibson LJ, Leggatt LJ
Times 05-Mar-1996, [1996] ICR 868
England and Wales
Distinguished – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.89340
A claim of damages for race discrimination did not survive the claimant’s death, and the estate cannot continue the claim. There is no statutory basis for such a survival, and it had not been intended by Parliament. This differs explicitly from other types of claims under general employment law, but is similar for sex discrimination.
Gazette 11-Aug-1999, Times 21-Apr-1999
England and Wales
Updated: 08 May 2022; Ref: scu.83050
The complainant was a female lorry driver, aged 23, employed by a firm specialising in the carriage of chemicals. One chemical was potentially embryotoxic, and the manufacturers warned that special precautions should be taken to avoid women of child-bearing age being exposed to it. The employers therefore refused to allow the complainant to drive lorries carrying the chemical in question. She complained of sex discrimination.
Held: Her appeal failed. The employers had a defence under section 51(1) of the 1975 Act, which excluded liability for an otherwise unlawfully discriminatory act ‘if it was necessary for [the respondent] to do it in order to comply with a requirement . . of an Act passed before this Act’. The employers were obliged to act in the way complained of in order to comply with their duty under section 2(1) of the 1974 Act and could rely on the defence. The Equal Opportunity Commission submitted ‘that the employers had to show ‘that there is no other way of protecting [the] woman . . other than’ by subjecting her to the detriment complained of, and that that must be demonstrated by reference to an absolute standard, irrespective of any limits on the employer’s knowledge or understanding of the safety risk. Slynn J. rejected that submission, holding that it was enough that the employers could show that the act complained of was necessary on the information available to them.
Slynn J
[1981] ICR 299
Sex Discrimination Act 1975 51(1), Health and Safety at Work Act 1974 2(1)
England and Wales
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: 07 May 2022; Ref: scu.374668
[2004] EWHC 2165 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.239277
EAT Unfair Dismissal / Disability Discrimination – 1. The ET did not err in law when it decided that the Claimant because of his inability to participate in a disciplinary hearing on account of his profound deafness, had been unfairly dismissed. – 2. The ET correctly applied the judgment of the EAT in Whitbread and Co Plc v Mills [1988] IRLR 501. There is no relevant distinction in the approach in that case and of the EAT in Advihilli v Exports Credits Guaranteed Department unreported EAT/917/97. – 3. The ET did not err in finding that the Respondent had failed to make reasonable adjustments for his disability in the disciplinary process. – 4. Allowing the cross-appeal, the ET had failed to apply its finding that the Claimant was dismissed for misconduct, but his dismissal occurred because at least in part he was unable effectively to participate in the disciplinary process and could not put forward explanations when put to him, and they were reasons which related to his disability.
His Honour Judge Mcmullen QC
UKEAT/803/04, [2005] UKEAT 0803 – 04 – 2305
England and Wales
Appeal from – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.227027
Lady Justice Simler
[2020] EWCA Civ 1597
England and Wales
Updated: 07 May 2022; Ref: scu.656502
Did the London Borough of Barnet Council, as local planning authority, discharge the public sector equality duty in section 149 of the Equality Act 2010 when determining an application for planning permission for the development of a school on land that was once the Wyevale Garden Centre
[2012] EWHC 3725 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.467638
The House was asked for a preliminary ruling before a referral of the case to the ECJ as to whether the applicants could rely as against the British Gas Corporation on an unimplemented Council Directive. Although the gas industry had been privatised by the time of the litigation and the rights and liabilities of the British Gas Corporation had been transferred to British Gas plc the courts had to consider the position of a nationalised industry.
Held: The Corporation was a body against which the Directive could be enforced, thus overruling all the lower courts. ‘The principle laid down by the ECJ is that the state must not be allowed to take advantage of its own failure to comply with Community Law. The policy of the BGC which involved discrimination against women in breach of the Directive, was no doubt thought to be in the financial and commercial interests of the BGC. The advantages of that policy would accrue indirectly to the State which provided through the BGC a supply of gas for all citizens generally and which was entitled to the surplus revenue of the BGC. If the BGC were allowed to escape the consequences of an admitted breach of the Directive the State would be taking advantage of its own failure to comply with Community Law. I can see no justification for a narrow or strained construction of the ruling of the ECJ which applies to a body ‘under the control of the state’ …………… I decline to apply the ruling of the ECJ, couched in terms of broad principle and purposive language characteristic of Community Law in a manner which is, for better or worse, sometimes applied to enactments in the United Kingdom parliament.’
[1991] 2 AC 306, [1991] 1 QB 40
Directive 1976 EEC/76/207 5(1)
England and Wales
At ECJ – Foster and others v British Gas plc ECJ 12-Jul-1990
The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. . .
Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Cited – Doughty v Rolls Royce Plc CA 19-Dec-1991
The claimants sought to assert their rights under the Equal Treatment Directive, whoch had not been implemented. She had been made to retire at 60, but said that had she been a man she would not have had to retire until she reached 65 years old. She . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.242676
The tribunal considered the method of selection of the pool on a claim for indirect discrimination. In this case the claimant alleged that an age test applied on his application would effectively limit the proportion of coloured who would meet the tests.
Held: The Commission’s appeal was allowed in part. The proportion of late immigrants was irrelevant.
[1982] ICR 350
Race Relations Act 1974 1(1)(b)
England and Wales
Appeal from – Perera v Civil Service Commission (No 2) CA 1983
Upheld on Appeal. . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Cited – Meikle v Nottingham City Council EAT 14-Apr-1994
The appellant challenged dismissal of her claim for indirect racial discrimination based on two grounds. First, that the Tribunal’s decision was perverse; in other words that it was a decision which, on the evidence before it, no reasonable tribunal . .
Explained – Meer v London Borough of Tower Hamlets CA 26-May-1988
The Court discussed the nature of ‘a requirement or condition’ for the purposes of the 1976 Act.
Held: Dillon LJ said: ‘The case of Perera decided that there can only be a requirement or condition within s.1(1)(b) of the Race Relations Act . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.241437
Female teachers carried out the work of principal teachers but had not been appointed to the promoted post and were paid less than they would have received had they been so appointed. They claimed equal pay with male comparators who were appointed principal teachers. Like work was established and it was agreed that disparity in pay between the women and their male comparators was not based on sex. The tribunal had said that there was insufficient evidence to found a material factor defence in circumstances where there were a variety of reasons including financial restraints, administrative practices advanced by way of explanation for the failure to appoint, none of which were sex based.
Held: There was no need for objective justification which only arose when the employer was relying on a factor that was gender discriminatory – something that was not an issue in that case. The Equal Pay Act was not concerned with fair wages but only with sex related pay discrimination whereas the objective sought by the applicants had been to achieve equal pay for like work regardless of sex and not to eliminate any inequalities due to sex discrimination. Lord Browne-Wilkinson: ‘To my mind it would be very surprising if a differential pay structure which had no disparate effect or impact as between the sexes should prove to be unlawful under the Equal Pay Act 1970. The long title to that act describes its purpose as being:
‘An Act to prevent discrimination, as regards terms and conditions of employment, between men and women.” and
‘The cases establish that the Equal Pay Act 1970 has to be construed so far as possible to work harmoniously both with the Sex Discrimination Act 1975 and article 119. All three sources of law are part of a code dealing with unlawful sex discrimination: see Shields v. E. Coomes (Holdings) Ltd. [1978] I.C.R. 1159 and Garland v. British Rail Engineering Ltd. [1982] I.C.R. 420. It follows that the words ‘not the difference of sex’ where they appear in section 1(3) of the Equal Pay Act 1970 must be construed so as to accord with the Sex Discrimination Act 1975 and article 119 of the E.C. Treaty, i.e. an employer will not be able to demonstrate that a factor is ‘not the difference of sex’ if the factor relied upon is sexually discriminatory whether directly or indirectly. Further a sexually discriminatory practice will not be fatal to a subsection (3) defence if the employer can ‘justify’ it applying the test in the Bilka-Kauj/C/us case [1987] I.C.R. 11O.
In North Yorkshire County Council v. Ratcliffe [1995] I.C.R. 833, 839, this House expressed the view, obiter, that the Equal Pay Act 1970 has to be interpreted without introducing the distinction between direct and indirect discrimination drawn by section I of the Sex Discrimination Act 1975. That dictum must not be carried too far.
Whilst there is no need to apply to the Equal Pay Act 1970 the hard and fast statutory distinction between the two types of discrimination drawn in the Sex Discrimination Act 1975, this House did not intend, and had no power, to sweep away all the law on equal pay under article 119 laid down by the European Court of Justice, including the concept of justifying, on Bilka grounds, practices which have a discriminatory effect on pay and conditions of service. The law on article 119, whilst recognising that in many cases there is a de facto distinction between direct and indirect discrimination, does not draw the same firm legal demarcation between the two as does the Sex Discrimination Act 1975 which permits justification of indirect discrimination but not of direct discrimination. The correct position under section l(3) of the Equal Pay Act 1970 is that, even where the variation is genuinely due to a factor which involves the difference of sex, the employer can still establish a valid defence under subsection (3) if he can justify such differentiation on the grounds of sex, whether the differentiation is direct or indirect. I am not aware as yet of any case in which the European Court of Justice has held that a directly discriminatory practice can be justified in the Bilka sense. However, such a position cannot be ruled out since, in the United States, experience has shown that the hard and fast demarcation between direct and indirect discrimination is difficult to maintain.
From what I have said, it is apparent that, in considering section 1(3) of the Equal Pay Act 1970, the only circumstances in which questions of ‘justification’ can arise are those in which the employer is relying on a factor which is sexually discriminatory. There is no question ‘of the employer having to ‘justify’ (in the Bilka sense) all disparities of pay. Provided that there is no element of sexual discrimination, the employer establishes a subsection (3) defence by identifying the factors which he alleges have caused the disparity, proving that those factors are genuine and proving further that they were causally relevant to the’ disparity in pay complained of.’
and: ‘In my judgment the law was correctly stated by Mummery J. giving the judgment of the Employment Appeal Tribunal in Tyldesley v. T. M. L. Plastics Ltd. [1996] I.C.R. 356, in which he followed and applied the earlier appeal tribunal decisions in Calder v. Rowntree Mackintosh Confectionery Ltd. [1992] I.C.R. 372 and Yorkshire Blood Transfusion Service v. Plaskitt [1994] I.C.R. 74. The purpose of section I of the Equal Pay Act 1970 is to eliminate sex discrimination in pay not to achieve fair wages. Therefore, if a difference in pay is explained by genuine factors not tainted by discrimination that is sufficient to raise a valid defence under subsection (3): in such a case there is no further burden on the employer to ‘justify’ anything. However if the factor explaining the disparity in pay is tainted by sex discrimination (whether direct or indirect) that will be fatal to a defence under subsection (3) unless such discrimination can be objectively justified in accordance with the tests laid down in the Bilka [1987] I.C.R. 110 and Rainey [1987] I.C.R. 129 cases.’
Lord Browne-Wilkinson
[1988] IRLR 146
England and Wales
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.235012
(Commision) The applicant was a devout Muslim. His religious duty was to offer prayers on Fridays and to attend a mosque if possible. He was employed as a full time primary school teacher. He complained that he was forced to resign because he was refused permission to attend a mosque for the purposes of worship during hours of employment.
Held: There had been no interference with his freedom of religion under Article 9(1) of the Convention: ‘the freedom of religion, as guaranteed by Article 9, is not absolute, but subject to the limitations set out in Article 9(2). Moreover, it may, as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom. ‘it may as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom’. That had been recognised in the case of a person with special contractual obligations. The case was one of a coincidence of teaching obligations and religious duties rather than of religious manifestations in the course of the performance of professional functions, and the local education authority was entitled to rely on its contract with the applicant. ‘Throughout his employment the applicant remained free to resign if and when he found that his teaching obligations conflicted with his religious duties. It notes that, in 1975, the applicant did in fact resign from his five-day employment and that he subsequently accepted four-and-a-half day employment enabling him to comply with his duties as a Muslim on Fridays.’
(1981) 4 EHRR 126
European Convention on Human Rights 9(1)
Human Rights
At the Industrial Tribunal – Ahmad v Inner London Education Authority EAT 1976
The appellant was a moslem junior school teacher. The Authority appealed an acceptance of his claim for unfair dismissal, having left his employment because he was not given time off to attend the mosque on Fridays. The Tribunal considered whether, . .
Appeal from – Ahmad v Inner London Education Authority CA 1977
The appellant said that his human rights were infringed when, as a moslem, he was refsued time off from his work as a primary school teacher to attend prayers at the mosque on Fridays. He had subsequentlly been re-instated part-time, but complained . .
Cited – SB, Regina (on the Application of) v Denbigh High School CA 2-Mar-2005
The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a . .
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – McFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.223118
[1970] ICR 542
England and Wales
Cited – C Aniedobe v London Borough of Hammersmith and Fulham EAT 11-Feb-2000
EAT Race Discrimination – Direct
The appellant challenged dismissal of his claim for race discrimination. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.195021
EAT Sex Discrimination – Comparison
His Hon Judge Ansell
EAT/1458/01
England and Wales
Updated: 06 May 2022; Ref: scu.184360
Slynn J said: ‘if the Tribunal finds that a substantial reason for what has happened is that a candidate has not been considered for a post or has been refused an appointment because of his or her race then it seems to us that the Tribunal is entitled to say there has been a breach of the legislation. If there are other grounds put forward which may also have been a factor it is for the Tribunal to say whether at the end the candidate has because of discrimination lost the chance of or lost the appointment’.
Slynn J
[1981] ICR 377, [1981] IRLR 133
England and Wales
Appeal from – Owen and Briggs v James CA 1981
Sex need not be the sole ground on which the less favourable treatment is based. Provided that it is a significant factor, albeit one of a number of factors, the others being gender-neutral, it will be open to an Industrial Tribunal to find that . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.545151
EAT The applicant, who had been born in India, had made twenty-two unsuccessful applications for promotion. On the last occasion he brought proceedings alleging unlawful racial discrimination and relying on the fact that the person selected had less experience than he had.
Held: Browne-Wilkinson J suggested that in future, industrial tribunals mighft find it easier to forget about the rather nebulous concept of the ‘shift in the evidential burden’. A little later he continued: ‘In this case the industrial tribunal would, we suspect, have found the case rather more straightforward if, looking at all the evidence as a whole, they had simply decided whether the complaint had been established. No useful purpose is served by stopping to reach a conclusion on half the evidence. The right course in this case was for the industrial tribunal to take into account the fact that direct evidence of discrimination is seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will means the complaint succeeds: . . Those propositions are, we think, most easily understood if concepts of shifting evidential burdens are avoided.
So, in this case, the industrial tribunal has drawn the inference of possible discrimination from the fact that there was no obvious reason why the applicant should not have got the job: . . To decide that there has been discrimination in the face of sworn evidence that there was no such discrimination is unpalatable: equally, racial discrimination does undoubtedly exist, and it is highly improbable that a person who has discriminated is going to admit the fact, quite possibly even to himself. The judicial function, however unpalatable, is to resolve such conflicts by a decision if possible.’
Browne-Wilkinson J P
[1981] ICR 653
England and Wales
Discussed – Chattopadhyay v Headmaster of Holloway School EAT 1981
The appellant, an Indian teacher had applied unsuccessfully for the post of head of history at Holloway School. He complained of race discrimination.
Held: Browne-Wilkinson P said: ‘As has been pointed out many times, a person complaining that . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.521106
The bookshop company’s employment rules prohibited trousers for female workers, a dress code which was upheld by the Tribunal.
Held: There was no detriment. As there was no comparable restriction for men it was not possible to say that women were treated less favourably than men. Phillips J said: ‘if one considers the situation of the men and the situation of the women there was no comparable restriction which could be applied to the men, equivalent to that applied to the women preventing them from wearing trousers, which could make it possible to lead to the conclusion that the women were being treated less favourably than the men.’
Phillips J
[1977] IRLR 360, (1978) ICR 85
England and Wales
Approved – Burrett v West Birmingham Health Authority CA 3-Mar-1994
Application for leave to appeal. . .
Applied – Burrett v West Birmingham Health Authority EAT 6-Dec-1993
Female nurses had to wear a cap whereas male nurses did not, though male nurses had to wear a tunic with epaulettes. They claimed discrimination.
Held: A requirement for female to wear a nurse’s cap where no similar rule applied for men, was . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.408524
A female art teacher and deputy department head applied in 1975 to be department head at her school. In September a man was appointed instead. The 1975 Act came into force on 29th December. On 1st January 1996 she complained to the Tribunal on the basis that by appointing a man the employers discriminated against her by reason of her sex contrary to Sections 1(1)(a), 4(1) and 6(1)(c) and (2)(a) of the Act.
Held: Bristow J asked: ‘Was the discrimination a single act, or an `act extending over a period,’ a continuous act?’ and answered: ‘There is nothing in the definition section of the Sex Discrimination Act 1975 or the sections to which that refers to require us to give any other than the ordinary common sense meaning to the provisions of the Act. The applicant’s complaint here is that by not appointing her, and by appointing a man with lesser qualifications, the employers have unlawfully discriminated against her. She herself has in our judgment given the right definition of the `act of discrimination’ of which she complained to the tribunal under section 63(1).
Like any other discrimination by act or omission, the failure to appoint her, and the appointment of him, must have continuing consequences. She is not head of the department; he has been ever since October 13, 1975. But it is the consequences of the appointment which are the continuing element in the situation, not the appointment itself.
That there may be discrimination by an act `extending over a period,’ that is, a continuing act, is clear from section 76 (6) (b). This provides that for the purpose of calculating the period within which a complaint must be presented to the industrial tribunal `any act extending over a period shall be treated as done at the end of that period.’ An illustration of what the legislature had in mind as an act extending over a period can be seen in the provisions of section 6 (1), which makes it: `unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman – (a) in the arrangements he makes for the purpose of determining who should be offered that employment . .’
So, if the employers operated a rule that the position of head of department was open to men only, for as long as the rule was in operation there would be a continuing discrimination and anyone considering herself to have been discriminated against because of the rule would have three months from the time when the rule was abrogated within which to bring the complaint. In contrast, in the applicant’s case clearly the time runs from the date of appointment of her male rival. There was no continuing rule which prevented her appointment. It is the omission to appoint her and the appointment of him which is the subject of her complaint.’
Bristow J
[1977] ICR 308
England and Wales
Cited – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.282643
Phillips J considered an alteration to the terms of an employment contract, saying: ‘One then goes on to see what the effect as prescribed is, and it is that that term, so identified, in the appellants’ contracts shall be treated, as so modified, as not to be less favourable. It seems to us that the way it is treated, as so modified, as to strike out 85p and to substitute 97 1/2p . . In other words, once the section is applied and the contract is modified, there is then a contract providing remuneration at that rate. It seems to us that the true way of looking at it is that that contract remains so modified until something else happens, such as a further agreement between the parties, a further collective agreement, or a further statutory modification by reason of a further operation of the equality clause.’
A claim for equal pay is a claim in respect of breach of contract.
Phillips J
[1976] IRLR 371
England and Wales
Cited – Sodexo Ltd v Gutridge and others EAT 31-Jul-2008
EAT EQUAL PAY ACT
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
Cited – Abdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.280084
EAT Race Discrimination – Direct
The Honourable Mr Justice Keene
EAT/551/96, EAT/276/96
England and Wales
Updated: 05 May 2022; Ref: scu.171487
EAT Race Discrimination – Direct
The Honourable Mr Justice Morison (P
EAT/673/98, EAT/672/98
England and Wales
Updated: 05 May 2022; Ref: scu.171654
Article 119 of the EEC Treaty, which is directly applicable in the sense that the workers concerned may rely on it in legal proceedings and in the sense that national courts or tribunals must take it into account as a constituent part of community law, must be interpreted as covering, in addition to the case of unequal pay for equal work or work of equal value, the case where a worker who relies on that provision to obtain equal pay within the meaning thereof is engaged in work of higher value than that of the person with whom a comparison is to be made. It is for the national court or tribunal before which a party relies on a directly applicable Treaty provision, within the limits of its discretion under national law, when interpreting and applying domestic law, to give to it, where possible, an interpretation which accords with the requirements of the applicable community law and, to the extent that this is not possible, to hold such domestic law inapplicable.
C-157/86, [1988] ICR 445, [1988] 1 CMLR 879
European
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.134435