A voluntary bonus paid by an employer to its staff at Christmas was ‘pay’ within Art 14 of the EC Treaty, where it was paid to encourage or reward for loyalty and work. Such a payment was not a ‘payment’ within the rules governing measures to encourage health and safety of pregnant and breast feeding workers.

Citations:

Times 16-Nov-1999

Statutes:

ECTreaty Art 14, Council Directive 92/85/EEC

Discrimination, Employment

Updated: 09 April 2022; Ref: scu.83041

The withdrawal of a job offer to a man with cerebral palsy was not disability discrimination, where it was because of the difficulty of making the arrangements necessary to put the applicant in a position to do the work as opposed to pure work related issues.

Citations:

Times 22-Oct-1998, Gazette 11-Nov-1998

Statutes:

Disability Discrimination Act 1995 6

Employment, Discrimination

Updated: 09 April 2022; Ref: scu.82734

Citations:

[2018] EWCA Civ 640, [2018] WLR(D) 197

Links:

Bailii, WLRD

Statutes:

Equality Act 2010 123

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 07 April 2022; Ref: scu.608337

EAT Disability Discrimination – Reasonable Adjustments – The Claimant was training to be a Consultant Anaesthetist until she developed a latex allergy in October 2013; that condition was a disability for the purposes of Equality Act 2010. After meetings and enquiries, the First Appellant (the NHS body responsible for training) informed her in November 2014 that she would not be able to continue with her training because of the condition and she resigned from her employment with the Second Appellant in March 2015 and claimed that both Appellants had failed in their duty to make ‘reasonable adjustments’ to enable her to continue to work and train.
The ET upheld this claim on the basis (in effect) that it ought to have been possible somehow to continue her training within the NHS and that the Appellants had not done enough to investigate matters.
In so doing the ET had treated the NHS as a single entity and failed to have proper regard to the specific legal functions and powers of the two Appellants; as a consequence the ET had (a) imposed liability on both of them indiscriminately without any separate consideration of their respective positions, (b) decided that it would have been a reasonable adjustment on the part of both of them to provide training and work in a latex free hospital when the First Appellant had no control over any hospital and the Second Appellant had no control over those of other Trusts and no control over where the First Appellant required the Claimant to carry out her training, and (c) apparently decided that they should both make adjustments in relation to exams or other speciality training requirements when neither of them had control over these matters.
This was an error of law and the decision could not stand.

Judges:

Shanks HHJ

Citations:

[2018] UKEAT 0068 – 17 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605705

EAT MATERNITY RIGHTS AND PARENTAL LEAVE – Unfair dismissal
SEX DISCRIMINATION – Pregnancy and discrimination
SEX DISCRIMINATION – Burden of proof
Automatic unfair dismissal by reason of pregnancy – section 99 Employment Rights Act 1996 and regulation 20 Maternity and Parental Leave etc Regulations 1999
Pregnancy discrimination – section 18 Equality Act 2010
Burden of proof – section 136(2) Equality Act 2010
The Claimant had worked for the Respondent for a short period of time and was still within her probationary period when it was decided that she would be dismissed due to her ’emotional volatility’ and ‘failure to fit in with the Respondent’s work ethic’. The ET accepted that this decision was made on 3 August 2016, before the Respondent was aware that the Claimant was pregnant. On 4 August 2016, when arranging a meeting with the Claimant to tell her of this decision, the Respondent learned of the Claimant’s pregnancy. The meeting went ahead on 5 August 2016, when the Claimant was informed of the decision reached two days earlier and provided with a letter confirming the reasons for it. The ET found, however, that delaying the communication of the Claimant’s dismissal meant the Respondent had the opportunity to review its decision in the light of its knowledge of the Claimant’s pregnancy, which ‘clearly had a bearing on the behaviour that the Respondent considered was the last straw’. The ET found the Claimant had therefore ‘proved facts sufficient to reverse the burden of proof’ and the Respondent had failed to show that the dismissal was in no sense whatsoever related to the Claimant’s pregnancy; it upheld the Claimant’s complaints of pregnancy discrimination and automatic unfair dismissal by reason of pregnancy. The Respondent appealed.

Held: allowing the appeal
The ET had failed to apply the correct legal test in this case; it had effectively found the Respondent liable by omission – the ET apparently considering that the Respondent ought to have re-visited its decision to dismiss the Claimant (taken on 3 August, without any knowledge of her pregnancy) once it learned she was pregnant. The ET took the view that once the Claimant had told the Respondent she was pregnant ‘It must have been obvious . . that the Claimant’s attendance at hospital and her emotional state were pregnancy related’. That was not the correct legal test; the ET had been required to determine whether the Claimant’s pregnancy itself had been the reason or principal reason for her dismissal or whether the decision to dismiss had been because of her pregnancy. The ET had also erred in concluding that the answer to this question was provided by the shifting burden of proof. It had made no finding of fact, further to its finding as to the decision taken on 3 August, such as would establish a prima facie case and shift the burden to the Respondent. Moreover, the ET had failed to consider any explanation provided by the Respondent; had it engaged with the Respondent’s case, it would further have been apparent to the ET this was directed to the claim as put by the Claimant, which was not the case being considered by the ET itself.

Judges:

Eady QC HHJ

Citations:

[2018] UKEAT 0197 – 17 – 0301

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605704

Judges:

Bean, Leggatt LJJ

Citations:

[2018] EWCA Civ 346

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605691

EQUAL PAY ACT – Indirect discrimination

Citations:

[2018] UKEAT 0183 – 17 – 2702

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605649

VICTIMISATION DISCRIMINATION – Interim relief
VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Dismissal
JURISDICTIONAL POINTS – Fraud and illegality
Interim relief application – whistleblowing claim – complaint of automatic unfair dismissal under section 103A Employment Rights Act 1996 – protected disclosures – public interest – illegality

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0283 – 17 – 2212

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605325

EAT UNFAIR DISMISSAL ; Reason for
POLKEY DEDUCTION
EQUALITY ACT 2010 CLAIMS – SECTION 20 REASONABLE ADJUSTMENTS SECTION 13 DIRECT DISABILITY DISCRIMINATION AND SECTION 15 DISCRIMINATION ARISING FROM DISABILITY
The claimant was employed for almost 37 years by the respondents, his parents, who were partners in a joinery and funeral director enterprise. He was dismissed at a time when a sale of the business was contemplated and competing claims to purchase it had been made by the claimant and by his son who was also an employee. At the time of dismissal the claimant had been absent from work for a period of almost three years following a serious accident. The Tribunal found that the claimant was unfairly dismissed but only in respect of the respondents’ complete failure to undertake any proper procedure before dismissal.
The Tribunals’ findings and conclusions on the reason for the dismissal being the breakdown in the relationship between the claimant and his son, the Polkey deduction and the Equality Act claims were all those it was entitled to make on the evidence led. The arguments on appeal had illustrated that a different view of the evidence could have been taken but no material errors of law or approach had been identified.
Appeal dismissed.

Judges:

Wise H

Citations:

[2017] UKEAT 0013 – 16 – 1207

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605322

Judges:

GILLEN LJ, WEATHERUP LJ and WEIR LJ

Citations:

[2016] NICA 47

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605152

EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Inferring discrimination
RACE DISCRIMINATION – Burden of proof
The Tribunal erred in concluding that the Second Respondent, the individual who informed the Claimant of his dismissal, did not say ‘You’re not right for me’ without properly explaining its reasons for so finding. The Tribunal found all of the relevant witnesses on this disputed issue to be credible and that the burden of proof had shifted to the Respondent. However, it could not, without a proper and full explanation, be said (as the Tribunal did) that the account of that matter given by the Second Respondent, on this potentially important issue of fact, was consistent; on the contrary, there were inconsistencies within the evidence which the Tribunal was required to address when setting out its reasoned conclusion on this issue. Once it has undertaken the task of determining an important issue of disputed fact and then explaining its reasons for that decision, it should then carefully consider its decision on the allegation of discrimination having regard to the burden of proof.

Citations:

[2017] UKEAT 0147 – 17 – 1130

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 April 2022; Ref: scu.603717

UNFAIR DISMISSAL – Reasonableness of dismissal
RACE DISCRIMINATION – Direct
The Employment Tribunal was entitled to conclude, on the facts as found by it, that the Claimant was not prejudiced in a hearing which resulted in her dismissal on grounds of capability arising from ill health by not having been provided with notes prepared in connection with a report (such report having been provided to her) in connection with grievances made by her.
The Employment Tribunal was also entitled to find that no safe conclusions could be drawn from statistical evidence which purported to show delay in the Respondent’s handling of grievances made by employees of different racial or ethnic groups.

Citations:

[2017] UKEAT 0025 – 17 – 2809

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 April 2022; Ref: scu.603713

Citations:

[2017] EWCA Civ 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 April 2022; Ref: scu.602608

Citations:

[2017] UKEAT 0113 – 17 – 0711

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 April 2022; Ref: scu.601920

RACE DISCRIMINATION – Direct
PRACTICE AND PROCEDURE – Striking-out/dismissal
The basis of the Claimant’s claim of race discrimination, properly understood, was that the attitude of a manager who had described her, an Afro-Caribbean, as a coconut or Bounty Bar, caused her to treat the Claimant differently from an employee who behaved stereotypically consistently with their race or ethnic origin. The Employment Judge erred in not considering that it was arguable that an Employment Tribunal should consider how a hypothetical white comparator would be treated in the circumstances and that on the basis of allegations in the ET1 it could not be said that the claim of race discrimination should be struck out as having no reasonable prospect of success. Anyanwu v South Bank Students’ Union [2001] IRLR 305 considered.
The victimisation claim was rightly struck out as having no reasonable prospect of success.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0127 – 17 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 April 2022; Ref: scu.601928

EAT Sex Discrimination – Direct : Practice and Procedure

Citations:

[2017] UKEAT 0314 – 16 – 2410

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 April 2022; Ref: scu.601901

Citations:

[2017] EWCA Civ 1913

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 April 2022; Ref: scu.599648

RACE DISCRIMINATION – Direct
VICTIMISATION DISCRIMINATION
RACE DISCRIMINATION – Detriment
JURISDICTIONAL POINTS – Claim in time and effective date of termination
The ET rejected claims of direct discrimination (race) in circumstances where it had found the alleged discriminator to have subjected the Claimant to harassment related to his race, and victimised him for having complained about it. It did so in respect of two allegations by concluding that although the acts complained of had occurred, the employer and its Head of Alternative Investments had not done them for any reason of race. The logic was that the employer had engaged two employees of the same race on similar work, and therefore could not have been motivated by race. This was a misdirection. Further, the ET had not identified that the treatment was less favourable than that which had or would have been given to another not of the Claimant’s race, nor had it identified a comparator for the purposes of any such comparison, nor had it found what the reason was for the treatment (it purported to find what it had not been, but had done so on a false basis), nor did it seek to see whether the burden of proof may have passed to the Respondents to provide such an explanation given the context of the claims and the other findings in respect of the behaviour of the alleged discriminator, to which other conduct it had made no reference when reaching its conclusion that there was no direct discrimination. Appeal in respect of the dismissal of two allegations of direct discrimination allowed.
An appeal against findings that there had been no victimisation by paying the Claimant a bonus ‘only’ of a certain amount was rejected: the ET had been entitled to determine that there had been no detriment, even if, had it done so, its additional reason that there would still have been no finding of victimisation could not have been supported. A cross-appeal seeking to reargue the question whether a finding that the employer had conducted a disciplinary hearing in respect of the employee’s conduct was in revenge for his having complained that the Respondents’ conduct was discriminatory, was dismissed as raising in truth no point of law, but one in respect of the ET concluding that time should be extended on the just and equitable footing for the late bringing of a claim was allowed: the ET should have identified why it was the Claimant was late, and did not appear to have done so, nor clearly evaluate his actual reasons for being late (whatever they were).
The issues in question on the successful appeals to be reheard before the same ET, on the same evidence as adduced previously, though leaving it open to either party to ask the ET if it would consider further evidence, and for the ET to permit them to do so should it consider that appropriate.

Judges:

Langstaff J

Citations:

[2017] UKEAT 0147 – 16 – 2007

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595000

EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Burden of proof

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0075 – 17 – 1408

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595007

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge erred in striking out claims of direct race discrimination by conducting more than a mini-trial into the main issue in the case, the reason for the acts of which complaint was made. The Claimant gave evidence and was extensively cross-examined in a two-day hearing. The Employment Judge failed to apply the principles in Ezsias v North Glamorgan NHS Trust [2007] IRLR 603. Observations on the dangers of conducting a strike out hearing at which findings on the credibility of the Claimant are made which are central to the main issue in the claim. Qdos Consulting Ltd v Swanson UKEAT/0495/11 and Chandhok v Tirkey [2015] IRLR 195 considered.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0039 – 17 – 2707

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595001

Citations:

[2017] ScotCS CSIH – 56

Links:

Bailii

Jurisdiction:

Scotland

Employment, Discrimination

Updated: 29 March 2022; Ref: scu.593090

(Religion or Belief Discrimination) The Employment Tribunal did not err in dismissing claims that the application of the Respondent’s Disciplinary and Equality of Treatment Policies, the first and second Provisions, Criteria or Practices, to the Claimant, a Pentecostal Christian, for quoting in a service in a prison holding a large number of sex offenders a passage from the Bible condemning certain sexual behaviour and speaking of repentance did not constitute indirect religious discrimination. The ET did not err in considering whether the first and second PCPs led to ‘any group disadvantage’. Mba v Merton London Borough Council [2014] 1 WLR 1501 per Elias LJ paragraphs 33 and 35 applied. In any event the ET were not satisfied either that the Claimant as a Christian was disadvantaged by the two PCPs or that other Christians whether ‘singly or as a group’ were disadvantaged. Eweida v United Kingdom [2013] IRLR 231 considered.
Further the ET did not err in holding that any restriction on the expression of the Claimant’s religious belief by the application of the Disciplinary and Equalities Policies was a proportionate means of achieving the legitimate aim of maintaining order and safety in the prison.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0304 – 16 – 0108

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592680

EAT AGE DISCRIMINATION
PRACTICE AND PROCEDURE: Costs
The Claimant, an experienced accountant aged 50, applied for a large number of jobs advertised online as suitable for newly qualified accountants, and when not offered an interview alleged age discrimination – The Tribunal dismissed her claims on the basis (inter alia) that she had no interest in the vacancies and was making the applications only in order to be able to claim compensation and that she had accordingly suffered no detriment – On the same basis it ordered her to pay the Respondent’s costs.
Held that the Tribunal was fully entitled on the evidence before it to reach the conclusion that it did. An applicant for a job who has no interest in accepting it if offered has no claim for discrimination if the application is unsuccessful. Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 considered.

Judges:

Underhill P J

Citations:

[2009] UKEAT 0389 – 09 – 1112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592683

EAT Race Discrimination – Direct – Burden of proof
The Employment Appeal Tribunal (‘the EAT’) allowed an appeal from the Employment Tribunal (‘the ET’). The Claimant claimed that the Respondent discriminated against him because of his race in rejecting job applications which he made.
The EAT held that the ET had misdirected themselves about the effect of section 136 of the Equality Act 2010 by treating it as imposing an initial burden of proof on the Claimant; but that even if the ET had not misdirected themselves in that way, errors in their approach to the evidence made their decision unsafe.
The claim was remitted to a different ET.

Judges:

Laing DBE J

Citations:

[2017] UKEAT 0203 – 16 – 1008

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592679

VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Protected disclosure
VICTIMISATION DISCRIMINATION – Detriment
VICTIMISATION DISCRIMINATION – Dismissal
UNFAIR DISMISSAL – Compensation
UNFAIR DISMISSAL – Contributory fault
UNFAIR DISMISSAL – Polkey deduction
1. Wide-ranging grounds of appeal and cross-appeal were raised in relation to judgments in the Claimant’s favour to the effect that he was subjected to detriments for whistleblowing and ultimately dismissed for that reason.
2. The appeals were dismissed save in respect of a point (conceded subject to the cross-appeal) concerned with the liability of the Second Respondent. The liability or otherwise of the Third Respondent is remitted for reconsideration.
3. A number of points raised by way of cross-appeal concerning remedy were successful and sums reflecting these points are to be substituted in the award of compensation made.

Judges:

Simpler DBE P J

Citations:

[2017] UKEAT 0058 – 17 – 1907

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.590532

ECJ (Social Policy – Equal Treatment In Employment and Occupation – Agea : Judgment) Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Article 2(1) – Article 2(2)(a) – Article 6(1) – Age discrimination – On-call employment contract which may be concluded with persons under 25 years of age – Automatic termination of the employment contract when the worker reaches 25 years of age

Citations:

ECLI:EU:C:2017:566, [2017] EUECJ C-143/16

Links:

Bailii

Jurisdiction:

European

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.590456

The appellant challenged the finding of discrimination

Judges:

Gloster VPCA, Underhill LJJ, Sir Patrick Elias

Citations:

[2017] EWCA Civ 425

Links:

Bailii

Statutes:

Equality Act 2010 13(1)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.588200

EAT Victimisation Discrimination : Protected Disclosure – Detriment – UNFAIR DISMISSAL – Constructive dismissal – UNFAIR DISMISSAL – Automatically unfair reasons – The findings of fact and a fair reading of their Decision fully supported the conclusion of the Employment Tribunal that the decision that disciplinary charges against the Claimant were established and that the dismissal of his appeal had nothing whatsoever to do with any protected disclosure. Appeal from dismissal of claims under Employment Rights Act 1996 sections 48 and 103A dismissed.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0009 – 17 – 0405

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 March 2022; Ref: scu.583965

EAT Victimisation Discrimination : Detriment – – Other forms of victimisation
The Appellant had brought a successful race discrimination claim against her employer, the First Respondent, in 2007. In 2011 she raised a grievance against two colleagues. The Second Respondent (the First Respondent’s Human Resources Director) decided to intervene in the grievance in part because she had brought the previous claim, which was a protected act under section 27 Equality Act 2010. He approached the two colleagues without informing the Appellant and persuaded them to send her letters of apology which he had drafted and which were designed to look spontaneous. That was in breach of procedure and when she discovered what had happened the Appellant brought a grievance against the Second Respondent saying his actions were humiliating and insulting.
The Employment Tribunal found (on a remission from the Employment Appeal Tribunal) that although the Second Respondent’s decision to intervene was because of the protected act, the way in which he had intervened was not. The Employment Tribunal’s reasons for reaching that conclusion were not very clear and appeared inconsistent with express findings (at paragraph 38 in the Reasons) that the Second Respondent wished to avoid the matter escalating in part because of the earlier successful claim and that his actions were part of a plan designed to get the Appellant to decide to take her grievance no further.
The victimisation claim was remitted again to a fresh Employment Tribunal.

Judges:

Shanks J

Citations:

[2017] UKEAT 0263 – 16 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582063

EAT Unfair Dismissal: Constructive Dismissal – RACE DISCRIMINATION – Direct
UNLAWFUL DEDUCTION FROM WAGES
Constructive dismissal – section 95(1)(c) Employment Rights Act 1996 – whether breach of the implied term – Malik and Anor v BCCI SA [1997] ICR 606 HL
Race discrimination – sections 13(1), 23 and 136(2) Equality Act 2010 – direct discrimination – less favourable treatment – burden of proof
Paternity pay – section 171ZC Social Security Contributions and Benefits Act 1992 – Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002
The Claimant (an Indian national) had sought a lateral transfer as a Manager from one of the Respondent’s stores to a new store it was due to open in Romford. There had, however, been four other applicants for the Romford position, including three external candidates, and the Respondent had applied a selection process, albeit (as the ET allowed) one that had been created for promotions rather than transfers. The Claimant performed badly and was unsuccessful. One of the external candidates, a British national, achieved the highest score and was offered the position. Shortly after this, the Claimant’s Assistant, who was also a British national, was offered a Relief Manager position at another store, without being subject to the same kind of assessment process used for the Claimant. The Claimant submitted a grievance about these matters, but this was rejected, and the Claimant resigned from his employment and brought ET proceedings, complaining that the rejection of his grievance had amounted to a fundamental breach of his contract, specifically it had destroyed the relationship of trust and confidence, thus entitling him to resign and claim constructive dismissal. He also relied on these matters as acts of race discrimination because of his Indian nationality. The Claimant further complained of an unauthorised deduction of wages in the failure to pay him paternity pay for the leave taken after the birth of his son.
The ET rejected the claims. Although agreeing that the process used by the Respondent should not have applied to lateral transfers, the Respondent had reasonable and proper cause for its conduct given that it had to apply some kind of selection process and had thus been entitled to refuse the Claimant’s grievance. Further rejecting certain allegations made by the Claimant, the ET did not consider the burden had shifted for the purpose of the complaint of race discrimination; the Claimant’s comparators were in different circumstances, and a difference in protected characteristic was insufficient to shift the burden. In any event, even if the burden had shifted, the ET accepted the Respondent’s non-discriminatory explanation for why it had treated the Claimant as it had; specifically, it had permissibly applied the selection process when having to choose the best of the five candidates for the new Manager position. As for paternity pay, the Claimant had failed to provide the requisite notification in writing at the relevant time and had, in any event, brought his claim out of time.
On the Claimant’s appeal
Held: dismissing the appeal
The ET had accepted the Claimant’s argument that the assessment used for the Romford Store Manager selection exercise had been created for promotions and not lateral transfers and it was further prepared to accept that his trust and confidence in his employer may have been destroyed by the decision not to offer him this position (and whilst his actual complaint before the ET relied on the rejection of his grievance, this was really a reiteration of the earlier decision not to offer him the Romford post). The question for the ET was – applying Malik unvarnished, as the Claimant submitted – whether the Respondent had conducted itself in the way that it had without reasonable and proper cause (Malik and Anor v BCCI SA [1997] ICR 606 HL). This was not – as the Claimant contended – the wrongful importation of the range of reasonable responses test; the ET was properly applying Malik, recognising that an employee’s loss of trust and confidence in their employer was not the only question: the ET also had to be satisfied this had happened as a result of conduct on the part of the employer that was without reasonable and proper cause, a question to be answered objectively, not by applying a range of reasonable responses test. The ET had not lost sight of this and had reached a permissible conclusion on the basis of its findings of fact.
Similarly, in respect of the race discrimination claim, the ET had been entitled to find the burden of proof had not shifted, not least as it rejected allegations made by the Claimant that might otherwise have corroborated his case and had found the circumstances of his comparators were materially different to his. In any event, the ET considered the Respondent’s explanation – on the basis that the burden had shifted – and found the conduct complained of was for reasons (see above) other than the protected characteristic (the Claimant’s nationality).
As for the paternity pay claim, this appeal was doomed to fail as the ET had found the claim had been brought out of time and no appeal against that finding had been permitted to proceed. In any event, the appeal focused on the wrong Regulations (those concerned with the entitlement to leave, not pay); the ET had been entitled to find the Claimant had failed to comply with the written notification requirements laid down by the paternity Pay Regulations.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0272 – 16 – 0303

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582064

EAT Disability Discrimination: Disability Related Discrimination – DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Justification
UNFAIR DISMISSAL – Reasonableness of dismissal
The Tribunal had fallen into error and given inadequate reasons when deciding that the Claimant had been fairly dismissed and had not been unlawfully discriminated against on the ground of his disability. However, a perversity challenge to the Tribunal’s findings of fact was not plainly made out and it was not clear whether the errors and shortcomings in the reasoning were fatal to the validity of the decision. It was appropriate to stay the appeal and remit the matter back to the Tribunal under the Burns/Barke procedure, for the purpose of obtaining further and better reasons, before determining the remaining grounds of the appeal.

Judges:

Kerr J

Citations:

[2017] UKEAT 0309 – 16 – 2804

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582072

EAT Race Discrimination – direct;
Race Discrimination – inferring discrimination;
Race Discrimination – burden of proof
The Respondent’s appeal argued that the Employment Tribunal had drawn inferences that were not open to it on the primary facts and that it erred in concluding that a prima facie case of discrimination had been made out to reverse the burden of proof. The appeal succeeded in relation to a small number of findings only in respect of which the Claimant did not establish a prima facie case or the primary facts did not support the inferences drawn.

Judges:

Simler DBE J

Citations:

[2017] UKEAT 0214 – 16 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582057

EAT Sex Discrimination: Direct – Pregnancy and discrimination
In respect of a single finding of unfavourable treatment because of absence on maternity leave under section 18(4) Equality Act 2010, the Employment Tribunal did not apply the correct legal test, wrongly treating the case as a ‘criterion’ type case rather than a ‘reasons why’ type case: Taiwo and Anor v Olaigbe and Ors [2016] UKSC 31 applied. This approach is appropriate in a direct discrimination claim under section 18 just as under section 13 Equality Act 2010. The fact that indirect discrimination cannot be pursued on the basis of pregnancy or maternity leave under section 19 does not alter the position either.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0267 – 16 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582062

EAT (Disability Discrimination : Disability Related Discrimination : Reasonable Adjustments) The Claimant was working for the Respondent as a temporary agency worker. He went off sick with a disability-related illness. The Respondent withdrew a conditional offer of employment on the basis of his attendance record.
He claimed the withdrawal of the offer was disability discrimination on the basis of section 15 (discrimination arising from disability) and section 21 (failure to make a reasonable adjustment by discounting disability-related absences).
The Employment Tribunal decided that the offer was withdrawn not only because of his attendance record but also because of his failure to keep the Respondent informed during his absence which was such that trust and confidence had broken down and that this meant his claims failed because (a) the suggested reasonable adjustment would have made no difference and (b) withdrawing the offer was justified in order to have effective service which was not possible given the break down in trust and confidence.
Those facts and the Employment Tribunal’s conclusions from them had not been properly pleaded or raised by the Respondent before or during the hearing and the Employment Tribunal had therefore erred in law in deciding the case on this basis.

Citations:

[2017] UKEAT 0270 – 16 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 February 2022; Ref: scu.577879

(Practice and Procedure: Review) – New evidence on appeal – Disability related discrimination
The Employment Appeal Tribunal (‘the EAT’) dismissed an appeal against a Decision of the Employment Tribunal (‘the ET’) refusing to reconsider an earlier Decision (‘Decision 1’). The EAT held that the application for a review did not explain what was said to be wrong with Decision 1, and that the ET was not obliged to carry out a general re-investigation of Decision 1 in order to see whether it could detect any error in Decision 1. The ET refused to reconsider Decision 1 on the grounds that there was no reasonable prospect that Decision 1 would be revised or revoked and that the application for a review was out of time, and no reasons had been given for the delay. The EAT did need to, and did not, decide whether or not the ET was entitled to refuse to reconsider Decision 1 on the grounds that the application was out of time. On the face of it, there was no flaw in the ET’s approach. However there had been various procedural mishaps. The EAT would have required those to have been investigated before it could reach a final view on this issue.

Citations:

[2016] UKEAT 0231 – 15 – 2411

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 February 2022; Ref: scu.577865

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
RACE DISCRIMINATION – Direct
The Employment Tribunal’s finding of failure to make a reasonable adjustment upheld. The employer’s appeal dismissed. The Claimant’s cross-appeal against the Employment Tribunal’s finding that she had failed to adduce any evidence such as to pass stage one of the Igen test in relation to a complaint of racial discrimination upheld. That issue was remitted to the same Employment Tribunal for reconsideration.

Citations:

[2017] UKEAT 0202 – 16 – 1901

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 January 2022; Ref: scu.574086

EAT Practice and Procedure: Striking-Out/Dismissal – SEX DISCRIMINATION – Indirect
Striking out – indirect sex discrimination claim – identification of PCP – objective justification
The ET had struck out the Claimant’s claim of indirect sex discrimination in circumstances in which it had been agreed that there were no disputes of fact and the ET had all the evidential material before it to carry out its task.
On the Claimant’s appeal.
Held: dismissing the appeal. The ET had proceeded on the basis of the case pursued by the Claimant, as clarified at an earlier case management discussion and without the Claimant having taken issue with the identification of the PCP. The PCP had legitimately been identified as the application of Standard Operating Procedure 8, relating to the recruitment of police officers and civilian staff, where the applicant had previous criminal convictions. Allowing this placed men at a disadvantage as compared to women (being more likely to have previous criminal convictions), the ET nevertheless found the Respondent was bound to make good its defence of justification such as to mean the Claimant’s claim had no reasonable prospect of success. The ET had been entitled to proceed on the agreed basis that there was no dispute of fact, there was no need to call oral evidence and all the relevant material was available at the Preliminary Hearing. In those circumstances, it could not be said that the ET had erred in law.

Judges:

Eady QC HHJ

Citations:

[2016] UKEAT 0184 – 16 – 0811

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 January 2022; Ref: scu.573476