Eweida And Others v The United Kingdom: ECHR 15 Jan 2013

ECHR Article 9-1
Manifest religion or belief
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their religious beliefs: violation; no violations
Article 14
Discrimination
Disciplinary measures against employees for wearing religious symbols (cross) at work or refusing to perform duties they considered incompatible with their religious beliefs: violation; no violations
Facts – All four applicants were practising Christians who complained that domestic law had failed adequately to protect their right to manifest their religious beliefs. The first applicant, Ms Eweida, a British Airways employee, and the second applicant, Ms Chaplin, a geriatrics nurse, complained that their employers had placed restrictions on their visibly wearing Christian crosses around their necks while at work. The third applicant, Ms Ladele, a Registrar of Births, Deaths and Marriages; and the fourth applicant, Mr McFarlane, a counsellor with a confidential sex therapy and relationship counselling service, complained that they had been dismissed for refusing to carry out certain of their duties which they considered would condone homosexuality, a practice they felt was incompatible with their religious beliefs.
Law – Article 9 alone and/or in conjunction with Article 14: There is case-law of the Court and Commission which indicates that, if a person is able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there is no interference with the right under Article 9 – 1 and the limitation does not therefore require to be justified under Article 9 – 2. However, given the importance in a democratic society of freedom of religion, the Court considered that where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.
Where, as in the case of the first and fourth applicants, the acts complained of were carried out by private companies and were not therefore directly attributable to the respondent State, the Court must consider the issues in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction.
As regards the applicable principles under Article 14 of the Convention, while generally for an issue to arise there must be a difference in the treatment of persons in analogous, or relevantly similar, situations, the right not to be discriminated against is also violated when States, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different. Such actions are discriminatory if they have no objective and reasonable justification; in other words, if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
(a) The first applicant – The Court was satisfied that the first applicant’s insistence on wearing a cross visible at work was a manifestation of her religious belief, and that the refusal by British Airways between September 2006 and February 2007 to allow her to remain in her post while visibly wearing a cross amounted to interference with her right to manifest her religion. Since the interference was not directly attributable to the State, the Court examined whether the State had complied with the positive obligation under Article 9.
The Court did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.
The aim of the British Airways uniform code, namely to communicate a certain image of the company and to promote recognition of its brand and staff, was legitimate. However, the domestic courts had accorded this aim too much weight. The first applicant’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other previously authorised items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image.
Moreover, the fact that the company was later able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrated that the earlier prohibition had not been of crucial importance.
Therefore, as there was no evidence of any real encroachment on the interests of others, the domestic authorities had failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9. No separate examination of her complaint under Article 14 in conjunction with Article 9 was necessary.
Conclusion: violation in respect of the first applicant (five votes to two).
(b) The second applicant – The Court was satisfied that the second applicant’s determination to wear a cross at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion.
The restriction in question had a legitimate aim, which was to protect the health and safety of nurses and patients. The evidence was that the second applicant’s managers considered there was a risk that a disturbed patient might seize and pull the chain with the risk of injury, or that the cross might swing forward, and could, for example, come into contact with an open wound. The reason for the restriction in this situation was therefore inherently of greater magnitude than in the case of the first applicant. There was also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited. The second applicant had been offered the possibility of wearing a cross in the form of a brooch attached to her uniform, or tucked under a high-necked top worn under her tunic, but she had not considered this would be sufficient to comply with her religious convictions.
This was an area where the domestic authorities had to be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no direct evidence. It followed that the Court was unable to conclude that the measures in question were disproportionate, and that the interference with the second applicant’s freedom to manifest her religion had been necessary in a democratic society. There had therefore been no violation of Article 9 alone or in conjunction with Article 14.
Conclusion: no violation in respect of the second applicant (unanimously).
(c) The third applicant – It was clear that the third applicant’s objection to participating in the creation of same-sex civil partnerships was directly motivated by her religious beliefs. The events in question therefore fell within the ambit of Article 9 and Article 14 was applicable. The relevant comparator in this case was a registrar with no religious objection to same-sex unions. The Court accepted that the local authority’s requirement that all registrars of births, marriages and deaths be designated also as civil-partnership registrars had had a particularly detrimental impact on her because of her religious beliefs. The requirement pursued the legitimate aim of protecting equal opportunities for those of different sexual orientation. In considering the proportionality of the measures, it was notable that the consequences for the third applicant were serious: she considered that she had no choice but to face disciplinary action rather than be designated a civil-partnership registrar and, ultimately, she lost her job. Furthermore, it could not be said that when she entered into her contract of employment she had specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement had been introduced by her employer at a later date.
On the other hand, however, the local authority’s policy aimed to secure the rights of others which were also protected under the Convention and the Court generally allowed the national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights. In all the circumstances, the Court did not consider that either the local-authority employer which had brought the disciplinary proceedings or the domestic courts which had rejected the third applicant’s discrimination claim, had exceeded the margin of appreciation available to them. There had therefore been no violation of Article 14 in conjunction with Article 9.
Conclusion: no violation in respect of the third applicant (five votes to two).
(d) The fourth applicant – While employed by a private company with a policy of requiring employees to provide services equally to heterosexual and homosexual couples, the fourth applicant had refused to commit himself to providing psycho-sexual counselling to same-sex couples. As a result, disciplinary proceedings had been brought against him.
The Court accepted that the fourth applicant’s objection was directly motivated by his orthodox Christian beliefs about marriage and sexual relationships, and held that his refusal to undertake to counsel homosexual couples constituted a manifestation of his religion and belief. The State therefore had a positive obligation under Article 9 to secure his rights.
In deciding whether the positive obligation was met by achieving an appropriate balance between the competing interests, the Court took into account that the loss of his job was a severe sanction with grave consequences for the fourth applicant. On the other hand, he had voluntarily enrolled on his employer’s post-graduate training programme in psycho-sexual counselling, knowing that his employer operated an equal opportunities policy and that filtering of clients on the ground of sexual orientation would not be possible.
While an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knew would have an impact on his freedom to manifest his religious belief was not determinative of the question whether or not there has been an interference with Article 9 rights, this was a matter to be weighed in the balance when assessing whether a fair balance was struck.
However, the most important factor to be taken into account was that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities had therefore benefited from a wide margin of appreciation in deciding where to strike the balance between the fourth applicant’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court did not consider that that margin had been exceeded. There had therefore been no violation of Article 9 alone or in conjunction with Article 14.
Conclusion: no violation in respect of the fourth applicant (unanimously).
Article 41: EUR 2,000 to the first applicant in respect of non-pecuniary damage.
‘Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.’

Citations:

48420/10, 59842/10 – Legal Summary, [2013] ECHR 285, 36516/10, 51671/10

Links:

Bailii

Statutes:

European Convention on Human Rights 9-1 14

Jurisdiction:

Human Rights

Citing:

At EATEweida v British Airways Plc EAT 20-Nov-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Christian who objected to BA’s policy of requiring jewellery to be worn concealed by the uniform. There were exceptions for those whose religions . .
At CAEweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
Statement of FactsEweida And Chaplin v The United Kingdom ECHR 12-Apr-2011
Statement of Facts and questions to the parties . .

Cited by:

Legal SummaryEweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
CitedHarron v Dorset Police EAT 12-Jan-2016
EAT DISABILITY DISCRIMINATION
RELIGION OR BELIEF DISCRIMINATION
The Claimant had a belief (which the Employment Tribunal thought genuine) that public service was improperly wasteful of money. He . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination

Updated: 14 November 2022; Ref: scu.472438

British Medical Association v Chaudhary: CA 27 Jul 2007

Citations:

[2007] EWCA Civ 788, [2007] LS Law Medical 554, (2007) 97 BMLR 15, [2007] IRLR 800

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoChaudhary v Secretary of State for Health CA 27-Jul-2007
The court was asked whether there was indirect racial discrimination against the claimant who was a member of the BMA of Asian origin and who, in common with all other members, was entitled to advice and assistance except for the purpose of . .
CitedDr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .

Cited by:

CitedWatkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
CitedOlafsson v Foreign and Commonwealth Office QBD 22-Oct-2009
The claimant sought damages after the defendant had negligently failed to arrange for the service of the claimant’s defamation proceedings on a defendant in Iceland leaving the action time barred.
Held: The Claimant had not acted unreasonably . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Discrimination

Updated: 14 November 2022; Ref: scu.258422

Fox Cross and Others v Glasgow City Council and Others: EAT 25 Jan 2013

EAT EQUAL PAY ACT
TRANSFER OF UNDERTAKINGS – Transfer
Glasgow Council decided it would no longer perform work of providing leisure and recreational services; of providing parking and parking enforcement services; and of providing care services by using directly employed labour. Its staff in each of the three areas were transferred to respectively a Community Interest company, Glasgow Life, and two LLPs – ‘Parking’, and Cordia. The employees wished to be able to compare their terms and conditions of employment with those still in the direct employment of Glasgow Council in other departments for the purposes of equal pay claims. To do so, the CIC and the two LLPs both needed to be ‘associated employers’ within the meaning of s.1(6) Equal Pay Act 1970, or their pay had to be attributable to a ‘single source’. A Tribunal held that whereas the CIC was an associated employer, neither LLP was, since an LLP was not a ‘company’ within the meaning of the statute. Nor, despite the extremely close control which Glasgow Council maintained over the personnel of the boards of each, and over their operations, which were subject to the power to require them to act as Glasgow Council directed, and to audit by Glasgow Council, was there a single source within the meaning the law attributed to that concept. Held A ‘company’ within the meaning of s.1(6) EqPA was not restricted to a limited company registered under the Companies Acts. It could mean a body persons, and since s.1(6) was to be seen as an anti-avoidance provision should purposively be construed to that effect, such that an LLP was within its meaning. Though obiter, in consequence of the decision on 1(6), the rejection of there being a ‘single source’ was also in error. The appeals by two of the groups of claimants was therefore allowed, but a separate appeal by GMB claimants on a different point (whether a Respondent should be discharged from the proceedings) was rejected.
Permission was granted to appeal to the Inner House of the Court of Session.

Judges:

Langstaff J P

Citations:

[2013] UKEAT 0027 – 12 – 2501

Links:

Bailii

Statutes:

Equal Pay Act 1970 1(6)

Jurisdiction:

England and Wales

Employment, Scotland, Discrimination

Updated: 14 November 2022; Ref: scu.471779

London Borough of Hammersmith and Fulham v Jesuthasan: CA 26 Feb 1998

A male part time worker in the public sector was entitled to the same protection as a female part time worker, and could amend his pleadings accordingly to allow for a decision reflecting a new understanding of EU Law.

Citations:

Times 05-Mar-1998, Gazette 18-Mar-1998, Gazette 16-Apr-1998, [1998] EWCA Civ 356

Statutes:

Employment Protection (Part-Time Employees) Regulations 1995 (1995 No 3)

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 14 November 2022; Ref: scu.143834

Gallop v Newport City Council: CA 31 Jan 2013

Application for leave to appeal – allowed.

Judges:

Elias LJ

Citations:

[2013] EWCA Civ 126

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

LeaveGallop v Newport City Council CA 11-Dec-2013
An employer was not absolutely bound by the views of an Occupational Health Practitioner. . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 14 November 2022; Ref: scu.471648

Ministry of Defence v Kemeh: EAT 11 Mar 2013

EAT JURISDICTIONAL POINTS- Agency relationships
RACE DISCRIMINATION
Direct
Injury to feelings
Accepted, in line with EAT authority, that common law agency principles apply to Race Relations Act s32(1). On that basis employer appeal against agency finding upheld and set aside.
Injury to feelings award manifestly excessive and wrong in principle (see Vento). Award reduced from andpound;12,000 to andpound;6,000.

Judges:

Peter Clark J

Citations:

[2013] UKEAT 0249 – 12 – 1103

Links:

Bailii

Statutes:

Race Relations Act 1976 32(1)

Jurisdiction:

England and Wales

Citing:

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

Employment, Discrimination, Damages

Updated: 14 November 2022; Ref: scu.471580

Rowstock Ltd v Jessemey: EAT 5 Mar 2013

EAT UNFAIR DISMISSAL – Polkey deduction
AGE DISCRIMINATION – Dismissal
VICTIMISATION – Post-employment
FACTS
The employee was dismissed on grounds of retirement, having reached an age over 65.
A failure by the employer to follow statutory procedures in relation to age-related retirement led to findings by an Employment Tribunal of unfair dismissal and of unlawful age discrimination.
The Employment Tribunal rejected a claim for victimisation (in the form of giving an adverse reference in consequence of the unfair dismissal claim being lodged) as the Equality Act 2010 did not make a remedy available for post-employment victimisation: section 108(7).
THE APPEALS
The employer appealed from the failure of the Employment Tribunal to make any deduction in the compensation awarded – to reflect the likelihood of the employee being fairly dismissed had the correct procedures been followed.
The employee cross-appealed from the rejection of the victimisation claim and the Equality and Human Rights Commission intervened in support of the cross-appeal.
RESULT
Appeal allowed for want of adequate reasoning by the Employment Tribunal as to why no reduction in the compensation had been made. Assessment of compensation remitted.
Cross-appeal dismissed. The 2010 Act provides no remedy for post-employment victimisation.

Judges:

Rec Luba QC

Citations:

[2012] UKEAT 0112 – 12 – 0503, [2013] IRLR 439, [2013] Eq LR 438, [2013] ICR 807

Links:

Bailii

Statutes:

Equality Act 2010 108(7)

Jurisdiction:

England and Wales

Citing:

CitedPolkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .

Cited by:

Appeal fromJessemey v Rowstock Ltd and Another CA 26-Feb-2014
The court was asked whether a claim as to acts of victimisation could be sustained in connection with actions alleged after termination of employment.
Held: The appeal succeeded. The Act operated to proscribe such actions. However, this is one . .
AppliedAkwiwu and Another v Onu EAT 1-May-2013
EAT Race Discrimination : Direct
Indirect
Post Employment
UNLAWFUL DEDUCTION FROM WAGES
NATIONAL MINIMUM WAGE
WORKING TIME REGULATIONS
The Claimant was a Nigerian woman who had . .
CitedOnu v Akwiwu and Another CA 13-Mar-2014
Two claimants, Nigerian women, came illegally to work as domestics. They suffered severe abuse by their employers. Whilst each received substantial awards, they appealed now from rejection of their claims for discrimination based upon the advantage . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 14 November 2022; Ref: scu.471352

Russell v Fox Print Services Llp and Another: EAT 19 Dec 2012

EAT DISABILITY DISCRIMINATION – Disability
PRACTICE AND PROCEDURE – Imposition of deposit
Appeal against a finding that the ET finding that Appellant was not disabled was a finding open to it on the evidence which included the Appellant’s witness statement as well as medical evidence.
Deposit order quashed on the ground that there was no adequate reasoning explaining why the ET considered the Appellant had little reasonable prospect of success: Meek applied.

Judges:

Birtles J

Citations:

[2012] UKEAT 0544 – 12 – 1912

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 November 2022; Ref: scu.471292

Crossland v OCS Group Ltd and Another: EAT 17 Jan 2013

EAT PRACTICE AND PROCEDURE – Deposit order
DISABILITY DISCRIMINATION – Reasonable adjustment
The Tribunal was entitled to decide that the Claimant, a diabetic employed as a night-watchman, had little prospect of establishing that it would be a reasonable adjustment for the Respondents to relieve him of his obligation to patrol the exterior of the premises.

Judges:

Underhill J

Citations:

[2013] UKEAT 0340 – 12 – 1701

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 November 2022; Ref: scu.471281

X And Others v Austria: ECHR 19 Feb 2013

Grand Chamber – The applicants alleged that they had been discriminated against in comparison with different-sex couples, as second-parent adoption was legally impossible for a same-sex couple.
Held: An applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum

Judges:

Dean Spielmann, President

Citations:

19010/07 – HEJUD, [2013] ECHR 148, [2013] 1 FCR 387, (2013) 57 EHRR 14, [2013] Eq LR 396

Links:

Bailii

Statutes:

European Convention on Human Rights 3

Cited by:

JudgmentX and Others v Austria (Summary) ECHR 19-Feb-2013
(Grand Chamber) Article 14
Discrimination
Impossibility of second-parent adoption in same-sex couple:
violation
Facts – The first and third applicants are two women living in a stable homosexual relationship. The second . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Adoption

Updated: 14 November 2022; Ref: scu.471039

Singh v Reading Borough Council: EAT 12 Feb 2013

EAT UNFAIR DISMISSAL – Constructive unfair and discriminatory dismissal
RACE DISCRIMINATION
PRACTICE AND PROCEDURE – Judicial proceedings immunity
The Claimant headteacher is alleging in proceedings currently adjourned part-heard that she was the victim of a concerted campaign of racial discrimination, harassment and victimisation, pursued by parents, staff and governors at the school, and encouraged by senior employees of the council, in order to remove her from her post.
Before the hearing began the Respondents served a witness statement from the School Business Manager, who is to be called as a witness on their behalf. The Claimant alleges that the statement contains lies as a result of improper pressure being put upon the witness by the Respondents to make a statement unhelpful to the Claimant. The Claimant resigned from her employment and her ET1 was amended to include claims of constructive dismissal.
The ET held on a PHR that the contents of this witness statement and the conduct connected with its preparation attracted absolute judicial proceedings immunity; that the Claimant could not rely upon this allegation in support of her complaints of constructive dismissal; and that the offending paragraphs of her amended claim should be struck out, on the basis that there was no jurisdiction to determine them.
On the Claimant’s appeal, on the basis that the ET erred in holding that the immunity applied in these circumstances, the law relating to judicial proceedings immunity and its rationale was considered in detail. On analysis the Tribunal’s reasoning and conclusions were held to be correct. The appeal was therefore dismissed.

Judges:

Cox J

Citations:

[2012] UKEAT 0540 – 12 – 1202

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCutler v Dixon KBD 1585
‘It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he . .

Cited by:

Appeal fromSingh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 14 November 2022; Ref: scu.470906

Prigge And Others v Deutsche Lufthansa AG (1): ECJ 13 Sep 2011

ECJ Directive 2000/78/EC – Articles 2(5), 4(1) and 6(1) – Prohibition of discrimination on grounds of age – Airline pilots – Collective agreement – Clause automatically terminating employment contracts at age 60

Judges:

V Skouris, P

Citations:

[2011] EUECJ C-447/09, C-447/09, [2011] IRLR 1052, [2011] Eq LR 1175

Links:

Bailii

Statutes:

Directive 2000/78/EC

Citing:

OpinionPrigge And Others v Deutsche Lufthansa AG ECJ 19-May-2011
ECJ (Opinion) Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination based on age – Article 2, paragraph 5 – Article 4, paragraph 1 – Article 6, paragraph 1 – Articles . .
Lists of cited by and citing cases may be incomplete.

European, Transport, Discrimination

Updated: 14 November 2022; Ref: scu.470835

Higham of 1 Pump Court Chambers v Horton: CA 15 Jul 2004

The claimant said he had suffered disability discrimination at the hands of the defendant, a barristers set. He had been accepted as a pupil, but then applied for a deferral which was refused. It was agreed that the set of chambers was a trade organisation.
Held: In the light of the rights and duties of the pupil within the organisation, a pupil was not a member of a chambers in any sense to give rise to a duty under the Act. (Laddies dissenting) The fact that he was not a full member did not mean that he was not a member within the Act.

Judges:

Lord Justice Peter Gibson Laddie, The Hon Mr Justice Laddie Lord Justice Jonathan Parker

Citations:

[2003] EWCA Civ 941, Times 21-Jul-2004, [2005] ICR 292, [2004] 3 All ER 852

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 13

Jurisdiction:

England and Wales

Citing:

Appeal from1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .

Cited by:

Appealed to1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Legal Professions

Updated: 13 November 2022; Ref: scu.198838

Kwik Save Stores Limited v Greaves; Crees v Royal London Mutual Insurance Society Limited: CA 20 Jan 1998

Women had taken extended maternity leave, but having followed the procedures, had been unable for illness to return to work on the day they had notified. The employer then asserted that the claimants had resigned. The EAT had confirm that they had not been unfairly dismissed.
Held: The legislation provided ‘special protection for the security of employment of pregnant women’. It had to be construed accordingly. The issue was whether the claimants had exercised the right to return to work under section 42, and ‘The provisions relating to the exercise of the right to return to work in section 42 do not expressly require an actual return to work, an actual presence at work on the notified day of return, for the exercise of the right to be complete and effective. They do not expressly state that the right will be terminated, divested or avoided by the employee’s non-attendance at work.’ A worker on maternity leave but unable to return to work on the day she had fixed for her return because of temporary incapacity, did not thereby lose right to return to work. The right to return was exercised on the sending of the notice fixing the day she intended to return.

Judges:

The Master of The Rolls Lord Woolf Lord Justice Aldous Lord Justice Mummery

Citations:

Gazette 18-Mar-1998, Times 05-Mar-1998, Gazette 16-Apr-1998, [1998] EWCA Civ 43, [1998] ICR 848, [1998] IRLR 245

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 42 57, Employment Rights Act 1996 71

Jurisdiction:

England and Wales

Citing:

CitedCrouch v Kidsons Impey 1996
. .
CitedKolfor Plant Ltd v Wright CA 1982
The court considered a claim for Maternity leave.
Lord McDonald said: ‘In our opinion an employee who claims to have been dismissed through the failure of her employer to permit her to return to work after absence due to pregnancy or . .
CitedLavery v Plessey Telecommunications Ltd 1983
The court considered a claim for maternity leave where the employee had failed to give the full notice required. . .
CitedMcKnight v Addlestones (Jewellers) CANI 1984
. .
CitedDowuona v John Lewis Plc 1987
. .
CitedKelly v Liverpool Maritime Terminals Limited CA 1988
An employee had no valid claim for unfair dismissal if illness prevented her from returning to work before the end of the twenty-nine week period after her confinement, allowing for only one statutory extension of 4 weeks. The applicant’s maternity . .
CitedHilton International Hotels (Uk) Ltd v Kaissi EAT 7-Mar-1994
A failure to comply with the Act does not automatically terminate the contract. . .
CitedBrown v Stockton-on-Tees Borough Council HL 1989
The House construed the statutory provisions relating to the return of a female employee after maternity leave.
Held: The legislation provided ‘special protection for the security of employment of pregnant women’. ‘It was the Employment . .

Cited by:

CitedHalfpenny v IGE Medical Systems Ltd HL 19-Dec-2000
A woman who had taken maternity leave was deemed to have returned to work following the completion of that leave when, on the appropriate date she provided medical certificates in accordance with the contract of employment. The applicant had given . .
CitedHalfpenny v IGE Medical Systems Ltd CA 18-Dec-1998
Where an employee had taken extended maternity leave but was then unable to return for post-natal depression, but she was dismissed, the resumption of her contract on issuing her notice of intention to return revived her sickness rights anew.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.143521

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

Citations:

Gazette 26-Feb-1998, Times 29-Dec-1997, [1998] 1 All ER 805, [1997] EWCA Civ 3037, [1999] ICR 319, [1998] IRLR 138

Links:

Bailii

Statutes:

Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

Appealed toBarry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Appeal fromBarry v Midland Bank Plc EAT 25-Oct-1996
It was not sex discrimination to calculate severance pay for an employee on her current part time earnings. . .

Cited by:

Appeal fromBarry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
CitedNelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
CitedSecretary 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 . .
CitedSecretary 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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 13 November 2022; Ref: scu.143436

Marks and Spencer Plc v Martins: CA 19 Dec 1997

The court emphasised the ubiquitous need to make the findings of primary fact without which it is impossible to consider the drawing of relevant inferences. A tribunal hearing a race discrimination case must ask the question as put by the Act; there was a fundamental flaw in the decision in asking and answering wrong question.

Citations:

Times 15-Jan-1998, [1997] EWCA Civ 3067, [1998] ICR 1005

Links:

Bailii

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Cited by:

CitedThe 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.

Discrimination

Updated: 13 November 2022; Ref: scu.143466

Steer v Stormsure Ltd (Sex Discrimination, Human Rights): EAT 21 Dec 2020

The Appellant has presented a claim in the Employment Tribunal in which she alleges that she was dismissed by the Respondent and that the dismissal amounted to sex discrimination and/or victimisation on the ground that she had done a protected act, contrary to the Equality Act 2010. She appeals against the Employment Tribunal’s refusal to permit her to apply for interim relief. The Appellant accepts that no such right appears on the face of the Equality Act 2010.
However, she says that the right to claim interim relief must be read into the Equality Act 2010, because this is required by European Law and/or by the European Convention on Human Rights (‘ECHR’), and/or that such a right should be granted by giving horizontal direct effect to fundamental principles of EU law.
European Law
The Appellant relies on three grounds relating to European Law. The first two are that the failure of domestic law to provide interim relief in discrimination/victimisation cases relating to dismissal contravenes the EU law principles of effectiveness and equivalence. She says this should be remedied by the application of a conforming interpretation to the Equality Act 2010, by reading in words to the Act, granting a right to claim interim relief in dismissal cases. The Appellant’s third contention is that the failure to provide interim relief in cases such as this is in breach of fundamental principles of EU law and, in particular, Articles 15 and 47 of the EU Charter, and that these principles should be given horizontal direct effect by reading appropriate wording into the Equality Act 2010 so as to provide a right to claim interim relief.
Effectiveness. The absence of a right to claim interim relief in discrimination/victimisation cases relating to dismissal does not infringe the EU law principle of effectiveness. Domestic law provides for full compensation, plus interest, and this complies with the requirements of effectiveness. The delays in Employment Tribunal proceedings do not necessitate the provision of interim relief.
Equivalence. The principle of equivalence requires that the procedures and remedies for claims derived from EU law should be no less favourable than those that apply to similar actions of a domestic nature. For these purposes, a claim, under the Employment Rights Act 1996, section 103A, for ‘automatic’ unfair dismissal where the principal reason for dismissal is the making of a protected disclosure, is a similar action of a domestic nature to a discrimination/victimisation claim resulting from dismissal. However, when the procedural rules and remedies are compared as a whole, the procedures and remedies for discrimination/victimisation claims resulting from dismissals are not less favourable than those that apply to claims under section 103A. Further and alternatively, the equivalence principle is complied with because the procedures and remedies that apply to discrimination/victimisation claims are no less favourable than those that apply to another similar action of a domestic nature, namely a claim for ‘ordinary’ unfair dismissal, under the Employment Rights Act 1996, section 98.
Fundamental Principles of EU law. There is no breach of fundamental principles of EU law, because domestic law provides an effective remedy for discrimination/victimisation cases. Further and alternatively, fundamental principles of EU law, as they apply to procedural rules and remedies, do not go further than the principles of effectiveness and equivalence, which have been complied with by domestic law. The question of horizontal direct effect does not, therefore, arise.
Conforming interpretation. Even if the EAT had found that there was a breach of the principles of effectiveness or equivalence, it was not possible for a conforming interpretation to be applied to the ERA 2010, by reading in a right to apply for interim relief in discrimination/victimisation cases arising from dismissals, because that would cross the line between interpretation and quasi-legislation, and because to do so would require the EAT to take decisions for which it is not equipped and would give rise to important practical repercussions which the EAT is not equipped to evaluate.
The ECHR
The Appellant contends that the failure to grant a right to claim interim relief in discrimination/victimisation cases arising from dismissals infringes the ECHR, Article 14, when read with Articles 6, 8 and Article 1 of Protocol 1.
Article 14 is engaged, because the matter in question comes within the ambit of Article 6, as it relates to judicial remedies for the enforcement of civil rights. The Appellant has an ‘other status’ for the purposes of Article 14, namely that of being an individual who wishes to bring a claim of dismissal/victimisation arising from dismissal.
It is appropriate to consider together the questions of whether those who wish to bring a claim under s103A are in an analogous situation, and whether the difference in treatment can be justified. The difference has not been justified. No legitimate aim has been advanced for the difference in treatment. The Respondent, being a private employer, is not in a position to say why the difference exists, and the Government did not respond to an invitation to intervene in this appeal. In these circumstances, it would be inappropriate for the EAT to speculate about whether, and, if so, why, the difference in treatment is a proportionate means of achieving a legitimate aim. The burden rests with the Respondent to justify the difference and, through no fault of its own, it has been unable to do so.
Accordingly, the Appellant has made out a breach of Article 14, ECHR.
However, the EAT has no power to make a declaration of incompatibility under the Human Rights Act 1998, section 3, and, for the same reasons as apply to the European Law part of the appeal, it would be wrong for the EAT to apply a conforming interpretation to the ERA 2010, in order to read in a right to apply for interim relief in discrimination/victimisation claims arising from dismissals. Therefore, the EAT cannot grant any relief for this breach.
For these reasons, the appeal is dismissed. Leave to appeal has been granted to appeal to the Court of Appeal, so that the Court of Appeal can consider whether to grant a declaration of incompatibility for the breach of Article 14.

Citations:

[2020] UKEAT 0216 – 20 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Human Rights, European

Updated: 13 November 2022; Ref: scu.661674

Jennings v Barts and The London NHS Trust: EAT 5 Feb 2013

EAT DISABILITY DISCRIMINATION – Disability related discrimination
If a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name and, given that whether or not an employer knows or should have known there is a disability is essentially a question of fact (see Wilcox and Birmingham CAB Services Ltd [2011] Eq LR 810), the Employment Tribunal was entitled to find that the Cross Appellant employer had actual or constructive knowledge of the disability.
Although the Employment Tribunal overstated the effect of the judgment in Project Management Institute v Latif [2007] IRLR 579 (contrary to what the Employment Tribunal tended to suggest, it does not place any evidential burden on a Claimant to do more than identify alleged reasonable adjustments) and whilst it is always better for an Employment Tribunal to deal specifically with each suggested adjustment that has been identified by a Claimant, particularly where a CMD has confirmed that those matters are in issue, the Employment Tribunal’s judgment addressed the issue of reasonable adjustments to a sufficient extent and the Appeal must be dismissed.
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal had reached a tenable conclusion on the factual material and the judgment was not perverse.

Judges:

Hand QC J

Citations:

[2012] UKEAT 0056 – 12 – 0502

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470766

Khan v Royal Mail Group and Others: EAT 29 Jan 2013

EAT RACE DISCRIMINATION AND HARASSMENT
The appellant identified 11 specific acts of discrimination against him on grounds of race or religion in dealing with which he argued the Tribunal had erred in law, by failing to find the true facts, failing to shift the burden of proof to the employer, or failing adequately to explain its reasoning. Although the Tribunal’s approach to at least one was muddled, in respect of its application of the burden of proof provisions (of which, conspicuously, it did not remind itself) properly understood the Tribunal sufficiently expressed its reasons for reaching the decisions it did, most of which turned entirely on findings of fact it was entitled to make, and none of which betrayed any error of law.

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0160 – 11 – 2901

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470764

Horvath And Kiss v Hungary: ECHR 29 Jan 2013

ECHR The case concerned the complaints of two young men of Roma origin that their education in schools for the mentally disabled had been the result of misplacement and had amounted to discrimination. Violation of Article 2 of Protocol No. 1 (right to education) read in conjunction with Article 14 (prohibition of discrimination)
The Court underlined that there was a long history of misplacement of Roma children in special schools in Hungary. It found that the applicants’ schooling arrangement indicated that the authorities had failed to take into account their special needs as members of a disadvantaged group. As a result, the applicants had been isolated and had received an education which made their integration into majority society difficult.

Citations:

11146/11 – HEJUD, [2013] ECHR 92

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

See AlsoHorvath And Kiss v Hungary ECHR 3-Jul-2012
horvath_kiss_hungaryECHR2012
Statement of facts – The application concerns two young Romani men, who were misdiagnosed as having mental disabilities. As a result of these misdiagnoses, the applicants could not access mainstream education. Instead, they were educated in a . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Education, Discrimination

Updated: 13 November 2022; Ref: scu.470652

A v B: EAT 23 Jan 2013

EAT Disability Discrimination : Findings by the Employment Tribunal that the dismissal of the Claimant was neither unfair, wrongful nor discriminatory were upheld. There had been no failure on the part of the Respondent to make reasonable adjustments. The Claimant, who was disabled, had failed to show that for a reason connected with his disability he had been treated less favourably than a colleague who was not disabled.

Judges:

Serota QC J

Citations:

[2013] UKEAT 0383 – 11 – 2301

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470637

Espie v Balfour Beatty Engineering Services Ltd: EAT 30 Nov 2012

EAT Disability Discrimination : Direct Disability Discrimination – Where, in selecting for redundancy, the employer had regard to a period of absence during which there were two reasons for absence, one of which was by reason of a disability and one of which was for another medical reason, the Employment Tribunal did not err in law in concluding that the detriment suffered, by counting the period of absence for a medical reason which did not amount to a disability, did not amount to discrimination on account of a disability.

Judges:

Wilkie J

Citations:

[2012] UKEAT 0321 – 12 – 3011

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470185

De Souza v Manpower UK Ltd: EAT 12 Dec 2012

EAT Jurisdictional Points : Extension of Time: Just and Equitable – Race discrimination claim lodged one day out of time. Employment Tribunal decided not just and equitable to extend time. No error of law in ET approach. Cross-appeal moot. Both appeal and cross-appeal dismissed.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0234 – 12 – 1212

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal fromDe Souza v Manpower UK Ltd CA 17-Dec-2013
Renewed application for an extension of time and for permission to appeal. The claimants application to the tribunal had been out of time and was dismissed accordingly. The EAT had directed that any further appeal be lodged within a specified time . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 November 2022; Ref: scu.470186

Ladd v London Borough of Bromley: CA 4 Oct 2012

The claimant had succeeded in her claim of disability discrimination against the Council in their failure to issue a blue badge for her car parking.
Held: The LA’s appeal suceeded: ‘There can sometimes be a fine dividing line between a commendable desire to vindicate individual legal rights as against a powerful public body on the one hand and intransigent obduracy on the other hand. I say nothing critical at all about the threat to issue judicial review proceedings. But once that threat had resulted in an agreed visit to Mrs Ladd’s home for assessment and the issue of a Blue Badge it seems to me that this claim,when started, falls into the second category. In the result this litigation will not only have been of no profit to Mrs Ladd. It will also have given rise to significant costs both in time and in money to the London Borough of Bromley, which financial costs in part at least will have to be visited upon the luckless local taxpayers.’

Citations:

[2012] EWCA Civ 1586

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination

Updated: 13 November 2022; Ref: scu.470101

MB v Secretary of State for Work and Pensions: SC 5 Jul 2016

The court was asked about the age at which entitlement to a pension began for someone of transgender.
Held: The court was divided, and the issue was referred to the European Court of Justice.

Judges:

Lady Hale, Deputy President, Lord Wilson, Lord Sumption, Lord Toulson, Lord Hodge

Citations:

[2016] UKSC 53, UKSC 2014/0220

Links:

Bailii, Bailii Summary, SC, SC Summary

Statutes:

Council Directive 79/7/EEC, Gender Recognition Act 2004, Civil Partnership Act 2004

Jurisdiction:

England and Wales

Citing:

CitedGoodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
CitedP v S and Cornwall County Council ECJ 30-Apr-1996
An employee at an educational establishment told management that he intended to undergo gender reassignment. He was given notice of dismissal.
Held: The scope of the Directive was not confined to discrimination based on the fact that a person . .
At CAMB v Secretary of State for Work and Pensions CA 31-Jul-2014
The appellant, a male to female transsexual, had remained married to her wife despite having the right to have the marriage annulled following the 2004 Act. She now appealed against rejection of her claim to a state pension on attaining the age of . .
CitedRichards v Secretary of State for Work and Pensions (Social Policy) ECJ 27-Apr-2006
Ms Richards, previously a married male, had undergone gender re-assignment surgery. She remained married thereafter. Ms Richards applied to the DWP for a pension from the age of 60. That was refused by the Secretary of State for the Department of . .
CitedParry v United Kingdom ECHR 28-Nov-2006
. .
CitedHamalainen v Finland ECHR 16-Jul-2014
Grand Chamber . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination, Benefits

Updated: 12 November 2022; Ref: scu.570158

McLauchlan v Chubb Electronic Security Systems Ltd: EAT 5 Dec 2012

EAT Disability Discrimination : Direct Disability Discrimination
VICTIMISATION DISCRIMINATION – Other forms of victimisation
The Employment Tribunal was entitled to find the Claimant had a mental health impairment but it did not have such adverse effect on his day to day activities as to make him disabled at the time of the complaints, although he was later accepted to be within the Act. His claims of victimisation failed on the permissible findings of causation.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0235 – 12 – 0512

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.468966

Bijlani v Stewart QC and Others: EAT 20 Dec 2012

EAT Race Discrimination : Direct
Detriment
The Employment Tribunal did not err in holding that the actions complained of in the Complaints the subject of the appeal were not taken on grounds of race. They did not misdirect themselves in law on this issue and their judgment and reasons did not include expressly or by implication a finding that a decision of which complaint was made was taken in part on such grounds. Nor, reading the reasons as a whole, did the Employment Tribunal leave open this possibility. Insofar as the Employment Tribunal held that intention or ‘targeting’ was relevant to the question of whether the Complainant suffered a detriment they erred.

Judges:

Slade J

Citations:

[2012] UKEAT 0228 – 11 – 2012)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.468964

SG Petch Ltd v English-Stewart: EAT 31 Oct 2012

EAT Maternity Rights and Parental Leave
Sex discrimination
Unfair dismissal
The Tribunal erred in concluding there was a discriminatory dismissal on the grounds that the Claimant had taken maternity leave, contrary to section 3A of the SDA, section 99 of the 1996 Act and paragraph 20 of MAPLE, when in the light of the Tribunal’s own findings it either did decide or was bound to have decided that there was a dismissal for redundancy, so that paragraph 20(2) not paragraph 20(1) of MAPLE applied, and the Tribunal failed to ask or answer the correct questions under that sub-paragraph. The dismissal for redundancy was plainly in connection with the taking of maternity leave, in circumstances in which it was accepted and found that the redundancy/lack of necessity for employing four rather than three people in the relevant department became apparent while the Claimant was absent on maternity leave, but the Tribunal did not consider (i) whether paragraph 20(2)(b) applied or (ii) whether the Claimant was bound/likely to have been dismissed in any event (Polkey). Remitted to the ET for that purpose, to take place at the same time as the (already adjourned) remedies hearing, if the latter should arise in the light of the Tribunal’s further conclusion on liability/loss.

Judges:

Burton J

Citations:

[2012] UKEAT 0213 – 12 – 3110

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.467152

Lynch and Others v East Dunbartonshire Council: EAT 9 Mar 2010

EAT Lis Pendens. Equal pay claims. Claimants presented claims which were met with a response that included the contention that they had not complied with the statutory grievance procedures. While determination of that issue pending, claimants presented further claims (after having issued fresh grievance letters) in which, essentially, the same equal pay claims were made. Respondents argued that the doctrine of lis pendens applied and the Tribunal was, accordingly, bound to dismiss the second set of claims, which it did. On appeal, Employment Appeal Tribunal held that whilst an Employment Tribunal could be expected to have regard to the principles underlying the doctrine of lis pendens when considering how to exercise its discretion in response to a strike out application in the context of its ‘abuse’ jurisdiction under paragraph 18(7)(b)-(f) of the 2004 Rules, the doctrine had no separate application in the Employment Tribunal. Tribunal’s judgment accordingly set aside.

Judges:

Smith Lady

Citations:

[2010] UKEAT 0039 – 09 – 0903

Links:

Bailii

Statutes:

Employment Tribunal Rules 2004 18(7)

Jurisdiction:

Scotland

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.466981

X v Mid Sussex Citizens Advice Bureau and Another: EAT 30 Oct 2009

EAT DISABILITY DISCRIMINATION: Exclusions/jurisdictions
The Employment Judge did not err in finding that the Appellant, a volunteer worker with the CAB, was not entitled by the DDA to claim disability discrimination. The Government is not in breach of the Framework Directive in this regard, and s4(2)(d) and s68 of the DDA do not fall to be read down or rewritten (by reference to Marleasing or Mangold) so as to extend protection to voluntary workers without a contract. The Judge was also entitled to find that the CAB arrangements were not within s4(1)(a) of the DDA.

Judges:

Burton J

Citations:

[2009] UKEAT 0220 – 08 – 3010, [2010] ICR 423, [2010] 1 CMLR 27, [2010] IRLR 101

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 4(1)(a), Directive 2000/78/EEC

Jurisdiction:

England and Wales

Cited by:

Appeal fromX v Mid Sussex Citizens Advice Bureau and Others CA 26-Jan-2011
The court was asked whether the claimant, a volunteer worker with the respondent had the protection of the 1995 Act in that work as a worker, despite nnot being employed. . .
At EATX v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.377545

Ali v Office of The Immigration Services Commissioner (Race Discrimination): EAT 6 Nov 2020

It is unlawful for a person who is not a qualified person to provide immigration advice or services. One route to being a qualified person is to be registered by the Office of the Immigration Services Commissioner (‘OISC’). The OISC also has powers to investigate and prosecute people suspected of providing such services unlawfully.
Two companies controlled by the Appellant had been registered with the OISC to provide immigration advice and services. But in 2014 both companies’ applications for renewed registrations were refused. There is a statutory right of appeal to the First-Tier Tribunal, which the Appellant in fact exercised, though unsuccessfully. The Employment Tribunal rightly concluded that the FTT route of challenge amounted to an ‘appeal or proceedings in the nature of appeal’ within the meaning of section 120(7) Equality Act 2010; and that its availability therefore meant that the Tribunal had no jurisdiction to entertain discrimination complaints about this conduct. Michalak v General Medical Council [2018] ICR 49 considered.
Some two and a half years later the OISC commenced an investigation into whether the Appellant was unlawfully providing immigration advice or services in circumstances where he was not a qualified person (he contended that the arrangements under which he was then operating meant that he was). This included inviting him to investigation interviews and obtaining a search warrant. The Tribunal held that it could not entertain proposed complaints that this was discriminatory conduct, as this conduct was not within the scope of section 53 of the 2010 Act at all. The Tribunal was right to so conclude.

Citations:

[2020] UKEAT 0271 – 19 – 0611, [2021] ICR 452

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 November 2022; Ref: scu.661658

McAuley Catholic High School v CC, PC and another: Admn 11 Dec 2003

Judges:

Silner J

Citations:

[2003] EWHC 3045 (Admin)

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Cited by:

CitedK v The School and the Special Needs and Disability Tribunal CA 6-Mar-2007
The child was subject to the school eventually declined to clean and change him. The mother claimed that the school was discriminating.
Held: The mother had understated the frequency of the bowel accidents. The school was not properly equipped . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Education

Updated: 12 November 2022; Ref: scu.188744

Hejduskova (Formerly Searle) v Raskin: CA 28 Nov 1997

The claimant sought leave to appeal against the strike out of his claim against the respondent solicitor alleging disability discrimination. The solicitor had acted against him for his wife, and, becoming concerned as to his mental health had challenged his capacity to continue proceedings, and invited the involvement of the Official Solicitor. The judge had found that the claimant had not established that he was disabled, and that the reference to the OS had been proper.
Held: ‘whether a person is disabled within the Act is different from the question whether he is sufficiently disabled so as to be unfit to conduct the proceedings and to need a guardian ad litem.’ However even assuming that the claimant was disabled within the Act, nothing done by the defendant fell within the range of provision of services. Leave to appeal was refused.

Citations:

[1997] EWCA Civ 2856

Jurisdiction:

England and Wales

Discrimination, Legal Professions

Updated: 12 November 2022; Ref: scu.143255

Okoro and Another v Taylor Woodrow Construction Ltd and Others: CA 4 Dec 2012

Appeals against orders whereby racial discrimination claims by the appellants were held to be out of time and that it was not just and equitable to extend time.

Judges:

Pill, Hughes, Rimer LJJ

Citations:

[2012] WLR(D) 368, [2013] Eq LR 147, [2013] ICR 580, [2012] EWCA Civ 1590

Links:

WLRD, Bailii

Jurisdiction:

England and Wales

Citing:

At EAT (1)Okoro and Another v Taylor Woodrow Construction Ltd and Others EAT 6-Dec-2010
EAT PRACTICE AND PROCEDURE
Postponement or stay
Appellate jurisdiction/reasons/Burns-Barke
Where an application is made to an Employment Tribunal for a postponement in writing and at the . .
At EAT (2)Okoro and Another v Taylor Woodrow Construction Ltd and Others EAT 26-May-2011
EAT Jurisdictional Points : Claim In Time and Effective Date of Termination
Contract workers banned – they claimed for discriminatory reasons – from working again for the principal. Claim brought some 6 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 November 2022; Ref: scu.466533

Nagarajan v London Regional Transport; Swiggs and London Regional Transport v Nagarajan: CA 7 Nov 1997

On a true construction of section 2(1), a person alleged to have been victimised had to establish that the alleged discriminator, in treating him less favourably than another, had a motive which was consciously connected with the race relations legislation.

Citations:

[1997] EWCA Civ 2671, [1998] IRLR 73

Statutes:

Race Relations Act 1976 2(1)

Jurisdiction:

England and Wales

Citing:

Reversed on sSwiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .

Cited by:

ReversedSwiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
CitedClark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 10 November 2022; Ref: scu.143070

Ministry of Defence v Wheeler and Others: CA 5 Nov 1997

Damages for unfair dismissal for pregnancy were to be calculated as a sum which the employee would have been earned, less any actual or putative earnings and a discount.

Citations:

Gazette 26-Nov-1997, Times 19-Nov-1997, [1997] EWCA Civ 2647, [1998] ICR 242, [1998] IRLR 23, [1998] 1 WLR 637, [1998] 1 All ER 790

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Damages, Armed Forces

Updated: 10 November 2022; Ref: scu.83746

Kabemba v ISS Eaton Ltd and Another: EAT 26 Oct 2012

EAT RACE DISCRIMINATION- Direct
The Employment Tribunal failed to look at the factual findings overall in determining a complaint of direct race discrimination. Having done so, this Employment Appeal Tribunal was satisfied that the ET’s decision to dismiss that complaint was plainly and unarguably correct. Consequently the appeal was dismissed.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0584 – 11 – 2610

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.466566

Kulkarni v NHS Education Scotland and Another: EAT 16 Oct 2012

EAT Race Discrimination : Discrimination. Consultant surgeon’s complaint of discrimination based on the fact that he had not had a trainee allocated to him for five years. ‘Qualifications body’ – Equality Act 2010 ss 53 and 54. Appeal by consultant surgeon against Tribunal’s determination that NHS Education Scotland (whose principal objective was to provide education services), was not a qualifications body to whom the provisions of EA 2010 applied, dismissed.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0031 – 12 – 1610

Links:

Bailii

Statutes:

Equality Act 2010 53 54

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.466337

Nottingham City Transport Ltd v Harvey: EAT 5 Oct 2012

EAT Disability Discrimination: Reasonable Adjustments – Employee unfairly dismissed, because the employer did not conduct a reasonable investigation nor consider mitigating circumstances when disciplining a disabled employee. It also considered a claim for failure to make reasonable adjustments where the employee had a disability. It thought the PCP (provision, criterion or practice) was the application of the employer’s disciplinary procedures, which would reasonably have been adjusted by investigating reasonably and considering personal mitigation arising out of disability, and not dismissing him. It was conceded on his behalf that there was no evidence before the ET that the employer’s practice was to ignore mitigation or to fail to carry out a reasonable investigation. The ET erred in identifying as a ‘practice’ that which was not, and in failing to address the questions in Rowan.
Appeal allowed. The matter was remitted because the employee had put forward possible PCPs that the ET had not resolved, given its (erroneous) view that the application of a flawed disciplinary procedure on the one occasion relating to the Claimant could qualify: the ET needed to resolve whether they did give rise to liability.
Langstaff J said: ‘It is not sufficient merely to identify that an employee has been disadvantaged, in the sense of badly treated, and to conclude that if he had not been disabled, he would not have suffered; that would be to leave out of account the requirement to identify a PCP. Section 4A (1) provides that there must be a causative link between the PCP and the disadvantage. The substantial disadvantage must arise out of the PCP.’

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0032 – 12 – 0510, [2013] Eq LR 4

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedFirstgroup Plc v Paulley CA 8-Dec-2014
The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.466339

Regina v Secretary of State for Education and Science, Ex parte Keating: 1985

Judges:

Taylor J

Citations:

(1985) 84 LGR 469

Jurisdiction:

England and Wales

Cited by:

CitedE, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 09 November 2022; Ref: scu.384326

Seide v Gillette Industries Ltd: 1980

The claimant had been moved to a different department to escape anti-Semitic harassment. He fell out (for non-racial reasons) with his colleagues in his new department and was disciplined.
Held: The fact that but for the earlier harassment he would not have been in the department where the problem arose did not mean that the action of which he complained was taken on racial grounds. Discrimination against a Jew might be directed at his religion rather than his race.

Citations:

[1980] IRLR 427

Jurisdiction:

England and Wales

Cited by:

CitedAmnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
CitedE, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.374666

Brunel University and Another v Webster and Vaseghi: CA 22 May 2007

The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive claims of race discrimination. The claimants asserted that this amounted to victimisation for having pursued the claims, and they first lodged grievances, beginning also claims before the ET before the decisions on the grievances had been announced. The ET made decisions about admission into evidence of the without prejudice discussions, and the grievance reports. Both sides appealed.
Held: The appeal failed. Details of the negotiations had reached other senior members of the University. Did this amount to waiver on the University’s part? They had set up what was stated to be an independent pane hearing an adversarial matter. The University could claim both that the panel was independent and that it was part of the university’s senior management. The University had waived any without prejudice protection as had the claimants: ‘by referring to the ‘without prejudice’ discussions in their ET1s and witness statements, the employees made it plain that they intended, unless prevented, to waive their privilege. By pleading their responses as they did and by attaching the grievance panel’s reports to the ET3s, the University made it plain that it too intended to waive privilege. In our view, bilateral waiver had taken place at the time the ET3s were lodged with the Tribunal office.’

Judges:

Longmore LJ, Smith LJ, Sir Paul Kennedy

Citations:

[2007] EWCA Civ 482, [2007] IRLR 592

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoG Webster v Brunel University EAT 14-Dec-2004
EAT Race Discrimination
Novel point decided that the Employment Tribunal erred in concluding that, in a case where there was an issue as to whether the act complained of was by the Respondent (i.e. by . .
See AlsoVaseghi v Brunel University CA 21-Nov-2006
. .
Appeal fromBrunel University and Another v Vaseghi and Webster EAT 16-Oct-2006
EAT Practice and Procedure – Disclosure
Allegations that Claimants had made unwarranted demands in original tribunal proceedings said to be victimisation.
Grievance procedure heard evidence relating . .
See AlsoIgen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
See AlsoVaseghi v Brunel University EAT 8-Dec-2004
EAT Race Discrimination / Trade Union Rights>br />The Employment Tribunal incorrectly excluded unconscious discrimination from its consideration, contrary to Nagarajan, and on the s146 claim wrongly concluded . .
CitedBNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
CitedSavings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
CitedChocoladefabriken Lindt and Sprungli AG and another v The Nestle Co Ltd 1978
Megarry V-C said that the mere failure to use the expression ‘without prejudice’ is not decisive of whether the letter is such. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedFazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.252504

Mansfield District Council v Langridge: CA 31 Jan 2007

Citations:

[2007] EWCA Civ 303

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoMansfield District Council v Langridge QBD 21-Sep-2007
T had been a secure tenant, but whilst in hospital his tenancy was surrendered by his mother. After returning to the house and possession proceedings, the authority gave him use of a property pending the result. Those were determined against him, . .
Lists of cited by and citing cases may be incomplete.

Housing, Discrimination

Updated: 09 November 2022; Ref: scu.251382

Atabo v Kings College London and others Newman, Methven, Law: CA 19 Apr 2007

The claimant sought leave to appeal dismissal of her claim for discrimination, saying that the EAT had missapplied the test in Madarassy and associated cases on the burden of proof.
Held: ‘the applicant did not make out a prima facie case of discrimination on the facts. It was therefore wholly unnecessary for the Tribunal artificially to go through the two stage Igen process. I can therefore detect no error of law in the Tribunal’s approach to the burden of proof. ‘

Judges:

Wall LJ

Citations:

[2007] EWCA Civ 324

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedShamoon 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 . .
CitedIgen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
CitedAppiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
CitedBrown v London Borough of Croydon and Another CA 26-Jan-2007
The claimant appealed dismissals of his claim for race discrimination, harassment and victimisation. In a new job, other team members said they were uncomfortable alone with him, and his probationary period was extended because of his failure to fit . .
CitedMadarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
CitedMeek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2022; Ref: scu.251402

Elmi v Harrods Ltd and Another Harrods Ltd v Remick Harrods Ltd v Seeley: CA 17 Jul 1997

The claimants alleged that the way in which Harrods organised their sales worked as race discrimination. Harrods now appealed against decisions that such a case might be brought under section 7 of the 1976 Act.

Citations:

[1998] ICR 156, [1997] IRLR 583, [1998] 1 All ER 52, [1997] EWCA Civ 2126

Links:

Bailii

Statutes:

Race Relations Act 1976 7

Jurisdiction:

England and Wales

Discrimination

Updated: 09 November 2022; Ref: scu.142523

Comune Di Gesturi (Judgment): ECJ 2 Apr 2020

Reference for a preliminary ruling – Social policy – Principle of equal treatment in matters of employment and occupation – Directive 2000/78 / EC – Prohibition of any discrimination based on age – Public call for expression of interest – Conditions for participation – Exclusion of retirees from the public or private sectors

Citations:

C-670/18, [2020] EUECJ C-670/18, ECLI:EU:C:2020:272

Links:

Bailii

Jurisdiction:

European

Discrimination

Updated: 09 November 2022; Ref: scu.660109

Novak v Phones 4U Ltd: EAT 14 Sep 2012

EAT Race Discrimination : Continuing Act – The Claimant complained of entries made on Facebook by work colleagues, said to be acts of discrimination on the grounds of disability and nationality. He was found to be out of time. The Employment Judge’s decision at a PHR in part was reversed. The Employment Judge erred in holding the entries were not linked by subject matter, people and time, so as to create a continuing act. Remitted to a full merits hearing.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0279 – 12 – 1409

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedPugh v National Assembly for Wales EAT 26-Sep-2006
EAT The ET dismissed as premature the Claimant”s application for disability discrimination because the application was made less than 28 days after the Claimant”s grievance had been raised in a letter dated . .
CitedAfolabi v Southwark London Borough Council CA 24-Jan-2003
The claimant applied for leave to bring an action for race discrimination nine years after the acts complained of. Leave was granted. The respondent said the tribunal should have heard the complaint first before deciding to extend time.
Held: . .
CitedVirdi v Commisioner of Police of the Metropolis, Central Police Training and Development Authority (Centrex) EAT 6-Oct-2006
EAT The appellant lodged claims under the Race Relations Act 1976 against the First Respondent. He contended they were in time. The ET held that they had been lodged a day out of time and refused to extend time . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465817

Hair Division Ltd v Macmillan: EAT 12 Oct 2012

EAT Sex Discrimination : Direct
Inferring discrimination – Discrimination. Pregnancy. Statutory Maternity Leave/Pay. Tribunal erred in approaching employee’s allegation of discrimination on the basis that employer had wrongly denied that she was entitled to maternity leave/pay when (a) they had no jurisdiction to determine a dispute over such entitlement, and (b) even if they had, they had plainly erred in their conclusion that she had satisfied the notification requirements of the Maternity and Parental Leave Regulations 1999. Tribunal had also failed to address issue of whether or not the reason why the employee was dismissed was simply because of her long term absence from work. Appeal upheld and case remitted to a freshly constituted Employment Tribunal.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0033 – 12 – 1210

Links:

Bailii

Statutes:

Maternity and Parental Leave Regulations 1999

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465820

Mather v Devine and Others (Bramhall Park Medical Centre): EAT 23 Aug 2012

EAT SEX DISCRIMINATION – Pregnancy and discrimination
HARASSMENT – Conduct
The Employment Tribunal did not address all the Claimant’s claims for pregnancy and sex discrimination and these were remitted to a fresh Tribunal, in part because the Judgment was not unanimous. Other grounds of appeal were dismissed and the Judgment upheld.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0119 – 12 – 2308

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465535

Sussex Partnership NHS Foundation Trust v Norris: EAT 30 Oct 2012

EAT Disability Discrimination – Disability – The effect of an impairment may be direct or indirect. However, the majority of the Employment Tribunal erred in holding that the deduced effect of the Claimant’s impairment for the purpose of Equality Act 2010 Schedule 1 Part 1 paragraph 5 was substantial and adverse to her ability to carry out day- to- day activities when the evidence established that the impairment, Selective IgA, caused an increase in susceptibility to infection but did not support a conclusion that increased rate of infection had such an effect. Further the evidence did not support the conclusion of the majority of the ET that substantial adverse effects caused by the impairment in the past were likely to recur.
Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540 considered.
Appeal allowed. Decision of the Employment Tribunal that the Claimant was a disabled person at the material time, October 2010, set aside. The issue of whether the Claimant was a disabled person at the material time, remitted for re-hearing before a differently constituted Employment Tribunal.

Judges:

Slade J

Citations:

[2012] UKEAT 0031 – 12 – 3010

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

ConsideredSwift v Chief Constable of Wiltshire Constabulary EAT 25-Nov-2003
The EAT upheld the decision of an Employment Tribunal that the claimant had not shown that her disability was likely to recur. However: ‘In considering whether during a particular period in the past, a substantial adverse effect was likely to recur . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465542

Kapadia v London Borough of Lambeth: EAT 27 May 1999

The claimant appealed against rejection of his claim for disability discrimination which had been on the ground that his condition did not amount to a disability within section 1(1). He suffered from anxiety, stress, tension and depression.
Held: The claimant’s appeal succeeded. Peter Clark J said: ‘There was no evidence as to the effect on day-to-day activities in the sense that no evidence was called from friends, family or colleagues. However, there was uncontested medical opinion evidence from the appellant’s General Practitioner and Consultant Clinical Psychologist that he was disabled within the meaning of the Act.’ Whilst it can be possible for a tribunal to reject uncontested medical evidence for good reason, here they had simply disregarded it. That was not acceptable, and this was a case where the EAT could substitute its own decision as to the facts.

Judges:

Peter Clark J

Citations:

[2000] IRLR 699, [1999] UKEAT 1004 – 98 – 2705, (2001) 57 BMLR 170

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 1(1)

Citing:

CitedGoodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .
CitedDobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
CitedHellyer Bros Limited v McLeod CA 1987
The employer appealed saying that the EAT had wrongly substituted its own opinion for that of the Tribunal.
Held: The appeal was rejected. Looking at the totality of the facts found or otherwise referred to in the decision of the Industrial . .
See AlsoKapadia v London Borough of Lambeth EAT 19-Nov-1998
The Tribunal lifted the stay of the claimant’s claim of disability discrimination. . .

Cited by:

Appeal fromKapadia v Lambeth London Borough Council CA 4-Jul-2000
The claimant asserted disability discrimination, and consented to a medical report for the purpose of the claim. He was then to be obliged to consent to its release to the other party. To order otherwise would be contrary to the need for expeditious . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465546

Donovan v London Borough of Barking and Dagenham: CA 26 Oct 2012

Renewed application for permission to appeal. The claimant had worked for the respondent with a role in its Housing Developments and Partnerships department, in which by 2006 she became a team leader. In 2009 she brought employment tribunal proceedings against it, complaining of sex and race discrimination, harassment and detriment on the grounds that she had made a protected disclosure.

Judges:

Rimer LJ

Citations:

[2012] EWCA Civ 1375

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 November 2022; Ref: scu.465368

The Home Secretary v Parr (Practice and Procedure): EAT 6 Mar 2020

The Employment Tribunal at the full hearing of claims for equal pay and sex and race discrimination was entitled to review and revoke an earlier case management order which had provided for part of the proceedings to be in private under rule 50 of the ET Rules. The earlier order was expressly subject to review by the full Tribunal. There had also been a material change of circumstances within the meaning of rule 29. The full Tribunal was able to see all the documents and witness statements for the hearing, which were not before the earlier Tribunal. The second Tribunal had the benefit of being shown authorities on the open justice principle which the first Tribunal had not seen.

Citations:

[2020] UKEAT 0046 – 20 – 0603

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 November 2022; Ref: scu.649253

Foley v NHS Greater Glasgow and Clyde and Otherss: EAT 15 Aug 2012

EAT Equal Pay Act : Damages or Compensation – Equal Pay. Jurisdiction. Statutory limitation.
Claimants alleged that their previous NHS Trust employers breached their rights under the Equal Pay Act 1970. Trusts dissolved and their liabilities under or in connection with the Claimants’ contracts of employment transferred to the respondents by Staff Transfer Orders (under paragraph 26 of Sch 7A to the National Health Service (Scotland) Act 1978). Not a TUPE transfer. Whether claims required to be presented within six months of date of dissolution. On appeal, held that the Tribunal had not erred in finding that time started running from that date.
Separately, lack of consultation with a Claimant was held, on appeal, not to demonstrate that the six month time limit contravened the EU principle of effectiveness. The matter was clear and there was no basis for a reference to the ECJ.

Judges:

Lady Smith

Citations:

[2012] UKEAT 0007 – 12 – 1508

Links:

Bailii

Statutes:

Equal Pay Act 1970

Jurisdiction:

England and Wales

Employment, European, Discrimination

Updated: 05 November 2022; Ref: scu.464953

United Learning Trust v Rose: EAT 21 Aug 2012

EAT RACE DISCRIMINATION – Direct
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Tribunal for the most part rejected the Claimant’s claim of race discrimination, but found that the Respondent had discriminated against her on the grounds of race by failing to reply to an email. This, however, was not put forward in Further and Better Particulars or defined by the Claimant’s list of issues as an allegation for the Tribunal to consider. Finding set aside.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0220 – 12 – 2108

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 November 2022; Ref: scu.464612

Valeri Hariev Belov: ECJ 20 Sep 2012

ECJ Admissibility of the reference for a preliminary ruling – ‘Court or tribunal of a Member State’ within the meaning of Article 267 TFEU – Directive 2000/43/EC – Principle of equal treatment of persons irrespective of racial or ethnic origin – Indirect discrimination – Districts inhabited primarily by people belonging to the Roma community – Placing of electricity meters at a height inaccessible for consumers – Justification – Combatting fraud and abuse – Directives 2006/32/EC and 2009/72/EC – Possibility for each consumer to read individual electricity consumption

Judges:

Kokott AG

Citations:

C-394/11, [2012] EUECJ C-394/11, [2013] EUECJ C-394/11

Links:

Bailii, Bailii

European, Discrimination

Updated: 05 November 2022; Ref: scu.464462

Ajayi v The Apuldram Centre: EAT 17 Sep 2012

EAT UNFAIR DISMISSAL
The Claimant was dismissed for misconduct. She claimed automatic unfair dismissal, unfair and wrongful dismissal, race discrimination and victimisation. Only the wrongful and unfair dismissal claims succeeded; compensation of just over andpound;1,000 was awarded for unfair dismissal, reduced by 30 per cent for contributory conduct and failure to appeal.
The Claimant’s appeal against the reductions from compensation for unfair dismissal were not pursued; the amount involved was too small; they were not abandoned, in case they be of relevance to compensation for discrimination / victimisation. The EAT, therefore, considered the appeal against the rejection of those claims. The EAT concluded that the Tribunal, in respect of both claims had made decisions on the facts, had made no error of law and that none of their facts and findings had been shown to be perverse.
The other grounds of appeal were, in the light of the above, not pursued.

Judges:

Jeffrey Burke QC

Citations:

[2012] UKEAT 0393 – 11 – 1709

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Damages

Updated: 05 November 2022; Ref: scu.464283

East Dunbartonshire Council v Trade Union Backed Claimants and Another: EAT 24 Jun 2010

EAT EQUAL PAY ACT – Article 141/European law
PRACTICE AND PROCEDURE – Amendment
Employment Tribunal granted Claimants’ applications to amend their equal pay claims to add new comparators to their existing lists. Two of the Claimants having left the Respondent’s employment more than six months prior to their claims being amended, time bar would have prevented them from raising fresh claims. On appeal, the Respondent’s case that the Employment Judge had no discretion in the light of the time bar position was rejected. However, she had erred in rejecting the Respondent’s argument that they were prejudiced by not having had the opportunity to seek to resolve the claims involving the new comparators at grievance stage and had approached matters on the basis that the Respondent’s point could be met by reducing any compensatory award on the grounds of the Claimants’ failure to comply with the statutory grievance procedure. Section 31 of the Employment Act 2002 would not have allowed for such a reduction in the circumstances of these cases. The claims were, accordingly, remitted to the same tribunal to consider the amendment applications of new.

Judges:

Lady Smith

Citations:

[2010] UKEAT 0005 – 10 – 2406

Links:

Bailii

Statutes:

Employment Act 2002 31

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 November 2022; Ref: scu.425003

Birmingham City Council v Millwood: EAT 3 Jul 2012

EAT RACE DISCRIMINATION – Inferring discrimination
An employee who was black was treated disadvantageously when compared to an Asian employee found to be in the same material circumstances. Though the Employment Tribunal accepted this did not without more justify a shifting of the burden of proof, it held that there was more. However, it did not identify the ‘more’, and left it unclear as to whether it might simply have relied upon different race, different status, and detriment as needing to be explained by cogent evidence from the employer. This was an error of law. However, held that a finding that there had been a number of explanations offered for the difference in treatment all of which were not believed could be taken into account in determining whether the burden of proof shifted. Accordingly, the case was remitted to the same Tribunal to consider the same facts in the light of submissions in accordance with the EAT’s Judgment.

Judges:

Langstaff J P

Citations:

[2012] UKEAT 0564 – 11 – 0307

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 November 2022; Ref: scu.463765

Rodrigues v Co-operative Group Ltd: EAT 17 Jul 2012

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
JURISDICTIONAL POINTS – Extension of time: just and equitable
Race Discrimination. Time bar. Whether conduct extending over a period. Whether just and equitable to extend time limit. Strike out. Whether Employment Tribunal erred in striking out where, on evidence led at PHR, Employment Judge had ‘serious doubts’ about the reliability of the whole of the Claimant’s evidence and on one matter that his evidence was ‘frankly unbelievable’. Application of Tayside Public Transport Limited (t/a Travel Dundee) v Reilly [2012] CSIH 46. Appeal dismissed.

Judges:

Smith Lady

Citations:

[2012] UKEAT 0022 – 12 – 1707

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 November 2022; Ref: scu.463682

Sud v London Borough of Ealing: EAT 29 May 2012

EAT DISABILITY DISCRIMINATION – Direct disability discrimination
The Employment Tribunal did not err in its conclusion that the Appellant’s claims for discrimination were unfounded, save to the limited extent to which they found it should succeed, nor did it err in law in exercising its discretion to make an award of costs to the extent of 50% of the Respondent’s reasonable costs.

Judges:

Wilkie J

Citations:

[2012] UKEAT 0482 – 11 – 2905

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination, Costs

Updated: 04 November 2022; Ref: scu.463515

Maksymiuk v Bar Roma Partnership: EAT 28 Jun 2012

EAT SEX DISCRIMINATION
Inferring discrimination
Burden of proof
Pregnancy and discrimination
REDUNDANCY
An employee who was the only one of a number of bar staff who was selected for dismissal by reason of purported redundancy, only a matter of days after she had announced that she was pregnant, had her claim of discrimination on the ground of pregnancy or sickness related to pregnancy dismissed, since the Tribunal held itself unable to infer a prima facie case of discrimination. Arguments that it had adopted the wrong approach in law by focussing upon whether the redundancy was genuine, the selection criteria objective, and the scoring such that in any event the claimant would have been selected.
Held: the Tribunal was entitled to come to the conclusion it did, and it could not be said that the burden of proof should have been held to have passed to the Respondent employer. Allegations of bias, by interruption and questioning of the approach of the Claimant’s solicitor, rejected.

Judges:

Langstaff J P

Citations:

[2012] UKEAT 0017 – 12 – 1907

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 November 2022; Ref: scu.463157

K v The School and the Special Needs and Disability Tribunal: CA 6 Mar 2007

The child was subject to the school eventually declined to clean and change him. The mother claimed that the school was discriminating.
Held: The mother had understated the frequency of the bowel accidents. The school was not properly equipped to deal with them. The school head concluded that it could not sustain the placement out of health and safety. K’s helper had already suffered injury lifting K. The school had taken reasonable steps to accommodate K, and had failed. They had satisfied their stautory duty.

Judges:

Auld LJ, Wall LJ, Hallett LJ

Citations:

[2007] EWCA Civ 165, Times 11-Apr-2007

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 28A 28B 28C, Special Educational Needs and Disability Act 2001 11 12 13, Education (SEN) (England) (Consolidation) Regulations 2001

Jurisdiction:

England and Wales

Citing:

CitedBromley London Borough Council v Special Educational Needs Tribunal and Others CA 26-May-1999
The needs of a child, as to educational and non-educational overlapped, and accordingly, it was within the discretion of the Special Needs Tribunal to include among the educational needs of a child others within that overlap. Physiological, . .
CitedW v Leeds City Council and SENDIST CA 29-Jul-2005
The court recognised a distinction between educational and non-educational provision as it affected a statement of special educational needs. Judge LJ: ‘Consistent with the relevant statutory provision, Part 3 of the Statement must make provision . .
CitedAB X and Y, Regina (on the Application of) v East Sussex County Council and Another Admn 18-Feb-2003
The physical and psychological integrity which the state may in principle be under an obligation to take positive steps to protect under Article 8 included two particularly important concepts. The first was human dignity, the second was the right of . .
CitedVK v Norfolk County Council and Another Admn 17-Dec-2004
When recording the facts, a tribunal should be careful not simply to repeat the evidence heard without making clear which evidence had been accepted and which not. . .
CitedCollins v Royal National Theatre Board Limited CA 17-Feb-2004
Can an employer’s failure to make adjustments to accommodate a disabled employee be unreasonable but justified?
Held: The justification under 5(2)(b) must be something other than the circumstances which are taken into account for the purpose . .
CitedMcAuley Catholic High School v CC, PC and another Admn 11-Dec-2003
. .
CitedRoyal National Theatre Board Ltd v Collins EAT 29-Apr-2003
Appeal against finding of unfair dismissal and disability discrimination. . .
Lists of cited by and citing cases may be incomplete.

Education, Discrimination

Updated: 04 November 2022; Ref: scu.249863

Ayobiojo v NALGO Unison – Lambeth: EAT 13 Nov 2002

Appeal against strike oout of claim as vexatious or frivolous.

Citations:

[2002] UKEAT 696 – 01 – 1311

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoAyobiojo v NALGO Unison – Lambeth EAT 24-Jun-2002
. .

Cited by:

See AlsoAyobiojo v NALGO Unison – Lambeth EAT 24-Jun-2002
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 November 2022; Ref: scu.203184

King v Health Professions Council: EAT 13 Jul 2012

EAT DISCRIMINATION BY QUALIFYING/QUALIFICATIONS BODY
A medical professional who had taken a career break sought to return to her work as a biomedical scientist, for which she required to be registered anew by the Health Professions Council. She was deterred from applying when it indicated in correspondence that her qualifications were not sufficient to be recognised, and wished to bring a claim alleging discrimination on the grounds of sex, race and age against the HPC, since (in particular) a doctor resident abroad who applied for registration with her qualifications would (she claimed) be acceptable, whereas she was not. When she claimed, the Employment Judge first accepted jurisdiction, then on review declined jurisdiction but on a basis the parties agreed to be erroneous. The relevant statutes all provide that for there to be a claim of discrimination against a qualifying (or qualifications) body, it must be ‘in the terms on which it is prepared to confer a professional or trade qualification on him’. It was held on appeal that this phrase did not cover letters to the Claimant saying that certain qualifications would not be accepted if she were to apply. Nor was there refusal of an application, since none had yet been made. Accordingly, there was no jurisdiction, since the Act did not provide for it. The Claimant was not without remedy, since it remained open to her to apply.

Judges:

Langstaff J P

Citations:

[2012] UKEAT 0169 – 11 – 1307

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 November 2022; Ref: scu.462930

A Links and Co Ltd v Rose: 1993

Citations:

[1993] SLT 664

Jurisdiction:

Scotland

Cited by:

CitedRothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 November 2022; Ref: scu.377523

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 phrase ’employed by him’ in section 4 (2) was confined to persons employed at the time of the act complained of; and there was no other provision covering cases where the employment had terminated. The court dismissed the appeal.

Judges:

Pill, Mantell and Buxton LJJ

Citations:

Times 03-Dec-1996, Gazette 13-Dec-1996, [1997] ICR 110, [1996] EWCA Civ 943

Statutes:

Race Relations Act 1976 4(2)

Jurisdiction:

England and Wales

Citing:

Appeal fromPost Office v Adekeye EAT 23-Feb-1995
An Industrial Tribunal may not look at a claim of race discrimination which had taken place in the context of a disciplinary appeal following a dismissal. The act of discrimination had not been in the course of the employment. . .

Cited by:

AppliedRhys-Harper v Relaxion Group plc CA 3-May-2001
A sex discrimination claim involving a claim by an employee for damages for sexual harassment, had to be made during the period of employment. An employer’s failure to deal properly with an allegation of sexual harassment could itself be a detriment . .
Appealed toPost Office v Adekeye EAT 23-Feb-1995
An Industrial Tribunal may not look at a claim of race discrimination which had taken place in the context of a disciplinary appeal following a dismissal. The act of discrimination had not been in the course of the employment. . .
DisapprovedRelaxion 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 . .
CitedD C D’Souza v London Borough of Lambeth CA 2001
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 . .
CitedJones, Kirker, Angel and Bond v 3M Healthcare Ltd, Ambitions Personnel (Nottinghamshire) Ltd, British Sugar Plc, New Possibilities NHS Trust and Hackney EAT 11-Dec-2001
EAT Disability Discrimination – Disability
Nicholas Kirker was employed by British Sugar plc as a shift chemist until dismissed. He has very poor eyesight and is registered as fully blind. He claimed he had . .
CitedJessemey v Rowstock Ltd and Another CA 26-Feb-2014
The court was asked whether a claim as to acts of victimisation could be sustained in connection with actions alleged after termination of employment.
Held: The appeal succeeded. The Act operated to proscribe such actions. However, this is one . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 03 November 2022; Ref: scu.84811

Prospects for People With Learning Difficulties v Harris: EAT 27 Apr 2012

EAT HARASSMENT
UNFAIR DISMISSAL – Reasonableness of dismissal
Harassment (Disability Discrimination Act 1995, section 3B) and unfair dismissal. Appeal on grounds that Tribunal’s reasoning perverse and/or in disregard of its own findings. Appeal dismissed.

Judges:

David Richardson J

Citations:

[2012] UKEAT 0612 – 11 – 2704

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 3B

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 November 2022; Ref: scu.461853

Regina (Purja) v Ministry of Defence; Regina (Lama) v Same: Admn 21 Feb 2003

The applicants served as Gurkha soldiers with the army. They claimed that the pensions they received, being substantially less than those paid to other servicemen were discriminatory.
Held: The positions of a retired serviceman in England and one in Nepal were so different as to make the attempted comparison invalid. A better comparison was with retired servicemen in India.

Judges:

Sullivan J

Citations:

Times 10-Mar-2003, [2003] EWHC 445 (Admin)

Links:

Bailii

Statutes:

European Court of Human Rights 14

Jurisdiction:

England and Wales

Cited by:

Appeal fromPurja and others v Ministry of Defence CA 9-Oct-2003
The applicants were Gurkha soldiers who complained at the differences in treatment of them as against other members of the forces as regards payment, pensions and otherwise, alleged infringement oftheir Article 14 rights, which prevented . .
See AlsoLimbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others Admn 30-Sep-2008
The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Discrimination

Updated: 01 November 2022; Ref: scu.180079

Secretary of State for Justice (Sued As National Offenders Management Service) v Bowling: EAT 29 Nov 2011

EAT EQUAL PAY – Material factor defence
Claimant and her male comparator started in the same job at about the same time but he was placed two points above her on the applicable incremental scale because of his substantially greater skill and experience – Tribunal accepted that that constituted a material factor other than the difference in sex which explained the pay differential in their first year but held that it did not do so in the following year when the Claimant had had sufficient experience of the job to ‘catch up’, so that she was entitled to be paid the same as her comparator in that year and thenceforward.
Held, allowing the appeal, that the comparator’s additional skills and experience on recruitment constituted a non-discriminatory explanation of the differential not only in the first year but in subsequent years, by reason of the operation of the incremental scale – Glasgow City Council v Marshall [2000] ICR 196 followed – Benveniste v University of Southampton [1989] ICR 617 distinguished.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0279 – 11 – 2911

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 01 November 2022; Ref: scu.460383

Matinpour v Rotherham Metropolitan Borough Council: EAT 28 Nov 2011

EAT UNFAIR DISMISSAL
DISABILITY DISCRIMINATION
The Employment Tribunal misdirected itself as to the correct tests in law it had to apply for (a) direct disability discrimination (b) reasonable adjustments. Also a failure to consider the reasonableness of dismissal. Case remitted to same Employment Tribunal to reconsider its findings in the light of this Judgment.

Judges:

Birtles J

Citations:

[2011] UKEAT 0406 – 11 – 2811

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 November 2022; Ref: scu.460382

Tyrolean Airways Tiroler Luftfahrt Gesellschaft v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH,: ECJ 7 Jun 2012

ECJ Directive 2000/78/EC – Equal treatment in employment and occupation – Difference of treatment on grounds of age – Charter of Fundamental Rights of the European Union – General principles of European Union law – Collective agreement – Failure to take into account, for the grading on the salary scale of cabin crew members of an airline, professional experience acquired with another airline belonging to the same group of companies – Contract clause

Citations:

C-132/11, [2012] EUECJ C-132/11

Links:

Bailii

Statutes:

Directive 2000/78/EC

Jurisdiction:

European

Discrimination, Human Rights, Employment

Updated: 01 November 2022; Ref: scu.460220

European Roma Rights Centre and 6 others v Tthe Immigration Officer at Prague Airport, The Secretary of State for the Home Department: Admn 8 Oct 2002

There is an ‘administrative, financial and indeed social burden borne as a result of failed asylum seekers’.

Judges:

The Honourable Mr Justice Stanley Burnton The Honourable Justice Burton <

Citations:

[2002] EWHC 1989 (Admin), [2003] ACD 15

Links:

Bailii

Statutes:

Immigration Act 1971 1 2

Jurisdiction:

England and Wales

Cited by:

Appeal fromEuropean Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
At First InstanceRegina 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.

Immigration, Human Rights, Discrimination

Updated: 31 October 2022; Ref: scu.177441

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.

Citations:

Gazette 06-Nov-1996, Times 10-Oct-1996, [1996] EWCA Civ 684, [1998] QB 65, (1997) 9 Admin LR 601, [1997] 1 All ER 289

Links:

Bailii

Statutes:

Race Relations Act 1976 20(g)

Jurisdiction:

England and Wales

Cited by:

CitedSPV v AM and Another CA 27-Aug-1999
The respondent sought leave to appeal against a decision of the Employment Appeal Tribunal that he was an appropriate respondent to the claimant’s claim for sex discrimination. The claimant had been a police officer, and claimed she had been the . .
CitedChief Constable of Kent County Constabulary v Baskerville CA 3-Sep-2003
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done . .
CitedBarwise, Regina (on the Application Of) v Chief Constable of West Midlands Police Admn 8-Jul-2004
The applicant sought judicial review of the decision of the respondent to remove his status of police constable. He had been absent from work with stress for a long time. He had failed to attend appointments on police premises.
Held: The . .
CitedGichura v Home Office and Another CA 20-May-2008
The claimant sought damages after his treatment as a disabled person whilst held in immigration detention centres. The court dismissed his claim on the basis of Amin.
Held: The application of the Amin case was too simplistic. The various . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Torts – Other, Police

Updated: 31 October 2022; Ref: scu.140551

Trafford Borough Council v Cooksey and Others (GMB Claimants): EAT 18 May 2012

EAT EQUAL PAY ACT – Material factor defence and justification
1. The Employment Tribunal did not err in concluding that on the facts the Respondent had not persuaded it that there was no sex taint in respect of bonus and attendance allowances.
2. The ET did err in concluding that the Respondent had failed to provide objective justification in respect of on call allowances. It misidentified the legitimate aim. Had it not done so it could only have concluded that there was objective justification for the disparate impact.
3. In relation to caretakers the ET had erred in treating the Enderby and Bilka Kaufhaus approaches as mutually exclusive.

Judges:

Wilkie J

Citations:

[2012] UKEAT 0256 – 11 – 1805

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 31 October 2022; Ref: scu.459941

Alam v London Probation Trust: EAT 15 Mar 2012

EAT RACE DISCRIMINATION – Race Relations: jurisdiction
This appeal is concerned with the application of section 68 of the Race Relations Act 1976. The Employment Tribunal held, on a Pre-Hearing Review, that there was no reasonable prospect that a Tribunal would find the alleged acts of harassment that pre-date the Appellant’s dismissal could be found to be a continuing act including the dismissal itself. Further it held that it would not be just and equitable to extend time in respect of the allegations pre-dating the dismissal. It was common ground that the claim for unfair dismissal was presented within the three-month time limit.
The EAT decided that the ET had correctly applied the principles set out by the Court of Appeal in Hendricks v The Commissioner of Police for the Metropolis [2002] EWCA Civ 1686. There was no causal link between the decision to dismiss with any prior allegations of discrimination or harassment. The ET reached a conclusion that on the evidence was plainly open to it.
The Appellant’s challenge on the just and equitable ground was essentially a perversity challenge. The matters relied upon by the Appellant, individually and cumulatively, fell far short of making out this ground.

Judges:

Supperstone J

Citations:

[2012] UKEAT 0016 – 12 – 1503

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 31 October 2022; Ref: scu.459909

Georgiev v Tehnicheski universitet – Sofia, filial Plovdiv: ECJ 18 Nov 2010

ECJ Directive 2000/78/EC – Article 6(1) – Prohibition of discrimination on grounds of age – University lecturers – National provision providing for the conclusion of fixed-term employment contracts beyond the age of 65 – Compulsory retirement at the age of 68 – Justification for differences in treatment on grounds of age.

Judges:

Cunha Rodrigues P

Citations:

[2010] EUECJ C-268/09, C-268/09

Links:

Bailii

Statutes:

Directive 2000/78/EC 691)

Jurisdiction:

European

Citing:

CitedGeorgiev v Tehnicheski universitet – Sofia, filial Plovdiv ECJ 2-Sep-2010
ECJ Social policy – Equal treatment in employment and occupation – employment contract term for the university professors who have attained the age of 65 – Setting the final retirement age for teachers University . .

Cited by:

CitedSeldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 31 October 2022; Ref: scu.459614

Ingeniorforeningen i Danmark v Region Syddanmark: ECJ 12 Oct 2010

ECJ Grand Chamber – Directive 2000/78/EC – Equal treatment in employment and occupation – Prohibition of discrimination on grounds of age – Non-payment of a severance allowance to workers who are entitled to an old age pension)

Judges:

V Skouris P

Citations:

[2010] EUECJ C-499/08, [2011] 1 CMLR 35, [2010] EUECJ C-499/08, C-499/08

Links:

Bailii, Bailii

Statutes:

Directive 2000/78/EC

Jurisdiction:

European

Citing:

See AlsoOle Andersen ECJ 6-May-2010
Directive 2000/78/EC – Equal treatment in employment and occupation – Prohibition of discrimination based on age – Distinction between direct discrimination and indirect discrimination – Severance pay-Refusal to recognize the right to claim payments . .

Cited by:

CitedSeldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 31 October 2022; Ref: scu.459613

Rosenbladt v Oellerking Gebaudereinigungsges mbH: ECJ 12 Oct 2010

ECJ (Grand Chamber) Directive 2000/78/EC – Discrimination on the grounds of age – Termination of employment contract on reaching retirement age

Judges:

V Skouris P

Citations:

[2010] EUECJ C-45/09, C-45/09, [2011] 1 CMLR 32, [2011] IRLR 51

Links:

Bailii

Statutes:

Directive 2000/78/EC 2

Jurisdiction:

European

Citing:

See AlsoRosenbladt v Oellerking Gebaudereinigungsges mbH ECJ 28-Apr-2010
ECJ (Preliminary Ruling) Directive 2000/78/EC – Article 2, paragraph 2, a) – Direct discrimination on grounds of age – Article 6, paragraph 1 – Justification of differences of treatment based on age – Legitimate . .

Cited by:

CitedSeldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
CitedO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 31 October 2022; Ref: scu.459612

Petersen v Berufungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe: ECJ 12 Jan 2010

ECJ Directive 2000/78/EC Articles 2(5) and 6(1) – Prohibition of discrimination on grounds of age – Provision of national law setting a maximum age of 68 for practice as a panel dentist – Aim pursued Measure necessary for the protection of health Consistency Appropriateness of the measure.

Judges:

Lenaerts P

Citations:

[2010] EUECJ C-341/08, C-341/08, [2010] Pens LR 75, [2010] CEC 998

Links:

Bailii

Statutes:

Directive 2000/78/EC

Jurisdiction:

European

Citing:

OpinionPetersen v Berufungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe ECJ 3-Sep-2009
ECJ Directive 2000/78/EC – Prohibition of discrimination based on age – National legislation providing for an age limit of 68 years for the exercise of a panel dentist – Objective for protecting the health of . .

Cited by:

CitedSeldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 31 October 2022; Ref: scu.459610

Wolf v Stadt Frankfurt am Main: ECJ 12 Jan 2010

ECJ Directive 2008/78/EC Article 4(1) Prohibition of discrimination on grounds of age National provision setting a maximum age of 30 years for the recruitment of officials to posts in the fire service Aim pursued Genuine and determining occupational requirement

Judges:

K Lenaerts P

Citations:

[2010] 2 CMLR 32, [2010] EUECJ C-229/08, [2010] CEC 1029, [2010] All ER (EC) 939, [2010] IRLR 244

Links:

Bailii

Statutes:

Directive 2000/78/CE

Jurisdiction:

European

Citing:

Preliminary RulingWolf v Stadt Frankfurt am Main ECJ 3-Sep-2009
ECJ (Preliminary Ruling) Directive 2000/78/EC – Prohibition of discrimination based on age limit of 30 years of age for recruitment into the technical service through Fire Objective Justification for establishing . .

Cited by:

CitedSeldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 31 October 2022; Ref: scu.459611

Vaseghi v Brunel University: CA 21 Nov 2006

Judges:

May LJ, Sedley LJ, Hughes LJ

Citations:

[2006] EWCA Civ 1681

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See AlsoBrunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 31 October 2022; Ref: scu.246967

Matthews and others v Kent and Medway Towns Fire Authority and others: CA 2 Jul 2004

Part time retained firefighters claimed discrimination under the Regulations when their conditions of service were compared with those of full-time firefighters. They appealed a finding that they had been employed under different types of contract and that therefore no claim arose.
Held: There was insufficient reason to treat the retained firefighters as being employed under a different category of employee. It was notoriously difficult to categorise employment contracts. Nevertheless there was evidence to support the finding that the actual work undertaken by the two groups differed, with the full-timers having a significant set of additional skills and duties. Despite the error, the decision stood.

Citations:

[2004] EWCA Civ 844, Times 08-Jul-2004, [2005] ICR 84, [2004] 3 All ER 620, [2004] Pens LR 313, [2004] IRLR 697

Links:

Bailii

Statutes:

Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, Employment Relations Act 1999 19, Council Directive 97/81/EC

Jurisdiction:

England and Wales

Citing:

CitedMontgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
CitedDorothy Perkins Ltd v Dance 1977
The court considered the difficulties in categorising and comparing employments: ‘Having then identified the parties, having then acquainted themselves with the nature of the contractual employment, the next thing that has to be done is to look at . .
CitedRegina v West Yorkshire Fire and Civil Defence Authority and ex parte Lockwood and McCalman Admn 4-May-1999
The court considered the nature of the employment duties of retained firefighters: ‘their [i.e. whole time firefighter’s] ‘principal duty’ or . . core obligation had been firefighting.’ . .
CitedYeboah 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 . .
CitedBritish Telecommunications Plc v Sheridan CA 1990
The appellant employers challenged the decision of the EAT to reverse the tribunal’s finding that the claimant had been fairly dismissed.
Held: Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment . .
Appeal fromMatthews and others v Kent and Medway Towns Fire Authority and others EAT 7-Aug-2003
. .

Cited by:

Appealed toMatthews and others v Kent and Medway Towns Fire Authority and others EAT 7-Aug-2003
. .
Appeal fromMatthews and others v Kent and Medway Towns and Fire Authority and others HL 1-Mar-2006
Retained or part-time firefighters sought parity of working conditions with full time firefighters.
Held: The retained firefighters’ appeal succeeded (Lords Carswell and Mance dissenting). The test was whether the part-time and full time . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 31 October 2022; Ref: scu.198516

Meade-Hill and Another v The British Council: CA 7 Apr 1995

An employee mobility clause in a contract must be justified, or it may be discriminatory against women.
The potentially discriminatory effect on the complainant of the introduction of a ‘mobility clause’ to her contract of employment was a requirement capable of amounting to an act of discrimination under Sections 1(1)(b) and 6 and of rendering the clause unenforceable under Section 77(2). Millett LJ said that the fact that the discrimination was in the form of a contract clause: ‘The contract is merely the means by which the employers’ requirement is applied to her’.

Judges:

Millett LJ, Waite LJ

Citations:

Independent 26-Apr-1995, Times 14-Apr-1995, [1995] EWCA Civ 33, [1995] IRLR 478, [1996] 1 All ER 79, [1995] ICR 847

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 6(1) 77(2)

Jurisdiction:

England and Wales

Cited by:

CitedCast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
CitedCast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 27 October 2022; Ref: scu.259348