EAT Race Discrimination : Continuing Act – JURISDICTIONAL POINTS – Extension of time: just and equitable
RACE DISCRIMINATION – Direct
Limitation – whether a continuing act – whether just and equitable to extend time.
Substantively, the Employment Tribunal failed to consider the Respondent’s explanation at Stage 2 of Igen v Wong.
Employer’s appeal allowed. Case remitted to same Employment Tribunal for reconsideration.

Peter Clark HHJ
[2015] UKEAT 0055 – 15 – 2306
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 04 January 2022; Ref: scu.552418

EAT Disability Discrimination: Section 15 – An Employment Tribunal held that the Claimant, a Consultant Cardiothoracic Surgeon, had a serious lung condition which fluctuated in its effect on his day-to-day abilities. He was able to attend interviews for another job in Cork, and courses on the continent, despite being on sick leave and in receipt of sick pay, but was unable to come to see his Clinical Director when asked by him to do so. He was disciplined and dismissed because the decision-maker thought there had been a lack of probity, and assumed (wrongly) that he had been fit enough to see his Director and had not done so. The Employment Tribunal held that this, failing to obtain medical reports, refusing to refer him to Occupational Health when he needed it, refusing to allow him to travel to Sri Lanka in response to a request to be permitted to do so and threatening to withdraw sick pay if he did, a refusal to carry over unused holiday from the previous year and failing to uphold an appeal against dismissal, were all acts of unfavourable treatment by the Respondent Trust arising from his disability, contrary to section 15 of the Equality Act 2010. In doing so, the Employment Tribunal did not apply the correct test, which is in particular to focus on the need to identify two separate causative steps for a claim to be established – first, that the disability has the consequence of ‘something’, and second that the treatment complained of as unfavourable was because of that particular ‘something’. The appeal was allowed, and those issues which might be arguable if the correct approach were adopted were remitted to the same Employment Tribunal for determination in the light of further submissions on the basis of the evidence already before the Employment Tribunal.

Langstaff P J
[2015] UKEAT 0397 – 14 – 2907
Bailii
Equality Act 2010 15
England and Wales

Employment, Discrimination

Updated: 04 January 2022; Ref: scu.552419

Equal pay claims

[2019] EWCA Civ 8
Bailii
England and Wales

Employment, Discrimination

Updated: 04 January 2022; Ref: scu.632651

ECJ Disability Discrimination – The Employment Tribunal failed to articulate its reasons sufficiently clearly or logically so as to enable the Claimant or the Appeal Tribunal to know the proper legal basis upon which his claims failed.

Wilkie J
[2015] UKEAT 0244 – 14 – 2606
Bailii
England and Wales

Employment, Discrimination

Updated: 03 January 2022; Ref: scu.552075

ECJ Victimisation Discrimination : Whistleblowing – The Employment Tribunal erred in striking out a claim alleging that two detriments (being placed in a different job and being placed on a redeployment register) as the complaint was brought within three months of the acts complained of. The Employment Tribunal also erred in striking out a claim at a Preliminary Hearing without hearing oral evidence that the events complained of amount to a termination of the original contract of employment.

Lewis J
[2015] UKEAT 0374 – 14 – 0506
Bailii
England and Wales

Employment, Discrimination

Updated: 03 January 2022; Ref: scu.552074

DISABILITY DISCRIMINATION – Reasonable adjustments
The Claimant was off sick for nearly a year. Her employer was prepared to make adjustments to enable her to return to her previous role but she did not want to do that and instead suggested alternatives. The Employment Tribunal dismissed her claim for disability discrimination on the ground that the Respondent had failed to comply with its duty to make reasonable adjustments. On appeal it was argued on her behalf that the Tribunal had erred in law because it had adopted a test for deciding what was reasonable which was akin to the test in unfair dismissal cases, of whether the employer’s decision fell within the band of reasonable responses.
Held, the Employment Tribunal had not erred as alleged. It had decided for itself on all the evidence before it whether the Respondent had or had not failed to make reasonable adjustments. However, the nature of the obligation is one to do what is reasonable, not necessarily to accept what the Claimant contends is reasonable.

Singh J
[2014] UKEAT 0279 – 14 – 1112
Bailii
England and Wales

Employment, Discrimination

Updated: 03 January 2022; Ref: scu.551977

EAT Equality Act 2010 section 27B. Victimisation. The claimant applied for a vacancy advertised by the respondent. He was qualified for the post and was the only applicant. The respondent shortlisted him but prior to interview decided to withdraw the vacancy. The HR department of the respondent thought that there was a high risk of the claimant complaining of discrimination if he was not offered the post, due to his history when previously employed by the respondent. The ET found that was the reason he was not interviewed. There were also discussions within the respondent about the need to fill the vacancy for reasons connected to reorganisation. It may have decided not to fill it in any event. The ET found that the claimant had been subject to victimisation and awarded compensation in respect of loss of a chance. It found that the claimant had a 10% chance of being appointed and reduced compensation accordingly. The claimant appealed against the reduction in compensation. The respondent cross appealed on the amount of compensation.
Held: appeal and cross appeal refused. The ET was entitled to decide that the claimant had lost a slender chance of appointment and to reduce compensation accordingly. The ET had given clear reasons for its decision on the sums awarded under injury to feelings and for future loss. There was no error in law. The figure for injury to feelings was high, but not so high as to permit reconsideration by the EAT.

Hon Lady Stacey
[2014] UKEAT 0021 – 14 – 2811
Bailii
England and Wales

Employment, Discrimination

Updated: 03 January 2022; Ref: scu.551973

EAT DISABILITY DISCRIMINATION – Loss/mitigation
The appeal concerned a Remedy Judgment after a finding that he was entitled on the grounds to compensation for discrimination on the grounds of disability – failure to make reasonable adjustments, arising in consequence of disability and harassment.
The Claimant claimed that a finding by the Employment Tribunal that the Claimant would be able to recover his post termination earnings within 12 months was not adequately supported by the evidence. This ground of appeal was rejected on the basis that future loss always contained an element of speculation, and although the evidence was somewhat impoverished, the Employment Appeal Tribunal could not say that the finding was unsupported by the evidence. It was not for the Employment Appeal Tribunal to substitute its views for those of the Employment Tribunal or to second guess the Employment Tribunal.
The other ground of appeal was that the Employment Tribunal had estimated the earnings the Claimant might have received in the 12 months before regaining full capacity without any evidential basis. The reasoning of the Employment Tribunal in this regard was unsatisfactory and this issue was remitted to the same Employment Tribunal.

Serota QC HHJ
[2014] UKEAT 0306 – 14 – 0512
Bailii
England and Wales

Employment, Discrimination

Updated: 03 January 2022; Ref: scu.551975

EAT Disability Discrimination : Disability – Direct disability discrimination – UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
Two points were permitted to proceed to this Full Hearing:
(1) The Employment Tribunal sought to draw a distinction between ‘perceived’ and ‘suspected’ disability. That was unhelpful. However, the Employment Tribunal’s answer to the ‘reason why’ question: why was the Claimant (a) suspended and (b) dismissed, showed that neither had anything to do with his actual (he denied mental health problems) or perceived disability.
(2) There was no inconsistency between the Employment Tribunal’s finding as to (a) the reason for dismissal, ill-health capability, for the purposes of section 98 Employment Rights Act 1996 and (b) his conduct leading to their answer to the reason why question under section 13 Equality Act 2010 (see above).
Appeal dismissed.

Peter Clark J
[2015] UKEAT 0340 – 14 – 0506
Bailii
Employment Rights Act 1996 98
England and Wales

Employment, Discrimination

Updated: 03 January 2022; Ref: scu.551069

EAT Jurisdictional Points : Extension of Time: Just and Equitable – The Claimant brought various claims against his employer, the First Respondent, including direct discrimination and harassment on grounds of religious belief and detriment for making a protected disclosure. He brought one claim, harassment, against the Chairman of the First Respondent, the Second Respondent. The harassment claims were presented out of time. In deciding that it was just and equitable to extend time under the Equality Act 2010 section 123(1)(b), the Employment Judge in effect held that the determinative factor was balance of prejudice. The Employment Judge held that the harassment claim should proceed as ‘the complaint as pleaded adds little to the remainder of the Claimant’s claim’. The basis for the decision under section 123(1)(b) did not apply to the Second Respondent as, unlike the First Respondent, there were no other claims against him. As this formed the main reason for her decision, the Employment Judge erred in not considering the just and equitable application in respect of each Respondent separately.

Slade J
[2015] UKEAT 0448 – 14 – 1504
Bailii
Equality Act 2010 123(1)(b)
England and Wales

Employment, Discrimination

Updated: 03 January 2022; Ref: scu.550670

EAT Race Discrimination – Inferring discrimination – Burden of proof – Comparison – VICTIMISATION DISCRIMINATION – Other forms of discrimination – HARRASSMENT
The Claimant, Nigerian in origin, born in North London and a British citizen, was commissioned in the Army as a medical cadet. Her service in the Army commenced on graduation having read medicine, on 1 July 2008. By 5 August 2009, she qualified as a fully registered medical practitioner and was promoted from the rank of lieutenant, which she held from 5 August 2008, to the rank of captain. Her status until then was on a non-deployed basis. To be admitted to the army as a medical practitioner the Claimant would have to pass both the Sandhurst Professionally Qualified Officer training course and a second training course devoted to the practice of medicine in the Army. On 6 October 2010 she commenced the first training course at Sandhurst. On 13 December 2010 the Tribunal found that she comprehensively failed the first course. She was not permitted to resit the course and, as a consequence was discharged from the Army.
The Claimant contended before the Tribunal that she had in fact passed the course and alleged that she was subjected to a series of detriments and to less favourable treatment because of her race. She contended that she was unjustifiably marked down during assessments, that she was sworn at, and that she was singled out and subjected to a high degree of hostility. She contended that her ultimate discharge from the Army was tainted by unlawful race discrimination and was an act of unlawful victimisation in addition. These contentions were all rejected by the Tribunal.
On appeal it was argued that the Claimant’s many claims were dealt with in isolation from each other and the totality of the evidence was not looked at, nor was a proper comparative exercise conducted. Further, she contended that there were errors of law in the Employment Tribunal’s approach to victimisation and harassment. These arguments were rejected:
(a) the Employment Tribunal made proper findings supported by the evidence rejecting the Claimant’s case that she was singled out for hostile and unjustifiable treatment. The case was different to X v Y;
(b) the Employment Tribunal focused on the ‘reason why’ and accepted the Respondent’s explanations as wholly explaining the impugned treatment without reference to her race;
c) there was no error of law in the approach to the victimisation and harassment claims.
The appeal therefore failed.

Simler J
[2015] UKEAT 0225 – 14 – 1805
Bailii
England and Wales

Employment, Discrimination

Updated: 03 January 2022; Ref: scu.550672

EAT VICTIMISATION DISCRIMINATION – Other forms of victimisation
UNFAIR DISMISSAL – Reasonableness of dismissal
The Respondent dismissed the Claimant, who was subject to a final written warning, ostensibly on the ground that she had taken holiday without permission and in disobedience to instructions from the Respondent’s management. The Employment Tribunal found that conduct was not the Respondent’s true reason for dismissal; that the Respondent had victimised the Claimant because of protected acts; and that even if conduct were the true reason for dismissal the dismissal was unfair. Appeal allowed. (1) The Employment Tribunal had not given sufficient reasons for its decision on the question of victimisation and had not recognised the distinction between unlawful treatment distinction between unreasonable conduct and conduct which is because of a protected act: Law Society v Bahl [2004] IRLR 799. (2) The Employment Tribunal had not approached the question of unfair dismissal in accordance with section 98(4) of the Employment Rights Act 1996.

David Richardson J
[2015] UKEAT 0430 – 14 – 1507
Bailii
England and Wales

Employment, Discrimination

Updated: 02 January 2022; Ref: scu.550308

EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal
JURISDICTIONAL POINTS: Extension of time: just and equitable
VICTIMISATION DISCRIMINATION: Other forms of victimisation
The Claimant, a senior manager employed by the TDA, appealed against the ET’s dismissal of her victimisation and unfair dismissal claims. The challenges on appeal were based on perversity and flawed reasoning by the Tribunal in a case involving extensive factual dispute, in which the ET upheld one only of the victimisation complaints. The appeal in relation to the victimisation claim was dismissed, save that the appeal against the finding that there was no jurisdiction to determine her one, successful, complaint was upheld. The Claimant succeeded in her perversity challenge to the decision on unfair dismissal and the case was remitted for re-determination to a fresh ET.

[2009] UKEAT 0394 – 09 – 2910
Bailii
England and Wales
Citing:
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 02 January 2022; Ref: scu.377339

EAT RACE DISCRIMINATION – Direct
The Employment Tribunal found that the Claimant had been treated less favourably because of race in connection with a move from the Waltham Forest and Redbridge Group to the East Group of the Magistrates’ Courts in London. This was issue 2.1 in a list of issues agreed for the hearing. However, the Employment Tribunal found that his claim in respect of this issue was out of time; and it declined to extend time.
As to issue 2.1: held (1) the Employment Tribunal had applied the wrong legal test when making its finding of direct race discrimination; (2) the Employment Tribunal had not erred in law in finding that the claim was out of time and in declining to extend time.
In respect of all other issues relating to discrimination (issues 2.2 to 8 which encompassed direct race discrimination, harassment and victimisation) the Employment Tribunal found against the Claimant. The Claimant appealed on the ground that the Employment Tribunal failed, when deciding whether to draw inferences or apply the burden of proof provisions, to consider its findings in totality.
Held: the Employment Tribunal had not erred in law in this way.
Appeal dismissed.

David Richardson HHJ
[2015] UKEAT 0390 – 14 – 0707
Bailii
England and Wales

Employment, Discrimination

Updated: 02 January 2022; Ref: scu.550128

EAT Unfair Dismissal – RACE DISCRIMINATION – The issue on the appeal is whether the Employment Tribunal had erred by failing to deal with a case advanced by the Claimant, and not withdrawn nor conceded. It was held that the Employment Tribunal should not consider a claim outside those in the ET1, but that did not mean it had to consider every claim within it: where parties agreed issues as being those which an Employment Tribunal had to determine in its Judgment, before that Judgment was delivered, all they could ask was that the Employment Tribunal resolved those issues on which they had agreed. That was what the Employment Tribunal here did. Once it was clear as a matter of fact that the issues list had been agreed, there could be no complaint that the Employment Tribunal had failed to deal with incidents identified as giving rise to claims of harassment if they were also potentially claims of direct discrimination; the Employment Tribunal here had shown sufficiently that it had considered all the facts in answering whether there had been discriminatory conduct at all; and on application of Mensah and Muschett it was dismissed

Lanhstaff P J
[2015] UKEAT 0020 – 15 – 1405
Bailii
England and Wales

Employment, Discrimination

Updated: 02 January 2022; Ref: scu.550126

EAT Disability Discrimination: Reasonable Adjustments – Section 15
The Employment Tribunal erred in failing to decide the disability discrimination and reasonable adjustments claims on the basis of the Provision, Criterion or Practice which it identified in the list of issues. Further, the Employment Tribunal erred in failing to make the necessary findings of fact or set out its reasoning in deciding that the Respondent’s policies were not a proportionate means of achieving the aim, which they held to be legitimate, of managing absence and dealing with attendance consistently under one policy. The Employment Tribunal erred in the same way in deciding that the Respondent did not make a reasonable adjustment to its policy on managing attendance. Hardy and Hansons plc v Lax [2005] ICR 1565 applied. See also Akerman-Livingstone v Aster Communities Ltd [2015] 2 WLR 721 paragraph 28.

Slade J
[2015] UKEAT 0412 – 14 – 3004
Bailii
England and Wales
Citing:
Cited – Hardys and Hansons Plc v Lax CA 7-Jul-2005
The issue of justification of discrimination is rarely a simple matter. No margin of appreciation was to be allowed to an employer. It is for the tribunal to make its own judgment as to whether the practice complained of by the employee was . .
Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 02 January 2022; Ref: scu.550121

EAT Disability Discrimination: Disability – The Claimant claimed to have been disabled by reason of suffering cognitive impairment and memory loss. The medical evidence was at best equivocal and evidence from lay witnesses was conflicting. The Employment Tribunal had given itself a proper direction as to the law, and was not satisfied that the Claimant had established that he suffered from a disability within the meaning of the Equality Act 2010. There was evidence to support the findings of the Employment Tribunal which had considered the cumulative effect of the various complaints made by the Claimant and had not formed a favourable view as to his credibility. The appeal was, in essence, a perversity appeal which failed to reach the high threshold for such appeals. Appeal dismissed.

Serota QC HHJ
[2015] UKEAT 0270 – 14 – 2206
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 01 January 2022; Ref: scu.549360

EAT Unfair Dismissal – DISABILITY DISCRIMINATION
A claim for unfair dismissal brought by a long-serving but disabled prison officer was upheld. The Tribunal found that the reason for dismissal had been ‘disability’. Even if it had been ‘capability’, it would have been procedurally unfair.
Additionally, the Tribunal found direct and indirect disability discrimination, disability related discrimination and failure to make reasonable adjustments. It awarded substantial compensation.
On the employer’s appeals:
HELD
(1) The appeal against the finding of liability would be dismissed. No error of law in the Tribunal’s Judgment had been made out.
(2) The appeal in respect of remedy would be allowed. The Tribunal’s findings in relation to past and future losses and pension losses could not be sustained and would be remitted.

Luba QC Rec
[2015] UKEAT 0363 – 14 – 1006
Bailii
England and Wales

Employment, Discrimination

Updated: 01 January 2022; Ref: scu.549017

EAT Race Discrimination: Direct – Race discrimination – direct (section 13(1) Equality Act 2010)
The Employment Tribunal (‘the ET’) had upheld the Claimant’s claims of direct race discrimination in respect of: (1) the manner of his investigation meeting; and (2) the referral of the Claimant to the disciplinary process.
On the Respondent’s appeal, allowing the appeal in part:
(1) In respect of the manner of the investigation meeting, the ET had not erred in its approach to comparators: the distinctions relied on by the Respondent were not material for the purposes of section 23(1) Equality Act. In any event, the ET had been entitled to have regard to those comparators in constructing the hypothetical comparator. Moreover, the ET had not assumed discrimination from the Respondent’s unreasonable treatment but had considered whether it had an explanation for the unduly aggressive and inappropriate manner of the investigation meeting and concluded it did not. The ET had been entitled to have regard to the questions asked as to the Claimant’s nationality/race as evidencing the reason why the manager had pre-judged the Claimant, which explained the tenor of the investigatory meeting. The conclusions reached were permissible. Appeal dismissed on this point.
(2) When it came to the referral of the Claimant into the disciplinary />br process, however, the position had (on the ET’s findings) changed; any comparison would have to be with another employee who had failed to provide adequate, exculpatory responses to the allegations put to him. The ET’s reasoning did not disclose it had properly considered whether the Claimant had been treated less favourably in these circumstances and that rendered the conclusion unsafe. Appeal allowed on this point.

Eady QC HHJ
[2015] UKEAT 0366 – 14 – 1606
Bailii
Equality Act 2010 13(1)
England and Wales

Employment, Discrimination

Updated: 01 January 2022; Ref: scu.549016

Richards, Elias, McCombe LJJ
[2015] EWCA Civ 1265, [2015] WLR(D) 523, [2016] IRLR 216, [2017] ICR 160
Bailii, WLRD
Equality Act 2010 20
England and Wales

Discrimination, Employment

Updated: 31 December 2021; Ref: scu.556788

EAT DISABILITY DISCRIMINATION – Justification; Disability Related Discrimination
The Claimant accepted ill-health retirement at 38, because his disabilities were such that he could no longer continue in post. He was entitled to a pension calculated as if he had worked on until retirement age, which was to be paid immediately upon retirement and without actuarial reduction, but based upon his pensionable salary at the date of ill-health retirement. At that date he was working half time, having reduced his hours by agreement to accommodate his disabilities. He complained that to pay him only half what a full-time employee would have had discriminated against him, being unfavourable treatment in consequence of something arising from his disability, contrary to s.15 Equality Act 2010. An ET accepted this case. On appeal, it was held that the Tribunal had failed to answer its own questions as to the meaning of ‘unfavourably’ and in addressing it applied the wrong test, adopted the wrong approach, failed to recognise that anyone who could legitimately claim ill-health retirement under the scheme had to be disabled, and reasoned from inappropriate analogies. As to justification, the ET appeared at one point to adopt the University’s aim as legitimate, but at another suggested that the justification was concerned solely with cost (a question which logically related to the aim, not to the means); analysed proportionality in part by considering the employer’s conduct in failing to consider potential discrimination (at a time when such discrimination was not prohibited), when it was the objective effect of a decision which fell for consideration, not the subjective processes by which it was adopted; and in part by postulating alternative means of achieving the aim without such discriminatory impact, none of which were identified or described sufficiently. The ET’s decision that the Claimant was unfavourably treated because of something arising in consequence of his disability could not stand, and it was remitted to a fresh Tribunal for complete rehearing.

Langstaff P J
[2015] ICR 1197, [2015] UKEAT 0415 – 14 – 2107, [2015] IRLR 885, [2015] Pens LR 489
Bailii
England and Wales
Cited by:
Cited – Williams v The Trustees of Swansea University Pension and Assurance Scheme and Another SC 17-Dec-2018
The appellant complained of disability discrimination. He retired early suffering Tourette’s syndrome. He had worked part time, and the parties now disputed his pension entitlements.
Held: The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 31 December 2021; Ref: scu.550675

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 idea of when it would be possible for him to return to work.
Held: The 1995 Act is phrased quite differently from the Sex and Race discrimination statutes, and accordingly models for finding comparators under those acts are misleading. Treatment is less favourable if the reason for it would not apply to others. The Court declined to read into ‘others’ in section 5(1)(a) any requirement that those others should be otherwise in similar circumstances to the disabled person. The Act does not require the sort of ‘like for like’ comparison which is involved in the Sex Discrimination and Race Relations Acts.

Mummery LJ, Beldam LJ, Roch LJ
Times 01-Apr-1999, [1999] IRLR 318, [1999] EWCA Civ 1091, [1999] ICR 951, [1999] Disc LR 240, (1999) 48 BMLR 1, [1999] 2 All ER 977
Bailii
Disability Discrimination Act 1995 5(1)(a), Employment Rights Act 1996 98, Employment Act 2002 (Dispute Resolution) Regulations 2004 3 85
England and Wales
Citing:
Appeal from – Clark v Novacold Ltd EAT 22-May-1998
The employee appealed against the dismissal of his claim for disability discrimination.
Held: The appeal succeeded. A comparator for the treatment of a disabled person who was away from work sick, was the treatment of a non-disabled person who . .
Stay of Remission – Clark v Novacold Ltd EAT 11-Jun-1998
The EAT heard arguments as to whether its decision to remit the case to the Industrial Tribunal was correct.
Held: The matter should be stayed pending the hearing of the matter at the Court of Appeal. . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 2) HL 20-Oct-1995
The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact . .
Cited – Tower Boot Company Limited v Jones CA 11-Dec-1996
An employer’s liability for racial abuse by its employees is wider than its liability under the rules of vicarious liability. The statute created new obligations. Sex and race discrimination legislation seeks to eradicate the ‘very great evil’ of . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Morse v Wiltshire County Council EAT 1-May-1998
A tribunal considering a claim of disability discrimination should best consider the various statutory elements in the order given in the Act, so as to avoid confusion in unraveling what is a complex statutory structure. The wide language of section . .
Cited – Chapman and Another v Simon CA 1994
The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary . .
Cited – 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 . .

Cited by:
Cited – Woodlands School (Newton Stewart) Ltd v Gordon EAT 5-Oct-2001
The employer appealed against a finding of disability discrimination. The tribunal was claimed not to have taken account of the codes of practice and the need for a risk assessment.
Held: The absence of a risk assessment mean that no . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Cited – Archibald v Fife Council HL 1-Jul-2004
The claimant was employed as a street sweeper. She suffered injury to her health making it difficult to do her work. She was dismissed, and claimed that being disabled, the employer had not made reasonable adjustments to find alternative work for . .
Cited – Council of the City of Manchester v Romano, Samariz CA 1-Jul-2004
The authority sought to evict their tenant on the ground that he was behaving in a way which was a nuisance to neighbours. The tenant was disabled, and claimed discrimination.
Held: In secure tenancies, the authority had to consider the . .
Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Cited – North Devon Homes Housing Association v Brazier QBD 2003
The tenant was guilty of nuisance, but her misbehaviour was attributable to her psychotic state – her ‘disability’ within the 1995 Act.
Held: Though a very pertinent factor to be taken into account may be a housing authority’s obligations to . .
Cited – Knowsley Housing Trust v McMullen CA 9-May-2006
The defendant tenant appealed an order for possession of her flat. She was disabled and living with her 19 year old son. He had been made subject to an anti-social behaviour order. The court had found that she could have required him to leave. The . .
Applied – Richmond Court (Swansea) Ltd v Williams CA 14-Dec-2006
Section 24 of the 1995 Act requires the court ‘(i) to identify the treatment of the disabled person that is alleged to constitute discrimination, (ii) to identify the reason for that treatment, (iii) to determine whether the reason relates to the . .
Mentioned – London Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
Cited – S v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Cited – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Cited – BUPA Care Homes v Cann; Spillett v Tesco Stores EAT 31-Jan-2006
EAT Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment
Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, . .
Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Cited – Williams v The Trustees of Swansea University Pension and Assurance Scheme and Another SC 17-Dec-2018
The appellant complained of disability discrimination. He retired early suffering Tourette’s syndrome. He had worked part time, and the parties now disputed his pension entitlements.
Held: The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 31 December 2021; Ref: scu.79195

The appeal was against the rejection of the appellant’s claims for disability discrimination arising out of the withdrawal of a secondment opportunity in Montenegro on grounds of risk to her health. Both of her claims, under s. 15 (discrimination) and s. 20 (failure to make reasonable adjustments) of the Equality Act 2010, turned on whether the respondent acted disproportionately in withdrawing the opportunity rather than permitting her to go to Montenegro with safeguards in place to protect her from the consequences of her disability manifesting itself.
The appeal was dismissed. The tribunal’s essential reasoning was that, on the appellant’s own admission, she would continue to be at risk if she went to Montenegro and that the respondent was entitled to act so as to avoid that risk. There was no challenge on perversity grounds to that reasoning and the tribunal’s findings were clearly open to it on the evidence. The grounds of appeal, which sought to argue that the tribunal had misdirected itself, or had failed to consider certain reasonable adjustments relied upon by the appellant, or other factors relevant to the proportionality analysis, raised unfounded criticisms which were all insufficient to undermine the tribunal’s essential reasoning.

Jason Coppel QC, Deputy Judge of the High Court
[2021] UKEAT 2020-000468
Bailii
England and Wales

Employment, Discrimination

Updated: 31 December 2021; Ref: scu.670375

EAT Race Discrimination – Victimisation Discrimination – Detriment – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The issue raised by the appeal was whether the Employment Tribunal had dealt with all aspects of the Claimant’s case before it. This, in turn, raised two questions: (1) how had the Claimant’s case before the Employment Tribunal been put? and (2) had that case been determined by the Employment Tribunal?
Held: dismissing the appeal, the point in issue (that the Respondent’s setting too narrow a remit for its investigation, or Mr Lewis, wrongly so interpreting his remit, was itself an act of race discrimination or victimisation) was not a clear part of the case pursued by the Claimant before the Employment Tribunal, although it had been foreshadowed in her ET1 and witness statement and she had not withdrawn the issue. On the basis that it was a point still ‘live’ before the Employment Tribunal: ultimately, however, the Employment Tribunal’s conclusions meant that the Claimant could not have succeeded on this issue in any event. The Employment Tribunal had considered the ‘reason why’ and had expressly found that it was ‘in no sense whatsoever, even on a sub-conscious level, because of the claimant’s race, any other racial ground or any past or anticipated protected act.’ Although the Employment Tribunal may not have understood that the Claimant was still pursuing every nuance of her pleaded case, that finding was sufficient to answer the issue raised on the appeal in any event.

Eady QC HHJ
[2015] UKEAT 0177 – 14 – 0302
Bailii
England and Wales

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.547607

EAT RELIGION OR BELIEF DISCRIMINATION
The Claimant was offered an apprenticeship (trainee nursery assistant) at the Respondent’s nursery. She was an observant Muslim whose religious belief required her to wear a garment that reached from her neck to her ankles (a jilbab). She claimed that she had suffered a detriment by reason of the manifestation of her religious belief because she had been told that she would not be permitted to wear a jilbab of the appropriate length and therefore was unable to accept the post. The Employment Tribunal dismissed the claim on the facts. It held that the Claimant had not been instructed that she could not wear a jilbab of the appropriate length but held that if wrong as to that, the PCP (Provision, Custom or Practice) propounded by the Claimant applied. Staff should not wear any garments that might constitute a tripping hazard to themselves or the children in their care – it was not indirectly discriminatory to Muslim women. It applied equally to staff of all religions and if it did put some Muslim women at a particular disadvantage, any indirect discrimination was justified as being a proportionate means of achieving a legitimate aim: i.e. protecting the health and safety of staff and children.
Held by the Employment Appeal Tribunal that the Employment Tribunal had reached conclusions to which it was entitled to reach on the facts as found. There was no misdirection of law by the Employment Tribunal. In essence this was a perversity appeal that failed to surmount the high threshold required in such appeals.

Serota QC HHJ
[2015] UKEAT 0309 – 13 – 2205
Bailii
England and Wales

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.547131

EAT Disability Discrimination: Reasonable Adjustments
The Employment Appeal Tribunal allowed the appeal by the Respondent against the decision of the Employment Tribunal that it had breached its duty to make reasonable adjustments on the ground that the Tribunal failed, as it was required to do, to make proper findings as to whether the adjustments sought by the Claimant were in fact reasonable. Further the Employment Tribunal erred in treating a failure to deal with the request for reasonable adjustment as a failure to make a reasonable adjustment. For these and other reasons, the Employment Appeal Tribunal allowed the Respondent’s appeal and remitted the case to the Employment Tribunal for reconsideration.
The Employment Appeal Tribunal also allowed the Claimant’s appeal against the failure of the Employment Tribunal to consider or make any findings with regard to the provisions of section 39 of the Equality Act 2010. That matter too was remitted to the Employment Tribunal for consideration. The issue of dismissal within section 39 however only arises if the Employment Tribunal finds the Respondent to be in breach of section 20 of the 2010 Act.

Supperstone J
[2015] UKEAT 0423 – 14 – 2003
Bailii
Equality Act 2010 20 39
England and Wales

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.546503

EAT Disability Discrimination: Reasonable Adjustments
The Employment Appeal Tribunal allowed the appeal by the Respondent against the decision of the Employment Tribunal that it had breached its duty to make reasonable adjustments on the ground that the Tribunal failed, as it was required to do, to make proper findings as to whether the adjustments sought by the Claimant were in fact reasonable. Further the Employment Tribunal erred in treating a failure to deal with the request for reasonable adjustment as a failure to make a reasonable adjustment. For these and other reasons, the Employment Appeal Tribunal allowed the Respondent’s appeal and remitted the case to the Employment Tribunal for reconsideration.
The Employment Appeal Tribunal also allowed the Claimant’s appeal against the failure of the Employment Tribunal to consider or make any findings with regard to the provisions of section 39 of the Equality Act 2010. That matter too was remitted to the Employment Tribunal for consideration. The issue of dismissal within section 39 however only arises if the Employment Tribunal finds the Respondent to be in breach of section 20 of the 2010 Act.

Supperstone J
[2015] UKEAT 0240 – 14 – 2003
Bailii
Equality Act 2010 39
England and Wales

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.546505

EAT Part Time Workers – The claimant made a claim under the Part-Time workers (Prevention of Less Favourable Treatment) Regulations 2000. The claimant worked as clerk to the General Commissioners of Income Tax until that body was abolished in 2009. The Taxes Management Act 1970 provided by section 3(3) a discretionary power to award a pension to a clerk if the clerk was ‘required to devote substantially the whole of his time to the duties of his office.’ The claimant was refused consideration of payment of a pension on the basis that he worked part-time and so did not fulfil the requirements of section 3(3).
Held: the purpose of the regulations is to eliminate discrimination against part time workers. The reason why the claimant was not considered for a pension was because he worked part time. The respondent failed to give effect to the regulations. Appeal allowed and remitted to the same Employment Tribunal for consideration of remedy.

Lady Stacey
[2015] UKEAT 0018 – 14 – 1003
Bailii
Part-Time workers (Prevention of Less Favourable Treatment) Regulations 2000
England and Wales

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.546428

The company appealed against a finding that it was guilty of age discrimination in ending a consultany arrangement with the respondent who ws 73 years old.

Longmore, Jackson, Underhill LJJ
[2015] EWCA Civ 439, [2015] WLR(D) 197, [2015] IRLR 562, [2015] ICR 1010
Bailii, WLRD
Employment Equality (Age) Regulations 2006, EU Council Directive 2000/78/EC
England and Wales

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.546210

The employer appealed against a decision by the tribunal that it had jurisdiction to hear the complaints of sex discrimination. The tribunal had extended the time for the claim on the just and equitable basis.
Held: The EAT set out five criteria for answering whether to extend time: ‘(a) the length of and reasons for the delay;
(b) the extent to which the cogency of the evidence is likely to be affected by the delay;
(c) the extent to which the party sued had co-operated with any requests for information.
(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action.
(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.’
Smith LJ discussed section 33 of the 1980 Act: ‘That section provides a broad discretion for the Court to extend the limitation period of three years in cases of personal injury and death. It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances and in particular, inter alia, to –
(a) the length of and reasons for the delay;
(b) the extent to which the cogency of the evidence is likely to be affected by the delay;
(c) the extent to which the party sued had cooperated with any request for information;
(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;
(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.’

Smith J
[1997] UKEAT 496 – 96 – 2603, [1997] IRLR 336
Bailii
Sex Discrimination Act 1975 76(1), Limitation Act 1980 33
England and Wales
Citing:
See Also – British Coal Corporation v Keeble and others EAT 6-Jul-1995
The employer appealed against a decision by the tribunal that it had jurisdiction to hear the claimants’ claims. . .

Cited by:
Cited – Department of Constitutional Affairs v Jones CA 18-Jul-2007
The employer appealed an order extending the time for the claimant to claim disability discrimination. The claimant had been suspended pending disciplinary proceedings, but became subject to severe depression, and his doctors said he was unfit to . .
Cited – Chohan v Derby Law Centre EAT 2-Mar-2004
EAT Employment Tribunal claim brought out of time because of Solicitor’s negligent advice. Application of British Coal Corporation -v- Keeble [1999] IRLR 337. . .
Applied – Chief Constable of Lincolnshire Police v Caston CA 8-Dec-2009
The appellant challenged the extension of time given to the claimant to begin his claim for disability discrimination.
Held: The appeal failed: ‘the discretion under the Statute is at large. It falls to be exercised ‘in all the circumstances . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.207284

The applicant succeeded on her claim of sex discrimination even though her pregnancy was not the principal reason for her dismissal (and therefore the claim for automatic unfair dismissal failed).

[1997] UKEAT 1073 – 96 – 2503, [1997] IRLR 432
Bailii
England and Wales
Cited by:
Cited – Martin v Goldsobel EAT 6-Sep-2001
The employee had been dismissed. She alleged that it was because of her pregnancy, and was automatically unfair. The employers, a firm of solicitors, alleged that it related to her standards of work.
Held: To establish sex discrimination a . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.207320

Unfair Dismissal: Reasonableness of Dismissal – DISABILITY DISCRIMINATION – Reasonable adjustments
Unfair Dismissal – fairness of the decision to dismiss
In circumstances where the advice available to the employer had materially changed between the taking of the decision to dismiss and the dismissal itself, a question arose as to whether this impacted upon the fairness of the dismissal. This was an issue raised by the Claimant’s case before the Employment Tribunal but the reasons provided did not demonstrate engagement with it. Appeal against the dismissal of the unfair dismissal case allowed.
Disability Discrimination – failure to make reasonable adjustments
On the Claimant’s first point under this head – whether a dismissal could be a provision, criterion or practice – following Nottingham City Transport Ltd v Harvey UKEAT/ 0032/12/JOJ, a practice had ‘something of the element of repetition about it’. In the circumstances, the Employment Tribunal had reached a permissible conclusion that the individual dismissal of the Claimant in this case had not, of itself, amounted to a PCP (albeit that it might have been the result of an application of a PCP).
On the PCP found by the Employment Tribunal – the application of the Respondent’s appeal process (in particular, a seven day time limit for submitting an appeal) – a difficulty arose in the Employment Tribunal’s finding that this had given rise to a ‘substantial disadvantage’ to the Claimant as a disabled person as compared to those who were not so disabled. The Employment Tribunal’s reasoning for this conclusion was not apparent, particularly given the adjustment the Respondent had already made (allowing for a possible extension of time).
If there was a substantial disadvantage, the Employment Tribunal had been entitled to conclude that the adjustments proposed by the Claimant were not ‘reasonable’ in terms of the questions of cost and practicability. There was, however, no clear indication that it had applied section 18B Disability Discrimination Act 1995 and had regard to the extent to which taking the steps in question might have prevented the disadvantage suffered (assessing this question as a matter of balance rather than adopting an all or nothing approach). The Employment Tribunal’s representation of the medical evidence further failed to address the nuanced picture that presented (relevant to this assessment). This part of the appeal against the dismissal of the disability discrimination claim would therefore also be allowed.
Directions given for further submissions to be made (as advised) as to disposal.

Eady QC HHJ
[2015] UKEAT 0315 – 14 – 2204
Bailii
Disability Discrimination Act 1995 18B
England and Wales

Employment, Discrimination

Updated: 29 December 2021; Ref: scu.545911

EAT Contract of Employment : Implied Term/Variation/Construction of Term – DISABILITY DISCRIMINATION – Burden of proof
The Employment Tribunal had concluded that a contract of employment which stated that the Claimant was employed to work a minimum of 48 hours in fact meant a maximum of 48 hours. That finding was perverse: no one had contended for it and there was no evidence to support it and all indications were that the Claimant worked more than 48 hours a week.
The Claimant was disabled because he had been diagnosed with cancer. On being certified fit to work after a period of absence by his GP he was not allowed to return to the site he had been working at and later the principal (the Second Respondent) required a special assessment of his capability to be made. The Employment Tribunal failed entirely to mention or record the terms of section 13, 15, 41 or 136 of the Equality Act 2010, all of which were relevant to his claims of disability discrimination against his employer (the First Respondent) and the Second Respondent and it could not be seen from the Judgment that they had in fact applied them or reached findings of fact which inevitably led to the claims being refused.
Appeal allowed on both those points and on a finding that the Claimant had not been dismissed and not had an unlawful deduction of wages or suffered a breach of contract which flowed from the erroneous finding on his contractual terms.

Shanks HHJ
[2015] UKEAT 0322 – 14 – 1302
Bailii
England and Wales

Employment, Discrimination

Updated: 29 December 2021; Ref: scu.545173

EAT Unfair Dismissal – RELIGION OR BELIEF DISCRIMINATION – HARASSMENT
1. The Employment Tribunal found that the Claimant was fairly dismissed for gross misconduct but also found that he had suffered unlawful direct discrimination and harassment on the basis of the protected characteristic of his ‘left-wing democratic socialist beliefs’ which were held to be protected beliefs. The Tribunal held that the protected beliefs formed a substantial part of the reasoning for his dismissal and were accordingly an effective cause of it. The Tribunal also found that three incidents of unwanted conduct by the GMB related to his protected beliefs were found proved, all of which had the purpose of creating an intimidating, hostile or humiliating environment for him.
2. The appeal against the finding of unfair dismissal was dismissed. Although there appears to be a tension between the conclusion that the Claimant’s dismissal was both fair and unlawfully discriminatory, provided a tribunal makes findings of fact that are supported by the evidence, correctly applies the relevant statutory test, and reaches reasoned conclusions by reference to the facts found, there is no reason in principle why such a conclusion cannot stand. The two statutory tests are different and the mere fact of these two findings does not, without more, indicate any error of law.
3. The findings of unlawful direct discrimination and harassment could not stand. There were no findings of fact or evidential basis to support them. The Tribunal made unsupported legal or factual assumptions about disputed questions of less favourable treatment on protected belief grounds. There was no analysis of the factors relevant to those conclusions and the evidential basis for reaching the conclusions was nowhere identified. There was no material from which adverse inferences could properly be made and no evidential basis for the Tribunal’s findings in this regard.
4. Further, of the three harassment incidents relied on, two were obviously trivial. The third was an ‘incident’ and not an ‘environment’. Although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so. To conclude that the third incident was an act of unlawful harassment is to trivialise the language of the statute.
5. The Claimant’s assertions (there being nothing more than this by way of evidence identified as available but in respect of which findings were not made) that his protected beliefs were at least a significant part of the reason for the impugned treatment were not supported by any evidence and amounted to no more than unsupported speculation. It would not be open to a tribunal properly directing itself as to the law to reach any other conclusion. There is only one outcome on the evidence and the findings made by the Tribunal in this case. The Respondent’s appeal on these grounds would accordingly be upheld, and findings of no unlawful discrimination or harassment substituted.

Simler J DBE
[2015] UKEAT 0073 – 14 – 1303, [2015] IRLR 451
Bailii
England and Wales
Cited by:
Appeal from – Henderson v The General Municipal and Boilermakers Union CA 11-Oct-2016
The claimant appealed against rejection of his claims for unfair dismissal and otherwise. The union appealed against a finding in favour of the claim for discrimination (and otherwise) on account of his religion or belief, namely ‘left wing . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 December 2021; Ref: scu.544861

EAT DISABILITY DISCRIMINATION – Disability
DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
UNFAIR DISMISSAL – Polkey deduction
The Claimant, Consultant Neonatologist, was dismissed for bullying colleagues. She asserted that the Respondent failed to make a reasonable adjustment in dismissing her as her admitted disability, dyslexia, made it more likely that she would engage in that type of behaviour. She also asserted that, notwithstanding her disability was identified at the Case Management Discussion as dyslexia, this should be aggregated with depression. Held that the Employment Tribunal correctly considered the claim on the basis that the disability alleged was dyslexia. Chapman v Simon [1994] IRLR 124 applied. The Claimant lost the reasonable adjustments claim on the facts. The cross-appeal from the finding of unfair dismissal is dismissed. The Employment Tribunal did not err in concluding that it was unreasonable to assign a doctor who, although of the right level, did not appear to have any training or experience in conducting such hearings to conduct and decide the outcome of the Claimant’s disciplinary hearing. He misapplied the Respondent’s disciplinary procedure to the detriment of the Claimant. It was not an error for the Employment Tribunal not to permit the doctor to be recalled to give more evidence of his experience/training in disciplinary procedures. It was a case management decision for them in the circumstances. The Employment Tribunal did not err in holding the dismissal to be unfair. The Employment Tribunal did not fail to have regard to guidance in Software 2000 Ltd v Andrews in deciding that there should be no Polkey reduction on either of the bases contended for. Nor did the Employment Tribunal err in failing to make a deduction of 100% or of a percentage greater than was made for contributory fault.

Slade J
[2015] UKEAT 0218 – 14 – 3001
Bailii
England and Wales

Employment, Discrimination

Updated: 29 December 2021; Ref: scu.544865

EAT Disability related discrimination
Direct disability discrimination
Compensation
Direct Disability Discrimination and Discrimination arising from Disability
After considering the judgment and the Respondent’s acceptance that there appeared to be errors as to the findings that both direct disability discrimination and discrimination arising from disability and after considering paragraph 18.3 of the Practice Direction (Employment Appeal Tribunal – Procedure) 2013 (‘the PD’), which deals with the disposal of appeals by consent, the appeal was allowed and the case remitted. The Employment Tribunal had made no findings as to knowledge of disability and there was no basis for analysing the judgment as containing a finding of constructive knowledge and so the conclusion on discrimination arising from disability was questionable. Nor was it clear what the evidential basis was for the conclusion that the Appellant had directly discriminated against the Respondent because of her disability and no clear basis for differentiating that from the finding of discrimination arising from disability.
Compensation
The Employment Tribunal’s findings of fact and reasoning do not appear to support the decision made as to loss of earnings.
Disposal
The case was remitted for a complete re-hearing before a differently constituted Employment Tribunal.

Hand QC HHJ
[2015] UKEAT 0273 – 14 – 1401
Bailii
England and Wales

Employment, Discrimination

Updated: 29 December 2021; Ref: scu.544855

EAT Jurisdictional Points: Extension of Time: Just and Equitable
Whether time should be extended in respect of a single act of discrimination on racial grounds (found by the Employment Tribunal to have been made out). In refusing to extend time the Employment Tribunal failed to balance prejudice to the Claimant (loss of a valid claim) with prejudice (if any) to the Respondent as part of the exercise of discretion: see British Coal Corporation v Keeble [1997] IRLR 336, paragraph 8. The Claimant’s appeal allowed and point remitted to the same Employment Tribunal for reconsideration in light of the EAT Judgment.

Peter Clark HHJ
[2015] UKEAT 0291 – 14 – 0901
Bailii
England and Wales

Employment, Discrimination

Updated: 28 December 2021; Ref: scu.543476

,
The Honourable Mrs Justice Eady DBE
[2021] UKEAT 2019-000891
Bailii
England and Wales

Employment, Discrimination

Updated: 28 December 2021; Ref: scu.670144

EAT Disability Discrimination: Disability Related Discrimination – Justification – Disability related discrimination. Equality Act 2010 section 15. Non-payment of bonus due to the Claimants having received a warning for disability related sick absence.
Prima facie discrimination causatively made out. The Employment Tribunal were entitled to reject the Respondent’s justification defence.

Peter Clarke HHJ
[2015] UKEAT 0149 – 14 – 1202
Bailii
Equality Act 2010 15
England and Wales

Employment, Discrimination

Updated: 27 December 2021; Ref: scu.542627

EAT (Age Discrimination) This is an appeal against a decision of the tribunal dismissing a claim for indirect age discrimination. Over time, a number of employees from different companies had had their employment transferred to the Respondent employer. As a result, its employees had different terms and conditions in relation to matters such as working hours, annual leave, entitlement to private health care, carers’ leave, and potentially, entitlement to redundancy. The Respondent was facing continuing losses and sought to address those losses by requiring employees to agree new terms and conditions or be dismissed. That requirement put older employees at a particular disadvantage as employees within the 38 to 64 year age range were more likely to lose their existing contractual rights The tribunal found that the requirement to enter a new contract was a provision, criterion or practice (‘PCP’) but also held, however, that the PCP was objectively justified and dismissed the claim.
The Respondent cross-appealed the finding that a change of terms and conditions could amount to a PCP. The Appellants appealed against the finding that the PCP was objectively justified. The Employment Appeal Tribunal held that the employment tribunal was entitled to find that the requirement that, in order to remain employed, the Appellants had to agree to a new contract with new terms and conditions or be dismissed was a PCP. The tribunal was entitled to find that the PCP was objectively justified. The Respondent had a legitimate aim, namely reducing staff costs to ensure its future viability and to have in place a market competitive, non-discriminatory set of terms and conditions. In considering the issue of objective justification, the tribunal had properly understood the task that it had to carry out and had carried out the task properly. It did consider the effect of the changes upon the affected employees and balanced the needs of the Respondent against those changes. It did have regard to the alternatives proposed by the Appellants. It was entitled to conclude that those alternatives would not achieve the Respondent’s legitimate aim and the PCP was objectively justified as there were no practicable alternative to the changes proposed by the Respondent and its changes were proportionate. Further, the tribunal had not made a perverse finding of fact nor had it misunderstood that it was for the Respondent to show that the PCP was objectively justified.

Lewis J
[2015] UKEAT 0152 – 14 – 0502
Bailii
England and Wales

Employment, Discrimination

Updated: 27 December 2021; Ref: scu.542327

EAT Race Discrimination: Inferring Discrimination – The Employment Tribunal mis-directed itself by appearing that discrimination had to be the sole cause for the Appellant’s treatment as opposed to being an ‘effective case’ – see O’ Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1997] ICR 33 and O’ Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615. The case was remitted for a re-hearing before a differently constituted Tribunal.

Hand QC HHJ
[2014] UKEAT 0199 – 14 – 0211
Bailii
England and Wales

Employment, Discrimination

Updated: 27 December 2021; Ref: scu.541538

EAT Sex Discrimination: Comparison
Unfair constructive dismissal; sex discrimination. The Claimant resigned from his employment with the Respondent following a complaint having been made of his harassing another employee. He claimed that the implied term of trust and confidence had been broken by the employer who prejudged the issue, failed to follow its own policies on disciplinary matters and discriminated against him by reason of his sex. The Employment Tribunal found that the Respondent had discriminated on grounds of sex, and in so doing had behaved in such a way as to entitle to the Claimant to resign and claim unfair constructive dismissal. The employer appealed, arguing that the Employment Tribunal erred in law in holding that the facts found were such as to enable them to infer sex discrimination. It argued that the case should be dismissed as the finding of sex discrimination could not stand, and the Employment Tribunal had found the claim of unfair constructive dismissal made out only on the basis of sex discrimination.
Held: the appeal is allowed to the extent that the finding of sex discrimination is set aside, there being no findings of fact on which to base it. The Employment Tribunal however made clear findings of fact on which they were bound to come to the view that the claim of unfair constructive dismissal was made out, and case remitted to the Employment Tribunal to consider remedy for unfair constructive dismissal.

Stacy Lady
[2015] UKEAT 0034 – 14 – 0601
Bailii
England and Wales

Employment, Discrimination

Updated: 27 December 2021; Ref: scu.541535

EAT Victimisation Discrimination : Protected Disclosure -The Claimant was employed by the First Respondent (‘Bradford’) and at the time of a redundancy exercise was offered an alternative post subject to a CRB check and an internal reference, both of which were regarded as formalities. However the Claimant had made a protected disclosure which tended to show a serious breach of contract by Bradford in relation to a scheme funded by the European Development Fund. The Claimant had occasion to raise a grievance during the course of which he made the protected disclosures.
The Manager appointed to investigate the grievance, Mrs Baker (the Second Respondent) had taken very much against the Claimant and put herself forward to write the reference, even though she had no knowledge of the Claimant’s work. She wrote a reference she knew to be negative and in a sense misleading and that would affect the Claimant’s position in relation to the new post and did so to ensure that the Claimant was forced out of Bradford’s employment.
The Officer appointing the new post considered (wrongly) that the Claimant had misled him about sickness absence and Mrs Baker knew of this but did not disabuse Mr Rashid. He withdrew the offer of the new post to the Claimant, relying to a substantial degree on the reference. The Claimant was then dismissed by reason of redundancy. The Employment Tribunal was satisfied that the Claimant suffered detriments by reason of his protected disclosures including the appointment of Mrs Baker to give the reference, the giving of the negative reference and her failure to correct misleading information about the sickness absence. The Employment Tribunal held that Mr Rashid did not rely on the reference on the grounds that the Claimant had made a protected disclosure. The Employment Tribunal in effect severed the relationship between Mrs Baker’s action in writing the reference and the motivation of Mr Rashid in not appointing the Claimant to the new post, which the Employment Tribunal held had not been caused in a sufficient sense by the protected disclosure.
The Employment Appeal Tribunal held that the fact Mr Rashid did not realise that he was being misled by the reference did not ‘sanitise’ the effect of the reference and did not absolve Bradford, as employer, from responsibility for a decision influenced by the infected reference.

Serota QC HHJ
[2014] UKEAT 0145 – 14 – 2710
Bailii
England and Wales

Employment, Discrimination

Updated: 27 December 2021; Ref: scu.541537

EAT Disability discrimination. Duty to make reasonable adjustments. Held that no duty to make reasonable adjustments arose when the claimant was certified as unfit for any work and had given no indication of when she might be able to return to work.

Hon Lady Stacey
[2014] UKEAT 0017 – 14 – 1411
Bailii
England and Wales

Employment, Discrimination

Updated: 24 December 2021; Ref: scu.540265

EAT Disability Discrimination: Disability
The Appellant was a Specialist Registrar in cardiothoracic surgery. He contended that he had a disability within the meaning of section 6 of the Equality Act 2010. He had an impairment in the form of a depressive and general anxiety disorder. He contended that the impairment had a substantial and long-term adverse effect upon his normal day-to-day activities. He contended that the tribunal misdirected itself in determining whether he had a disability as the tribunal did not consider the effect of the impairment on the work environment and, in particular, his ability to communicate with colleagues, access the work-place and concentrate. He submitted that, if the tribunal had addressed those issues, it would have found that the impairment had substantial adverse effects upon him or, alternatively, it had failed to find the relevant facts necessary to determine those issues. Further, the Appellant contended that the tribunal misdirected itself as to the meaning of ‘long-term’ in section 6 of the Equality Act 2010 as it failed to appreciate that adverse effects could be long term even if they fluctuated over time.
On a fair reading of the decision, as a whole, the tribunal did assess the effects of the impairment on the work environment including the Appellant’s ability to communicate with colleagues, access the work place and concentrate. It was entitled to conclude, on the evidence before it, that the impairment did not have a substantial adverse affect on the Appellant’s normal day-to-day activities. Further, the tribunal had not misdirected itself as to the meaning of ‘long-term’.

Lewis J
[2014] UKEAT 0184 – 14 – 0412
Bailii
Equality Act 2010 6
England and Wales

Employment, Discrimination

Updated: 24 December 2021; Ref: scu.539745

EAT Equal Pay Act : Article 141/European Law
JURISDICTIONAL POINTS – Claim in time and effective date of termination
The Employment Judge erred in directing himself in deciding whether there was a ‘stable employment relationship’ during a relevant period. He erroneously took into account features of continuity of employment within the meaning of the Employment Rights Act 1996: whether there was a full-time contract, an ‘umbrella’ contract or a ‘temporary cessation of work’ during the relevant period. This approach was contrary to the judgments of the CJEU and the House of Lords in Preston v Wolverhampton Healthcare NHS Trust [2000] IRLR 506 and [2001] IRLR 96 which made it clear ‘stable employment relationship’ has an autonomous meaning. The Employment Judge failed to take into account the consequential amendment made to the Equal Pay Act 1970 by Section 2ZA and subsequent decisions of the Court of Appeal, Slack and others v Cumbria County Council and others [2009] IRLR 463 and North Cumbria University NHS Hospitals Trust v Fox [2010] IRLR 804. A necessary feature of stable employment is that there a succession of contracts concluded at regular intervals. Time starts running when the periodicity of those contracts has been broken. Decision that there was no stable employment relationship between the parties in the relevant period set aside.

Slade J
[2014] UKEAT 0108 – 12 – 2711
Bailii
England and Wales

Employment, Discrimination

Updated: 24 December 2021; Ref: scu.539351

EAT Victimisation Discrimination : Whistleblowing – One arguable ground of appeal relating to detrimental treatment on grounds of protected disclosure (Employment Rights Act, section 47B). Whether the Employment Tribunal properly applied burden of proof under section 48(2). Issue decided as a matter of fact (see Kuzel v Roche (CA)). No grounds for interference on appeal. The remaining grounds raised factual challenges not within Employment Appeal Tribunal jurisdiction).

Peter Clark HHJ
[2014] UKEAT 0072 – 14 – 0211, [2014] UKEAT 0072 – 14 – 2011)
Bailii, Bailii
England and Wales

Employment, Discrimination

Updated: 24 December 2021; Ref: scu.539302

EAT National Security – An immigration officer, C employed by the Home Office was suspended, his security clearance withdrawn, and then dismissed, all without any reason being given to him. He claimed it was because of discrimination against him on the grounds of race/religion. Rule 54 (National Security) was held to apply, and C was excluded from participation in closed proceedings, though there was a Special Advocate appointed on his behalf. C’s application for orders to address the lack of substantive disclosure to him was rejected. He appealed, contending that since the Supreme Court decision in Tariq v Home Office the CJEU had decided in ZZ that at the very least a minimum gist of the case against C should have been disclosed openly. That submission was rejected: the authority of Tariq was unaffected by ZZ since the factual contexts within which each decision was made were very different, as the Court of Appeal decision made when ZZ resumed for hearing before it made clear. The EJ had (contrary to C’s submissions) considered the particular facts of the case before striking the balance he did between the public interest in national security and the private interest of C in obtaining the means to fight his case effectively. He was not (contrary to C’s submissions) required to apply a principle that it might be preferable to strike the claim out rather than provide for a necessarily inadequately fair hearing, nor in error in failing to provide for all the issues relating to the admissibility of evidence, closed or open, to be resolved prior to the substantive hearing.
The appeal was dismissed.

Langstaff P J
[2014] UKEAT 0009 – 14 – 2111, [2015] ICR 418
Bailii
Employment Tribunals Rules of Procedure 2004 54
England and Wales
Cited by:
Appeal from – Kiani v The Secretary of State for The Home Department CA 21-Jul-2015
Lord Dyson MR (with whom Richards LJ and Lewison LJ agreed) held that the requirements of article 6 ‘depend on context and all the circumstances of the case’. The court will strike an appropriate balance between the requirements of national security . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 24 December 2021; Ref: scu.539303

EAT Maternity Rights and Parental Leave – Sex discrimination
Unfair dismissal
Return to work
Maternity and Parental Leave Regulations 1999 (MAPL Regs) – regulation 10 – redundancy during maternity leave and entitlement to be offered suitable available vacancy.
Equality Act 2010 (EqA) – section 18 – direct discrimination because of pregnancy and maternity
Appeal against the Employment Tribunal’s finding that there had been a breach of regulation 10 MAPL Regs 1999, dismissing that appeal:
The employer sought to rely on the restructuring process – and the displacement and redeployment stages of that process – it had itself introduced. That did not, however, avoid the conclusion (open to the Employment Tribunal on the evidence) that the Claimant’s post was redundant and that she was entitled to be offered a suitable alternative vacancy. To allow that it was for the employer to determine when the redundancy arose could undermine the protection afforded by regulation 10; employers could state that there was only a redundancy after others had been ‘redeployed’ into what might otherwise have been suitable available vacancies. ‘Redundancy’ should be given the same meaning as under the Employment Rights Act 1996 (Secretary of State for Justice v Slee UKEAT/0349/06/JOJ). Doing so, it could not be said that the Employment Tribunal reached a perverse conclusion in finding that the Claimant’s position was redundant.
Further, although regulation 10 does not define ‘vacancy’ and does not expressly oblige an employer to offer every suitable vacancy or, where there is more than one available, any particular suitable vacancy, on the evidence in this case the Employment Tribunal was entitled to find that the position of Democratic Service Manager (‘DSM’) was an available vacancy that was (on the employer’s own assessment) ‘suitable’ for the Claimant. The DSM post was unoccupied (as a newly created post) at the time the Claimant’s position became redundant and, adopting a normal approach to the use of the word, it was open to the Employment Tribunal to conclude that it was an available ‘vacancy’. It may be that the employer could have met its obligation under regulation 10 if it had offered the Claimant a different suitable available vacancy (which would allow considerations of proportionality to come into play, see Eversheds Legal Services Ltd v De Belin [2011] IRLR 448, EAT), but it never did.
Ultimately this ground really amounted to an attempt to challenge findings of fact that were permissible on the evidence before the Employment Tribunal. The appeal on this basis was dismissed.
Appeal against finding of direct discrimination under section 18 EqA 2010, allowing that appeal:
On this point, the employer was correct as to the difference in how the protections were afforded under section 18 EqA, on the one hand, and under regulation 10 MAPL Regs, on the other. The former provides that, if possessing the protected characteristic, a woman has to demonstrate unfavourable treatment because of pregnancy or maternity leave. Regulation 10 provides that during the relevant period a woman is entitled to special protection and (by virtue of regulation 20) will be treated as unfairly dismissed unfairly dismissed if this is denied.
The Claimant’s case was put on the basis that a breach of regulation 10 must mean that there is inherent discrimination (Johal v the Commission for Equality and Human Rights UKEAT 0541/09) for section 18 purposes. That went beyond the language of the statute and was not the assumption made in other authorities on regulation 10 (or earlier provisions to the same effect). Here, the unfavourable treatment of the Claimant (her own position being made redundant and the failure to offer her a suitable alternative vacancy) certainly coincided with her being on maternity leave but that did not inevitably mean that it was because of it. The Employment Tribunal was required to ask what was the reason why the Claimant had been treated the way she was. The failure to do so was an error of law and this ground of appeal would therefore be allowed.
In many cases, the section 18 question might well be answered by a finding under regulation 10. The particular facts of this case, however, allowed for more than one conclusion. As the Employment Tribunal had simply assumed its finding on regulation 10 answered the section 18 claim, it had failed to set out relevant findings on the ‘reason why’ question. That matter should be remitted to the same Employment Tribunal for further consideration in the light of this Judgment.

Eady QC HHJ
[2014] UKEAT 0168 – 14 – 1310
Bailii
Maternity and Parental Leave Regulations 1999 10, Equality Act 2010 18
England and Wales

Discrimination, Employment

Updated: 24 December 2021; Ref: scu.539296

EAT Race Discrimination – Direct
Inferring discrimination
Burden of proof
The Tribunal failed to address adequately or at all, two of three allegations of unlawful discrimination against Mr White. The allegations were not abandoned; nor were they addressed by a finding as to the reason why Mr White intervened in the grievance process. Absent a finding as to a non-discriminatory explanation for differential, detrimental, less favourable treatment, it was incumbent on the Employment Tribunal to make findings on each of those questions and consider the two stage burden of proof.

Simler J
[2014] UKEAT 0172 – 14 – 2210
Bailii
England and Wales

Employment, Discrimination

Updated: 23 December 2021; Ref: scu.539294

EAT Age Discrimination – The Employment Tribunal erred in law in its approach to the question of ‘particular disadvantage’ for the purposes of section 19(2)(b) of the Equality Act 2010 and did not give Meek compliant reasons for its conclusion on the question whether the PCP which the Respondent applied was a proportionate means of achieving a legitimate aim for the purposes of section 19(2)(d). Chief Constable of West Yorkshire Police v Homer [2012] ICR 704 applied.

David Richardson HHJ
[2014] UKEAT 0524 – 13 – 1407
Bailii
Equality Act 2010 19(2)(b)
England and Wales

Discrimination, Employment

Updated: 23 December 2021; Ref: scu.539291

EAT Practice and Procedure : Striking-Out/Dismissal – VICTIMISATION DISCRIMINATION – Protected disclosure
The Claimant, a worker on the permanent staff of a care home, asserted in her ET1 that her dismissal was because she had made protected disclosures, and not the purported reason (which was gross misconduct, for dragging a resident across the floor). An Employment Judge struck her claim out as having no reasonable prospect of success, despite holding that the Claimant might well establish that immediately prior her dismissal she had made protected disclosures. Held that she was not entitled to do so, since the reasons for dismissal were known only to the employer, such that they could be established by an Employment Tribunal only after hearing evidence, and could not be assumed. There was here a dispute of fact which needed to be resolved by a hearing, and not by pre-emptive strike-out.
The case raised the question whether a claimant who but for making a protected disclosure would not have been dismissed for misconduct, but merely warned, could assert a claim under section 103 Employment Rights Act, where it would have to be shown that the ‘principal’ reason for dismissal was protected disclosure, or whether she would be restricted to making a section 47B (detriment) claim if at all. This was best resolved by reference to the particular facts of the case.

Langstaff P J
[2014] UKEAT 0015 – 14 – 2506
Bailii
England and Wales
Cited by:
Cited – B v John Reid and Sons (Strucsteel) Ltd EAT 21-May-2015
EAT Unfair Dismissal: Automatically Unfair Reasons – Automatic Unfair Dismissal – Section 100(1)(e) Employment Rights Act 1996 – Applying the two-stage approach laid down by the EAT in Oudahar v Esporta Group Ltd . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 23 December 2021; Ref: scu.538271

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – The Employment Tribunal made a single finding of unlawful race discrimination against the Respondent. It was, however, not open to the Employment Tribunal to make that finding having regard to the ET1 and the agreed issues. Appeal allowed.

David Richardson HHJ
[2014] UKEAT 0137 – 14 – 0509
Bailii
England and Wales

Employment, Discrimination

Updated: 22 December 2021; Ref: scu.537753

EAT Practice and Procedure : Striking-Out/Dismissal – (1) Strike-out
The EJ had been entitled to have regard to the case of the person (who shared the relevant protected characteristic with the Claimant) appointed to the position in issue. Whilst not the Claimant’s actual comparator, this was an appropriate evidential comparison and the EJ was entitled to have regard to this case when testing the possible construction of a hypothetical comparator.
This was all the more so given the difficulty in understanding the Claimant’s case. Allowing that ‘race’ can be defined broadly and can take into account cultural/ethnic traits, there was no basis (other than racial stereotype) for the Claimant’s assertion that he suffered detriment as a result of Japanese cultural deference.
The EJ had been entitled to conclude that claims 2 and 3 had no reasonable prospect of success and should be struck out.
(2) Deposit Orders
Save in respect of claim 6, the EJ had applied the correct test and was entitled to reach the conclusion that the allegations had little reasonable prospect of success and should therefore be made subject to deposit orders.
In relation to claim 6, the EJ had not taken account of the way in which the Claimant put his case in terms of the copying him into an email in Japanese, which might be construed as insulting about him. His case was that he had been copied in on the basis of an assumption that, as an English member of staff, he could not understand Japanese and so this was mocking him. The failure to take that argument (which was rather more readily comprehensible as a complaint of race discrimination than the others) into account could amount to a failure to have regard to a relevant factor and on that basis the deposit order of this claim could not safely stand.
(3) The Quantum of the Deposit Orders
The 2013 Rules permitted the making of separate deposit orders in respect of individual arguments or allegations and the EJ had been entitled to make a number of such orders. If making a number of deposit orders, how ever, an EJ (or ET) should have regard to the question of proportionality in terms of the total award made. Here the EJ did so. He had reached decisions in respect of the amount of each deposit order that were entirely open to him and had had proper regard to the total sum awarded. There was no error of law.

Eady QC HHJ
[2014] UKEAT 0113 – 14 – 1709
Bailii
England and Wales

Employment, Discrimination

Updated: 22 December 2021; Ref: scu.537757

Lord Justice Pill,
Lord Justice Sedley,
And,
Lord Justice Lawrence Collins
[2008] EWCA Civ 34
Bailii
England and Wales

Employment, Discrimination

Updated: 22 December 2021; Ref: scu.264099

EAT Disability Discrimination – UNFAIR DISMISSAL – Reasonableness of dismissal
The claimant had been dismissed for redundancy. She was one of three disabled employees in the pool of six candidates from which one had to be selected for redundancy. The criteria used to determine who was selected, was their sickness absence record. The employers decided that account would be taken of disability related absences but only to the extent of 50% of them. The claimant had the highest level of days absent – and spells of absence – for non-disability related absence.
The Employment Tribunal rejected her claims of disability discrimination but upheld a claim for unfair dismissal on the basis that the employers had acted incorrectly and unfairly in using a particular formula to give effect to the 50% discount. It held that the formula proposed by the claimant was the correct one. It later awarded andpound;10,000+ compensation after applying an 80% Polkey discount.
The claimant appealed from the dismissal of her Disability Discrimination claims and against the Polkey reduction.
APPEALS DISMISSED
On all three claims (direct discrimination, disability-related discrimination and indirect discrimination) the Tribunal had reached decisions open to them on the facts and had not erred in law. On the Polkey point, the Tribunal had given adequate reasons and had not reached a perverse conclusion.
The employer cross-appealed the unfair dismissal finding on the basis that the Tribunal had wrongly substituted its view, as to the correct formula for calculation, for that of the employer.
CROSS-APPEAL ALLOWED
The Tribunal had erred precisely as contended. The formula adopted by the employer was rational and had been adopted for explicitly stated reasons and after consideration of the alternative formula. It was within the range that might have been adopted by a reasonable employer.

Rec Luba QC
[2014] UKEAT 0314 – 13 – 2008
Bailii
England and Wales

Employment, Discrimination

Updated: 21 December 2021; Ref: scu.537097

EAT Victimisation Discrimination : Protected Disclosure – DISABILITY DISCRIMINATION
PROTECTED DISCLOSURE – section 43B Employment Rights Act 1996
Inadequate findings of fact by the ET as to what had actually been said by the Claimant and, if not a protected disclosure, why. Ultimately, however, the ET’s clear findings of fact as to the reason for the Claimant’s dismissal (redundancy arising from a genuine restructuring) meant that the only permissible conclusion was that there was no causative link between any protected disclosure and the decision to dismiss.
DISABILITY DISCRIMINATION
Disability – section 6(1) and Schedule 1 Equality Act 2010
ET failed to consider the deduced effect of the Claimant’s impairment and had apparently failed to have proper regard to the medical evidence. The conclusion that the Claimant was not a disabled person for the purposes of the 2010 Act was unsafe. Nevertheless, the question remained as to whether any of his claims of discrimination in this respect were made out.
Discrimination arising in consequence of disability – section 15 EqA 2010
The ET failed to address this claim, albeit that it had apparently recognised that it remained a ‘live’ complaint at the Hearing. That said, the substantive answer to the claim of discrimination arising in consequence of disability was apparent from reading the Tribunal’s Judgment in its entirety: it was not the Claimant’s disability that led to his failure to engage but his view that the head of finance role was his job, that the redundancy was a sham and his decision not to engage after the failure to agree terms of payment under a compromise agreement. The detriments relied on, therefore, did not arise as a consequence of the Claimant’s disability.
Reasonable adjustments – section EqA 2010
The ET failed to adopt the structured approach endorsed in (e.g.) Smiths Detection – Watford Ltd v Berriman UKEAT/0712/04 and Secretary of State for Work and Pensions (Jobcentre Plus) and Ors v Wilson UKEAT/0289/09. Of the two reasonable adjustments identified by the Claimant, however, one was simply not relevant (relating to the location of grievance meetings; not pursued on appeal) and the ET expressly addressed the second (the need to delay the redundancy process pending the Claimant’s recovery), finding that ‘We do not accept that the process should have been delayed indefinitely until the Claimant had recovered.’
The Claimant may not have expressed the required adjustment as an indefinite delay but that was the reality of his position and the Tribunal was entitled to reach the conclusion it did.
Unfair dismissal – s 98 ERA
Given the conclusions reached on the Protected Disclosures and Disability Discrimination claims, the grounds of appeal in respect of the unfair dismissal case largely fell away. The additional (stand-alone) point as to what was said to be a perverse finding as to the Claimant’s qualification did not fairly reflect the ET’s findings.
Appeal dismissed.

Eady QC HHJ
[2014] UKEAT 0046 – 14 – 1807
Bailii
Equality Act 2010, Employment Rights Act 1996 43B
England and Wales

Employment, Discrimination

Updated: 21 December 2021; Ref: scu.536687

EAT Unfair Dismissal – SEXUAL ORIENTATION – DISCRIMINATION / TRANSEXUALISM – VICTIMISATION DISCRIMINATION – Whistleblowing
The claimant made claims of unfair dismissal under Employment Rights Act (ERA) section 94(1), sexual orientation discrimination under the provisions of the Equality Act 2010 and automatic unfair dismissal in respect of protected disclosures under section 103A of ERA. The respondents argued that the Employment Tribunal did not have territorial jurisdiction, as the claimant’s employment did not have sufficient connection to the UK. They argued that the claimant was a US citizen, employed by a US company and paid in US dollars. While he travelled extensively for his work he undertook an international assignment which involved his working in London for about half of his time and living in accommodation rented for him by the respondent.
The Employment Tribunal found that it had no jurisdiction. The appellant argued that it had erred in law by so finding.
Held: there was no error of law by the Employment Tribunal. In light of the factual findings made by the Employment Tribunal, which it was entitled to make, it applied the law to those findings correctly. Appeal dismissed.

Lady Stacey
[2014] UKEAT 0464 – 13 – 0409
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 21 December 2021; Ref: scu.536441

[2010] EWCA Civ 872
Bailii
England and Wales

Employment, Discrimination

Updated: 20 December 2021; Ref: scu.421110

[1999] UKEAT 1 – 99 – 2304
Bailii
England and Wales
Cited by:
See Also – Omilaju v London Borough of Waltham Forest and others EAT 1-Dec-1999
EAT Procedural Issues – Employment Tribunal . .
See Also – Omilaju v London Borough of Waltham Forest and others EAT 30-Apr-2003
. .
See Also – Omilaju v London Borough of Waltham Forest EAT 31-Mar-2004
EAT Unfair Dismissal
Constructive Dismissal
A novel point on whether the ‘last straw’ in a constructive dismissal case has to involve at least some blameworthy or unreasonable conduct by the employer – . .
See Also – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 December 2021; Ref: scu.205104

EAT Race Discrimination – Prospective employees

His Hon Judge Clark
EAT/1170/02, [2003] EAT 1170 – 02 – 0906, [2003] UKEAT 1170 – 02 – 0906
Bailii, Bailii, EAT
Race Relations Act 1976 78(1)
England and Wales
Cited by:
Appeal from – Mingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 20 December 2021; Ref: scu.184355