EAT Sex Discrimination : Direct – Pregnancy and discrimination
In respect of pregnancy and maternity discrimination the Employment Tribunal did not apply the correct legal test. Onu v Akwiku [2014] ICR 571 and Johal v Commissioner for Equality and Human Rights [2010] UKEAT/0541/09 (HHJ Peter Clark) applied. Questions of pregnancy and maternity discrimination and associated time issues remitted to the same Employment Tribunal. In other respects, including issues relating to sex discrimination and compensation, Employment Tribunal’s Judgment and Reasons upheld.
Postscript added to draw to the attention of the parties and the Employment Tribunal on remission the recently reported decision in Commissioner of Police of the Metropolis v Keohane [2014] Eq LR 386, especially at paragraphs 22-40.

David Richardson HHJ
[2014] UKEAT 0020 – 14 – 1007
Bailii
England and Wales
Citing:
Cited – The Commissioner of Police of The Metropolis v Keohane EAT 4-Mar-2014
EAT PREGNANCY AND DISCRIMINATION
An Employment Tribunal found that a Police dog handler, one of whose two narcotics Police dogs was removed from her when she told the force she was pregnant, had suffered a . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 December 2021; Ref: scu.536439

EAT Practice and Procedure : Striking-Out/Dismissal – Costs – No error of law in the Employment Tribunal’s decision to strike out hopeless race discrimination claim against Claimant’s union. Costs discretion triggered. However, no proper reasons given for not taking the Claimant’s means into account. Appeal on costs allowed in part; costs reduced to andpound;500. Both parties consented to the Employment Appeal Tribunal deciding the costs question; see Jafri and Burrell (CA).

Peter Clark HHJ
[2014] UKEAT 0625 – 13 – 2606
Bailii
England and Wales

Employment, Discrimination

Updated: 20 December 2021; Ref: scu.536379

The appellant complained of the rejection of her claim of race discrimination by a failure in the respondent to act upon her grievance. The company replied that it had not received the badly addressed email.
Held: The appeal failed.

Arden, Christopher Clarke LJJ, Barling J
[2014] EWCA Civ 1213
Bailii
England and Wales
Citing:
Cited – Davies v Sandwell Metropolitan Borough Council CA 26-Feb-2013
Lewison LJ said that Employment Tribunals should exercise more active control over cases before them, saying: ‘The function of the Employment Tribunal is a limited one. It is to decide whether the employer acted reasonably in dismissing the . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 20 December 2021; Ref: scu.536349

EAT Disability Discrimination : Reasonable Adjustments – The main point in this appeal was that the Employment Tribunal erred in law in finding at a liability hearing that there was a failure by the employer to consider making reasonable adjustments and then went on at a remedies hearing to reject all the reasonable adjustments put forward by the Claimant. Royal Bank of Scotland v Ashton [2011] ICR 632 applied. Appeal allowed.

Birtles HHJ
[2014] UKEAT 0294 – 13 – 2208, [2014] UKEAT 0487 – 13 – 2208
Bailii, Bailii
England and Wales
Citing:
See Also – North Lancashire Teaching Primary Care NHS Trust v Howorth EAT 24-Jan-2014
EAT Disability Discrimination : Reasonable Adjustments – The main point in this appeal was that the Employment Tribunal erred in law in finding at a liability hearing that there was a failure by the employer to . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 December 2021; Ref: scu.536289

EAT Disability Discrimination : Reasonable Adjustments – The main point in this appeal was that the Employment Tribunal erred in law in finding at a liability hearing that there was a failure by the employer to consider making reasonable adjustments and then went on at a remedies hearing to reject all the reasonable adjustments put forward by the Claimant. Royal Bank of Scotland v Ashton [2011] ICR 632 applied. Appeal allowed.

Birtles J
[2014] UKEAT 0294 – 13 – 2401
Bailii
England and Wales
Cited by:
See Also – Howorth v North Lancashire Teaching Primary Care Trust EAT 22-Aug-2014
EAT Disability Discrimination : Reasonable Adjustments – The main point in this appeal was that the Employment Tribunal erred in law in finding at a liability hearing that there was a failure by the employer to . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 December 2021; Ref: scu.536278

,
His Honour Judge Auerbach
[2021] UKEAT 2020-000110
Bailii
England and Wales

Employment, Discrimination

Updated: 20 December 2021; Ref: scu.670145

EAT Race Discrimination
Novel point decided that the Employment Tribunal erred in concluding that, in a case where there was an issue as to whether the act complained of was by the Respondent (i.e. by someone for whom the Respondent was responsible) the Applicant failed to show that such was the case (so the burden of proof never passed). The Employment Tribunal should have treated such an issue as part of the prima facie case that the Applicant must present so as to transfer the burden of proof to the Respondent to prove that there was no unfavourable treatment by the Respondent significantly influenced by race.

The Honourable Mr Justice Burton
UKEAT/0730/04, [2004] UKEAT 0730 – 04 – 1412
Bailii, EATn
Cited by:
On appeal from – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
See Also – Brunel University and Another v Vaseghi and Webster EAT 16-Oct-2006
EAT Practice and Procedure – Disclosure
Allegations that Claimants had made unwarranted demands in original tribunal proceedings said to be victimisation.
Grievance procedure heard evidence relating . .
See Also – Brunel University and Another v Webster and Vaseghi CA 22-May-2007
The parties had been involved in long standing disputes about the procedures in the respondents complaints of race discrimination. The claims had been dismissed, but the Vice-Chancellor then wrote publicly of unfounded unwarranted and excessive . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 18 December 2021; Ref: scu.221055

The claimant had lodged an appeal against a rejection of her claim of sex discrimination, and against the amount of damages awarded on the success of her claim of unfair dismissal. After rejection of her request for a review, her counsel had lodged a letter withdrawing her appeal. She then received a reply from the European Commission suggesting that her claim of sex discrimination, based upon her dismissal for becoming pregnant by a Roman Catholic Priest, may indeed have been discriminatory.
Held: The view taken by the tribunal was not obviously correct, and the interests of justice required the arguments to be explored. The review was re-instated.

Mummery J P
[1995] UKEAT 561 – 95 – 1210
Bailii
England and Wales
Citing:
Cited – Flint v Eastern Electricity Board EAT 1975
The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He . .
Cited – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
Cited – Habermann-Beltermann v Arbeiterwohlfahrt ECJ 5-May-1994
ECJ Article 2(1) and (3), read in conjunction with Articles 3(1) and 5(1) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to . .

Cited by:
See Also – O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School EAT 7-Jun-1996
The dismissal by a Roman Catholic school of a teacher who was pregnant by a priest, was on the grounds of pregnancy, and for an inadmissible reason. The pregnancy was an effective cause of the adverse treatment of the Appellant by her employer. . .
See Also – O’Neill v Governors of St Thomas More RC School and Another EAT 24-May-1996
The claimant had been dismissed as a teacher by the respondent Roman Catholic school after she became pregnant by a priest. She had been found to have been unfairly dismissed, but the tribunal had rejected her claim of discrimination for pregnancy. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 18 December 2021; Ref: scu.209398

EAT Jurisdictional Points : Extension of Time: Just and Equitable
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
VICTIMISATION DISCRIMINATION
SEX DISCRIMINATION – Burden of proof
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Claimant/Appellant worked as a teacher in the girls’ section of the Respondent’s Madrassah. She took on extra duties with the encouragement of the Respondent. Later she was given a letter which in effect removed these extra duties. She brought an Employment Tribunal claim for sex discrimination in response. Later she was suspended. She brought two further claims in the ET alleging victimization. The ET rejected all the claims on the merits and the sex discrimination claim on limitation.
The ET made the following errors of law:
(1) they rejected the sex discrimination claim on the basis there was objectively speaking no ‘demotion’ but failed to consider whether a reasonable employee might have taken the view that her treatment was to her detriment;
(2) in considering limitation in connection with the sex discrimination claim, they wrongly failed to take into account relative prejudice, concentrating only on the reasons for the lateness of the claim, and thus failed to consider what was ‘just and equitable’;
(3) on the victimization claims, they appear wrongly to have considered the primary cause of the decision to suspend the Claimant rather than whether her sex discrimination claim was a ‘significant factor’ in the decision and in any event they omitted to deal with the notes of a meeting of the Respondent’s board from which a strong inference could have been drawn that the claim did cause or influence that decision.
The claims were remitted to a differently constituted ET.

Shanks HHJ
[2014] UKEAT 0312 – 13 – 1405
Bailii
England and Wales

Employment, Discrimination

Updated: 17 December 2021; Ref: scu.535106

EAT Disability Discrimination : Claimant suffering from Poland syndrome; having been born with his entire major left pectoral chest muscle missing, along with the sternal head on the left side of his chest and two ribs, giving rise to a marked asymmetry in the appearance of his chest.
Employment Tribunal concluded that this amounted to a disability for the purposes of the Equality Act 2010 either because it was a severe disfigurement or because it was a physical impairment which had a substantial and long-term effect on the Claimant’s ability to carry out normal day-to-day activities.
Those conclusions disclosed no error of law:
Severe disfigurement
In this case it was obvious that the Claimant suffered from a disfigurement. The issue was whether or not it was severe. When determining that issue, an Employment Tribunal was not required to carry out a visual inspection itself (either of the Claimant in person or of photographic evidence). Whilst the evidence will always be case-specific, a Tribunal could have regard (for example) to medical evidence or, in appropriate cases, to the impact of the disfigurement on the Claimant; not because it was determining the question of impairment (and accepting that it was not a subjective test) but because, in some cases, it might be helpful in assessing the severity of the disfigurement.
In this case, taking all the evidence into account, the Tribunal had sufficient evidence and gave sufficient reasons for its finding that this was a severe disfigurement case.
Substantial and long-term adverse effect on ability to carry out normal day-to-day activities
Physical impairment case. Whilst the Tribunal’s reasons failed to include the word ‘ability’, the substance of the findings clearly encompassed that term; in particular, such findings as related to the ability to carry out activities involving a pulling or pushing motion, were firmly rooted in the question of the Claimant’s abilities, not the activities themselves. Further, the Tribunal was entitled to conclude that the effect was more than merely minor or trivial; that being so, it was substantial. Aderemi v London and South Eastern Railway Ltd [2013] ICR 591 EAT, applied.
Appeal dismissed.

Eady QC
[2014] UKEAT 0467 – 13 – 2904
Bailii
England and Wales

Employment, Discrimination

Updated: 17 December 2021; Ref: scu.535103

EAT Age Discrimination – The Respondent employer did not give notice in accordance with paragraph 2(1) of Schedule 6 to the Age Regulations 2006. RandR Plant (Peterborough) Ltd v Bailey [2012] IRLR 503 applied: it is authority for the proposition that an employer must, in order to comply with paragraph 2(1), inform an employee that he has a right to make a request under paragraph 5 of the Schedule.

Richardson HHJ
[2014] UKEAT 0141 – 13 – 0905
Bailii
England and Wales

Employment, Discrimination

Updated: 17 December 2021; Ref: scu.535105

EAT Disability Discrimination : Disability – Reasonable adjustments
The decision of the majority of the Employment Tribunal that the requirement by the Respondent that the Claimant should attend a meeting with his line manager to discuss a return to work constituted a repudiatory breach of contract was unsustainable because it could not be said that, objectively, the Respondent had clearly shown an intention to abandon and altogether refuse to perform its contract with the Claimant.
The Claimant was disabled within the meaning of the Equality Act, suffering from an anxiety and depressive disorder. The Employment Tribunal held the Respondent was liable for discrimination on the grounds of the Claimant’s disability by failing to make a reasonable adjustment not to require the Claimant to attend the meeting with his line manager. The decision was unsatisfactory because the Employment Tribunal failed to identify the nature and extent of the substantial disadvantage suffered by the Claimant. In those circumstances it was not possible to determine whether or not the proposed adjustment could be regarded as one that was reasonable. The Employment Tribunal had given no explanation as to why this was a reasonable adjustment.

Serota QC HHJ
[2014] UKEAT 0511 – 12 – 2706
Bailii
England and Wales

Employment, Discrimination

Updated: 15 December 2021; Ref: scu.533184

Balcombe LJ said: ‘In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.’ The task of the Tribunal hearing such a complaint is to strike an objective balance between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it.

Balcombe, Nourse and Parker LJJ
[1989] ICR 179, [1989] IRLR 69
England and Wales
Cited by:
Appeal from – Hampson v Department of Education and Science HL 7-Jun-1990
A teacher of Hong Kong national origin was refused qualified teacher status in this country because the Secretary of State had not exercised a power conferred on him by the relevant regulations to treat her Hong Kong qualifications as equivalent to . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Watkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
Cited – Prestige Nursing Ltd v Carter EAT 11-May-2012
EAT WORKING TIME REGULATIONS
UNLAWFUL DEDUCTION FROM WAGES
Daily rest and weekly rest periods – not alleged by Claimant that there had been any attempt to exercise the rights which the Respondent had . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 10 December 2021; Ref: scu.224873

EAT Race Discrimination : Indirect – National Minimum Wage: An employer appealed a Notice requiring it to make payments of arrears of wages to 26 students, on the basis they had not received the national minimum wage (‘NMW’), and a further penalty. It contended that the students fell within an exemption from the NMW, provided for by regulation 12(8) of the NMW Regulations:
‘A worker who is undertaking a higher education course and before the course ends is required, as part of that course to attend a period of work experience not exceeding one year does not qualify for the National Minimum Wage in respect of work done for his employer as part of that course’.
A higher education course was so defined as to relate only to courses undertaken within the UK, and thus disproportionately excluded EU and foreign students who were not taking such courses from having as favourable an opportunity of gaining work experience. The ET decided that this was (indirectly) discriminatory, but justified as a proportionate means of preventing abuse of the NMW system, which was a legitimate aim. It was held entitled on appeal to reach this conclusion, and several other grounds of appeal were also rejected.

Langstaff J P
[2014] UKEAT 0273 – 13 – 2506
Bailii
England and Wales

Employment, Discrimination

Updated: 05 December 2021; Ref: scu.527199

EAT Victimisation Discrimination : Detriment – JURISDICTIONAL POINTS – Claim in time and effective date of termination
The Claimant claimed that she had been subjected to detriment for making a protected disclosure by putting forward a grievance about her treatment by another employee. The Tribunal considered 6 alleged detriments and found in the Claimant’s favour on detriments 2, 5 and 6 but against her on the others. The last detriment was the only one which occurred within the primary time limit. The Tribunal held that it formed the last of a series of acts and that the claim was, therefore, in time.
On appeal, held:-
1 The 6th detriment, as found by the Tribunal, was based on an act or acts which had not been pleaded or relied upon by the Claimant; the principle in Chapman v Simon applied; the finding in the Claimant’s favour could not stand.
2 The Respondents’ arguments that factual decisions of the Tribunal were perverse failed.
3 It had been open to the Tribunal to conclude that, by seeking to persuade the Complainant to leave on agreed terms, the Respondents had subjected her to detriment.
The Tribunal’s conclusion that the protected disclosure relied upon had caused or influenced the Respondents to act as they did was reached without considering the principle in NHS Manchester v Fecitt that where there was a dysfunctional situation and the employer claimed to have been acting to remedy it discrimination could only be inferred if the employer’s account was found to be false – as had not been found in this case.
5 The conclusion, on the basis of detriment 6 that there was a series of acts, so that all 3 detriments were not out of time was not perverse; but without detriment 6, which could no longer be relied upon (see para. 1 above), the claim was out of time. No case for an extension had been put forward or could, on the evidence, succeed.
6 Appeal allowed.

Jeffrey Burke QC
[2014] UKEAT 0154 – 13 – 2406
Bailii
England and Wales

Employment, Discrimination

Updated: 05 December 2021; Ref: scu.527202

The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of Government pay policy. The House was asked whether the claimant could regard herself for the purposes of the Act as rated as equivalent with her comparator when the scheme had not been implemented.
Held: She could. once the job evaluation study had been agreed so that it was possible to use it as a basis for comparing jobs, then it could be relied upon even although it had not in fact been implemented. A job evaluation study may not be enforced until it has been completed: ‘It is not the stage of implementing the study by using it as the basis of the payment of remuneration which makes the study complete: it is the stage at which it is accepted as a study. It is perfectly possible to accept the validity of a study at a stage substantially before it is implemented.’
Lord Russell stated: ‘In summary, therefore, I am of the opinion that the words in dispute cannot have the result extended for by the employers. We are offered a number of dictionary substitutes for ‘determine’ none of which appeal to me. The best that I can do is to take the phrase as an indication that the very outcome of the equivalent job rating is to show the term to be less favourable. The next best I can do is to echo the words of Lord Bramwell in Bank of England v Vagliano Bros [1981] AC 107 at 139: ‘This beats me’, and jettison the words in dispute as making no contribution to the manifest intention of Parliament.’

Lord Russell of Killowen
[1980] 3 All ER 132, [1980] 1 WLR 1011, [1980] ICR 573, [1980] IRLR 373
England and Wales
Citing:
Appeal from – O’Brien v Sim-Chem Ltd CA 1980
. .
Cited – Bank of England v Vagliano Brothers HL 5-Mar-1891
The court considered the interpretation of the 1882 Act, which was said to be a codifying Act.
Held: An Act is to be ascertained in the first instance from the natural meaning of its language and is not to be qualified by considerations . .

Cited by:
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.200629

EAT Disability Discrimination : Justification – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
C was a consultant psychiatrist. A report by the National Clinical Assessment Service identified clinical and communication deficiencies and recommended that the C and his employing Trust agree a remediation programme to enable him to retrain for his consultant position. Such a programme was never put into effect and the employer eventually offered him a sub-consultant’s post or said that he would be given contractual notice. Meanwhile he was diagnosed as having Asperger’s Syndrome, which was agreed to be a disability. The disability was linked to the communication deficiencies but not the clinical deficiencies. In the circumstances, refusing to allow C to return to work as a consultant was not disability discrimination under section 15 Equality Act 2010 because it was a proportionate means of achieving a legitimate aim, i.e. protecting patients; nor was it a breach of the duty to make reasonable adjustments, since any reasonable adjustments relating to the Asperger’s Syndrome would not deal with the clinical deficiencies and would not therefore allow the Trust to employ him as a consultant.
In finding the Trust liable for arrears of pay under section 13 ERA 1996 the Employment Tribunal had proceeded unfairly because the C had not pursued such a claim and, although it was open to the ET to consider it, they had not given the Trust sufficient notice that they intended to consider it on the merits.

Shanks J
[2014] UKEAT 0200 – 13 – 1206
Bailii
Equality Act 2010 15
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526529

EAT Race Discrimination – Application of the burden of proof. Employment Tribunal had approached its task correctly and no error of law was disclosed. Appeal dismissed.

Eady QC J
[2013] UKEAT 0437 – 11 – 0412
Bailii
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526537

EAT Race Discrimination – There were three linked appeals. The Claimant alleged she had been dismissed because of her race. The Employment Tribunal dismissed this claim, and was held entitled to do so.
The Respondent appealed findings that a named employee had been party to discrimination against C. She had not been accused of this before the hearing, and had not had the opportunity to appear before the Tribunal to rebut the finding.
Held: the finding was not clearly supported by evidence or allegation and should not have been made.
Finally, the Respondent appealed against a decision by the ET at a remedy hearing to reconsider whether it should accept jurisdiction – it had held at the liability hearing that there was a continuing act, but it changed its mind at the remedy hearing. It decided to hear the Claimant as to whether it should extend time on the basis that it was just and equitable to do so. The Respondent argued it could not do so, for to do so would be to admit evidence which did not satisfy the requirement of ‘fresh evidence’ under rule 34(3)(d) so should not be admitted under rule 34(3)(c) (‘interest of justice’) if the ET was exercising a power of review – but it did not identify what, if any, power it WAS exercising.
Held: that whether it was finishing an unfinished issue arising in the proceedings as a whole whilst they were still live, or applying rule 34, the ET was entitled to do as it did and the exercise of its discretion was permissible. Appeal rejected.

Langstaff J P
[2014] UKEAT 0450 – 13 – 1203
Bailii
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526522

EAT Application of the burden of proof: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337; Igen v Wong [2005] ICR 935; Laing v Manchester City Council [2006] ICR 1519; Madarassy v Nomura International plc [2007] ICR 867 followed.
Multiple allegations of discrimination requiring the Tribunal to determine each complaint whilst still taking a holistic – not a fragmented – approach, so as to enable it to see the bigger picture: Qureshi v Victoria University of Manchester [2001] ICR 863; Fearon v Chief Constable of Derbyshire [2004] UKEAT/0445/02; Rihal v London Borough of Ealing [2004] IRLR 642; and X v Y [2013] UKEAT/0322/12 applied.
In this case the Tribunal had correctly applied the burden of proof and demonstrated that it had considered the detail of the individual complaints; those complaints as part of more general themes and also the bigger picture more generally: it had kept sight of both the wood and the trees and no error of law was disclosed.
Appeal dismissed.

Eady QC J
[2014] UKEAT 0155 – 13 – 0506
Bailii
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526261

EAT Disability Discrimination : Reasonable Adjustments – Disabled employee absent from work and made subject to the application of employer’s Attendance Policy resulting in written warning.
She seeks ‘reasonable adjustments’ to take future account of absences related to her disability and the withdrawal of the warning. Her employer declines.
Employment Tribunal find, by a majority, no breach of the duty to make reasonable adjustments because (1) there was no ‘substantial disadvantage’ established sufficient to trigger the duty and (2) the adjustments sought were not ‘reasonable adjustments’.
Appeal dismissed.
The Tribunal had correctly applied the relevant authorities on the question of whether or not a ‘substantial disadvantage’ had been established and had made no error in deciding that, on facts, the adjustments sought were not ‘reasonable’.

Luba QC Rec
[2014] UKEAT 0372 – 13 – 1505
Bailii
England and Wales
Cited by:
Cited – General Dynamics Information Technology Ltd v Carranza EAT 10-Oct-2014
EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal, by a majority, found that the Respondent was in breach of a duty to make . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526089

EAT Disability Discrimination : Disability Related Discrimination – Section 13(1) of the Equality Act 2010 requires actual or constructive knowledge to permit a claimant to succeed in a claim for direct disability discrimination: Gallop v Newport City Council [2013] EWCA Civ 1583 followed. The Appellant was not permitted to resile from a concession to that effect before the Employment Tribunal. Appeal dismissed.

Birtles HHJ
[2013] UKEAT 0567 – 12 – 1505
Bailii
Equality Act 2010 13(1)
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526092

EAT Age Discrimination – The Claimant had worked for the Respondent for many years as a specialist in medical insurance. From 2006 she had a consultancy agreement with the Respondent. In 2010 it was decided to terminate that agreement. The Claimant contended that that decision was unlawful because it was taken on the ground of age. The Respondent denied that. The Employment Tribunal found that the Claimant had done enough on the evidence to shift the burden of proof to the Respondent to show that it had not discriminated against her. The Tribunal focussed entirely on the mental processes of the person who took the decision to terminate the agreement and no one else. The Claimant submitted on appeal that that was a misdirection of law, in particular having regard to the fact that the burden of proof was on the Respondent.
Held, allowing the appeal:
It was common ground that the decision to terminate the agreement had been shaped and informed by the views of other persons, in particular in a presentation given to the eventual decision-maker. In those circumstances, in particular having regard to the fact that the claim was brought against the Respondent organisation and not the individual decision-maker, and having regard to the fact that the burden of proof had shifted to the Respondent, the Employment Tribunal misdirected itself in law. It should also have considered the mental processes of those other persons who had influenced the decision to terminate in a significant way. The case would be remitted to a differently constituted tribunal to reconsider in accordance with the judgment of the appeal tribunal.

Singh J
[2014] UKEAT 0484 – 13 – 2105
Bailii
England and Wales

Employment, Discrimination

Updated: 04 December 2021; Ref: scu.526094

EAT Disability Discrimination : A senior nurse contracted Parkinson’s, and could no longer do clinical work. Her grade and pay was maintained by creating a non-clinical post for her, which initially was a meaningful job, but which by a series of events became menial. The Employment Tribunal considered that a number of matters, of which this was the principal one, constituted unwanted conduct which had the effect of violating her dignity and of creating a demeaning environment. Some of those matters taken individually did not justify that conclusion, in particular because it was not reasonable for them to have that effect – thus it was wrong to hold that a letter saying that as the recipients knew her health had deteriorated such that she could no longer do clinical work, and making references to an occupational health doctor, were acts of harassment. It was also unfair to find as part of the harassment that the Claimant had been told she would be ‘performance managed’ when that had not been alleged as an act of harassment in her ET1, at a CMD, in further particulars of her claim or in her witness statement, and when (the matter having come to light during evidence) it was argued about in relation to other grounds (direct discrimination and victimisation) both of which were dismissed on their merits. However, the central thrust of the finding was clear, and the conclusion of the ET as to jurisdiction on time grounds was one it was entitled to reach. Appeal allowed in part.

Langstaff P J
[2014] UKEAT 0179 – 13 – 2802
Bailii
England and Wales

Employment, Discrimination

Updated: 03 December 2021; Ref: scu.526079

EAT Disability Discrimination : Section 15 – The only point on appeal was whether the Tribunal had failed to give a reasoned decision on the Claimant’s disability discrimination claim, in respect of his dismissal, under section 15 Equality Act 2010. The Respondent sought to argue that a decision was to be implied from other paragraphs in the judgment, but the appeal was upheld. There was no express finding in relation to a discrete claim, which was identified in advance of the hearing and addressed in the evidence and closing submissions.
The appeal was therefore allowed and the matter remitted for determination by the same Tribunal.

Cox DBE J
[2014] UKEAT 0353 – 13 – 3001
Bailii
England and Wales

Employment, Discrimination

Updated: 03 December 2021; Ref: scu.526078

The claimant said that he was the representative of members of the Workers of England Trade Union at the respondent hospital. He claimed detriment, but the empoyer denied that it was an independent union allowing him protection under the Act. Since commencemet of proceedings, the Union had obtained certification.
Held: Protection under section 146 was not available only if the Union was independent. Other issues ould affect the assessment. The certificate of independence was retrospective in its effect for a proper period before the date of the certificate.

Jackson, Briggs, Christopher Clarke LJJ
[2014] EWCA Civ 652, [2014] 3 All ER 964, [2014] WLR(D) 214, [2014] IRLR 635, [2014] ICR 1053
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 146(1)
England and Wales
Citing:
Appeal from – North Essex Partnership NHS Foundation Trust v Bone EAT 30-Sep-2013
EAT Does the certificate of independent of the trade union given on 27 June 2013, for which the EAT had by statute to stay the instant appeal, provide protection to the Claimant for his activities and membership . .

Cited by:
Remitted from – North Essex Partnership NHS Foundation Trust v Bone EAT 10-Jul-2014
EAT Trade Union Rights : Action Short of Dismissal – PRACTICE AND PROCEDURE – Costs
The claimant, a member of WEU an independent trade union, made 21 claims of detriment for taking part in its activities, . .
See Also – Bone v North Essex Partnership NHS Foundation Trust CA 1-Feb-2016
The appellant was a political activist in the ‘Workers of England Union’ and a nurse employed by the respondent. He alleged race discrimination, and detriment for his membership of what he said was an independent trade union, saying that the . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 December 2021; Ref: scu.525616

EAT Disability Discrimination : Disability – Decision of the Employment Judge that the Claimant had failed to establish recurring or fluctuation effects of his impairment for the requisite period or extent upheld. There was no error of law or perversity in the decision that the Claimant was not a disabled person within the meaning of section 6 of the Equality Act 2010.

Slade J DBE
[2014] UKEAT 0493 – 13 – 0602
Bailii
Equality Act 2010 6
England and Wales

Discrimination, Employment

Updated: 03 December 2021; Ref: scu.525186

The LC had introduced changes to pension arrangements for public employees. In general pensions would be reduced, but provision had been made to protect those approaching retirement. He now appealed from a finding that the arrangement was discriminatory.

Longmore LJ, Sir Colin Rimer, Sir Patrick Elias
[2018] EWCA Civ 2844, [2019] WLR(D) 1
Bailii
Judicial Pensions Regulations 2015, Equality Act 2010, Firefighters Pension Scheme (England) Regulations 2014, Firefighters Pension Scheme (Wales) Regulations 2015
England and Wales

Discrimination, Employment

Updated: 03 December 2021; Ref: scu.632676

EAT Sex Discrimination : Burden of Proof – UNLAWFUL DEDUCTION FROM WAGES
The Employment Tribunal found that the Appellant was unfairly dismissed and discriminated against by reason of her sex. The Appellant’s claims for unlawful deduction of wages failed. The Appellant and the Respondent both appealed.
The EAT dismissed the Respondent’s appeal that the ET had erred (1) in its approach to the burden of proof when considering the complaints of discrimination: Hewage v Grampian Health Board [2012] ICR 1054 applied; and (2) in finding that deductions from the Appellant’s wages were made in breach of contract: Sim v Rotherham MBC [1987] ICH 216 applied. The Respondent failed to show the reason why there was reduced or no work and that it involved a breach of contract by the Appellant. However ET erred in failing to restrict its decision on harassment to the matters identified in the Agreed List of Issues.
Appellant’s appeal against unlawful deduction of wages from May 2007 succeeded and issue of quantum remitted to the ET for determination.

Supperstone J
[2014] UKEAT 0221 – 11 – 0804
Bailii
England and Wales

Employment, Discrimination

Updated: 02 December 2021; Ref: scu.523585

EAT Disability Discrimination : Disability Related Discrimination
The Claimant was dismissed on health grounds based on depression which was a disability. The Employment Tribunal found that the dismissal was unfair because the letter inviting her to a meeting to discuss capability was, because of an HR error, expressed to be an invitation to a disciplinary meeting, which the majority of the ET found was intimidating and put her off attending the meeting. The ET found unanimously that even if the Claimant had attended the meeting the employer would have dismissed her fairly.
In the light of those findings, the ET awarded the Claimant a basic award for unfair dismissal but no compensatory award. The majority also found that the employer was liable for disability discrimination under section 15 of the Equality Act 2010 and awarded her andpound;750 for injury to feelings arising from the dismissal.
The employer appealed on the basis that the majority were wrong to say that the dismissal was not a ‘proportionate means of achieving a legitimate aim’ in considering section 15. On the facts, it was clear that the dismissal was justified: the fact that the process by which the employer had reached that decision was flawed was irrelevant. The finding of disability discrimination and the award of andpound;750 set aside.
The Claimant’s cross-appeal that the finding that even if she had attended the meeting it would have made no difference was an appeal on fact and hopeless. Her cross-appeal against the award of only andpound;750 fell away.

Shanks J
[2014] UKEAT 0319 – 13 – 1702
Bailii
Equality Act 2010 15
England and Wales

Employment, Discrimination

Updated: 02 December 2021; Ref: scu.523364

EAT Disability Discrimination : Disability – PRACTICE AND PROCEDURE – Case management
The approach to determining questions of the definition of disability. Whether the Employment Tribunal was entitled decline to determine this question in the absence of further expert medical evidence not sought by either party. Whether the Employment Tribunal was entitled to order the Respondent to pay the entirety of the costs of jointly instructed medical expert.

Eady QC J
[2014] UKEAT 0396 – 13 – 0502
Bailii
England and Wales

Employment, Discrimination

Updated: 02 December 2021; Ref: scu.523363

EAT Unfair Dismissal : Reason for Dismissal Including Substantial Other – Employment Tribunal erred in making a finding on this question when the issue had been conceded by the Claimant and no opportunity given to the parties to address the possibility of a revision to the list of issues.
The ET having made findings on fairness in the alternative, however, the point was not fatal to the decision on unfair dismissal.
Fairness
The ET’s approach to the question of fairness upheld. It was entitled to have regard to the Respondent’s own procedures and to the ACAS Code. Its conclusions were not perverse.
HARASSMENT
SEX DISCRIMINATION – Burden of proof
Harassment related to sex: whether the ET erred in the application of the burden of proof in finding that the unwarranted conduct in question ‘related to’ the Claimant’s sex. Either insufficient reasoning provided to explain the ET’s conclusion or there had been a misapplication of the burden of proof in this case. Appeal allowed on this ground only and point remitted to same ET.
‘Unwanted’; ‘Course of employment’; ‘Reasonable steps’ defence
ET’s findings on these issues disclosed no error of law, were not perverse and were adequately explained. All other grounds of appeal dismissed.

Eady QC J
[2014] UKEAT 0265 – 13 – 1001
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522640

EAT Jurisdictional Points : Fraud and Illegality – A Sri Lankan woman agreed to work for the First and Second Respondents, but made it clear she could not do so unless and until she was sponsored by them to do so, so that she had a valid work permit. For some months she remained in contact with the Respondents, until eventually she began to work in anticipation of, but without, the necessary work permit. During that period – prior to her actually working – she was seriously sexually assaulted by the Second Respondent.
Her work permit did materialise but after she had worked for over a year, during which she had again been subjected to serious sexual harassment.
An Employment Tribunal dismissed her claims because either she was not an employee, and could not claim, or she was but was employed under an illegal contract, which it would not condone.
On an appeal at which the Respondents were debarred from appearing, held that the ET had failed to consider s.40(1)(b) of the Equality Act 2010 which protected applicants for employment (which she plainly was when the first assaults occurred); and had wrongly failed to identify the principles by which defences of illegality were to be considered when it wrongly asked whether the facts of the present case could be distinguished from two Court of Appeal authorities, neither of which established the applicable principles. Applying these principles as set out in Hall v Woolston Leisure, the claim save in respect of dismissal was not so inextricably bound up with the contract of employment or the illegality as to be defeated by the defence.
The ET had not resolved whether the First or Second Respondents were the employer, but the findings of fact justified only one answer. However, the question whether the First Respondent was liable under s.109 EqA 2010 for the actions of the Second Respondent who alone had been the sexual predator was remitted to the ET, with observations as to the approach it should adopt.

Langstaff P J
[2013] UKEAT 0222 – 13 – 0512
Bailii
Equality Act 2010 40(1)(b)
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522374

EAT Disability Discrimination : Disability – The Claimant claimed that he had been discriminated against in respect of disablement. A Pre-Hearing Review was held to decide if he was disabled, and if the Respondent was aware of his disability. The Employment Tribunal held that the Claimant was disabled from 13 July 2010 to 25 September 2012, the latter being the date from which the Respondent conceded that the Claimant is disabled. It held that the Respondent knew actively or constructively from 25 September 2012 that the Claimant is disabled. The Claimant argued that the ET had applied the wrong test in respect of constructive knowledge. Held that the ET had erred in law in applying the wrong test. The question of the knowledge of the Respondent is to be determined at the full hearing.

Lady Stacey
[2013] UKEAT 0025 – 13 – 1610
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522349

EAT Disability Discrimination – Reasonable adjustments – C had a dormant condition of rheumatoid arthritis, which relapsed whilst she was in the employment of R. Her job involved working in a Job centre in Ealing some 1 hour and 20 minutes from home. She had childcare commitments. The added effect of her arthritis, making her slow to get moving in the morning and being fatiguing, made her repeatedly late for work. She asked for a job closer to home. The Employment Tribunal found that she had a disability, that the employer applied a PCP of requiring her to work at Ealing, and that this caused her a substantial disadvantage compared to those who did not suffer her disability. The employer had repeatedly refused a transfer to nearer her home. The ET thought that she had established a prima facie case that such a transfer would potentially be a reasonable adjustment. The employer provided no clear evidence why it had not made it. The ET however went on to say that there had been a refusal to transfer her more than 3 months prior to her ET1, although there was a policy to keep this under review; and also found that the employer had decided it did not want her to work at the branch close to home. The employer argued that this last contention was not advanced before the ET, which had decided it without hearing submissions from R, and that there was no evidence for it. This was rejected on the facts. It also argued that the refusal meant there was no continuing act/state of affairs, as the ET found; and a policy which was not itself discriminatory ((a) keeping the position under review; (b) not wanting her to work nearer home) was not intrinsically discriminatory, yet Cast v Croydon College required there to be a discriminatory policy for there to be a continuing act to bring allegations of disability discrimination with time. This was rejected; the focus should be on the law as derived from statute, and the ET judgment read as a whole made permissible findings.

Langstaff P J
[2013] UKEAT 0097 – 13 – 2611
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522360

EAT Equal Pay Act : Material Factor Defence and Justification – Possibly the first appellate consideration of the equal terms provisions of the Equality Act 2010.
The Claimants, two female port assistants claimed to be paid the same as outport clerks, one of whom was male and the other female, for performing like work. They expressly disavowed a claim that the pay arrangements were directly discriminatory. The Respondent applied to strike out the claim, arguing that it was for the Claimants to establish a prima facie case of indirect discrimination and that on the pleaded cases they could not do so: no PCP had been identified. The Employment Judge refused the application.
Held: she was entitled to do so, since although there had been confusion, the Claimants did not accept the reason the Respondent gave for the pay disparity. The material factor defence is fact specific.
Observations made about procedure, and a reminder that it may be unhelpful when considering the equal terms provisions of the Equality Act 2010 to talk in terms of direct or indirect discrimination without linking that closely to the statute. The distinction should not operate as a fetter on examining differences in terms and conditions which appear to affect one gender disproportionately.
The question whether Nelson v Carillion is good authority was resolved by the terms of the 2010 Act.

Langstaff P J
[2013] UKEAT 0014 – 13 – 2210
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522343

EAT Age Discrimination – Whether local authority required by an enactment to treat female employee aged over 60 less favourably than younger colleagues in calculation of contractual redundancy payment set by reference to statutory scheme. No.

Mitting J
[2013] UKEAT 0566 – 12 – 2910
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522346

Holland J
[1999] UKEAT 1120 – 98 – 1404
Bailii
England and Wales
Cited by:
See Also – Driskel v Peninsula Business Services Ltd Michael Huss Anthony Sutcliffe, Peter Done EAT 17-Dec-1999
EAT The claimant said that she had been subjected to crass sexual banter by her senior manager. She refused to take up a post unless he was moved, and when he declined to so, she was dismissed.
The court . .
See Also – Driskel v Peninsula Business Services Ltd and Another EAT 7-Dec-2001
The claimant sought leave to appeal against a finding that though there had been serious sex discrimination, the affect on her had been low, and the damages for injury to feelings reduced accordingly.
Held: The appeal was dismissed. The . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.205076

EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. Applying Lawson v Serco, Duncombe (No. 2) and Ravat, on any view Employment Tribunal entitled to conclude that it had jurisdiction territorially to entertain both whistleblowing claim (ERA) and claims under Equality Act 2010.

Peter Clark J
[2012] UKEAT 0568 – 11 – 2604
Bailii
Equality Act 2010 230(3)
England and Wales
Citing:
See Also – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .

Cited by:
See Also – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
See Also – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.459933

EAT Sex Discrimination : Direct – The Claimant and a male comparator were permitted to work from home on certain days each week to facilitate child care arrangements. The Claimant’s right to do so was revoked, although she was offered the facility of more flexible working hours. The explanation for the Claimant’s apparently less favourable treatment was rejected by the Employment Tribunal which went on to find that the reverse burden of proof in Section 63A of the Sex Discrimination Act 1975 had come into play and that the Respondent had failed so show a non-discriminatory reason for its treatment of the Claimant.
Evidence of unreasonable and less favourable treatment coupled with a difference in protected characteristic is not sufficient evidence in itself without ‘something more’ to reverse the burden of proof; [the Zafar trap]. Something more’ is required to entitle the Employment Tribunal to infer, in the absence of a satisfactory explanation, a discriminatory reason for the less favourable treatment and thus reverse the burden of proof.
In appropriate circumstances the ‘something more’ can be an explanation proffered by the Respondent for the less favourable treatment that is rejected by the Employment Tribunal.
The finding that the Respondent had given a false explanation for the less favourable treatment did therefore constitute ‘something more’ and the Employment Tribunal was accordingly entitled, if not bound, to conclude that the Claimant had suffered discrimination.
Dicta of Sedley LJ in Anya v University of Oxford [2001] IRLR 377, Elias J in Law Society v Bahl [2003] IRLR 640, and Langstaff J in Birmingham City Council v Millwood [2012] UKEAT 0564 followed.

Serota QC J
[2014] UKEAT 0497 – 12 – 1702
Bailii
Sex Discrimination Act 1975 63A
England and Wales

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.521653

EAT Disability Discrimination : Reasonable Adjustments – EXTENSION OF TIME: JUST AND EQUITABLE
PERVERSITY
An employee, who suffered from the effects of a significant depressive illness, was subject to a PCP that she should attend work in her usual post. In deciding that an employer had failed in its duty to make reasonable adjustments in the light of her agreed disability, by failing to redeploy her to an alternative post ‘in line with’ the advice of its Occupational Health doctor, the ET erred, since as to a period before August 2011 it did not have any clear idea what features such a job would have to have to avoid the PCP causing substantial disadvantage to the claimant, and though it asked whether the adjustment would have done so, conspicuously failed to answer that question. (Though it thought that the failure to make the adjustment had caused additional difficulty to the Claimant, this did not answer the question whether to make it would have avoided the disadvantage in the first place). The answer was not self-evident. As to the period after August 2011 it wrongly assumed that the doctor was advising that she could work if only some adjustments were made in connection with a particular alternative post, whereas he was in fact saying (at the time) that she could not work at all and would only be able to do so if her condition improved. This same material misconception of fact vitiated a finding of discrimination related to disability.
Two findings of harassment were made which were also subject of appeal. The incidents giving rise to them arose in one case some three years before the claim was made. It was unclear whether the tribunal, when accepting in relation to that case that the approach of a manger in a meeting had caused the proscribed ‘environment’ had meant to say that it caused that during the meeting, but not more broadly, and since it did not refer to any evidence of ongoing consequence or perpetuated difficult atmosphere probably gave too wide a scope to ‘environment’ which refers to an ongoing state of affairs and not a short-lived one-off incident (Weeks v Newham College applied). The appeal in relation to the other finding was rejected.
Finally, the ET had erred in its exercise of discretion to extend time on the basis that it was just and equitable to do so: each allegation was separate, and should have been considered separately rather than globally; the ET had not considered a central question – the claimant’s reason in each case for being out of time ; and in reaching a decision that the matter was ‘finely balanced’, but that what tipped the balance was that otherwise the claimant would be denied well-founded claims, had taken into account a view of the merits of the claims that was (after this appeal) shown to be erroneous.
The appeal was allowed; the decision was in part reversed and the balance, including the issue of extension of time in all cases, remitted for further submissions and consideration in the light of the judgment.

Langstaff J P
[2014] UKEAT 0305 – 13 – 1802
Bailii
England and Wales

Employment, Discrimination

Updated: 30 November 2021; Ref: scu.521649

The claimant, a British Army cook, had been racially abused whilst serving in the Falklands by a worker for an independent contractor and by a Sergeant. The EAT had overturned the finding that the respndent was liable for the acts of the first, and had reduced from andpound;12,000 the damages awrd for the second incident.

Elias, Lewison, Kitchin LJJ
[2014] EWCA Civ 91, [2014] IRLR 377, [2014] WLR(D) 59, [2014] Eq LR 259, [2014] ICR 625
Bailii, WLRD
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521134

[2014] EWCA Civ 73
Bailii
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521111

EAT UNFAIR DISMISSAL – Constructive dismissal
SEX DISCRIMINATION – Inferring discrimination
There were multiple points in this appeal in which the Claimant appealed against the rejection of her claims for constructive unfair dismissal, direct discrimination, indirect discrimination and detriment by protected disclosure, and the Respondent cross appealed.
Held
(1) On the cross appeal, the so-called ‘Johnson exclusion zone’ did not apply to a case of constructive dismissal based on fundamental breach in the redundancy selection process when the Respondents had withdrawn their notice of dismissal as a result of the Claimant’s appeal, but the Claimant then resigned.
(2) The Employment Tribunal had erred in law in finding that the withdrawal of the notice of dismissal cured their breach: see Buckland (2010 IRLR 45); but
(3) The ET had not considered or made a finding as to whether the Claimant had affirmed the contract before she resigned; remission necessary.
(4) Of the 5 protected disclosures relied upon, which the ET had not addressed in their reasons, the third to fifth either made only allegations (see Geduld 2010 ICR 325) or did not lead to any detriment; but the first and second could not be disposed of in that way; remission necessary.
(5) The ET had permissibly found that the Respondents did not apply the PCP on which the indirect discrimination claim was based.
(6) As to direct discrimination, the ET had adequately considered the issues and were entitled to go, where they had, directly to the ‘reasons why’ question. Their reasoning should not be subjected to an ‘overly critical analysis’; see Hewage (2012 IRLR 70).

Burke QC J
[2014] UKEAT 0439 – 12 – 0402
Bailii
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521103

EAT Race Discrimination : Inferring Discrimination – Burden of proof
The submission that both Madarassy v Nomura International plc [2007] ICR 867 and Hewage v Grampian Health Board [2012] ICR 1054 support the proposition that an Employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations as to the reason for demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given could not be accepted. Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account. When an account of lack of knowledge as to the employee’s ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

Judge Hand QC
[2013] UKEAT 0487 – 12 – 0702
Bailii
England and Wales
Citing:
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Cited – Hewage v Grampian Health Board SC 25-Jul-2012
The claimant had been employed as a consultant orthodontist. She resigned claiming constructive dismissal and sex and race discrimination. The EAT reversed the findings on discrimination saying that they had not been sufficiently pleaded. The Court . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521104

EAT Disability Discrimination : Reasonable Adjustments – Sufficiency of reasons
VICTIMISATION DISCRIMINATION – Protected disclosure – Detriment – Sufficiency of reasons
Appeal allowed because (1) the Tribunal’s reasoning on the question of the Respondent’s actual and constructive knowledge of disability was flawed and insufficient; (2) the Tribunal did not give proper and sufficient reasons in respect of its findings that there were breaches of the duty to make reasonable adjustments; (3) the Tribunal did not apply Tarbuck v Sainsbury’s Supermarkets [2006] IRLR 664; (4) the Tribunal did not give proper and sufficient reasons in respect of its findings that the Claimant was subjected to detriment on the grounds of making protected disclosures; (5) certain findings made by the Tribunal were perverse, and these findings materially influenced the Tribunal’s assessment of the Respondent’s witnesses

[2014] UKEAT 0048 – 13 – 2901
Bailii
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.520830

The applicant, an employee at a job centre was demoted because he had disclosed confidential information about possible contraventions of the race relations legislation. He complained of race discrimination, saying his disclosure was a protected act.
Held: This was not victimisation within section 2. The relevant question was whether the employers had treated the complainant less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind. The claim failed, because the Manpower Services Commission would have treated in the same way any employee who gave away confidential information whatever its nature.

Slynn J
[1980] 3 All ER 334, [1980] 1 WLR 725, [1980] ICR 420
Race Relations Act 1976 2
England and Wales
Citing:
Applied – Ministry of Defence v Jeremiah CA 1980
The court considered the meaning of ‘detriment’ in discrimination law. Brightman LJ said: ‘I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment.’
Lord Justice . .

Cited by:
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Aziz v Trinity Street Taxis Ltd CA 26-Feb-1988
An Asian member of the respondent association of taxi cab operators secretly recorded conversations with other members to gather evidence for a claim under the Act. He was expelled from the association for this conduct. He alleged race . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 29 November 2021; Ref: scu.181287

EAT Disability Discrimination : Reasonable Adjustments – Claimant disabled employee on long term absence with depression. Redundancy situation. Selection for redundancy based on scores from assessment against detailed criteria. Claimant selected and dismissed. Claims unfair dismissal, direct disability discrimination and failure to make reasonable adjustments. Employment Tribunal finds fair process and procedure applied in genuine redundancy situation. Employer conceded scoring criteria would put Claimant at a substantial disadvantage. Made reasonable adjustment by applying criteria only to his pre-disablement employment record.
All claims dismissed.
Appeal on basis of failure to identify and strictly apply the approach to reasonable adjustment cases set out in Rowan v Environment Agency.
Appeal DISMISSED.
ET had expressly identified the PCP as the scoring criteria. Pool of comparators was obvious (others facing redundancy to whom same PCP applied but not disabled by depression). All parties knew of the concession that the PCP would put Claimant at substantial disadvantage. ET dealt fully with the real question in the case – did the adjustment remove the disadvantage – and gave sound reasons for finding that it did.

Luba QC
[2013] UKEAT 0320 – 13 – 1511
Bailii
England and Wales

Employment, Discrimination

Updated: 28 November 2021; Ref: scu.520032

EAT Victimisation Discrimination – Although allegations of victimisation were made under section 27 of the Equality Act 2010 the Employment Tribunal had directed itself in terms of a comparator as if the case had been brought pursuant to section 2 of the Race Relations Act 1976. Whilst this was an apparently erroneous approach in fact the comparative approach had not really been used and the Employment Tribunal having asked itself why the Appellant had not been appointed had concluded that her rejection had not been because she had previously brought discrimination proceedings against the Respondent. This was a case where despite any misdirection the Employment Tribunal had been plainly and unarguably right as to the outcome (see Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329). Although the misdirection was similar to that in Woodhouse v West Northwest Homes Leeds Ltd UKEAT 0007/12/SM the latter was distinguishable on its facts. The appeal was dismissed.

Hand QC
[2013] UKEAT 0233 – 13 – 0111
Bailii
Equality Act 2010 27, Race Relations Act 1976 2
England and Wales

Employment, Discrimination

Updated: 28 November 2021; Ref: scu.520031

EAT Sex Discrimination – Burden of proof.

His Hon Judge D Serota QC
[2003] EAT 0529 – 02 – 2210, [2003] UKEAT 0529 – 02 – 2210, EAT/529/02
Bailii, Bailii, EAT
England and Wales

Employment, Discrimination

Updated: 28 November 2021; Ref: scu.187855

Renewed application for leave to appeal against rejection of claims for discrimination and harassment.

Rimer LJ
[2013] EWCA Civ 1659
Bailii
England and Wales

Employment, Discrimination

Updated: 28 November 2021; Ref: scu.519321

Moore-Bick, Flod, Christopher Clarke LJJ
[2013] EWCA Civ 1650
Bailii
England and Wales

Employment, Discrimination

Updated: 27 November 2021; Ref: scu.519219

An employer was not absolutely bound by the views of an Occupational Health Practitioner.

Longmore, Rimer LJJ, Sir John Mummery
[2013] EWCA Civ 1583
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
Leave – Gallop v Newport City Council CA 31-Jan-2013
Application for leave to appeal – allowed. . .

Cited by:
Cited – Stoke On Trent City Council v Savigar (Debarred) EAT 15-May-2015
EAT Unfair Dismissal – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
Though the Claimant’s complaint was that . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 November 2021; Ref: scu.518905

EAT Contract of Employment : Whether Established – The Claimant worked in a World Duty Free outlet at an airport, selling Shiseido cosmetic products airside. Her security clearance to do so was withdrawn by R1, and she claimed that she had thereby been unfairly dismissed and discriminated against. To claim this she had to show that she was an employee or worker, to do which required her to show that she had a contract with R1, or with R2 if employed by them, by which she undertook to work personally for that party. The Employment Tribunal found she could not do so, because she provided her services through a limited company which she had incorporated for the purpose (and her relationship with that company need to be, but never was, established in evidence). They were provided to R2 whose role was in effect that of an agent supplying workers to a third party (Shiseido) to work in retail space controlled by R1. There was thus no contract between C and either R1 or R2. The ET found that the arrangements were such that C was not required to work personally at her job, but could get another person to substitute for her: a power which was not merely theoretical, since she had in fact exercised it. It might appear to a member of the public passing through the airport that she appeared to be working exactly as any employee would, and for that reason the appeal had been permitted to proceed to a full hearing. However, it was held that on existing appellate authority, which was unaffected by European law, she could not have had a contract of employment with either R1 or R2, since she had a contract with neither; nor could she be a ‘worker’ since that too required (i) a contract, under which (ii) she agreed to work personally.

Langstaff P J
[2013] UKEAT 0166 – 13 – 0410
Bailii
Equality Act 2010
England and Wales
Cited by:
Appeal from – Halawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 November 2021; Ref: scu.518532

EAT Disability Discrimination : Reasonable Adjustments

Langstaff J P
[2013] UKEAT 0227 – 13 – 1607
Bailii
Equality Act 2010
England and Wales
Cited by:
Appeal from – Hainsworth v Ministry of Defence CA 13-May-2014
The appellant was employed by the respondents working in Germany. Her daughter suffered chronic illness and she wished to care for her in England. She said that the refusal to allow her to return to work in the UK was discriminatory as associative . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 November 2021; Ref: scu.518522

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
DISABILITY DISCRIMINATION – Reasonable adjustment
The Employment Tribunal concluded that the Respondents had been guilty of disability discrimination in three respects, in failing to allocate to her a parking space in the car park where she worked, in harassing her by an e-mail and by dismissing her ostensibly for capability reasons. The appeal was brought against all three conclusions.
As to the first conclusion, the Claimant was entitled to work flexitime hours. She chose to arrive at work, as she was entitled to do at 9.30; but the car park was, by that time, full; the Respondent’s case was that there was no PCP that she had to walk from a distant car park despite her disability; it was open to the Claimant to come to work at 9am, at which time there would be a parking space in the main park and that the ET had erred in law in their conclusion as to the PCP and that there had been a failure to make a reasonable adjustment. Held that the ET had not erred in law. It was open to them to find the PCP as they had. The Claimant had the right to cone into work at any time within the flexitime arrangements. It was not for her but for the Respondents to make reasonable adjustments; the Tribunal had considered the relevant factors and had made a decision which was open to them.
As to harassment, this was a rare case in which there was perversity; the terms of the e-mail could not reasonably be seen as falling within the definition of harassment in section 3B of the Equality Act 2010.
As to dismissal, perversity was not overwhelmingly demonstrated; but the ET had not directed themselves to the range of reasonable responses test and appeared to have substituted their own view. By agreement the discrimination finding based on the dismissal fell if the unfair dismissal finding fell.
Finding that there was no harassment substituted. Dismissal issues remitted.

Jeffrey Burke QC
[2013] UKEAT 0194 – 13 – 1810
Bailii
Equality Act 2010 3B
England and Wales

Employment, Discrimination

Updated: 25 November 2021; Ref: scu.517548

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The duty to make adjustments. The Tribunal did not identify the correct PCP. The Tribunal did not identify the disadvantage which the adjustment was to avoid and did not assess to what extent the adjustment would be effective to avoid the disadvantage. Discussion of the concept of a PCP in the setting of section 20(3) of the Equality Act 2010; and of the different elements which the Tribunal must address in considering section 20(3).
Section 98(4). The Tribunal did not apply the ‘range of reasonable responses’ test in a critical paragraph of its reasons, starting from its own view that an unreasonable offer had been made, and failing to ask whether the decision maker was reasonable in concluding that a proper plan had been put in place with which the Claimant should have complied.

David Richardson J
[2013] UKEAT 0579 – 12 – 2510
Bailii
England and Wales

Employment, Discrimination

Updated: 23 November 2021; Ref: scu.517225

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
DISABILITY DISCRIMINATION ACT
Employment Tribunal held Claimant had been unfairly dismissed and unlawfully discriminated against contrary to Equality Act 2010, sections 13, 15 and 20.
On appeal Claimant accepted that finding of direct discrimination had to be set aside in the light of ET’s finding that the reason for the dismissal was the Claimant’s ‘manner or personality’. It was also accepted that ET erred in finding that there was a failure to make reasonable adjustments without considering the provision, criterion or practice applied by the Appellant or considering the nature and extent of the substantial disadvantage suffered by the Claimant.
EAT found that finding of discrimination arising from disability cannot be sustained, nor can the finding of unfair dismissal. Further, in relation to both discrimination arising from disability and unfair dismissal the ET decision was not Meek compliant. In the circumstances ET’s findings in relation to reasonable adjustments, discrimination arising from disability and unfair dismissal are to be remitted to a freshly constituted tribunal for consideration.

Supperstone J
[2013] UKEAT 0442 – 12 – 1207
Bailii
Equality Act 2012 13 15 20
England and Wales

Employment, Discrimination

Updated: 23 November 2021; Ref: scu.517220

Rimer, Lewsison, Treac L
[2013] EWCA Civ 1195
Bailii
England and Wales

Employment, Discrimination

Updated: 21 November 2021; Ref: scu.516436

EAT Disability Discrimination : Disability Related Discrimination – Reasonable adjustments – The Respondent was employed by the Appellants as a reception and finance manager. She suffered from work-related stress and severe depression. She resigned from her employment when the Appellants did not act on the recommendations made by the clinical psychiatrist to whom they referred her. The Employment Tribunal held her claims that the Appellants failed to make reasonable adjustments to be well-founded, that she was unfairly constructively dismissed and that her dismissal was an act of discrimination arising from disability. The EAT dismissed the Appellants’ appeal on liability (save for the finding that the dismissal was an act of discrimination arising from disability as that was not one of the agreed issues before the ET) and the appeal on remedies against the award of compensation. The EAT, inter alia, found that there was no error by the ET in identifying the relevant PCP (‘provision, criteria or practice’); and the ET correctly found that the Appellants had not made reasonable adjustments by failing to pay for the Respondent to have private psychiatric services and counselling. The issue was not the payment of private medical treatment in general, but, rather, payment for a specific form of support to enable the Respondent to return to work and cope with the difficulties she had been experiencing at work

Supperstone J
[2013] UKEAT 0430 – 12 – 0210
Bailii
England and Wales
Citing:
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 – Secretary of State for the Department for Work and Pensions v Alam EAT 9-Nov-2009
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
Section 4A(1) and (3) of the Disability Discrimination Act 1995.
The Tribunal found that employer had failed to make a reasonable adjustment . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 21 November 2021; Ref: scu.516226

EAT RACE DISCRIMINATION
The appeal had proceeded on two grounds:
(1) That the Employment Tribunal had failed to deal expressly in its judgment with one identified issue relating to a complaint of race discrimination: that was so but it was also clear that the Claimant had not produced any evidence to support her complaint; the EAT therefore formally recorded that the particular complaint was dismissed under section 35(1)(a) of the Employment Tribunals Act 1996;
(2) That costs should not have been awarded against the Claimant: although there was jurisdiction to award costs and there could be no criticism of the amount, the justifications relied on by the ET in exercising that jurisdiction were irrelevant and/or or based on an unfair criticism of the Claimant; the EAT accordingly set aside the ET’s decision and allowed the Respondent to renew its application for costs; the EAT rejected the application on the basis that the EAT did not find her culpable in continuing with her claims; the EAT took into account that she was self-represented and that the claims were allowed to proceed at a CMD but no general principle was laid down: the EAT’s decision turned on the particular circumstances of this case including the impression the Claimant made on the EAT.

Shanks J
[2013] UKEAT 0130 – 13 – 2307
Bailii
England and Wales

Employment, Discrimination

Updated: 21 November 2021; Ref: scu.516029