EAT Sex Discrimination : Indirect – Whether Claimant suffered indirect sex discrimination in circumstances where her request for flexible working following a return from maternity leave was initially refused and then granted on appeal.
Held: Employment Tribunal entitled to find that she did not.

Peter Clark J
[2013] UKEAT 0490 – 12 – 2009
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515407

EAT Religion or Belief Discrimination : UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellant was dismissed from his employment as a paediatric consultant. He worked in a multicultural and multi-faith department. Problems within the department arose because the Appellant habitually used Christian references in his professional communications. An internal investigation made a recommendation, among others, that he should keep his personal views and religious beliefs to himself and should not impose them on others. The Appellant did not accept the recommendation and took out a grievance. It was agreed that the Loyal College should carry out an independent review; the College appointed a panel of 2 consultants and an HR practitioner. The panel, after investigation, produced a report which made a number of recommendations; one of them was that the Appellant should refrain from any religious references in his professional communications.
All the relevant staff accepted the panel’s recommendations, except the Appellant who refused to accept the recommendation set out above and maintained that position when a 3rd investigation, carried out by an independent HR consultant advised disciplinary proceedings, which were carried out and led to the Appellant’s dismissal.
The Appellant claimed that he had been discriminated against on religious grounds in 14 respects, had been victimized and had been unfairly dismissed. The Employment Tribunal rejected his claims.
On appeal multiple grounds were argued; all failed. The ET had correctly directed themselves to follow the guidance given by the EAT in Ladele (2009 IRLR 154) and had correctly applied that guidance. They had identified correctly a hypothetical comparator (having rejected the Appellant’s actual comparator, a conclusion which was not attacked on appeal) as someone whose relevant circumstances were the same as those of the Appellant save for his protected characteristic, described by the Appellant as that of being an ‘orthodox Christian’, and who acted as the Appellant had done but used terms relating to his own religious belief system or non-religious or atheist belief system and were entitled to conclude that such a comparator would have been treated in the same way. Much of the appeal was or amounted to arguments of perversity; but the ET had reached factual conclusions which it was open to then to reach. The ET’s conclusions on all claims were not based on error of law.

Jeffrey Burke QC
[2013] UKEAT 0378 – 12 – 2009
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515406

EAT Disability Discrimination : Reasonable Adjustments – Employment Tribunal found no failure by employer to make reasonable adjustments. No error of law shown. Appeal dismissed

Peter Clark J
[2013] UKEAT 0084 – 13 – 1207
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515395

EAT Race Discrimination : Direct – For a one-off act of race discrimination in refusing to employ him in 1999, an Employment Tribunal in 2012 awarded the Claimant a total of andpound;25,787. While below the andpound;1.6m figure (before interest) sought, the awards were within the Vento and other proper scales. The Employment Tribunal correctly moderated the award to reflect the contemporaneous disappointment the Claimant would have felt at the rejection of his other job applications, and the large number of Employment Tribunal claims dismissed. It did not err in stopping his award for loss of earnings when he obtained new work from which he was dismissed for misleading the new employer. Dench applied.

McMullen QC
[2013] UKEAT 0368 – 12 – 1009
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515404

EAT Race Discrimination : Direct – SEX DISCRIMINATION – Burden of proof – The Employment Tribunal found that the Claimant had been unfairly dismissed on the basis of 10 or so breaches of the implied term of trust and confidence. Although in the circumstances the Employment Tribunal on the same findings ‘could’ have concluded that the Claimant had established a prima facie case of discrimination on the grounds of race, it dismissed that claim. The ET did not stand back to look at the cumulative effect of all of its findings and did not adequately explain how it came to accept that the detriments/less favourable treatments were not discriminatory.

Serota QC J
[2013] UKEAT 0322 – 12 – 0406
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515388

EAT Race Discrimination : Direct – Detriment – The Claimant did not specify race discrimination in his internal complaint about his manager. Applying Waters and Durrani, the context did not admit of a generous interpretation of his language. There was no protected act. There was no unfavourable treatment as the Claimant accepted the manager treated black and white employees in the same unfavourable way. There was no detriment to the Claimant as the decisions on acting up and a permanent position were made without reference to race or any protected act. The Claimant’s appeal was dismissed.

McMullen QC
[2013] UKEAT 0586 – 12 – 1006
Bailii
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515385

EAT DISABILITY DISCRIMINATION – Disability
UNFAIR DISMISSAL – Reasonableness of dismissal
A consultant had both private and NHS patients. Whilst certificated sick and receiving sick pay from her NHS employers she worked for her private patients. She was dismissed for doing so, the employer thinking this could be described as fraud. An Employment Tribunal dismissed her claim that her dismissal was unfair. Her appeal on the ground that the employer could not properly regard the conduct as fraud, or had no reasonable basis for doing so, was dismissed on those grounds. The Claimant was dismissed for what she had done – labels such as fraud were emotive but uninformative of the essential facts – and the ET and employer entitled to regard it as gross misconduct. However, the ET went straight from a conclusion that there was gross misconduct to a decision that dismissal for that reason was inevitably within the band of reasonable responses. It did not ask whether the employer’s decision was nonetheless unfair as being unreasonable in the light of all the personal mitigation available to the Claimant, since it appeared to think that the conclusion that there was gross misconduct inevitably answered the question of fairness. The EAT was persuaded, if reluctantly, that the matter should be remitted for the ET to decide if it was reasonable (in all the circumstances) within s.98(4) Employment Rights Act 1996 to dismiss this Claimant for the gross misconduct found.

Langstaff P
[2013] UKEAT 0358 – 12 – 1406
Bailii
Employment Rights Act 1996 98(4)
England and Wales

Employment, Discrimination

Updated: 19 November 2021; Ref: scu.515067

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Employment Tribunal did not apply the structured approach in Rowan and Ashton to the Claimant’s claim for reasonable adjustments, or show that it considered s.4A(1) or (3) Disability Discrimination Act 1995, and did not answer a crucial question in its list of issues. The judgment and the consequential remedy judgment were set aside. Case remitted to a different Employment Tribunal.

McMullen QC J
[2013] UKEAT 0610 – 12 – SM – 0207
Bailii
Disability Discrimination Act 1995
England and Wales

Employment, Discrimination

Updated: 19 November 2021; Ref: scu.515072

The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a strike-out order, there were two cardinal conditions at least one of which must be met. Either the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps or it has made a fair trial impossible. If one of these conditions is met, the court must then also consider whether striking out is a proportionate response.
Sedley LJ discussed the power to strike a case out: ‘This power, as the employment tribunal reminded itself, is a Draconian power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge [2000] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324, Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.
and
‘It is common ground that, in addition to fulfilling the requirements outlined above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was ‘the only proportionate and fair course to take’. This aspect of their determination played no part in Mr James’s grounds of appeal and accordingly plays no part in this court’s decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us.
It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.’

Sedley LJ
[2006] EWCA Civ 684, [2006] IRLR 630
Bailii, Bailii
Employment Tribunals (Constitution and Rules etc) Regulations 2004
England and Wales
Citing:
Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Cited – De Keyser Limited v Wilson EAT 20-Mar-2001
The claimant appealed against an order striking out her claim.
Held: The right to respect for private life is qualified by the right for both parties to have a just trial of the issues between them; and it has to be borne in mind that it was . .
Cited – Bolch v Chipman EAT 19-May-2003
EAT The EAT considered the consequences, of a decision to strike out a Notice of Appearance under Rule 15(2)(d).
Held: The EAT will require an employment tribunal, among other things, to consider the . .
Appeal from – James v Blockbuster Entertainment Ltd EAT 6-Oct-2005
EAT Practice and Procedure
Strike out case. ET struck out two claims for failing to comply with tribunal orders. Whether a proportionate sanction; whether they erred on a proper understanding of facts. . .

Cited by:
See Also – James v Blockbuster Entertainment Ltd EAT 18-Aug-2006
EAT Practice and Procedure – Costs
Costs orders for andpound;10,000 and andpound;1000 did not exceed the statutory maximum order Reg 14. Order for andpound;10000 made after striking-out order; that order was . .
See Also – James v Blockbuster Entertainment Ltd CA 23-Oct-2008
The claimant renewed his application for leave to appeal.
Held: The claimant’s first ground was unarguable. His original application failed to comply with the requirements of the 2002 Act. On the second ground, the tribunal had disagreed with . .
Cited – Ridsdill and others v Smith and Nephew Medical, Duffy, Whittleton EAT 22-Jun-2006
EAT Practice and Procedure – Striking-out/dismissal.
Chairman’s decision to strike out claims which had not been actively pursued and when there had been failure to comply with Tribunal orders. The appeal . .
Cited – Tisson v Telewest Communications Group Ltd EAT 19-Feb-2008
The claimant’s claim had been struck out for his failure to comply with an order to serve a list of documents.
Held: The appeal failed. The principles applied under the Civil Procedure Rules should be applied in Employment Tribunals. The . .
Cited – Abegaze v Shrewsbury College of Arts and Technology CA 20-Feb-2009
In 2000 the claimant succeeded in his claim for discrimination, but had not pursued his remedy. He now appealed against a refusal to allow him to take it further. He had initially failed to pursue the matter for ill health. He later refused to . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Chambers-Mills v Allied Bakeries CA 26-Nov-2009
The claimant renewed orally her request for leave to appeal against the EAT which had upheld loss of her claim, after the Employment Tribunal had found her conduct of the proceedings unreasonable in failing to co-operate in a medical enquiry into . .
Cited – Emuemukoro v Croma Vigilant (Scotland) Ltd and Another (Practice and Procedure) EAT 22-Jun-2021
Response Properly Struck Out – Non-compliance
On the first day of a five-day hearing to consider the Claimant’s claims of unfair dismissal, wrongful dismissal and holiday pay, the Tribunal struck out the Respondents’ Response for failing to comply with the Tribunal’s orders. Those failures . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 19 November 2021; Ref: scu.245865

EAT AGE DISCRIMINATION
UNFAIR DISMISSAL
Automatically unfair reasons
Reason for dismissal including substantial other reason
The reason for the Claimant’s dismissal was retirement. The Employment Tribunal erred in holding that the Claimant’s claim of age discrimination failed by application of Regulation 30 of the Employment Equality (Age) Regulations 2006 when the 2006 regulations had been repealed (save for Schedules 6 and 8) by the implementation on 1 October 2010 of Schedule 27 of the Equality Act 2010 by Equality Act 2010 (Commencement No 4) Order 2010 para 2(15)(f). Further the ET erred in interpreting the pre-condition for the application of the savings provisions in Reg 5 of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 inconsistently with that of Schedule 6 para 2 of the 2006 Regulations as interpreted by the CA in Bailey v R and R Plant (Peterborough) Ltd [2012] EWCA Civ 410. The effect was that where notice of impending retirement did not include a reference to the need for the employee to apply under Reg 5 of the 2006 Regs to be allowed to remain in employment, para 8 of Schedule 9 of the Equality Act did not apply nor did the Employment Rights Act 1996 s. 98ZG and 98(2)(ba). Once this legislative trail was explained by the Employment Appeal Tribunal to the parties, the Respondent conceded that the appeal must succeed. Cross appeal against the finding of automatic unfair dismissal under ERA s.98ZG allowed as that provision had been repealed and the saving provision in reg 5 of the 2011 Regs did not apply. Case remitted to a differently constituted ET to determine the age discrimination and unfair dismissal claims.

Slade J
[2013] UKEAT 0606 – 12 – 1306
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514348

EAT Disability Discrimination : Reasonable Adjustments – Equality – Disability – Duty to make adjustments – PCP – substantial disadvantage
The Tribunal adopted a PCP of its own, different to the PCPs defined by the issues, without addressing important evidence relevant to the existence of that PCP. The Tribunal did not give sufficient reasons for holding that the Claimant was at a substantial disadvantage although there was substantial and conflicting evidence on this issue.
Failure to provide written particulars – section 38 of the Employment Act 2002
The Tribunal did not err in law in its assessment of the appropriate award.

David Richardson J
[2013] UKEAT 0617 – 12 – 2205
Bailii
Employment Act 2002 38
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514345

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
Employee contended that employers failed to make a reasonable adjustment to allow for her asthma when subjecting her to consideration under their absence policy – Employment Tribunal misunderstood and misapplied the expert evidence about the issue – remitted for hearing to freshly constituted Tribunal.

Mitting J
[2013] UKEAT 0581 – 12 – 1005
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514287

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
SEX DISCRIMINATION – Direct
Multiple claims of sex race and disability discrimination were dismissed by the Employment Tribunal which had carefully case managed the complex issues. No error of law was found to be reasonably arguable. Opinions of appellate judges on the sift confirmed.

McMullen QC
[2013] UKEAT 1802 – 11 – 2905
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514168

EAT JURISDICTIONAL POINTS – Worker, employee or neither
DISABILITY DISCRIMINATION – Disability
An Employment Tribunal dismissed claims for holiday pay and unfair dismissal apparently on the basis that the Claimant was not a worker within the Working Time Regulations nor an employee within s.230 Employment Rights Act 1996. The principal reason for doing so was a lack of proof of mutuality of obligation; though the Employment Judge also considered whether there was a right to substitution he did not clearly resolve the point, and observed (inconsistently, if he had found an unfettered right of substitution) that the Claimant ‘might well’ have been a worker, without resolving that either. He was also unclear whether he considered the Claimant was actually integrated into his putative employer’s business.
He was held to have taken the wrong approach to mutuality by looking for evidence of precision in the hours and days to be worked rather than asking whether the history of the relationship showed it had been agreed there was an obligation to do at least some work and a correlative obligation on the Respondent to pay for it; to have illogically appeared to consider that the rate of pay (andpound;15 ph) assisted in deciding whether the Claimant was an employee or was rather a worker (or neither); and had failed to make necessary findings such as whether the Claimant was a worker, or was entitled (as a matter of inferred agreements) to substitute another’s labour for his in performing the work.
The question of status (employee, worker or neither) was remitted for fresh determination by a different Judge.

Langstaff P J
[2013] UKEAT 0380 – 12 – 2604
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514153

EAT DISABILITY DISCRIMINATION
Reasonable adjustments
Direct disability discrimination
A case was appealed successfully to the EAT, and remitted. The Employment Tribunal came to the same conclusion, but giving more detailed reasons where the EAT had required it. The Claimant appealed again; but raised as grounds of appeal matters which challenged decisions of the Tribunal in respect of which it had repeated conclusions it had reached in the first decision which had not been subject to appeal to the earlier EAT. The Appellant was not permitted to raise these arguments. A ground he was entitled to raise was that the Respondent employer should not have dismissed him since he should have been held suitable for ill health retirement. This was rejected, since the employer did not consider him as suitable, nor had any material at the time of dismissal to think that he was. Observations made about the applicability of First West Yorkshire v Haigh.

Langstaff P J
[2013] UKEAT 0537 – 12 – 1904
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514154

EAT RACE DISCRIMINATION
On a claim for unfair dismissal, the Claimant applied on the opening day of the hearing for permission to amend the claim form to include numerous claims of race discrimination. The hearing was adjourned. The Employment Judge was not provided with the text of the proposed amendment but when outlined to him it was clear that many of the claims were out of time. The Judge allowed the amendment application and extended time to bring the claim. Employer’s appeal allowed.
The Judge ought not to have entertained the application without seeing the terms of the proposed amendment. Even if the terms had been sufficiently outlined, the Judge has failed to apply the right test when considering the application.
Application to amend (when formulated) to be considered afresh by different Judge.

Recorder Luba QC
[2013] UKEAT 0126 – 13 – RN – 2203
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514151

EAT REDUNDANCY – Definition
RACE DISCRIMINATION – Direct
The Employment Tribunal did not err in dismissing the Claimant’s 27 complaints of race discrimination and determining the correct reason for his dismissal was redundancy.

McMullen QC
[2013] UKEAT 0491 – 12 – 0504
Bailii
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514156

Lord Justice Mummery
[2010] EWCA Civ 910, [2010] IRLR 994, [2010] ICR 1278
Bailii
Disability Discrimination Act 1995
England and Wales

Employment, Discrimination

Updated: 17 November 2021; Ref: scu.421103

CONTRACT OF EMPLOYMENT – Written particulars
RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Comparison
The Employment Tribunal erred in concluding that an employee who has more than one but less than two months’ service is not entitled to a section 1 Employment Rights Act 1996 statement of terms and conditions of employment. It does not follow from the flexibility afforded to an employer by section 1(2) as to when the statement of initial employment particulars CONTRACT OF EMPLOYMENT – Written particulars

RACE DISCRIMINATION – Direct

RACE DISCRIMINATION – Comparison

The Employment Tribunal erred in concluding that an employee who has more than one but less than two months’ service is not entitled to a section 1 Employment Rights Act 1996 statement of terms and conditions of employment. It does not follow from the flexibility afforded to an employer by section 1(2) as to when the statement of initial employment particulars must be provided, that there is no requirement to provide a statement if the contract ends within two months.

The Employment Tribunal’s dismissal of the Second Claimant’s claim under section 1 and refusal to make an award under section 38 Employment Act 2002 is set aside and substituted with a finding that the First Respondent was in breach of section 1. The case is remitted to a different Tribunal to calculate the award under section 38.

The Employment Tribunal erred in its approach to the Claimants’ complaints of direct race discrimination in (1) not considering whether the manner, as well as the fact of dismissal, constituted direct race discrimination; and (2) in its application of the burden of proof to the evidence in its conclusion that the fact of dismissal did not constitute direct race discrimination. The complaint of direct race discrimination in dismissal is remitted to a new Tribunal for re-hearing. be provided, that there is no requirement to provide a statement if the contract ends within two months.
The Employment Tribunal’s dismissal of the Second Claimant’s claim under section 1 and refusal to make an award under section 38 Employment Act 2002 is set aside and substituted with a finding that the First Respondent was in breach of section 1. The case is remitted to a different Tribunal to calculate the award under section 38.
The Employment Tribunal erred in its approach to the Claimants’ complaints of direct race discrimination in (1) not considering whether the manner, as well as the fact of dismissal, constituted direct race discrimination; and (2) in its application of the burden of proof to the evidence in its conclusion that the fact of dismissal did not constitute direct race discrimination. The complaint of direct race discrimination in dismissal is remitted to a new Tribunal for re-hearing.

[2018] UKEAT 0024 – 18 – 2509
Bailii
England and Wales

Employment, Discrimination

Updated: 15 November 2021; Ref: scu.631853

EAT DISABILITY DISCRIMINATION ACT
The Claimant’s unfair dismissal, discrimination and money due claims were all dismissed at a Pre-Hearing Review. The ET1 was 1 day late. The Claimant was too ill to run the proceedings or to attend the hearing. The claim was instituted and run by his father-in-law, who appeared on his behalf. The Employment Judge asked whether the Claimant could give evidence and said that at such a hearing the party seeking an extension of time usually did so. She was informed of the Claimant’s absence and that the father in law had run his case for him.
Held, after extensive review of the authorities:-
1. In considering the just and equitable extension the EJ had erred in law in not considering prejudice.
2. There was also an error of law in the failure to invite the father-in -law to give evidence on the reasons for the delay. The Claimant had not contributed to the claim or the delay; in reality it was the father-in law’s evidence, if any, which could have been important on the just and equitable issue.
3. But there was no error of law in relation to the reasonable practicability issue. The facts were clear; evidence could not have made any difference.
Appeal against the decision on the reasonable practicability decision dismissed; but the appeal against the just and equitable decision allowed; that issue remitted to a fresh Tribunal.

Jeffrey Burke QC J
[2013] UKEAT 0389 – 12 – 0307
Bailii
England and Wales

Employment, Discrimination

Updated: 15 November 2021; Ref: scu.512150

EAT DISABILITY DISCRIMINATION – Reasonable adjustments N
The disabled Claimant complained that in a restructuring she should not have been put through a competitive interview which was to her disadvantage. A reasonable adjustment would have been to appoint her to the role without going through that process. The role had changed. At interview, she did not meet the essential criteria and was not appointable. The Employment Tribunal correctly held that the duty was engaged but not breached. The adjustment sought was not reasonable as it was tantamount to appointing her to a role for which she did not meet the requirements.

McMullen QC J
[2013] UKEAT 0194 – 12 – 1504
Bailii
England and Wales

Employment, Discrimination

Updated: 15 November 2021; Ref: scu.512145

EAT DISABILITY DISCRIMINATION – Burden of proof
Burden of proof provisions correctly applied to claim of DDA victimisation. Permissible conclusion reached by Employment Tribunal. Post-termination conduct of Claimant relevant to remedy issue; had it arisen at the end of a joint liability/remedy hearing.

Peter Clark J
[2013] UKEAT 0268 – 12 – 2105
Bailii
England and Wales

Employment, Discrimination

Updated: 14 November 2021; Ref: scu.511064

EAT DISABILITY DISCRIMINATION
UNFAIR DISMISSAL – Compensation
An Employment Tribunal did not err in not using the Ogden tables in calculating future loss for disability discrimination and unfair dismissal. Wardle applied.
The use of the word inflation, once, in context with references to wage increases on 13 occasions, did not mean the Employment Tribunal impermissibly took account of inflation at 2.5% pa. This was the estimated figure for wage increases and promotions by a trade union to its officer.

McMullen QC
[2013] UKEAT 0504 – 12 – 2904
Bailii
England and Wales

Employment, Discrimination

Updated: 14 November 2021; Ref: scu.511061

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Striking out of two (of eight) allegations of sex and associative race discrimination not in accordance with Anyanwu and Eszias and in any event served no useful purpose – the allegations formed part of an alleged course of conduct which was disputed and which in the interests of justice all ought to be heard together.

David Richardson J
[2013] UKEAT 0483 – 12 – 0804
Bailii
England and Wales

Employment, Discrimination

Updated: 14 November 2021; Ref: scu.511056

The Respondent in the Employment Tribunal conceded that the Claimant was unfairly dismissed. Following a contested hearing, in its 2016 Decision, the Employment Tribunal found that the dismissal was not an act of age discrimination.
At a subsequent Remedy Hearing the Tribunal, by a majority, ordered that the Claimant be re-engaged in the role of Commercial Director, China PGA European Tour. The Respondent’s appeal against that Order succeeded. The majority had erred by not considering, and deciding, whether the Respondent had genuinely and rationally concluded that it lacked trust and confidence in the Claimant’s capability, applying United Lincolnshire Hospitals NHS Foundation Trust v Farren [2017] ICR 513. It had also, in any event, erred, by ordering re-engagement to a position in respect of which the Claimant did not meet an essential requirement.
The Claimant had sought a reconsideration of the remedy decision on the basis that there had been a failure to disclose vacancies for other positions that had arisen since his dismissal, but also been filled by the time of the Remedy Hearing. That was refused. The Claimant’s appeal against that decision was dismissed, as these did not, in law, fall to be considered.
Although it had ordered re-engagement, the Tribunal had also considered Polkey. However, it had erred by failing, when doing so, to consider the potential implications of findings it had made in its 2016 Decision, and what light they may have cast on the Polkey issues. That issue would therefore be remitted to the Tribunal for fresh consideration, as part of the process of deciding the compensatory award.

[2020] UKEAT 0285 – 18 – 2608
Bailii
England and Wales

Employment, Discrimination

Updated: 12 November 2021; Ref: scu.653277

RACE DISCRMINATION
VICTIMISATION DISCRIMINATION – Other forms of victimisation
PRACTICE AND PROCEDURE – Disposal of appeal including remission
The Employment Tribunal erred in failing to decide two of the complaints before them. However, on the unchallenged findings of fact there could have only been one outcome, that the complaints would have been dismissed. This is one of those rare cases in which the Employment Appeal Tribunal exercising its powers under the Employment Tribunals Act 1996 section 35(1)(a) dismisses the claims.

Slade DBE HHJ
[2018] UKEAT 0067 – 18 – 2507
Bailii
England and Wales

Employment, Discrimination

Updated: 12 November 2021; Ref: scu.631849

The court was asked whether the Employment Tribunal had jurisdiction to hear claims of age discrimination brought by the appellant’s employees, based in Hong Kong, but working as crew on flights between there and London.
Held: The appeal failed: ‘There was no error of law in the ET’s ruling that Ms Mak did ‘her work partly’ in Great Britain. That is sufficient to confer on the ET jurisdiction to hear and determine her claims (and those of her fellow claimants) for race and age discrimination. The jurisdiction exists as a result of the statutory process of deeming her employment to be at an establishment in Great Britain under s.8(1); that takes priority over the deeming process under s.8(4), which does not therefore apply to Ms Mak’s case.’

Mummery, Richards, Aikens LLJ
[2011] EWCA Civ 184
Bailii
Race Relations Act 1976 6(1), Employment Equality (Age) Regulations 2006 10(1)
England and Wales
Citing:
Appeal from – British Airways Plc v Mak and Others EAT 20-Jan-2010
EAT JURISDICTIONAL POINTS
Working outside the Jurisdiction
Hong Kong based cabin crew employed on Hong Kong to London flights. Whether working partly at an establishment in Great Britain for purposes . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 November 2021; Ref: scu.430045

bradford_prattEAT2007

EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the basis for the grievance. Held, allowing the appeal, that the employee had not done so.
Richardson J said: ‘an employee must set out in his statement not only the grievance he holds but the essential reasons why he holds his grievance, in sufficient detail to enable the employer to respond. The amount of detail the employee will be able to give is likely to depend on the nature of the grievance.’

Richardson J
[2007] UKEAT 0391 – 06 – 0901
Bailii
Employment Act 2002 30, Employment Act 2002 (Dispute Resolution) Regulations 2004, Employment Tribunal Rules of Procedure 2004
Citing:
Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
See Also – City of Bradford Metropolitan District Council v Pratt EAT 4-Oct-2006
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Cited – Canary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
Cited – Grimmer v KLM Cityhopper UK EAT 17-Mar-2005
Claimant provided appropriate details of the claim
EAT Application to ET rejected by ET under Rules 1-3 of the 2004 Rules of Procedure contained in Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 because claimant did . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 November 2021; Ref: scu.247779

EAT Race Discrimination – Victimisation

His Honour Judge Wilkie QC
EAT/1236/00, [2002] UKEAT 1236 – 00 – 0702
Bailii, EAT
England and Wales

Discrimination, Employment

Updated: 12 November 2021; Ref: scu.202568

met_shawEAT2011

EAT VICTIMISATION DISCRIMINATION – Remedy
The Claimant, an officer in the Metropolitan Police, reported dishonest conduct by a colleague. As a result of his complaint, the colleague and his superior officer had him suspended on unfounded disciplinary charges, which were collusively supported by a more senior officer. The charges were in due course dropped, but the Claimant was unable to return to his old department and had to move to a new role which he found less congenial and suffered lasting distress and disillusionment at the way he had been treated. At the liability hearing the Commissioner was held to have subjected the Claimant to an unlawful detriment by reason of his having made a protected disclosure, contrary to Part IVA of the Employment Rights Act 1996. At the remedy hearing the Tribunal awarded compensation in the sum of andpound;37,000 – comprising andpound;17,000 for injury to feelings and andpound;20,000 for aggravated damages. (There was no claim for injury to the Claimant’s health.)
On the Commissioner’s appeal against the amount of the award:
Held:
(1) Compensation for ‘whistleblower’ claims should be assessed on the same basis as awards in discrimination cases – Virgo Fidelis Senior School v Boyle [2004] ICR 1210 followed
(2) An award of andpound;20,000 for aggravated damages was outside the recognised range for such awards, and it was also anomalous that an award of aggravated damages should exceed the award for injury to feelings. The Tribunal had made various particular errors in arriving at that figure, including focusing entirely on the seriousness of the Appellant’s conduct rather than on the impact on the Claimant and thus in practice introducing a punitive element: aggravated damages are compensatory only and represent an aspect of compensation for injury to feelings rather than a wholly separate head of damages – Alexander v Home Office [1988] ICR 685, Prison Service v Johnson [1997] ICR 275, McConnell v Police Authority for Northern Ireland [1997] IRLR 625; ICTS (UK) Ltd. v Tchoula [2000] IRLR 643, and HM Prison Service v Salmon [2001] IRLR 425 referred to. Dictum of Slade J. in Ministry of Defence v Fletcher [2010] IRLR 25 disapproved.
(3) More fundamentally, the overall figure of andpound;37,000 was likewise excessive. The right overall award was andpound;30,000, of which andpound;7,500 would (if necessary) be identified as aggravated damages.
Guidance given as to the nature of aggravated damages and the principles governing their award.
The EAT questioned whether the current practice of distinguishing between awards for injury to feelings and aggravated damages was desirable and suggested that the better course would be to include the aggravating features without separate quantification in the overall award, as is done in Scotland (see D. Watt (Shetland) Ltd. v Reid (EAT/424/01)) – McConnell (above) and dicta of Keene LJ in Reid v British Telecommunications plc [2004] IRLR 27 and Smith LJ in Martins v Choudhary [2008] 1 WLR 617 referred to. However, it acknowledged that the practice was too well-established to be changed at this level.

Underhill P J
[2011] UKEAT 0125 – 11 – 2911
Bailii
Employment Rights Act 1996
England and Wales

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.449416

salfordnhs_smithEAT2011

EAT DISABILITY DISCRIMINATION ACT
The Claimant was a physiotherapist employed by the Respondent in a managerial position. At the relevant time she was on long term sick leave because she suffered from chronic fatigue syndrome. She was signed off work by her GP and was unable to return to her post or perform any productive work. It was accepted that she was disabled within the meaning of the Disability Discrimination Act 1995.
She maintained that the Respondent failed to make reasonable adjustments to facilitate an eventual return to work, contrary to its duties under ss 4A and 18B.
The Employment Tribunal found that the relevant PCP was the expectation the Claimant would perform her full role within the contracted hours, and that she was thereby placed at a substantial disadvantage.
The Employment Tribunal found that attempts should have been made to produce something for the Claimant to do by way of rehabilitation, not necessarily productive, to enable the Claimant to go to her doctor to say, ‘Doctor, this is what they suggest I do involving perhaps light duties two or three hours a day, two hours a week. Will you please sign me off to go back to work?’ notwithstanding that her GP maintained that at the time she was unable to perform any work at all.
The Claimant maintained that an alternative reasonable adjustment was to permit her to take a career break.
Neither proposed adjustment constituted a reasonable adjustment within the meaning of the Act as they did not prevent the PCP placing the Claimant at a substantial disadvantage in comparison with persons who were not disabled. Reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer. Matters such as consultations and trials, exploratory investigations and the like do not qualify as reasonable adjustments.
Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 and Environment Agency v Rowan [2008] IRLR 20 applied.

Serota QC J
[2011] UKEAT 0507 – 10 – 2608
Bailii
Disability Discrimination Act 1995
England and Wales

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.443576

The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have regard to the Civil Procedure Rules on striking cases out.
Held: The school’s appeal was allowed. ‘Notwithstanding that CPR 3.9 has not been incorporated into the ET Rules, there has built up a body of authority in the EAT to the effect that, when considering any discretionary decision analogous to a relief from sanction, an employment judge must give active consideration to all the nine factors mentioned in that rule.’ That is incorrect.
The Employment tribunal regime was set up to be simpler than that which applies in general civil litigation: ‘I do not consider that the same detailed requirements are to be expected of an employment judge considering an application for a review of a sanction. Of course, the judge must consider all the relevant factors and must avoid considering any irrelevant ones. He might well find the list in CPR 3.9(1) to be a helpful checklist, although he would be well advised to remember that, in the instant case, that list might not cover everything relevant. But he is not under any duty expressly to set out his views on every one of those factors.’

Ward LJ, Sedley LJ, Smith LJ
Times 23-Nov-2009, [2009] EWCA Civ 1190, [2010] CP Rep 9, [2010] ICR 473, [2010] IRLR 124
Bailii
Civil Procedure Rules 3.9, Employment Tribunals (Constitution and Rules etc) Regulations 2004 3
England and Wales
Citing:
Appeal from – Neary v St Albans Girls’ School and Another EAT 9-Jan-2009
EAT PRACTICE AND PROCEDURE: Striking-out/dismissal / Review
Non-compliance with unless order. Automatic strike-out under ET Rule13(2). Additional strike-out order under Rule 18(7)(e) a nullity. Whether . .
Cited – Bastick v James Lane (Turf Accountants) Ltd 1979
The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending.
Held: The court refused to interfere with the exercise of his dicretion . .
Mentioned – Carter v Credit Change Ltd CA 2-Jan-1979
There are restricted circumstances in which the tribunal can interfere on appeal with the tribunal’s exercise of its discretion. Stephenson LJ said: ‘All the reasons which he gave seem to me to be good reasons for the decision to which he came; many . .
Cited – Goldman Sachs Services Ltd v Montali EAT 19-Oct-2001
EAT This interlocutory appeal raises a point of general importance regarding Employment Tribunal practice where one Tribunal revisits and varies or alters an interlocutory order or direction made by an earlier . .
Cited – Maresca v The Motor Insurance Repair Research Centre EAT 12-Nov-2003
An employment judge had struck out the claim for non-compliance with an order for disclosure. Two days later, having complied fully, the claimant applied for a review. The employment judge summarily dismissed the application. Held Rimer J allowed . .
Cited – British School of Motoring v C Fowler EAT 24-Feb-2006
EAT Clark cited J Maresca and said that Rimer J had said that the court ‘ought to take into account’ all the CPR 3.9(1) factors on an application for relief from sanctions. . .
Cited – McGuire v Centrewest London Buses Ltd EAT 17-Apr-2007
EAT Striking-out/dismissal
Review
Review of strike-out order – principles to be applied, see Maresca; proportionality; whether lesser sanction appropriate. Case remitted for rehearing of review . .
Cited – The Royal Bank of Scotland v Soper EAT 1-May-2007
EAT Cox J allowed an appeal against the refusal of a review application on the ground that the Chairman had not ‘directed himself as to the wider considerations required when exercising his powers of review’. . .
Cited – AEI Rediffusion Music Ltd v Phonographic Performance Ltd CA 1-Feb-1999
The copyright tribunal was given a wide discretion for the awarding of costs on applications made to it for licenses. The nature of the applications and the different basis makes it dangerous to import rules for awards from the general rules on . .
Cited – Bansal v Cheema CA 2-Mar-2000
The court considered the application of CPR 3.9(1) to a decision relating to the relief of a sanction.
Held: Lord Justice Brooke said: ‘It is essential for courts, exercising their discretion on an occasion like this, to consider each matter . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Jones v Williams CA 27-May-2002
. .
Cited – Tisson v Telewest Communications Group Ltd EAT 19-Feb-2008
The claimant’s claim had been struck out for his failure to comply with an order to serve a list of documents.
Held: The appeal failed. The principles applied under the Civil Procedure Rules should be applied in Employment Tribunals. The . .
Cited – James v Blockbuster Entertainment Ltd EAT 18-Aug-2006
EAT Practice and Procedure – Costs
Costs orders for andpound;10,000 and andpound;1000 did not exceed the statutory maximum order Reg 14. Order for andpound;10000 made after striking-out order; that order was . .
Cited – Afolabi v Southwark London Borough Council CA 24-Jan-2003
The claimant applied for leave to bring an action for race discrimination nine years after the acts complained of. Leave was granted. The respondent said the tribunal should have heard the complaint first before deciding to extend time.
Held: . .
Cited – Blockbuster Entertainment Ltd v James CA 25-May-2006
The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.380246

olenloaEAT2012

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
The Employment Judge erred in deciding, without making necessary findings of fact, that the Respondent’s obligations to make reasonable adjustments for the Claimant, who was alleged to be a disabled person, came to an end when he went on sick leave. The evidence before the Employment Judge on which she made her decision suggested that she erred in failing to make findings of fact about the nature of any adjustments required and whether the Claimant would have been able to remain or return to work if such adjustments had been made. Such findings were necessary to determine whether the complaints of failure to make reasonable adjustments were made in time and if not, whether it was just and equitable to extend time. These issues were to be determined at a full hearing of the Claimant’s claims some of which were in any event presented in time. NCH Scotland v Ms P McHugh UKEATS/0010/06/MT distinguished. Hendricks v Commissioner of Police of the Metropolis [2003] IRLR 96 and Matusowicz v Kingston upon Hull City Council [2009] EWCA Civ 22 applied.
Observations on the difficulty of determining without hearing all the relevant evidence the date upon which it is to be inferred that an employer decided on an omission such that time starts to run for the purpose of presenting a complaint of failure to make reasonable adjustments.

Slade J
[2012] UKEAT 0599 – 11 – 2906
Bailii
England and Wales

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.461866

Sexual orientation discrimination – victimisation

Sexual orientation discrimination – victimisation – unfair dismissal – compensation
Practice and procedure – costs
Having upheld the Claimant’s claims of direct sexual orientation discrimination, of harassment related to sexual orientation, of victimisation and of unfair dismissal, the Employment Tribunal (‘ET’) went on to assess compensation on a career-loss basis, calculated using a base salary that adopted an average of the competing pay figures used by the parties, and to award a 20% uplift for the Respondent’s failure to comply with the ACAS Code on Discipline and Grievance (‘the Code’) pursuant to section 207A Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’). Separately, the ET ordered the Respondent to pay one-third of the Claimant’s total costs, notwithstanding an earlier costs award in respect of the Respondent’s unreasonable conduct which the ET had assessed as having given rise to four days of additional costs.
The Respondent appealed against the ET’s Remedy Judgment on the basis that it had been wrong/had reached a perverse decision in awarding compensation on a career-loss basis and had failed to apply a correct discount (Grounds 1 and 2); that it had erred in its approach/reached a perverse decision in its calculation of base salary (Grounds 3 and 4); and that it had failed to carry out the requisite assessment of the uplift awarded under section 207A TULRCA (Ground 5). It further appealed against the ET’s Costs Judgment as offending against the principles of res judicata given the earlier costs award it had made.
Held: upholding the appeals in part
Remedy Appeal
As a result of the discriminatory treatment he had suffered, it was common ground that the Claimant suffered moderate PTSD, depression and symptoms of paranoia, presenting with various functional impairments as a result (which included finding it difficult to leave his house on some days, or to attend to his personal care, or interact with members of the public, as well as experiencing low mood and sleep disturbance). On the basis of the Claimant’s expert medical evidence, the ET had permissibly found that the Claimant’s condition was likely to be life-long. Adopting the approach laid down in Wardle v Credit Agricole Corporate and Investment Bank [2011] ICR 1290, the ET concluded that it was very unlikely that the Claimant would ever be able to return to any work; on the basis of the ET’s findings, it was entitled to find that this was one of those rare cases where it would be appropriate to consider the Claimant’s future losses on a career-long basis. Equally, given its findings of fact, the ET had been entitled to apply only a 5% discount when assessing the likelihood of the Claimant choosing to leave his employment early or the possibility of his being able to return to some form of employment in the future. It had, however, erred in failing to take account of the more general uncertainties of life that might impact upon either the length of a person’s working life or even just the length of their working day and Grounds 1 and 2 of the appeal would be upheld on that basis.
As for the calculation of base salary, the parties had each relied on different years as representative of the Claimant’s earnings, taking into account overtime. The ET had permissibly calculated base salary on the average of the two years used by the parties; that broad-brush approach neither demonstrated an error of law nor gave rise to a perverse conclusion. Grounds 3 and 4 were dismissed.
In determining that an uplift of 20% should be awarded in respect of the Respondent’s failure to comply with the Code, the ET had not demonstrated that it had considered the absolute value of the award it was thus making; that was an error of law (Acetrip Ltd v Dogra, unreported, EAT (18 March 2019), UKEAT/0238/18, [2019] UKEAT 0238 – 18 – 1803, and Banerjee v Royal Bank of Canada [2021] ICR 359, EAT, followed). The ET’s reasoning needed to demonstrate that it had considered the totality of the award and that this was proportionate to the Respondent’s breach of the Code and to any harm suffered by the Claimant as a result (such that it was just and equitable to make an award of an uplift in that sum). Ground 5 of the appeal would therefore be allowed.
The Costs Appeal
At a relatively early stage of the liability hearing, the Claimant had made an application to strike out the Respondent’s response given its unreasonable conduct, in particular in relation to issues of disclosure; the Claimant reserved the right to apply for costs until the end of the hearing. The ET declined to strike out the response but determined that the Respondent’s conduct in relation to disclosure and witness availability had been unreasonable and that it was appropriate to make a costs order in this regard. The ET assessed that conduct as extending the hearing by four days and duly made an award in favour of the Claimant for the costs of those additional days.
After the promulgation of the ET’s Liability Judgment, the Claimant had made an application for the entire costs of the proceedings. The ET had granted this application but limited recovery to one-third of his costs. In so doing, the ET had again referred to the Respondent’s unreasonable conduct in relation to disclosure. To the extent that related to such conduct post-dating the first costs award, no objection could be taken. The ET’s reasoning suggested, however, that it also related to disclosure issues prior to its making the first costs award, thus re-opening an issue that had already been determined and exposing the Respondent to double jeopardy in respect of that conduct. On that basis, the Respondent’s appeal would be allowed. It was, however, not possible to simply limit the second costs order to one-third of the Claimant’s costs post-dating the first award; that would not take account of the other aspects of the Respondent’s unreasonable conduct that pre-dated the first costs order but had formed no part of the ET’s reasoning at that time, and might fail to properly represent the ET’s intentions, given that it had limited costs to one-third by adopting a broad-brush approach to this issue. Absent any agreement between the parties, the issue of costs would need to be remitted to the ET.

Eady J
[2021] UKEAT 0016 – 20 – 0607
Bailii
England and Wales

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.663597

cvs_borghEAT072013

EAT RELIGION OR BELIEF DISCRIMINATION
AGE DISCRIMINATION
The authorities on the alternative definition of ’employee’ in Employment Equality (Religion or Belief) Regulations 2003 and Employment Equality (Age) Regulations 2006 as a person employed ‘under a contract personally to do any work’ establish that there is a dichotomy between independent providers of services who are not in a relationship of subordination with the person who receives the services and those who are in such a relationship and are within the scope of the Regulations. As was pointed out by Lord Clarke in Jivraj v Hashwani [2011] ICR 1004 these are broad questions which depend upon the circumstances of the particular case. The Employment Judge in this case did not err in failing to consider whether the Claimant was in a relationship of subordination to the Respondent as a separate issue from all the factors she took into account in determining that he was an employee within the meaning of the Regulations.
Both sets of Regulations were revoked, with transitional measures, by the Equality Act 2010 and the subject matter of those provisions included in that Act.
Perversity challenge to the determination that the Claimant was an employee also failed.
Appeal dismissed.

Slade J
[2013] UKEAT 0009 – 13 – 2607, [2013] UKEAT 0009 – 13 – KN – 2607
Bailii, Bailii
Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Age) Regulations 2006
England and Wales

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.514175

EAT EQUAL PAY ACT
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They had been transferred pursuant to a TUPE transfer and claimed their equal pay rights some five years later. Their claims relied upon establishing equal pay with comparators who had been employed by the transferor but had not been transferred to the transferee.
The employers argued that the claims were out of time and should have been brought within six months of the transfer as required by section 2ZA of the Equal Pay Act. They relied upon the decision of the House of Lords in Powerhouse Retail Limited v Burroughs and others [2006] IRLR 381 as interpreted in Unison v Allen [2007] IRLR 975. The Employment Tribunal held that these authorities applied only where the breach in issue was that of the transferor. They did not apply where, as in this case, the allegation was that the transferee was personally liable for breach of the transferred terms.

The EAT allowed the employer’s appeal but only in so far as the claims related to the period when the transferor was in breach of the equality clause. They held that Powerhouse would apply so as to render out of time any claims against the transferor (even although liability for those breaches had transferred to the transferee). However, the EAT dismissed the appeal with respect to the claims against the transferee for his failure personally to respect the transferred terms; that claim could be brought at any time within six months from the end of the relevant employment with the transferee.

Elias J P
[2008] UKEAT 0024 – 08 – 3107, [2008] IRLR 752, [2008] ICR 70
Bailii
Equal Pay Act 1970
England and Wales
Citing:
Cited – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Cited – Unison v Allen and others EAT 26-Jul-2007
EAT Equal pay Act – Out of time
The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with . .
Cited – Sorbie v Trust House Forte Hotels EAT 1976
Phillips J considered an alteration to the terms of an employment contract, saying: ‘One then goes on to see what the effect as prescribed is, and it is that that term, so identified, in the appellants’ contracts shall be treated, as so modified, as . .
Cited – Lawrence and others v Regent Office Care Ltd and Others ECJ 17-Sep-2002
The employees claimed sex discrimination, and sought to have as comparators, male employees of an employer who had previously employed some of them, before a TUPE transfer of the services supplied. The Court of Appeal referred to the court the . .
Cited – Armstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
Cited – Martin v Lancashire County Council Appeal (and Cross Appeals) Bernadone v Pall Mall Services Group and Haringey Healthcare Nhs Trust and Independent Insurance Ltd CA 16-May-2000
Where an undertaking was transferred, existing liabilities arising out of the employment were transferred notwithstanding that these liabilities were not contractual. A claim for personal injuries became the responsibility of the new employer. At . .
Cited – Jackson v Computershare Investor Services Plc CA 30-Oct-2007
It is inconsistent with the TUPE regulations to seek to use them to improve an employee’s terms and conditions. . .
Cited – Macarthys Ltd v Smith ECJ 27-Mar-1980
The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be . .

Cited by:
Appeal from – EA Gutridge and Others v Sodexo and Another CA 14-Jul-2009
The employees appealed against dismissal of their equal pay claims. They said that having been transferred under a TUPE arrangement, and now having to claim against the new employer, they argued that the six months time limit started from the time . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.271329

EAT EQUAL PAY ACT – Like work
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site. She brought a claim under the Equal Pay Act 1970 against the respondent comparing her position with that of existing and former production planning managers at other sites. All four managers fell within the category of junior managers being answerable to their own senior management team in their respective sites.
The Employment Judge concluded that the Claimant had not satisfied them that she was in ‘the same employment’ as the main comparators for the purposes of section 1(6) of the Equal Pay Act 1970. The Claimant appealed contending that the correct principles had not been applied and that the decision of the Employment Tribunal was perverse.
Held: The appeal was dismissed because:-
(a) The Employment Judge applied the correct principle of adopting a broad common sense approach applying Leverton v Clwyd CC [1989] ICR 33, 60 per Lord Bridge of Harwich and British Coal Corporation v Smith [1996] ICR 515, 528 per Lord Slynn of Hadley;
(b) The Employment Judge was entitled to take the view that the terms of the comparators were not broadly similar to those of the Claimant because they were different in respect of holiday pay, notice pay provisions, pay structure, discipline and grievance procedure, collective bargaining and there was no over arching company handbook. No steps had been taken to harmonise terms and conditions across the three sites either collectively or through individual consultation and variation save for the introduction of a standardised appraisal system. Pay at each site was fixed through local collective agreements or through an internally approved outcome;
(c) In those circumstances and for those reasons, the claim of perversity had to be rejected as there was nothing approaching the threshold required for a claim of perversity to succeed, namely ‘an overwhelming case is made out that the Employment Tribunal reached a conclusion which no reasonable tribunal, on a proper appreciation of the law and evidence would have reached’ (Statement of Mummery LJ in Yeboah v Crofton [2002] IRLR 634,643 applied).

Silber J
[2010] UKEAT 0514 – 09 – 0607
Bailii
Equal Pay Act 1970 1
England and Wales
Citing:
Cited – Leverton v Clwyd County Council HL 1989
The claimant, employed as a nursery nurse by the respondent in an infant school sought to compare herself with clerical staff employed by the respondent, but not in schools.
Held: The employee’s appeal succeeded. The majority of the Employment . .
Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – British Coal Corporation v Smith and Others HL 23-May-1996
The phrase ‘common terms of employment’ means broadly comparable terms. There is no need for them to be identical, and the phrase should be construed liberally, though there can be no general commonality where there is no commonality in terms and . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.420261

lockwood_dwpEAT2013

EAT Age Discrimination – Direct age discrimination. Differences in severance payments on voluntary redundancy in the Civil Service between younger and older leavers.
ET findings (a) that the two groups were not truly comparable and, in the alternative (b) on justification upheld. As to justification, Seldon (Supreme Court) considered and applied.
Claimant’s appeal dismissed.

Peter Clark J
[2013] UKEAT 0094 – 12 – 0402
Bailii
England and Wales
Citing:
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.470767

amnesty_ahmedEAT2009

EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of (northern) Sudanese ethnic origin, applied for promotion to role of ‘Sudan researcher’ for Amnesty International – Not appointed because Amnesty believed that the appointment of a person of her ethnic origin would compromise its perceived impartiality (and thus its effectiveness) and would expose the Claimant (and those with her) to an increased safety risk when visiting Sudan or the camps in Eastern Chad – Claimant resigned and claimed for race discrimination and unfair (constructive) dismissal
Held:
(1) Tribunal right to hold that the Claimant’s non-appointment constituted direct discrimination on the grounds of her national/ethnic origin, contrary to ss. 1 (1) (a) and 4 (2) (b) of the Race Relations Act 1976, notwithstanding Amnesty’s (potentially) justifiable reasons for the decision – James v Eastleigh Borough Council applied – Discussion of relationship between James and Nagarajan/Khan.
(2) Tribunal entitled to hold that Amnesty had not proved that appointing the Claimant would have put it in breach of s. 2 (1) of the Health and Safety at Work Act 1974, so as to be able to invoke the defence under s. 41 (1) of the 1976 Act – Discussion of Hampson v DES, Goba v GMC and Page v Freight Hire (Tank Haulage) Ltd.
(3) The Tribunal’s alternative finding of indirect discrimination insufficiently reasoned on the justification issue.
(4) It did not necessarily follow from the finding of discrimination that Amnesty was in breach of the Malik term, so as to entitle the Claimant to claim constructive dismissal; and in the particular circumstances of the present case no such breach had occurred.

Underhill J, P
Times 06-Oct-2009, [2009] UKEAT 0447 – 08 – 1308, [2009] ICR 1450, [2009] IRLR 884
Bailii
Race Relations Act 1976 1(1)(a), Health and Safety at Work Act 1974 291), Employment Equality (Age) Regulations 2006
Citing:
Cited – Din v Carrington Viyella Ltd EAT 1982
The court considered what actions could found a claim for racial discrimination: ‘What has to be enquired into is the reason why a particular course was adopted: the question is was it on racial grounds?’ The court deprecated any consideration of . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – 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 – Regina v Commission for Racial Equality (ex parte Westminster City Council) QBD 1984
The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the . .
Cited – Martin v Lancehawk Limited T/A European Telecom Solutions EAT 15-Jan-2004
EAT Sex Discrimination – Indirect
The (male) managing director of the respondent company had dismissed a (female) fellow employee when an affair which they had been having came to an end. She claimed that . .
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – Seide v Gillette Industries Ltd 1980
The claimant had been moved to a different department to escape anti-Semitic harassment. He fell out (for non-racial reasons) with his colleagues in his new department and was disciplined.
Held: The fact that but for the earlier harassment he . .
Cited – General Medical Council v Goba EAT 1988
. .
Cited – 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 – Olatokun v Ikon Office Solutions EAT 10-May-2004
EAT Race Discrimination – Direct
EAT Race Discrimination – Direct . .
Cited – Elias, Regina (on the Application of) v Secretary of State for Defence and Another Admn 7-Jul-2005
. .
Cited – Page v Freight Hire (Tank Haulage) Ltd EAT 1981
The complainant was a female lorry driver, aged 23, employed by a firm specialising in the carriage of chemicals. One chemical was potentially embryotoxic, and the manufacturers warned that special precautions should be taken to avoid women of . .
Cited – Courtaulds Northern Textiles Ltd v Andrew EAT 1979
There is implied into a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust . .
Cited – BG Plc v P O’Brien EAT 22-Feb-2001
EAT Contract of Employment – Breach of Contract
The employee complained that he had not been offered a revised contract of employment with enhanced redundancy terms, with the result that he did not receive . .
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2001
The claimant appealed against dismissal of her claim of unfair constructive dismissal. She complained of having been publicly told off. The court considered whether this amounted to a breach of a fundamental term of her contract entitling her to . .

Cited by:
Cited – Orr v Milton Keynes Council EAT 5-Nov-2009
EAT UNFAIR DISMISSAL:
Reasonableness of dismissal
RACE DISCRIMINATION:
Direct
Where discrimination and unfair dismissal allegations overlap and the Employment Tribunal hears and disbelieves . .
Cited – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .
Cited – Vivian v Bournemouth Borough Council EAT 6-May-2011
EAT UNFAIR DISMISSAL
An act is on the ground that an employer has made a protected disclosure within the meaning of the Employment Rights Act 1996 section 47B if it is done by reason of such a disclosure or . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.372610

The claimant appealed against dismissal of her claim for equal pay. The tribunal had said that she had failed to provide evidence from an independent expert that her work was of equal value to that of a comparator.
Held: On the facts, the appeal failed, though the tribunal had been wrong to say that such a report was necessary. There had been differences in the tasks of the comparator, and the claimant needed to provide a proper explanation. The fact that the jobs had been found to be of nearly equal value in an evaluation was not enough.

Lord Justice Mummery, Lord Justice Etherton and Lord Justice Elias
Times 05-Oct-2009
England and Wales
Citing:
Appeal from – Hovell v Ashford and St Peter’s Hospital NHS Trust EAT 13-Aug-2008
EAT Equal Pay Act 1970 s1(2)(c) claim in respect of period prior to implementation of JES which banded Claimant together with her male comparators. Effect of that banding on s1(2)(c) claim. Whether requirement . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.375603

The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation after their primary discrimination claims.
Held: The 1975 and 1976 Acts were similarly phrased and the wording in the 1995 Act was not significantly different. It was illogical to try to draw a simple line as to the requirement not to discriminate terminating that obligation with the employment. There was no reason why an employer should have a lesser duty giving a reference for a former employee than for a current one. A refusal to re-instate an employee after a direction of a tribunal for re-instatement was not itself discrimination since it did not arise from the employment and statutory remedies were given.

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
[2003] UKHL 33, [2003] ICR 867, Gazette 31-Jul-2003, [2003] IRLR 484
House of Lords, Bailii
Race Relations Act 1976, Sex Discrimination Act 1975, Disability Discrimination Act 1995
England and Wales
Citing:
Disapproved – Post Office v Adekeye CA 13-Nov-1996
Race discrimination which took place after a dismissal was not unlawful within the section, since that first required the context of employment, and after the dismissal, the applicant was no longer in that employment. The natural meaning of the . .
Appeal from – Rhys-Harper v Relaxion Group plc CA 3-May-2001
A sex discrimination claim involving a claim by an employee for damages for sexual harassment, had to be made during the period of employment. An employer’s failure to deal properly with an allegation of sexual harassment could itself be a detriment . .
Cited – Nagarajan v Agnew EAT 21-Jul-1993
Mr Nagarajan, of Indian birth, had brought several complaints to the Tribunal based on race. A settlement was reached on or about 1st November 1989 in full and final settlement of all his claims arising out of his employment with London Underground . .

Cited by:
Appealed to – Rhys-Harper v Relaxion Group plc CA 3-May-2001
A sex discrimination claim involving a claim by an employee for damages for sexual harassment, had to be made during the period of employment. An employer’s failure to deal properly with an allegation of sexual harassment could itself be a detriment . .
Cited – Chief Constable of Kent County Constabulary v Baskerville CA 3-Sep-2003
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done . .
Cited – 1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .
Cited – 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 – V v Addey and Stanhope School CA 30-Jul-2004
The respondent resisted a claim of unfair dismissal and race discrimination on the basis that the employment contract was illegal since the claimant was an immigrant and unable to work without a work permit.
Held: The Court of Appeal upheld a . .
Cited – Saggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
Cited – Saggar v Ministry of Defence CA 27-Apr-2005
The claimant sought to bring an action for race discrimination. The defendant argued that the alleged acts of discrimination took place whilst he was on a posting abroad in Cyprus after serving 16 years in England, and that therefore the tribunal . .
Cited – Woodward v Abbey National Plc CA 22-Jun-2006
The claimant appealed refusal to award damages after an alleged failure to give a proper reference, saying that the decision in Fadipe could not stand with the later decision in Rhys-Harper. She said that she had suffered victimisation after making . .
Cited – Rank Nemo (DMS) Ltd and Others v Coutinho CA 20-May-2009
The claimant had succeeded in a claim for discrimination and registered it for enforcement, but it had still not been paid.
Held: Although the Employment Tribunal had no role in enforing its own decisions, the claimant could return to the . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Leading Case

Updated: 11 November 2021; Ref: scu.183697

barlow_stoneEAT2012

EAT DISABILITY DISCRIMINATION – Aiding and abetting
The Tribunal erred in concluding that it had no jurisdiction to consider a claim of victimisation brought by an employee against a fellow employee under Part II of the Disability Discrimination Act 1995. In the circumstances it had: see section 17A(1)(b), section 57(1) and (2) and section 58(1) and (2) of the 1995 Act.

Richardson J
[2012] UKEAT 0049 – 12 – 0106
Bailii
Disability Discrimination Act 1995 11 57 58
England and Wales

Employment, Discrimination

Updated: 11 November 2021; Ref: scu.463176

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 had to establish facts allowing the tribunal to conclude, in the absence of an adequate explanation, that an unlawful act of discrimination had taken place. If that was established, the respondent was to establish that he did not commit the unlawful act. Though the Barton guidance was important, the courts must take the law from the statutes. The court set out 13 additional considerations. Once an employee has established a prima facie case of discrimination by showing that there is prima facie evidence to the effect that he/she has been treated less favourably than a relevant comparator the burden of proof transfers to the employer. If he is to escape liability the employer must then prove on the balance of probabilities that the less favourable treatment complained of was not on the grounds of race.
Peter Gibson LJ said: ‘The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.’
‘It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such evidence, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that he or she would not have fitted in.’

Lord Justice Peter Gibson Lord Justice Kennedy Lord Justice Scott Baker Lord Justice Peter Gibson Lord Justice Kennedy Lord Justice Scott Baker
[2005] EWCA Civ 142, Times 03-Mar-2005, [2005] IRLR 258, [2005] ICR 931, [2005] 3 All ER 812
Bailii
Sex Discrimination Act 1975 63A, Disability Discrimination Act 1995, Race Relations Act 1976 54A, Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (2001 no 2660), Race Relations Act 1976 (Amendment Regulations) 2003 (2003 no 1626), Disability Discrimination Act 1995 (Amendment) Regulations 2003 (2003 No 1673), Employment Equality (Religion or Belief) regulations 2003 (2003 No 1660)
England and Wales
Citing:
On appeal from – G Webster v Brunel University EAT 14-Dec-2004
EAT Race Discrimination
Novel point decided that the Employment Tribunal erred in concluding that, in a case where there was an issue as to whether the act complained of was by the Respondent (i.e. by . .
On Appeal from – Chamberlin Solicitors v Emokpae EAT 15-Jun-2004
. .
On Appeal from – Igen Ltd (Fomerly Leeds Careers Guidance) and others v K Wong EAT 5-Apr-2004
EAT Race Discrimination
Burden of proof in Race Relations Act 1976 s 54A. Whether a prima facie case had been made to transfer the burden. Application of Barton v Investec. . .
Applied – Barton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

Cited by:
Appealed to – Igen Ltd (Fomerly Leeds Careers Guidance) and others v K Wong EAT 5-Apr-2004
EAT Race Discrimination
Burden of proof in Race Relations Act 1976 s 54A. Whether a prima facie case had been made to transfer the burden. Application of Barton v Investec. . .
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Barracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
Cited – Brown v London Borough of Croydon and Another CA 26-Jan-2007
The claimant appealed dismissals of his claim for race discrimination, harassment and victimisation. In a new job, other team members said they were uncomfortable alone with him, and his probationary period was extended because of his failure to fit . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
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 – Atabo v Kings College London and others Newman, Methven, Law CA 19-Apr-2007
The claimant sought leave to appeal dismissal of her claim for discrimination, saying that the EAT had missapplied the test in Madarassy and associated cases on the burden of proof.
Held: ‘the applicant did not make out a prima facie case of . .
Cited – High Quality Lifestyles Ltd v Watts EAT 10-Apr-2006
EAT The Employment Tribunal had erred in its construction of direct discrimination under s3A(5) of the Disability Discrimination Act 1995 as amended when it failed to construct a correct hypothetical comparator . .
Cited – Secretary of State for Defence v Lance Corporal (Now Corporal) Duncan and Another CA 12-Oct-2009
The servicemen had challenged the awards made to them for injuries suffered in service. The SSD now appealed.
Held: The awards had been increased when it became clear that the SD had failed to take account of some elements of the injuries . .
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 . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – Transport for London and Another v Aderemi EAT 4-Nov-2011
EAT RACE DISCRIMINATION
Direct and Victimisation
Burden of Proof
The Employment Tribunal conflated the two concepts of firstly less favourable treatment and secondly whether there was a prima facie . .
Cited – Bivonas Llp and Others v Bennett EAT 31-Jan-2012
bivonas_EAT2012
EAT Sexual Orientation Discrimination or Transexualism – The Employment Tribunal correctly applied the law relating to detriment in a case of sexual orientation discrimination; see Shamoon v Chief Constable of . .
Cited – Grampian Health Board v Hewage EAT 4-Feb-2009
EAT SEX DISCRIMINATION: Burden of proof
RACE DISCRIMINATION: Inferring discrimination
Tribunal found Claimant to have suffered both sex and race discrimination in course of her employment as a . .
Cited – NHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .
Cited – Cass v Amt-Sybex (Northern Ireland) Ltd NIIT 26-Jan-2011
The decision of the tribunal is that the respondents’ application for costs is refused. . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Leading Case

Updated: 10 November 2021; Ref: scu.223101

The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence of racial discrimination, and a case will usually depend on what inferences can properly be drawn. If a claimant can show that he has been less favourably treated than comparable individuals from a different racial group, then the court will look to the alleged discriminator for an explanation. If no explanation is put forward or if the explanation is inadequate or unsatisfactory, it will be legitimate to infer that the discrimination was on racial grounds. Discrimination may not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’ The case will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal, including any inferences which it is just and equitable to draw in accordance with the section from an evasive or equivocal reply to a questionnaire. A finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. This is not a matter of law but, ‘almost common sense.’ ‘The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal . .
Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances, the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds
It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.’

Neill LJ
[1992] ICR 516, [1991] EWCA Civ 16, [1991] IRLR 513
Bailii
Race Relations Act 1976 65(2)(b)
England and Wales
Citing:
Cited – North West Thames Regional Health Authority v Noone CA 1988
The question of whether an employer has acted in a racially discriminatory is to be concluded not as a matter of law, but from his behaviour and almost as a matter of common sense.
May LJ said: ‘As there is not often direct evidence of . .

Cited by:
Cited – Allen v Oliver Group Plc and Another CA 24-May-2001
The appellant appealed a finding against her by the ET and EAT on her claim of race discrimination. The tribunal found that the applicant had been treated less favourably, but had been unable to find any evidence that this had its origins in her . .
Cited – A Bhadhuri v Doncaster Metropolitan Borough Council EAT 30-Apr-2002
EAT Race Discrimination – Jurisdiction
The applicant challenged dismissal of his claim for direct race discrimination by his employers. He said that his employers failure to support his career progression . .
Cited – Scott v London Borough of Hillingdon CA 18-Dec-2001
The claimant’s claim for race discrimination had been dismissed on appeal by the EAT. He now appealed to restore the judgement of the employment tribunal. He had begun an action against his employer, and then unsuccessfully applied for employment . .
Updated – Barton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
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 . .
Cited – Qureshi v Victoria University of Manchester EAT 21-Jun-1996
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. The questions on a complaint of race discrimination are: (a) Did the act complained of actually occur? (b) If the act . .
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 . .
Approved – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Deman v The Association of University Teachers and Others EAT 2-Jul-2003
EAT Practice and Procedure – Estoppel
EAT Practice and Procedure – Estoppel or Abuse of Process. . .
Cited – Madden v Preferred Technical Group CHA Limited, Guest CA 27-Aug-2004
The claimant had made a complaint of race discrimination. The complaint was dismissed. Some time later the company dismissed him, and he again lodged a complaint. The tribunal found him unfairly dismissed, but again not discriminated against.
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Approved – Glasgow City Council v Zafar SCS 1997
The house considered the burden of proof in cases involving allegations of discrimination.
Held: Lord Morison ‘The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Applied – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – 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 – Divine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
Cited – Pricewaterhouse Coopers Llp v Popa EAT 12-Oct-2010
pwc_popaEAT10
EAT RACE DISCRIMINATION
Post employment
Burden of Proof
In determining a claim of post termination victimisation under the Race Relations Act 1976 the Employment Tribunal did not fail to consider . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Cited – Ugiabe v Tower Hamlets Primary Care Trust (Race Discrimination : Direct) EAT 9-May-2013
EAT RACE DISCRIMINATION – Direct
The Claimant’s appeal argued that the Employment Tribunal had failed to follow through the inferences that it had drawn as to the conduct of the Medical Director of the . .
Cited – Alexandra Healthcare NHS Trust and Another v Effa EAT 21-Apr-1998
The Trust appealed against a finding of race discrimination. He was a doctor working as a locum. He had been summarily dismissed in breach of the respondent’s own procedures and professional standards.
Held: The appeal succeeded. The tribunal . .
Cited – Gbokoyi v Bennett’s Eco-Inverter (Environmental Services) Ltd EAT 18-Jan-2002
The claimant appealed against dismissal of her unfair dismissal and of her maternity related discrimination claim.
Held: The appeal succeeded: ‘it does not appear that the tribunal gave any separate consideration to whether the pregnancy was . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 10 November 2021; Ref: scu.181617

The court was asked whether a claim as to acts of victimisation could be sustained in connection with actions alleged after termination of employment.
Held: The appeal succeeded. The Act operated to proscribe such actions. However, this is one of those exceptional cases where the court could confidently say that the draftsman had erred and had, by an oversight, failed to reflect Parliament’s clear intention, and the court was in a position to remedy that error. Accordingly the statute was interpreted as conferring the right on ex-employees to take victimisation claims.

Maurice Kay VP CA, Ryder, Underhill LJJ
[2014] EWCA Civ 185, [2014] IRLR 368, [2014] WLR(D) 101, [2014] ICR 550, [2014] Eq LR 230, [2014] 3 All ER 409
Bailii, WLRD
Equality Act 2010
England and Wales
Citing:
Appeal from – Rowstock Ltd v Jessemey EAT 5-Mar-2013
EAT UNFAIR DISMISSAL – Polkey deduction
AGE DISCRIMINATION – Dismissal
VICTIMISATION – Post-employment
FACTS
The employee was dismissed on grounds of retirement, having reached an age over . .
Cited – Post Office v Adekeye CA 13-Nov-1996
Race discrimination which took place after a dismissal was not unlawful within the section, since that first required the context of employment, and after the dismissal, the applicant was no longer in that employment. The natural meaning of the . .
Cited – Coote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .

Cited by:
Cited – Deer v University of Oxford CA 6-Feb-2015
The claimant had previously succeeded in a claim of sex discrimination against the University, her former employer. She now appealed against rejection of her claims alleging later victimisation.
Held: Two appeals succeed, and those matters . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Leading Case

Updated: 10 November 2021; Ref: scu.521625

EAT RACE DISCRIMINATION: Direct / Burden of proof
PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke
Direct race discrimination. Consideration of case at stage 1 of Igen. Reasons for upholding employer’s explanation at stage 2.

[2008] UKEAT 0316 – 08 – 0310
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: 10 November 2021; Ref: scu.278806

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 detriment by being exposed to a risk that on her return to work she would suffer financial loss and career disadvantage. It held that the reason for the removal of the dog from her, and subsequently a failure to re-allocate the dog to her before the end of her maternity leave, was because of her pregnancy and maternity, and hence was directly discriminatory. An argument that this took too broad an approach to the question of causation was rejected.
The Tribunal had rejected a claim of indirect sex discrimination arising out of the application to the Claimant of the force’s policy to remove a dog from its handler where the handler was likely to be non-operational for a while, as when pregnant. It did so on the basis (i) (possibly) that the Claimant could not succeed both in respect of indirect and direct discrimination in respect of the same circumstances; (ii) that the policy would have an adverse impact only in some, but not all, cases where a PC was non-operational; and (iii) that there was no detriment since there was only a ‘risk’ or ‘potential’ disadvantage.
Held: As to (i), the heads of claim were different, and it was thus possible for the same events to give rise both to direct pregnancy discrimination and indirect sex discrimination; as to (ii) that the policy only produced disadvantage in some cases was no reason to exclude it from causing indirect discrimination; and as to (iii) a real risk is capable of being a detriment, as the ET had itself recognised when dealing with the claim for direct discrimination.

Langstaff P J
[2014] UKEAT 0463 – 12 – 0403, [2014] Eq LR 386, [2014] ICR 1073
Bailii
England and Wales
Cited by:
Cited – Indigo Design Build and Management Ltd and Another v Martinez EAT 10-Jul-2014
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 . .
At EAT – P v The Commissioner of Police for The Metropolis CA 20-Jan-2016
The claimant appealed against rejection of her claim of disability discrimination against the Police Misconduct Panel on the basis that the Panel was a judicial body and as such enjoyed immunity from suit. She had been assaulted, suffering PTSD. She . .
At EAT – P v Commissioner of Police of The Metropolis SC 25-Oct-2017
This appeal concerns the directly effective right of police officers under EU law to have the principle of equal treatment applied to them. The question raised is whether the enforcement of that right by means of proceedings in the Employment . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 November 2021; Ref: scu.522142

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 of the case’ and the only qualification is that the EJ has to consider that it is ‘just and equitable to exercise it in the claimant’s favour.’ It was properly open to the Employment Judge to find that it was ‘just and equitable to extend the claimant’s time.

Sedley, Longmore, Wall LLJ
[2009] EWCA Civ 1298, Times 26-Jan-2010, [2010] IRLR 327
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
Applied – British Coal Corporation v Keeble and others EAT 26-Mar-1997
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 . .
Cited – Robertson v Bexley Community Centre CA 11-Mar-2003
The claimant brought his claim in discrimination, but it was out of time. The employer appealed against a decision to extend the time for him to file his complaint.
Held: A tribunal has a very wide discretion in the area of whether to extend . .
Cited – Daniel v Homerton Hospital Trust CA 9-Jul-2009
Gibson LJ set out the proper approach for the EAT considering an appeal against the use of the discretion to extend the time to present a claim to the tribunal: ‘The discretion of the Tribunal is a wide one. This court will not interfere with the . .
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 . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 November 2021; Ref: scu.383665

EAT RACE DISCRIMINATION
Direct
JURISDICTIONAL POINTS
Extension of time: reasonably practicable
2002 Act and pre-action requirements
The Claimant was employed for less than one year. On the substance of his case, the Employment Tribunal found race played no part in his treatment by the employer. It addressed the law correctly and on the facts made a permissible application of the law. Even if he succeeded on the procedural and time points, he could not overcome these findings. There is no error in an Employment Tribunal finding the employer behaved unfairly or unreasonably yet race played no part: Zafar.

[2009] UKEAT 0356 – 09 – 0712
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: 10 November 2021; Ref: scu.393340

eastern_greyEAT2009

EAT DISABILITY DISCRIMINATION:
Reasonable adjustments
Disability related discrimination
The claimant suffers from dyslexia and was therefore ‘disabled’ as defined in the Disability Discrimination Act 1995 (‘the Act’). The issue on the appeal is whether the respondent employer was exempted from making adjustments for the claimant during the interviews process when the claimant applied for a job with the respondent.
The Employment Tribunal held that the respondent was not exempt in the light of section 4 A (3) (b) of the Act.
Held by the Employment Appeal Tribunal that:
The Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Act which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:-
(a) does not know that the disabled person has a disability;
(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
(c) could not reasonably be expected to know that the disabled person had a disability; and
(d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

[2009] UKEAT 0454 – 08 – 2301, [2009] IRLR 429
Bailii
Cited by:
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: 10 November 2021; Ref: scu.280158

chesteron_nurmohamedEAT201504

EAT VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
This appeal concerns the meaning of the words ‘in the public interest’ inserted into section 43B(1) of the Employment Rights Act 1996 by section17 of the Enterprise and Regulatory Reform Act 2013. The Respondent was Director of the Mayfair office of the First Appellant, a well-known firm of estate agents. He made three alleged protected disclosures, two to the Area Director for the Central London area and one to the Second Appellant, the First Appellant’s Director of Human Relations. The Respondent stated that he believed the First Appellant was deliberately misstating andpound;2-3million of actual costs and liabilities through the entire office and department network which affected the earnings of 100 senior managers, including himself.
The Employment Tribunal concluded that the disclosures were made in the reasonable belief of the Respondent that they were in the interest of 100 senior managers, and that that is a sufficient group of the public to amount to be a matter in the public interest. The decision of the Tribunal was that the Respondent was unfairly dismissed and automatically unfairly dismissed by the First Appellant and that the First and Second Appellants subjected him to detriments on the grounds that he had made protected disclosures.
The Appellants appealed on two grounds: first, that the Tribunal erred on concluding that disclosures made in the interest of the 100 senior managers was to a sufficient group of the public to amount to being a matter in the public interest; and second that it was for the Tribunal to determine objectively whether or not the disclosures were of real public interest, and this the Tribunal failed to do.
The Employment Appeal Tribunal rejected both grounds of appeal: (1) the question for consideration under section 43B(1) of the 1996 Act is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest; (2) the sole purpose of the amendment to section 43B(1) by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd. The words ‘in the public interest’ were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications.

Supperstone J
[2015] UKEAT 0335 – 14 – 0804
EAT
Employment Rights Act 1996 43B(1), Enterprise and Regulatory Reform Act 2013
England and Wales
Citing:
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 . .
Overruled by Statute – Parkins v Sodexho Ltd EAT 22-Jun-2001
The applicant had been employed for a short period. He was dismissed, and he claimed that this was because he had made a protected disclosure in complaining about the respondent’s health and safety practices. He had applied for interim relief. The . .
Cited – ALM Medical Services Limited v Bryan Bladon CA 26-Jul-2002
The employee claimed that he had been unlawfully dismissed, and that his dismissal broke the protection given to whistleblowers under the Act. The employer appealed.
Held: In such claims it was necessary first for the tribunal to establish . .
Cited – Babula v Waltham Forest College CA 7-Mar-2007
The claimant said his dismissal had been automatically unfair under section 106(a) which protected him as a whistleblower. The court was asked whether any disclosure had to relate to an actual criminal offence, or otherwise what would be sufficient. . .
Cited – Jameel v Wall Street Journal Europe Sprl HL 11-Oct-2006
The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 November 2021; Ref: scu.545148

EAT The parties agreed that in the event of any employment dispute , the applicable law would be German, and the place of jurisdiction Frankfurt, which was where the claimant lived and from where she worked (though she came on occasion to the UK). She brought claims under the Sex Discrimination Act 1975 and Equal Pay Act 1970 in an Employment Tribunal in the UK. The Employment Judge held the ET did not have jurisdiction. He was not referred to relevant legislative provisions. When asked to consider those provisions, on an application for review, he refused to entertain a review. The claimant appealed: held that he should have held a review, and if he had the claimant would have succeeded, since the Brussels I Regulation had the effect that the UK had jurisdiction; that although German law was applicable under the Rome Convention, this could not exclude the provisions of the UK Acts, which (since they had world-wide territorial scope) should be applied. The ET had jurisdiction, since it could determine the facts amongst which was German Law.

Langstaff P J
[2012] UKEAT 0593 – 11 – 1506, [2012] Eq LR 732, [2012] ILPr 34, [2012] ICR 1343
Bailii
England and Wales

Employment, Discrimination

Updated: 10 November 2021; Ref: scu.461867

abendshineEAT32012

EAT EQUAL PAY ACTS
PRACTICE AND PROCEDURE – STRIKING OUT/DISMISSAL
Insofar as claims made by employees relied on comparators who were other than those whom the employees had identified when setting out their grievances under the standard grievance procedure provided for by the Employment Act 2002, an ET struck them out. It considered (correctly, at the time of decision) that it was bound by the decision of the EAT in Dundee City Council v McDermott and Others to do so. Since then another constitution of the EAT to which McDermott was not cited had taken an opposite view, following observations made in an earlier EAT case to the same effect. After argument, this appeal panel would in any event have allowed the appeal, but the matter was put beyond doubt by a subsequent (majority) decision of the Inner House of the Court of Session which allowed an appeal against the decision in McDermott.

Langstaff P J
[2012] UKEAT 0414 – 11 – 2902
Bailii
England and Wales

Employment, Discrimination

Updated: 10 November 2021; Ref: scu.451778

The employer appealed against a finding that it had acted in an equal pay claim in allowing for length of service.
Held: The employer’s appeal was dismissed. Decisions based on length of service tended to discriminate against women, because they were more likely to have broken employment records. The court was asked whether and if so under what circumstances the employer should be required to provide objective support for the use of such criteria. The effect of Cadman was that an employer could be required to provide objective justification for using length of service as a criterion. The ECJ had used the phrase ‘serious doubts’ as the criterion for the presence of circumstances requiring justification. That phrase had no established status in UK law, and it should be used as a filtering preliminary test applied only before the trial.

Lord Justice Sedley, Lady Justice Arden and Lord Justice Rimer
[2009] EWCA Civ 1074, Times 26-Oct-2009, [2010] ICR 302, [2010] IRLR 59, [2010] 1 CMLR 24
Bailii
England and Wales
Citing:
Appeal from – Wilson v Health and Safety Executive EAT 19-Dec-2008
EAT EQUAL PAY ACT: Article 141/European law
EQUAL PAY ACT: Material factor defence and justification
The claimant contended that a system which rewarded pay in part by reference to length of service . .
Applied – Cadman v Health and Safety Executive, intervener: Equal Opportunities Commission ECJ 3-Oct-2006
Social Policy – The court considered what went to make up age discrimination: ‘the Court acknowledged that rewarding, in particular, experience acquired which enables the worker to perform his duties better constitutes a legitimate objective of pay . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

Cited by:
Cited – Essop and Others v Home Office (UK Border Agency) SC 5-Apr-2017
The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 10 November 2021; Ref: scu.376209