A display of nude images at a workplace may be discriminatory as sexual harassment, but some common sense was needed. The display of soft-porn photographs in a workplace need not of itself be subjecting a female worker to a detriment.
Mummery J P considered an appeal on the grounds of perversity: ‘Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is ‘irrational’, ‘offends reason’, ‘is certainly wrong’ or ‘is very clearly wrong’ or ‘must be wrong’ or ‘is plainly wrong’ or ‘is not a permissible option’ or ‘is fundamentally wrong’ or ‘is outrageous’ or ‘makes absolutely no sense’ or ‘flies in the face of properly informed logic’. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no ‘right answer’. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to ‘meticulous criticism’ or ‘detailed analysis’ or to trawl through it with a ‘fine tooth comb’. What matters is the substance of the Tribunal’s decision, looked at ‘broadly and fairly’ to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse.
We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the Industrial Tribunal. It heard evidence from the witnesses, saw the material which Miss Stewart found to be offensive and considered the detailed arguments on the law and the facts. There is, of course, room for disagreement among different groups of people, such as Tribunals, as to what is or is not less favourable treatment and as to the extent to which women in the workplace are vulnerable to such treatment.’

Mummery J P
Ind Summary 19-Sep-1994, Times 06-Jul-1994, [1994] IRLR 440, [1994] UKEAT 683 – 93 – 0405
Bailii
Sex Discrimination Act 1975 6(2)(b)
England and Wales
Cited by:
Cited – Turner Coulston (A Firm) v Janko EAT 3-Sep-2001
The appellant employers suggested that the finding of unfair dismissal was perverse in having rejected uncontested evidence.
Held: The standard for such a claim was high – that the decision was ‘plainly wrong’ or similar. That standard was not . .
Cited – JJ Food Service Ltd v Zulhayir CA 16-Oct-2013
The employer appealed against the successful appeal by the employee to the EAT on the grounds of perversity notwithstanding that the parties agreed the facts found.
Held: The appeal was allowed. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 10 November 2021; Ref: scu.89553

james_ginaEAT2012

EAT UNFAIR DISMISSAL – Contributory fault,br />AGE DISCRIMINATION
(1) No opportunity given to parties, who did not raise issue, to address contribution to dismissal before Employment Tribunal determined the point;
(2) Not apparent that ET applied culpable and blameworthy conduct test to question of contribution;
(3) Respondent Managing Director made two age-related remarks to Claimant but ET found stage 1 of Igen test not passed. Impermissible finding.
Claimant’s appeal allowed. Case remitted to same ET for reconsideration

Peter Clark J
[2012] UKEAT 0384 – 11 – 1801
Bailii
England and Wales

Employment, Discrimination

Updated: 10 November 2021; Ref: scu.451224

EAT Race Discrimination – Direct
EAT Race Discrimination – Direct

Mr Recorder Underhill QC
EAT/1377/99, [2001] UKEAT 1377 – 99 – 1605
Bailii
England and Wales
Citing:
See Also – Jackson v East Sussex County Council EAT 23-Jun-1999
. .
See Also – Jackson v East Sussex County Council EAT 26-May-2000
. .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 10 November 2021; Ref: scu.203875

lisboa_realpubsEAT11

EAT SEXUAL ORIENTATION DISCRIMINATION
Whether Respondent’s policy of encouraging a wider clientele at a formerly gay pub involved less favourable treatment of gay customers causing the Claimant to resign in circumstances amounting to discriminatory constructive (and wrongful) dismissal, applying principles in Showboat, approved in Wethersfield v Sargent.
Employment Tribunal fell into error in focussing on the (legitimate) commercial aims of the Respondent and not the potential discriminatory effect of the implementation of the policy.
Appeal allowed and finding of no discriminatory dismissal reversed. Remitted on remedy to fresh Employment Tribunal.

Peter Clarke J
[2011] UKEAT 0224 – 10 – 1101
Bailii
Employment Equality (Sexual Orientation) Regulations 2003, Employment Rights Act 1996 98, Equality Act (Sexual Orientation) Regulations 2007 3 4
Citing:
Cited – Showboat Entertainment Centre v Owens EAT 28-Oct-1983
The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal ‘on racial . .
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 – 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 – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – Abbycars (West Horndon) Ltd v Ford EAT 23-May-2008
EAT UNFAIR DISMISSAL: Constructive Dismissal
Employment Tribunal found that the claimant was entitled to resign and claim constructive dismissal. It was conceded that if there were a constructive dismissal, . .
Cited – Deman v Victoria University of Manchester and others EAT 24-Jun-2008
deman_victoriaEAT2008
EAT PRACTICE AND PROCEDURE: Costs
If a Tribunal considers that the conduct of the proceedings by a party or his representative has been vexatious, abusive, disruptive or unreasonable, the Tribunal is under . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.427954

EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – Polkey deduction
Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and would be entitled to an early retirement pension if retained in employment to age 50 – Council fails to find him alternative employment or to permit an extension of the secondment, notwithstanding an offer by organisation to which he is seconded to fund his continued employment to age 50
Tribunal finds Council liable for unfair dismissal and age discrimination, on basis that:
(a) Council made insufficient effort to redeploy the Claimant; and
(b) it was motivated by a wish to avoid the additional costs of him taking early retirement at age 50.
Tribunal also holds, as regards remedy, that it has ‘little doubt’ that if Claimant had not been treated unfairly and discriminated against he would have been found alternative employment.
On the Council’s appeals against the finding of age discrimination and as regards remedy.
Held: (1) that, while the Council was justified in refusing to continue the Claimant’s secondment for the purpose of allowing him to reach age 50 and then take early retirement (which would indeed have been unlawful – Eastbourne Borough Council v. Foster [2002] ICR 234, and Hinckley and Bosworth Borough Council v. Shaw [2000] LGR 9 referred to), to take into account his impending entitlement to a pension in the application of its redundancy and redeployment policy constituted age discrimination (no defence of justification being advanced); and that the Tribunal was entitled on the evidence to conclude that the Council had done so;
(2) that the Tribunal was entitled on the evidence to find as a practical certainty that the Claimant would, but for the matters complained of, have been found alternative employment and that the use of the phrase ‘little doubt’ did not mean that it was obliged to make a discount for the chance that he might not have done so.

Underhill J P
[2009] UKEAT 0441 – 08 – 1009
Bailii
Employment Equality (Age) Regulations 2006, Employment Rights Act 1996 98A
England and Wales
Citing:
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
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 – Eastbourne Borough Council v James Foster CA 11-Jul-2001
An employee’s job ceased, but he continued to be employed by the same employer on different tasks, but the new arrangement was void as ultra vires. The question arose as to whether his employment had been terminated at the time of the change in such . .
Cited – London Borough of Islington v Ladele EAT 19-Dec-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Registrar who, amongst other things, registered marriages. When the Civil Partnerships Act came into force, she refused to participate in registering . .
Cited – 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 – Hinckley and Bosworth Borough Council v Shaw QBD 2000
Two senior and long term employees of the Council proposed voluntary early redundancy. After discussions, their contracts were varied with enhanced pay so that they would also have enhanced pensions and redundancy payments. Such enhancing agreements . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.374686

EAT Sex Discrimination : Direct – The Employment Tribunal did not err in its analysis, reasoning and conclusions when considering the time with effect from which the Claimant began to suffer from a disability consisting of a mental impairment. Properly read, the Tribunal’s Decision did not disclose any error of law.
The Tribunal’s further consequential reasoning and conclusions on the issues of reasonable adjustments, constructive knowledge of the employer and the proportionality of the dismissal of the Appellant as a response to the legitimate aim of administering the First Respondent’s school where she was a Teaching Assistant, were not marred by any legal flaw.

Kerr J
[2016] UKEAT 0334 – 15 – 0804
Bailii
England and Wales

Employment, Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.562551

EAT Disability Discrimination : Disability – ET decided that a station attendant, who had to be on his feet for most of the day and who had developed a back condition which precluded this, and was dismissed as a result of a lack of capability, was not disabled because the impairment caused by his condition did not have a substantial adverse effect upon his ability to do normal day-to-day activities. To do so, it appeared to concentrate on those activities which he could do, rather than those he could not; and may well have excluded considering what he could not do at work (stand for periods of 30 minutes or so, bend, lift and carry). Held these were errors of approach.

Langstaff P J
[2012] UKEAT 0316 – 12 – 0612
Bailii
England and Wales

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.468963

ir_millarEAT2008

EAT PRACTICE AND PROCEDURE: Perversity
UNFAIR DISMISSAL: Reasonableness of dismissal
The Employment Tribunal found that the claimant had been unfairly dismissed and subject to disability discrimination. The dismissal was found to be unfair for procedural reasons. The disability discrimination resulted from a failure by the employers to make a reasonable adjustment, namely to offer the claimant alternative employment at the appropriate time. The employers contended that these conclusions demonstrated errors of law, principally on the grounds that they were based on findings of fact, and inferences drawn from those facts, which were not sustained by the evidence and were indeed inconsistent with it. Alternatively, the conclusions were perverse.
The EAT dismissed the appeal and held that the findings were open to the Tribunal notwithstanding that many tribunals would have assessed the evidence differently. The EAT did also emphasise, however, that in assessing unfair dismissal compensation the Tribunal must apply a Polkey analysis and assess the likelihood of the claimant remaining in employment even had proper procedures been complied with. A similar exercise would also need to be applied when assessing the loss flowing from the disability discrimination.
The EAT dismissed a cross appeal against the Tribunal’s finding that compensation for unfair dismissal should be reduced by 30% for contributory fault.

Elias P
[2008] UKEAT 0003 – 08 – 0411
Bailii

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.278204

EAT RELIGION OR BELIEF DISCRIMINATION
A care worker in a Children’s home was employed under a contract under which she could be required to work on Sundays. After accommodating her wish as a Christian not to do so for some two years, her employer required her to work as contractually obliged. She argued that this provision or practice discriminated against Christians, and hence her, on grounds of religion or belief. An Employment Tribunal decided that the employer’s aim in seeking to ensure that all full-time staff worked on Sundays in rotation was legitimate, and was objectively justified, so that she could lawfully be required to do so.
Three grounds of appeal were raised – that the Tribunal adopted the wrong approach, though espousing the correct one; that the employer should have been proactive, not reactive, in considering possible alternatives which would have avoided the Claimant having to work on Sundays; and that the Tribunal had impermissibly taken into account a view of what was ‘core’ to Christian belief, which was not part of its proper function.
Held: the decision could not be said to be perverse; the Tribunal had applied the necessary anxious scrutiny, and judgment of whether the existence of alternatives rendered a policy or practice disproportionately discriminatory in its effect was one for the Tribunal and not the employer; and by using the expression ‘core’ the Tribunal intended to reflect the evidence put before it from an Anglican bishop that only some Christians felt obliged to abstain from Sunday work – it was thus permissibly commenting on the degree to which Christians numerically would be affected, and not attempting to tell them what was important in their faith. Appeal dismissed.

Langstaff J P
[2012] UKEAT 0332 – 12 – 1312
Bailii
England and Wales

Employment, Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.468965

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 the reason why the employer gave a different form of reference to the Claimant than they would have given to a comparator. They did not fail to have regard to the need for the decision maker to have knowledge of the Claimant’s protected act, the making of a claim under the RRA. The burden of proof provisions in section 54A do not apply to claims of victimisation under the RRA. The Tribunal correctly applied the approach in King v Great Britain China Centre [1991] ICR 516 to the victimisation claim (Oyarce v Cheshire County Council [2008] IRLR 653).
The parties assumed that the post-termination provisions of RRA, section 27A, apply to victimisation claims. This issue may have to be determined in a case in which it arises. In finding unlawful post termination discrimination under section 27A(2)(a) the Employment Tribunal erred in failing to consider whether the Claimant had suffered a detriment. Finding of victimisation set aside. Victimisation claim remitted to the same Employment Tribunal to determine whether the employer’s act of sending the reference subjected the Claimant to a detriment. Victimisation claim to be determined in accordance with the Tribunal’s decision on detriment.

Slade J
[2010] UKEAT 0030 – 10 – 1210
Bailii
Race Relations Act 1976
Citing:
Cited – King v Great Britain China Centre CA 1991
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 . .
Cited – Oyarce v Cheshire County Council CA 2-May-2008
The court was asked as to whether the provisions for the reversal of the burden of proof in discrimination cases was limited to findings of discrimination or extended also to issues of victimisation, and as to whether section 5A had properly . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.425025

EAT SEX DISCRIMINATION
On the third day of the hearing, at the close of the Claimant’s case, the Respondent applied to strike out the claim. The Tribunal reserved judgment and acceded to the application, which it described as an application to dismiss the claim on the grounds that there was no case to answer. It recognised that to a substantial extent the Claimant’s case depended on her credibility. It found her credibility to be flawed to the point where it would not be able to rely on her evidence at all.
Held: the Tribunal erred in law in acceding to the application. Anyanwu v South Bank Student Union [2001] ICR 391, Eszias v North Glamorgan NHS Trust [2007] ICR 1126 and Williams v Real Care Agency [2012] UKEATS/0051/12 applied. Cases concerning applications to dismiss at the close of the Claimant’s case also considered.

David Richardson J
[2012] UKEAT 0160 – 12 – 0210, [2013] ICR D7
Bailii
England and Wales
Citing:
Cited – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Cited – Ezsias v North Glamorgan NHS Trust CA 7-Mar-2007
The employer had applied to strike out their employee’s claim for unfair dismissal, and also sought a deposit from the claimant. The claim had been re-instated by the EAT.
Held: A claim should not be struck out where, as here, there were facts . .
Applied – Williams v Real Care Agency Ltd EAT 13-Mar-2012
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
A claim was struck out in mid hearing, before the Claimant’s cross-examination had concluded, and without affording her the opportunity to call further . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.464613

noor_ukbaEAT2012

EAT JURISDICTIONAL POINTS – Extension of time: just and equitable
DISABILITY DISCRIMINATION – Disability
PRACTICE AND PROCEDURE – Preliminary issues
The Claimant contended he had been discriminated against and victimised on account of his disability in a long sequence of events. The Respondent acknowledged there was proximity between all of the events and for that reason sought a stay while it conducted a comprehensive investigation. The Employment Tribunal was wrong to hold that there was not a continuing act at least during the three months prior to the presentation of the claim. Since it was arguable that there was a continuing act throughout all of the period this matter should not be determined at a PHR as it was but should go to a full hearing where the facts could be determined. The Tribunal had wrongly determined that issue estoppel applied to the Claimant’s case. He had presented a claim of disability against the same Respondent in 2005 on account of dyslexia and dyspraxia. But in the current claim he was contending disability by reason of dyslexia, dyspraxia and depressive illness brought on or by exacerbated by his treatment and he had medical evidence provided to the employer of that. That issue had formed no part of the 2005 case and issue estoppel did not apply. The Claimant had an alterable status and so on a change was entitled to present his changed status as an impairment within the meaning of the DDA 1995.

McMullen QC J
[2012] UKEAT 0546 – 11 – 3007
Bailii
England and Wales

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.463350

EAT PRACTICE AND PROCEDURE – Review
Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer adjournment if absence of Claimant had been explained and adjournment applied for – Counsel tells Judge that he does not know reason for Claimant’s absence and fails to apply for adjournment – At subsequent review hearing Claimant proves that counsel had given him express advice that he need not attend PHR – Judge revokes dismissal of claims and orders further hearing.
Held: Although the Judge’s detailed reasoning was to some extent defective, the substantive decision was correct: although generally a review would not be permitted on the basis that evidence that should have been called first time round had not been called as a result of the error of a representative, counsel’s lack of frankness with the Tribunal, which cost the Claimant the chance of an adjournment, was an exceptional circumstance which rendered it just to revoke the strike-out – Consideration of the extent to which earlier cases such as Flint v Eastern Electricity Board and Lindsay v Ironsides Ray and Vials, which emphasise the weight to be attached to finality and suggest that a review cannot generally be justified on the basis of the incompetence of a party’s representative, require reconsideration in the light of the over-riding objective – Sodexho v Gibbons and Williams v Ferrosan considered.
Underhill J said: ‘There is in this field as in others a tendency – often denounced but seemingly ineradicable – for broad statutory discretions to become gradually so encrusted with case-law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires in the particular case. Thus a periodic scraping of the keel is desirable.’

Underhill J
[2010] UKEAT 0393 – 09 – 2301
Bailii
England and Wales
Citing:
Cited – Flint v Eastern Electricity Board EAT 1975
The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He . .
Cited – Trimble v Supertravel Ltd EAT 1982
The Industrial Tribunal had held that the appellant’s dismissal was unfair but then decided that she had failed to mitigate her loss. At the conclusion of the hearing, the Tribunal announced its decision and stated that she was to get no . .
Cited – Lindsay v Ironsides Ray and Vials EAT 27-Jan-1994
The industrial tribunal had refused the applicant an extension of time.
Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary . .
Cited – British Midland Airways Limited v Lewis EAT 1978
An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the . .
Cited – D G Moncrieff (Farmers) v MacDonald EAT 1978
The ability of a tribunal to revisit its own judgments, the review procedure, was only appropriate for use in exceptional circumstances. . .
Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Cited – Williams v Ferrosan Ltd EAT 5-Mar-2004
Acting on guidance, the parties representatives and the tribunal had assumed that part of the award relating to loss of future earnings would not be taxable. The question now was whether the tribunal had power of its own motion to review its . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Jurkowska v Hlmad Ltd CA 19-Mar-2008
The employer wanted to appeal against a decision of the Employment Tribunal but was out of time.
Rimer LJ said: ‘that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may . .
Cited – Dhedhi v United Lincolnshire Hospitals NHS Trust EAT 22-Jan-2002
The Employment Tribunal had decided that a Polkey discount was to be made. At a subsequent remedies and review hearing, the Tribunal allowed the appellant to re-open that issue and having heard evidence, the Tribunal altered the percentage Polkey . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.396731

The claimant had taken a job as a care worker. She said that she had been re-assured when she took the position that she would not be required to work on Sundays which would have conflicted with the fundamentals of her Christian beliefs. This happened at first, but a change in management led to her being requested to work on Sundays. She now appealed against rejection of her claim of discrimination.
Held: The appeal failed. The employment tribunals had been wrong to recognise that a sabbatarian belief may be fundamental for a Christian, but the real issue in the case was whether the change was a proportionate way for the respondent to fulfil its entirely legitimate need to have workers on Sundays. It was, and the appeal failed.

Kay, Elias, Vos LJJ
[2013] EWCA Civ 1562, [2014] Eq LR 51, [2013] WLR(D) 474, [2014] 1 WLR 1501, [2014] ICR 357, [2014] IRLR 145, [2014] 1 All ER 1235
Bailii, WLRD
England and Wales

Employment, Discrimination

Leading Case

Updated: 02 November 2021; Ref: scu.518768

hmlr_grantEAT10

EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction /Reasons /Burns-Barke
An Employment Tribunal accepted that 6 out of 12 complaints of discrimination, and 5 out of 12 of unlawful harassment, were made out. None of the acts complained of, save possibly one, was obviously and intrinsically discriminatory. Each finding relied on the validity of the others. The first and second in the sequence involved accepting that the Claimant had suffered less favourable treatment, to his detriment, where his manager had mentioned to someone who had met the Claimant that he, the Claimant, was gay. In its analysis the Tribunal did not deal at all with a fact which was common ground, and heavily relied on by the employer, namely that the Claimant had himself chosen to make his sexual orientation known when working in a large branch of the employer’s undertaking at Lytham, prior to moving to a branch at Coventry, and that the manager concerned knew this. Nor did the Tribunal express any clear view whether it thought that the manager’s actions sought to undermine the Claimant at work because of his sexuality rather than being clumsy and unnecessary comment, which though not determinative of the issues raised in a discrimination case was highly relevant. It was held that the Tribunal needed to deal with these matters which were central to the issues, and its overall decision could not stand in the light of its failure to do so. The case was remitted to a fresh tribunal.

Langstaff J
[2010] UKEAT 0232 – 09 – 1504, [2010] IRLR 583
Bailii
Employment Equality (Sexual Orientation) Regulations 2003 3 5 8
Citing:
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 – 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 – Ministry of Defence v Jeremiah CA 1980
The court considered the meaning of ‘detriment’ in discrimination law. Brightman LJ said: ‘I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment.’
Lord Justice . .
Cited – De Souza v Automobile Association CA 19-Dec-1985
The claimant appealed against a finding that there had been no race discrimation in her case. She had overheard a manager refer to her as ‘the wog’. She said that this was sufficient to mean that she suffered a detriment. The employer replied that . .
Cited – Burrett v West Birmingham Health Authority EAT 6-Dec-1993
Female nurses had to wear a cap whereas male nurses did not, though male nurses had to wear a tunic with epaulettes. They claimed discrimination.
Held: A requirement for female to wear a nurse’s cap where no similar rule applied for men, was . .
Cited – Dr J Lynn v Rokeby School Board of Governors London Borough of Newham Secretary of State for Education and Employment EAT 21-Mar-2001
EAT Sex Discrimination – Direct . .
Cited – Driskel v Peninsula Business Services Ltd Michael Huss Anthony Sutcliffe, Peter Done EAT 17-Dec-1999
EAT The claimant said that she had been subjected to crass sexual banter by her senior manager. She refused to take up a post unless he was moved, and when he declined to so, she was dismissed.
The court . .
Cited – Regina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
At the council’s independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination.
Cited – Richmond Pharmacology v Dhaliwal EAT 12-Feb-2009
EAT HARASSMENT: Purpose
Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being ‘married off in India’ had the . .
Cited – Moyhing and Another v Barts and London NHS Trust EAT 28-Apr-2006
EAT The appellant was a student nurse. He was required to be chaperoned when carrying out intimate procedures on female patients whereas a female student nurse was not required to have a chaperone when carrying . .
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 – S. Coleman v Attridge Law, Steve Law ECJ 17-Jul-2008
ECJ Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment related to . .
Cited – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
Cited – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .

Cited by:
Appeal from – Grant v HM Land Registry CA 1-Jul-2011
The appellant had succeeded in his claim for sex discrimination arising from his orientation, but the EAT had reversed the decision. He now appealed against the EAT decision. Although he had revealed his sexuality in one post, he had chosen to delay . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.408521

Religion or Belief Discrimination

The Claimant holds gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. She engaged in debates on social media about gender identity issues, and in doing so made some remarks which some trans gender people found offensive and ‘transphobic’. Some of her colleagues at work complained that they found her comments offensive, and, following an investigation, her visiting fellowship was not renewed. The Claimant complained that she was discriminated against because of her belief. There was a preliminary hearing to determine whether the Claimant’s belief was a philosophical belief within the meaning of s.10 of the Equality Act 2010 (EqA). The Tribunal held that the belief, being absolutist in nature and whereby the Claimant would ‘refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment’, was one that was ‘not worthy of respect in a democratic society’. Accordingly, the Tribunal concluded that the belief did not satisfy the fifth criterion in Grainger plc v Nicholson [2010] ICR 360 (‘Grainger V’). The Claimant appealed.

Held, allowing the appeal, that the Tribunal had erred in its application of Grainger V. A philosophical belief would only be excluded for failing to satisfy Grainger V if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under Articles 9 and 10 of the European Convention of Human Rights (ECHR) by virtue of Article 17 thereof. The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1), ECHR and therefore within s.10, EqA.
However:
a. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.
b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.
c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.
d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

Choudhury J P
[2021] UKEAT 0105 – 20 – 1006
Bailii, Judiciary
Equality Act 2010 10
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.663589

rbs_nwossuagwuEAT2012

EAT Race Discrimination : Inferring Discrimination – The Employment Tribunal was entitled to conclude on the facts that the Claimant had not been unfairly dismissed; Claimant’s appeal dismissed.
In relation to two claims for victimisation the Claimant claimed that she was subjected to less favourable treatment by reason of having done protected acts. The Employment Tribunal dismissed the claims. Case remitted to a fresh Employment Tribunal because the Employment Tribunal had misunderstood the nature of the Claimant’s case as the initiation of the acts said to amount to less favourable treatment.
A third act of victimisation was found by the Employment Tribunal to have been made out. However this allegation was not pleaded in the ET1. In the circumstances the Employment Tribunal should not have embarked on a trial of the issue; appeal allowed.

Serota QC J
[2011] UKEAT 0594 – 10 – 2402
Bailii
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.451688

EAT Disability Discrimination – RELIGION OR BELIEF DISCRIMINATION
The Claimant had a belief (which the Employment Tribunal thought genuine) that public service was improperly wasteful of money. He worked for the Dorset Police force (a small force) and claimed that he felt compelled to express these views and as a result suffered discrimination on the ground of his philosophical belief. He claimed to have suffered from bipolar disease, OCD and stress since around 2001, though he had not mentioned this to his employer despite having several opportunities to do so. An Employment Judge at a Preliminary Hearing considered whether his belief met the necessary criteria to merit the protection of the Equality Act 2010, and thought it did not since it failed to meet three of the five necessary criteria expressed in Grainger. He held that the Claimant was not disabled before 28 May 2013 (after which date it was admitted by the Respondent) since there was no cogent evidence that there had been a substantial adverse effect upon his normal day-to-day activities as a result of his conditions (which the Employment Judge accepted he had had for some time) before that date.
He appealed on the basis that the word ‘philosophical’ in the statute was an unnecessary fetter on the scope of a ‘belief’ in the light of European authority; that the Judge had impermissibly adopted too high a threshold when applying the Grainger criteria; that he had been wrong to take into account the narrow focus/parochial nature of the belief, which arose out of and was manifested almost entirely in relation to his work for the Dorset Police; and that he had insufficiently explained why he had not met the criteria in any event.
His appeal on the discrimination ground was rejected; that in respect of belief was allowed, on the basis that it was unclear whether the Judge had in mind the proper approach to the criteria as expressed by Lord Nicholls in Williamson, and what his reasons were for holding there had been a failure to meet the criteria, though the Employment Judge was held entitled to take account of whether the asserted belief was narrow and parochial, as opposed to fundamental and hence of broad application. Case remitted to the same Judge for re-determination of the question of whether the belief qualified for protection, to be decided on further submissions.

Langstaff J
[2016] UKEAT 0234 – 15 – 1201
Bailii
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.563296

farrar_nypEAT2012

EAT SEX DISCRIMINATION
Direct Indirect
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The Claimant was a Detective Sergeant in the Respondent’s force. She was also the principal carer of her three young children and was not required, save on rare occasions, to work at weekends. Her unit was undermanned; she complained about this. In a reorganisation shift and flexible working patterns changed; she was as a result required to work three weekends out of five. She became ill with anxiety and depression; without consultation she was removed from her unit and given a uniformed sergeant’s job. She claimed direct and indirect discrimination and detriment on the grounds of protected disclosures. The Employment Tribunal found against her on all three heads of claim.
She appealed, putting her case forward on two fronts (1) that the ET’s reasons were defective (2) that the ET had made errors of substantive law.
Held:-
1. The EAT would hear and decide on the reasons arguments first; if they succeeded it would be preferable for the EAT not to consider other arguments – there would have to be a re-hearing.
2. On all three heads of claim the ET’s reasons were defective; they did not inform the parties what test had been applied and/or how the ET had reasoned from their findings of fact to their conclusions.
3. There would have to be a re-hearing before a new Tribunal.

Jeffrey Burke QC
[2012] UKEAT 0528 – 11 – 0810
Bailii
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.464726

EAT UNFAIR DISMISSAL: Compensation
DISABILITY DISCRIMINATION: Compensation
In the Sheffield Forgemasters case, the claimant succeeded in claims for various types of disability discrimination against her former employer.
In the Telindus case the claimant succeeded in a claim for unfair dismissal against her former employer.
In both cases, the claimants claimed compensation for loss of future earnings in respect of periods when they were receiving incapacity benefit.
The Employment Tribunal in each case held that receipt of disability benefit did not preclude the claimants from claiming compensation for loss of earnings during the same period.
Issues on appeal were the Employment Tribunal correct (a) in each case to hold that receipt of disability benefit did not preclude the claimants from claiming compensation for loss of earnings during the same period; and (b) in Telindus to reject the respondent’s contention that the claimant had failed to mitigate her loss.

[2008] UKEAT 0143 – 08 – 0711, [2009] IRLR 192, [2009] ICR 333
Bailii
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.277635

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 remitted to the tribunal for reconsideration: ‘I do not see why not: if the appellant were able to establish that she had been treated less favourably in the way in which the procedures were applied, and the reason was that she was being victimised for having lodged a sex discrimination claim, she would have a legitimate sense of injustice which would in principle sound in damages. The fact that the outcome of the procedure would not have changed will be relevant to any assessment of any compensation, but it does not of itself defeat the substantive victimisation discrimination claim. ‘
The concept of detriment is determined from the point of view of the claimant: a detriment exists if a reasonable person would or might take the view that the employer’s conduct had in all the circumstances been to her detriment; but an unjustified sense of grievance cannot amount to a detriment.
As to the complaint that the university had victimised the Claimant by their refusal to provide the claimant with or to undertake to preserve, certain relevant documents which she had requested under the Data Protection Act, Elias LJ said: ‘it is fanciful to believe that this particular claim could succeed. The university was acting on the advice of lawyers. As the employment judge recognised, whether the advice was right or wrong, there was no basis for believing that the university had done anything other than rely upon the advice . . the only proper inference is that the university was acting in what it perceived to be its best interests in the litigation.’

Sullivan, Elias, Floyd LJJ
[2015] EWCA Civ 52
Bailii
Equality Act 2010, Sex Discrimination Act 1975
England and Wales
Citing:
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 – Akwiwu and Another v Onu EAT 1-May-2013
EAT Race Discrimination : Direct
Indirect
Post Employment
UNLAWFUL DEDUCTION FROM WAGES
NATIONAL MINIMUM WAGE
WORKING TIME REGULATIONS
The Claimant was a Nigerian woman who had . .
Cited – Jessemey v Rowstock Ltd and Another CA 26-Feb-2014
The court was asked whether a claim as to acts of victimisation could be sustained in connection with actions alleged after termination of employment.
Held: The appeal succeeded. The Act operated to proscribe such actions. However, this is one . .
Cited – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Cited – Crane (T/A Indigital Satelite Services) v Sky In-Home Ltd and Another CA 3-Jul-2008
Arden LJ considered the principles to be applied when considering whether a party to civil litigation should be allowed to appeal a trial judge’s decision on the basis that a claim, which could have been brought before him but was not, would have . .
Cited – Balls v Downham Market High School and College EAT 15-Nov-2010
EAT UNFAIR DISMISSAL
Strike out. Whether claim had reasonable prospects of success. Whether failure to actively pursue a claim. Employment Tribunal failed to have regard to relevant law and reached . .
Cited – Glatt and Others v Sinclair CA 26-Mar-2013
In exceptional cases the Court of Appeal will allow a party to advance fresh grounds not advanced before the court below . .
Cited – Durant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .
Cited – Pothecary Witham Weld (A Firm) and Another v Bullimore and Another EAT 29-Mar-2010
EAT VICTIMISATION DISCRIMINATION
SEX DISCRIMINATION – Burden of Proof
Ex-employee given unfavourable reference – Claim that terms of reference were partly on account of her having previously brought . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.542928

depner_gmcEAT2013

EAT Race Discrimination : Discrimination By Other Bodies – The Employment Judge did not err in holding that the Employment Tribunal did not have jurisdiction to hear a doctor’s claims of discrimination and victimisation made under the Race Relations Act 1976. The claims were of her suspension from registration and imposition of immediate suspension by the Fitness to Practice Panel of the General Medical Council. The GMC is a qualifying body and those claims fell within RRA section 12(1)(c). However the acts complained of could be and were the subject of appeals under Medical Act 1983 (as amended) sections 40 and 38(8). Accordingly no complaint of discrimination or victimisation in respect of them could be presented to an ET by reason of RRA section 54(2). RRA section 54(2) provides that a complaint cannot be presented to an ET of an act in respect of which ‘an appeal or proceedings in the nature of an appeal may be brought under an enactment’. Khan v General Medical Council [1996] ICR 1032 applied.
In previous proceedings complaints of discrimination by acts preceding the doctor’s suspension had been held not to be within the scope of the RRA. Even if such claims had been before the EJ whose judgment was the subject of the appeal, he rightly held that they did not fall within RRA section 12(1)(a) to (c) and the ET had no jurisdiction to hear them. An appeal from the decision of the EJ that individual members of the Executive, the Registrar and Trustees of the GMC, were not properly joined as respondents and the complaints against them were struck out, had been dismissed by Langstaff P at a preliminary hearing.

Slade J
[2012] UKEAT 0457 – 11 – 1402
Bailii
Race Relations Act 1976 1291)(c)
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.470989

hmlr_bensonEAT2012

EAT AGE DISCRIMINATION
SEX DISCRIMINATION – Justification
The Appellant offered employees a voluntary redundancy/early retirement scheme, with enhanced benefits. It had more applicants than could be accommodated within the available budget, and a selection exercise was undertaken. The Claimants in the two appeals were applicants who had not been selected for release under the scheme. They were of two kinds – five who alleged age discrimination and one (Mrs McGlue) who alleged sex discrimination.
The Age Discrimination Claims
The Appellant selected for release (other things being equal) those applicants whose entitlements under the scheme would be lowest, thus maximising the numbers who could be released within the constraints of the budget. The Claimants were all aged between 50 and 54, and their entitlements were particularly costly because they would have been in receipt of an immediate unreduced pension. They claimed that the use of a selection criterion related to the amount of their entitlements constituted indirect age discrimination. The Tribunal accepted that the criterion used was the only practicable criterion if it was necessary to select (and had been favoured by the recognised trade union), but it found that it was ‘affordable’ for the Appellant to release all of those who had applied, albeit that that would have meant spending an additional andpound;19.7m over the andpound;12m budgeted; and it held that accordingly selection (necessarily employing a discriminatory criterion) was not a proportionate means of achieving its (legitimate) aim of reducing headcount.
Held, allowing the appeal and dismissing the claims, that the Tribunal should have proceeded on the basis that the Appellant’s decision as to what resources to allocate to the exercise, i.e. andpound;12m, constituted part of its ‘real need’ or ‘aim’, and that it was not relevant that it could in an absolute sense have ‘afforded’ to allocate a larger amount; and that, although the Tribunal was entitled to assess the proportionality of the means chosen to achieve that aim, its finding that there was no other practicable alternative meant that on the facts of the present case it was obliged to hold that the selection criterion chosen was a proportionate means of achieving that aim – Barry v Midland Bank plc [1999] ICR 319, Cadman v Health and Safety Executive [2005] ICR 1546 and Chief Constable of West Midlands v Blackburn [2008] ICR 505 referred to – Observations in Pulham v London Borough of Barking and Dagenham [2010] ICR 333 distinguished

Underhill P J
[2011] UKEAT 0197 – 11 – 1002
Bailii
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.451169

EAT RACE DISCRIMINATION
Vicarious liability
Post employment
The Appellants were members of the board of a Centre. As a result of decisions of the Employment Tribunal and the Employment Appeal Tribunal, it was held that the Appellants had unfairly dismissed the Respondents, who were employees of the Centre and that they had unfairly discriminated against them on the grounds of their faith.
At a remedies hearing, it was held that the Appellants and the Centre were jointly and severally liable for the discrimination damages payable to the Respondents and that those damages could also take account of the post-employment conduct of the Appellants.
The Appellants appealed.
Held: dismissing the appeal because:
(a) the Appellants were agents of the Centre within Regulations 22 and 23 of the Employment Equality (Religion or Belief) Regulations 2003 as they were acting within their authority when managing the Centre and the regulations had to be construed in a purposive manner (Jones v Tower Boot [1997] ICR 254 followed) and all that needed to be shown to make the Appellants liable was that they were authorised to manage the centre in a way which was capable of being done in a lawful manner (Lana v Positive Action Training Housing (London) [2001] IRLR 501 applied). On that basis, the Employment Tribunal was entitled to find the Appellants liable under those regulations;
(b) The Appellants were jointly and severally liable as they contributed to the same damage to the Respondents (London Borough of Hackney v Savandam and others [UKEAT/0075/10], BAILII: [2011] UKEAT 0075 – 10 – 2705 applied and Way v Crouch [2005] IRLR 603 disapproved); and
(c) The aggravated damages could take account of the post-employment conduct of the Appellants (Zaiwalla v Walia [2002] IRLR 697 applied).

Silber J
[2011] UKEAT 0331 – 10 – 2709
Bailii
Employment Equality (Religion or Belief) Regulations 2003 22 23
England and Wales
Citing:
Cited – Tower Boot Company Limited v Jones CA 11-Dec-1996
An employer’s liability for racial abuse by its employees is wider than its liability under the rules of vicarious liability. The statute created new obligations. Sex and race discrimination legislation seeks to eradicate the ‘very great evil’ of . .
Cited – Lana v Positive Action Training In Housing (London) Ltd EAT 15-Mar-2001
EAT Sex Discrimination – Direct . .
Cited – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.444685

EAT Disability Discrimination: Reasonable Adjustments – VICTIMISATION DISCRIMINATION – Other forms of discrimination
HARASSMENT
PRACTICE AND PROCEDURE – Perversity
Victimisation – section 27 Equality Act 2010 (‘EqA’); Disability discrimination by reason of a failure to comply with a duty to make reasonable adjustments – section 21 EqA 2010; Harassment – section 26 EqA 2010; Perversity challenge
The Claimant, acting in person before the ET, had made complaints of victimisation, disability discrimination and harassment. The Particulars of the claims, as pleaded, were not easy to discern and there had been earlier attempts to clarify the Claimant’s case. Although not entirely clear, it appeared that an ET at an earlier Preliminary Hearing had accepted the Claimant’s Further Particulars as amendments to his claim.
At the subsequent Full Merits Hearing, the ET had characterised the Claimant’s victimisation complaint as one of ‘associative victimisation’. Taking the view that such a cause of action was not permitted under the Equality Act 2010, the ET dismissed that claim. In any event, the ET found that the relevant Respondents had not known of the protected act relied on by the Claimant at the time of the meeting at which he said he had been subjected to detriment. Moreover, the Claimant had not been treated in the way he alleged at that meeting. The ET also dismissed the Claimant’s complaints of disability discrimination by means of a failure to make reasonable adjustments. It considered this claim limited to the failure to postpone a return to work meeting on 18 March 2013, in respect of which it did not consider that the Claimant had demonstrated any provision, criteria or practice and as regards which it found he had suffered no relevant disadvantage. As for the harassment complaint, this related to an alleged breach of confidence by the Third Respondent at the meeting of 18 March; the ET found there was no evidence that the Third Respondent had breached the Claimant’s confidence as alleged and further dismissed this claim.
On the Claimant’s appeal.
Held: allowing the appeal in respect of one aspect of ground 2 but otherwise dismissing the appeal.
The ET erred in its characterisation of the Claimant’s victimisation claim. It had been a claim of direct, not associative, victimisation. That said, the ET had gone on to consider the detriments alleged in this respect and had made permissible findings on detriments and on knowledge/causal connection that provided a complete answer to the claim in any event. The Claimant had not established that any of the findings in question were perverse.
The ET had also erred in limiting the Claimant’s reasonable adjustments complaint to the failure to postpone the meeting of 18 March 2013; his pleaded case had included a complaint about being assigned heavy duties upon his return to work after periods of ill health. Whilst it would have been better if the precise nature of the amended case in this regard had been recorded at an earlier ET hearing, it could not be concluded that the Claimant had withdrawn this complaint. That said, the ET’s unchallenged finding on the Respondent’s knowledge of the Claimant’s disability answered the complaint in respect of the earlier date. That left the complaint about being assigned heavy duties on 14 June 2013 and the appeal would be allowed in respect of the ET’s failure to deal with this matter.
As for the ET’s findings relevant to the meeting of 18 March, it had been wrong to find that there was no provision, criteria or practice but had reached a permissible conclusion on the question of disadvantage that answered the case in any event.
On the harassment claim, the Claimant contended the ET erred in not finding the First Respondent vicariously liable for another employee (Mr Spragg). The claim before the ET was, however, founded upon an allegation of breach of confidence by the Third Respondent. That was rejected. There was no separate complaint regarding Mr Spragg’s conduct.

Eady QC HHJ
[2016] UKEAT 0221 – 15 – 0806
Bailii
Equality Act 2010 27
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.565391

roberts_nwasEAT2012

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Tribunal misapplied section 4A of the Disability Discrimination Act 1995 by holding that the provision, criterion or practice in question was not applied to the Claimant, and therefore that no duty was owed to him under section 4A. The Tribunal should have followed the statutory wording and asked whether a provision, criterion or practice applied by the Respondent placed the Claimant at a substantial disadvantage in comparison with persons who are not disabled. A provision, criterion or practice applied by the Respondent may affect a disabled person without being directly applied to him.

David Richardson J
[2011] UKEAT 0085 – 11 – 2401
Bailii
Disability Discrimination Act 1995 4A

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.450485

croad_ucuEAT2012

EAT DISABILITY DISCRIMINATION ACT – Discrimination by other bodies
The Claimant was a university lecturer who suffered from both dyslexia and depression and stress. She sued the union for disability discrimination in that they withdrew representational and legal support. The union argued that the reverse burden of proof provisions did not apply as a matter of statutory construction. Further it was agreed that in any event the Claimant had not suffered a detriment since it was not professionally proper for them to represent a client who intimated a claim and eventually made a claim against them. The EAT dismissed the Claimant’s appeal.

Pugsley J
[2011] UKEAT 0012 – 11 – 1306
Bailii
Disability Discrimination Act 1996
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.460390

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 of victimisation contrary to section 2(1) of the 1976 Act, finding that the decision-makers had been ‘consciously or subconsciously’ influenced by knowledge of his previous complaints.
Held: Where an applicant for a job had previously been awarded damages for racial discrimination against the employers, the employers being aware of that judgment could make themselves liable again by failing to select him in the absence of conscious discrimination, but where they had been unconsciously affected by that decision to an extent which had a substantial effect on the decision. In section 1(1)(a) cases the tribunal simply has to pose the question: Why did the defendant treat the employee less favourably? It does not have to consider whether a defendant was consciously motivated in his unequal treatment of an employee. That is a straightforward way of carrying out its task in a section 1(1)(a) case.
Lord Nicholls said: ‘Treatment, favourable or unfavourable, is a consequence which flows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.’
‘All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be [racially] motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s [race]. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, [race] was the reason why he acted as he did.’ As evidence, motive is always relevant’.

Lord Steyn, Lord Nicholls
Times 19-Jul-1999, Gazette 11-Aug-1999, [1999] UKHL 36, [2000] 1 AC 501, [1999] 3 WLR 425, [1999] 4 All ER 65, [1999] IRLR 572, [1999] ICR 877
House of Lords, Bailii
Race Relations Act 1976 1(1)(a) 2 (1)
England and Wales
Citing:
Reversed – Nagarajan v London Regional Transport; Swiggs and London Regional Transport v Nagarajan CA 7-Nov-1997
On a true construction of section 2(1), a person alleged to have been victimised had to establish that the alleged discriminator, in treating him less favourably than another, had a motive which was consciously connected with the race relations . .

Cited by:
Cited – 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 . .
Reversed on s – Nagarajan v London Regional Transport; Swiggs and London Regional Transport v Nagarajan CA 7-Nov-1997
On a true construction of section 2(1), a person alleged to have been victimised had to establish that the alleged discriminator, in treating him less favourably than another, had a motive which was consciously connected with the race relations . .
Cited – 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 – 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 – Murphy v Sheffield Hallam University EAT 11-Jan-2000
The claimant challenged refusal of his claim of discrimination. He was profoundly deaf. He applied for work, and indicated his disability, but no provision was made for a signer to appear at the interview. The interview was re-arranged, but he . .
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 – 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 . .
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 – Mohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was . .
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Cited – E, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
Cited – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
Cited – Pothecary Witham Weld (A Firm) and Another v Bullimore and Another EAT 29-Mar-2010
EAT VICTIMISATION DISCRIMINATION
SEX DISCRIMINATION – Burden of Proof
Ex-employee given unfavourable reference – Claim that terms of reference were partly on account of her having previously brought . .
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 – 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 . .
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

Leading Case

Updated: 01 November 2021; Ref: scu.159019

The employee had become diabetic. Upon his coming to require insulin, the employer undertook a new risk assessment, and restricted his duties as a driver. He claimed disability discrimination. At the tribunal, both employer and employee brought medical evidence.
Held: The employer’s duties under the Act had to be seen in the context of the employer’s wider duties of Health and Safety to others. Although the tribunal could otherwise make findings of fact, where the employer had carried out a proper risk assessment, and could not be said to have acted unreasonably in the light of that assessment, it was not for the tribunal to seek to judge between the experts for the two parties.

Times 05-Jun-2001, [2001] ICR 805, [2001] EWCA Civ 558, [2001] Emp LR 527, [2001] IRLR 384
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
Appeal from – Jones v Post Office EAT 1-May-1998
. .
See Also – Post Office v Jones EAT 23-Mar-1999
. .

Cited by:
Cited – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 01 November 2021; Ref: scu.84814

eversheds_dbEAT11

EAT SEX DISCRIMINATION – Direct
SEX DISCRIMINATION – Pregnancy and discrimination
SEX DISCRIMINATION – Other losses
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Polkey deduction
Male claimant and female comparator absent on maternity leave in redundancy selection pool – On one criterion (‘lock up’) Claimant given low (actual) score but comparator given (notional) maximum score since because of her absence at the measurement date no actual score was available – Claimant selected, but if comparator had not been given the maximum score for lock up the scores would either have been level or she would have been selected – Tribunal holds that the different scoring method constituted unlawful sex discrimination and the Claimant had been unfairly dismissed – Claimant awarded compensation for over three years’ loss of earnings – Appeals on liability and remedy.
LIABILITY
Held, dismissing appeal, that:
(1) As regards sex discrimination, more favourable treatment of the comparator in order to compensate her for a disadvantage consequent on her absence on maternity leave would not constitute unlawful sex discrimination, if but only if the treatment was no more favourable than was reasonably necessary for that purpose – article 2.7 of the Equal Treatment Directive and section 2 (2) of the Sex Discrimination Act 1975 considered; but
(2) It was not reasonably necessary to accord the comparator a notional score on the lock up criterion because there were more proportionate means available of ensuring that she did not lose out in the redundancy exercise because of her maternity absence.
(3) As regards unfair dismissal, it was not reasonable in the circumstances for the employer to rely on its own failure to identify more proportionate means of protecting the comparator’s position.
REMEDY
(4) The Tribunal had wrongly refused to consider evidence that if the Claimant had not been dismissed he would have been at risk of dismissal in a further redundancy exercise in less than a year’s time – King v Eaton, Thornett v Scope and Software 2000 considered – Tribunals not to decline to undertake Polkey exercise merely because it involves ‘speculation’

Underhill P J
[2011] UKEAT 0352 – 10 – 0604
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.431879

EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – Compensation
1. The Employment Tribunal was correct to refuse to award any uplift in compensation pursuant to section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended). No disciplinary procedure was invoked in this case because, apart from the effects of his illness, the Claimant was able to perform the job of security guard and there was no suggestion that his conduct or performance gave rise to a disciplinary situation or involved culpable conduct. That meant the employer was not required to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures and the uplift under section 207A(2) was not available.
2. The question whether and when in future the Claimant would obtain alternative employment at an equivalent salary to that which he had with the Respondent did not depend on findings of fact but on an assessment that involved speculation and prediction. The ET’s conclusion that the Claimant would have obtained such employment by 6 September 2018 so that full loss ceased at that date was sustainable on the evidence and assumptions made and not arguably perverse.
3. Travel costs associated with getting to work in the future were not raised as an issue for the ET to determine. They were not identified with any particularity or quantified in any way, even on a speculative basis. It was not therefore an error for the ET not to take them into account in determining pecuniary loss in the period from 7 September 2015 onwards.
4. The appeal therefore failed.

Simler DBE J P
[2016] UKEAT 0206 – 15 – 2604
Bailii
England and Wales

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.565987

The claimant had been offered and had accepted a job subject to satisfactory health clearance. When that was not received her offer was withdrawn. She had suffered a condition which would affect her daily activities, but had recovered from that condition. She appealed against refusal of her claim for disability discrimination. The evidence suggested that her condition should not now affect her day to day activities.
Held: The appeal succeeded: ‘it is on the basis of evidence as to circumstances prevailing at the time of that decision that the Employment Tribunal should make its judgment as to whether unlawful discrimination by the employer has been established. The central purpose of the Act is to prevent discriminatory decisions and to provide sanctions if such decisions are made. Whether an employer has committed such a wrong must, in my judgment, be judged on the basis of the evidence available at the time of the decision complained of.’

Pill, Sedley, Rimer LJJ
[2008] EWCA Civ 4, [2008] IRLR 227, [2008] ICR 431
Bailii
Disability Discrimination Act 1995 1(1)
England and Wales
Citing:
Cited – Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Curwen v James CA 1963
An appeal court had a discretion to hear relevant evidence of events after the date of judgment, in this case a change in circumstances of the victim’s widow, when considering a claim for damages for personal injury, where that evidence would . .
Cited – Barker v Westbridge International Ltd EAT 19-May-1999
. .
Cited – Greenwood v British Airways Plc EAT 17-Jun-1999
The tribunal considered a disability discrimination appeal.
Held: ‘In our judgment the tribunal fell into error by considering the question of disability only as at the date of the alleged discriminatory act. We are quite satisfied, as the . .
Cited – I Barker v Westbridge International Ltd EAT 8-Jun-2000
EAT Disability Discrimination – Disability
EAT Disability Discrimination – Disability. . .
Cited – Latchman v Reed Business Information Ltd EAT 7-Dec-2001
EAT The EAT considered the expression ‘likely to last’ in paragraph 2(1)(b) of the Act, and stated: ‘It is always tempting to accord, and is often appropriate, when it is charged with finding out what at some . .
Cited – Swift v Chief Constable of Wiltshire Constabulary EAT 25-Nov-2003
The EAT upheld the decision of an Employment Tribunal that the claimant had not shown that her disability was likely to recur. However: ‘In considering whether during a particular period in the past, a substantial adverse effect was likely to recur . .
Cited – Spence v Intype Libra Ltd EAT 27-Apr-2007
EAT The appellant who was disabled was dismissed after a long absence from work. He made various claims under the Disability Discrimination Act 1995, all of which were rejected. He contended that the failure to . .
At EAT – McDougall v Richmond Adult Community College EAT 13-Jul-2007
EAT Disability discrimination – Disability
Compulsory admission of a patient under the Mental Health Act is not automatically a disability under the DDA 1995. In the circumstances of this case the severity . .

Cited by:
Cited – Harron v Dorset Police EAT 12-Jan-2016
EAT DISABILITY DISCRIMINATION
RELIGION OR BELIEF DISCRIMINATION
The Claimant had a belief (which the Employment Tribunal thought genuine) that public service was improperly wasteful of money. He . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 02 November 2021; Ref: scu.263769

palmer_rbsEAT1408

EAT Age Discrimination : The Respondent Bank decided to restructure the division in which the Claimant worked. She amongst others was consequently at risk of redundancy. Just prior to the decision as to restructuring, the Bank had also decided to adjust its Voluntary Early Retirement (‘VER’) scheme, so that only those who were at least 55 at the date of leaving employment would be entitled to an immediate pension payable without actuarial reduction for early receipt. Previously the minimum age had been 50. The Bank was persuaded by the employees’ union to delay the introduction of this adjustment until after the restructuring was complete. Employees at risk of redundancy, including the Claimant, had already indicated whether they chose to accept voluntary redundancy (for which a generously enhanced payment was available) or wished to be redeployed if this were possible, with those who would be over 55 being offered a third choice, that of VER. Now that the adjustment was to be delayed, those who would be at least 50, but less than 55, were allowed to revisit their options, with the third option now being made available to them as it had not been before. The Claimant (aged 49) complained that the failure to permit her too to revisit her choice unlawfully discriminated against her on age grounds. She had chosen the redundancy payment option, but if permitted to choose again would now elect for redeployment, believing that it would take some time before the fact that there would be no job for her was identified, and she would then be old enough validly to opt for VER. An ET held that she was not in a comparable position to those between 50 and 55, since (a) she was 49; and (b) her route to gaining VER would be different. If that were wrong, the policy of permitting those between 50 and 55 to revisit their choices was aimed at reducing compulsory redundancies, and was a proportionate means of doing so.
Held: The ET was entitled to conclude that less favourable treatment had not been established, since the comparators could lawfully have chosen VER but the Claimant at her projected date of leaving employment could not. This did not fall foul of the principle expressed by the C.A. in Lockwood v Department for Work and Pensions, since in the present case the Claimant could not lawfully have been offered VER at her age – there was a statutory prohibition against it. If, however, that were wrong, the ET had permissibly identified a legitimate aim, and decided the means adopted towards achieving it were appropriate, but had not sufficiently balanced the importance of achieving the aim against the discriminatory effect on the group, of which the Claimant was part, of being denied the chance to revisit their options after the delay in making the adjustment to the policy on VER.

Langstaff J P
[2014] UKEAT 0083 – 14 – 0108
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.535553

konczak_baeEAT2012

EAT PRACTICE AND PROCEDURE
Compromise
Admissibility of evidence
UNFAIR DISMISSAL – Mitigation of loss
RACE DISCRIMINATION – Other losses
Waiver of without prejudice privilege. Whether Claimant’s loss was terminated by her refusal to accept an offer which the Employment Tribunal considered was reasonable.
Held: privilege was waived, but the Employment Tribunal’s finding on mitigation of loss was impermissible. Remedy issue remitted to fresh Employment Tribunal.

Peter Clark J
[2012] UKEAT 0498 – 11 – 0305
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.454095

korashi_lhbEAT2011

EAT VICTIMISATION DISCRIMINATION – Whistleblowing
RACE DISCRIMINATION – Direct
JURISDICTIONAL POINTS – Claim in time and effective date of termination
PRACTICE AND PROCEDURE
New evidence on appeal
Appellate jurisdiction/reasons/Burns-Barke
The Employment Tribunal correctly dismissed PIDA claims as having failed to meet one or other of the conditions in Employment Rights Act 1996 s 47B 47C 47G and 47H, and further some were presented more than three months after the act of detriment (not the date of disclosure).
It was open to the Employment Tribunal to dismiss claims of discrimination and victimisation under RRA 1976.
The EAT refused to allow new evidence on appeal. For the future, such applications should be made first to the Employment Tribunal.
The Court of Appeal having approved the request for further reasons, and seen the Employment Tribunal’s answers, the Employment Tribunal did not overstep the proper ambit and the two sets of reasons were read as one.

McMullen QC J
[2011] UKEAT 0424 – 09 – 1208
Bailii
Race Relations Act 1976, Employment Rights Act 1996 47B 47C 47G 47H
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.444027

The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem arose where there were a succession of contracts. It was argued that the European ‘stability of employment’ law suggested that claims could be entertained from prior periods.
Held: The employees’ appeals succeeded. The stable employment was made out where the employee: ‘did the same work for the Council over very many years without any break in the work they did or in the succession of contracts’ with only minor variations. The commission argued (newly on appeal) that the ECJ decision in Preston was undermined by the interpretation of the running of the time limit. ‘The proper approach to ensure compliance with the principle of equivalence is to construe the time limit provisions so that time only begins to run from the last occasion on which the equality clause operated. Thus, in cases like the instant cases, where there has been a termination of a contract of employment and continuation of employment under a new contract with the same employer for substantially the same work, the time limit is not triggered until the end of the last contract in the series.’

Mummery, Smith, Goldring LJJ
[2009] EWCA Civ 293, Times 14-Apr-2009, [2009] IRLR 463, [2009] 3 CMLR 8, [2009] ICR 1217, [2009] WLR (D) 127
Bailii
Equal Pay Act 1970 2(4) 2ZA
England and Wales
Citing:
Cited – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
Cited – Levez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
Cited – Jones v Governing Body of Burdett Coutts School CA 2-Apr-1998
The Employment Appeal Tribunal must give reasons for its decision, if it chooses to allow the amendment of appeal the papers in order to hear a point of law which had been conceded in the industrial tribunal. Citing Liverpool Corporation v Wilson, . .
Cited – Unison v Leicestershire County Council CA 29-Jun-2006
The council had dismissed all workers within a group of employees, and invited them to re-apply for their jobs. The council now appealed a protective award made on the basis that there had been inadequate consultation with the union.
Held: The . .
Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
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 – Jones v MBNA International Bank CA 30-Jun-2000
. .
Cited – Jones v Governing Body of Burdett Coutts School EAT 30-Sep-1998
EAT The Employment Appeal Tribunal refused to allow on appeal an employee’s more senior legal representative to re-open a point of law wrongly conceded at the Industrial Tribunal because of the need to achieve . .

Cited by:
Cited – Martin v Essex County Council and Others EAT 19-May-2009
EAT EQUAL PAY ACT: Article 141/European law
Since Slack a claim for equal access based on a stable employment relationship cannot be struck out, as being out of time, when the series of short term contracts . .
Applied – North Cumbria University Hospitals NHS Trust v Fox and Others CA 30-Jun-2010
The employer had altered existing employment contracts. The claimants having commenced discrimination claims then sought to add to the existing proceedings comparators from different job groups. The tribunal had been asked whether, given that this . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.329547

EAT DISABILITY DISCRIMINATION – Disability
A woman who suffered from dissociative amnesia, which had made her forget that she had a previous conviction, and who was reprimanded for failing to disclose it when she applied for a new post, was a ‘disabled person’ for the purpose of a claim of disability discrimination because her condition had a substantial and long-term adverse effect on an activity which related to her active participation in professional life: Chacon Navas v Eurest Colectividades SA [2006] IRLR 706 and Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 followed.

Keith J
[2013] UKEAT 0518 – 12 – 0205
Bailii
England and Wales
Citing:
Cited – Sonia Chacon Navas v Eurest Colectividades SAs (Social Policy) ECJ 11-Jul-2006
ECJ Directive 2000/78/EC – Equal treatment in employment and occupation – Concept of disability.
The concept of disability should be given a uniform and autonomous meaning throughout the EU. The court . .
Cited – Paterson v Commissioner of Police of the Metropolis EAT 23-Jul-2007
EAT PART TIME WORKERS
A police officer was found by the Tribunal to be significantly disadvantaged compared with his peers when carrying out examinations for promotion. Nonetheless, the Tribunal held that he . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.511067

EAT DISABILITY DISCRIMINATION – Disability
Disability discrimination – whether the Claimant was disabled for the purposes of section 6 Equality Act 2010.
The Claimant suffered from a shoulder and a hearing impairment.
The shoulder impairment had lasted more than 12 months. The issue was whether it had a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities. The Employment Tribunal found the Claimant had exaggerated the effect of the impairment; giving evidence inconsistent with the contemporaneous medical evidence. It concluded substantial adverse effect had not been shown.
As for the hearing impairment: as at the date of alleged discrimination (August 2012), that had not lasted 12 months. Looking forward as at that time, the Employment Tribunal concluded that the evidence at that stage did not demonstrate that this impairment was likely to last for more than 12 months.
The Employment Tribunal also concluded that the Claimant had not established that he was disabled for section 6 Equality Act 2010 purposes as a result of the cumulative effect of the impairments.
Allowing the appeal, in part.
The focus of the Employment Tribunal’s reasoning in respect of the shoulder impairment was on its rejection of the Claimant’s exaggerated evidence of the effect of the impairment. It then concluded that substantial (not minor or trivial) adverse effect had not been shown but without demonstrating that it had applied the correct test (or had regard to the relevant Guidance) to the facts it had found to be established (i.e. based on the medical evidence to which it had had regard). It might have been open to the Employment Tribunal to conclude that the facts did not demonstrate substantial adverse effect but the conclusion could not be said to be safe on the reasons provided.
On the hearing impairment, the Employment Tribunal had been entitled to take the view that it had on the basis of the evidence before it. As at August 2012, the evidence supported its conclusion that the prognosis was good; it was unlikely the impairment would continue for more than 12 months/the rest of the Claimant’s life. Subsequent events might have demonstrated this was overly optimistic but the question was not to be answered retrospectively, with the benefit of hindsight. The Employment Tribunal’s conclusion could not be said to be perverse and disclosed no error of law.
Turning to the question of combined effect, the Employment Tribunal had to form a view as to the deduced effect of the two conditions: to add up the component parts to see whether the sum amounted to more than the individual parts. The reasoning did not demonstrate it had done this. Moreover, given the view taken on the appeal as to the shoulder impairment, the Employment Tribunal would need to demonstrate it had applied the correct test to this impairment then take that finding along with that relating to the hearing impairment (as at August 2012) and look at those conclusions to ask whether, taken as a whole, this meant that the Claimant was disabled for the purposes of section 6 (regardless whether he would have been by reason of either impairment taken separately).

Eady QC HHJ
[2014] UKEAT 0290 – 14 – 0512
Bailii
Equality Act 2010 6
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.541963

EAT Jurisdictional Points : Working Outside The Jurisdiction
RACE DISCRIMINATION – Inferring discrimination
A, who is British, was employed by R and in 2007 he was appointed as Chief Operating Officer for the UK. From September 2008 he was assigned to manage a programme in support of ‘small countries’ in the Group, of which R is part, which is based in France, and he was appointed ‘CEO ad interim’. On a group re-organisation in May 2009 A’s assignment was terminated and a German national was appointed to the permanent CEO position. There was no redeployment available for A who was made redundant. He complained of unfair dismissal and race discrimination. The appeal is only concerned with a single complaint of race discrimination.
Held, dismissing A’s appeal:
(1) The Employment Tribunal had no jurisdiction to consider A’s complaint of race discrimination. A’s original appointment to the CEO position was a temporary assignment. As for the subsequent appointment to the permanent position of CEO of the German national, the position would require residence in a country outside Great Britain and further the business of the company concerned was not the business of R at an establishment in Great Britain; accordingly it could not be said that the issue of A’s non-appointment to this permanent role could be ‘in relation to employment by [R] at an establishment in Great Britain’ (Race Relations Act 1976, s.4).
(2) The ET had considered the merits of the claim, if they were wrong on jurisdiction. The ET had correctly determined that the non-appointment of A to the permanent CEO position was not unlawful on grounds of nationality, and that there was, in any event, no basis on which R could be held liable for the non-appointment of A.

Supperstone J
[2012] UKEAT 0213 – 11 – 0404
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.452510

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 Employment Tribunal and cite the failure to satisfy the first claim as a possible basis for an allegation of post employment discrimination and victimisation. An examination of the facts, including an assessment of why the claim had not been satisfied, might well establish post employment victimisation even five years after the employment had finished.

Mummery, Rix, Moses LJJ
[2009] EWCA Civ 454
Bailii, Times
England and Wales
Citing:
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 – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.346216

EAT SEX DISCRIMINATION
VICTIMISATION DISCRIMINATION
HARASSMENT
Claimant complained that misogynist comments at work had created an offensive environment for her, and that she therefore had been subject to sexual harassment. The Employment Tribunal thought she grossly exaggerated what had happened and albeit there were some such comments spread over time, this did not in context amount to harassment. Held the ET was entitled so to hold.

Langstaff P J
[2012] UKEAT 0630 – 11 – 0405
Bailii
England and Wales
Cited by:
Cited – Quality Solicitors Cmht v Tunstall EAT 28-Jul-2014
EAT Harassment – Conduct – Single instance race harassment claim – one overheard remark, ‘She is Polish and very nice’ or ‘She is Polish but very nice’. The Employment Tribunal erred in law in (1) failing to . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.461865

Although instructors in special schools, carried out work of a broadly similar nature to qualified teachers, and the majority were women, they were not entitled to an equality of pay clause, since there was no evidence of sex discrimination, and the employers were not required under the section to establish a good reason for the disparity in pay. A rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man’s contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex.
Lord Nicholls said: ‘I do not believe the Act of 1970 was intended to have this effect. Nor does the statutory language compel this result. The scheme of the Act is that a rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man’s contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine, and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a ‘material’ factor, that is, a significant and relevant factor. Third, that the reason is not ‘the difference of sex.’ This phrase is apt to embrace any form of sex discrimination, whether direct or indirect. Fourth, that the factor relied upon is or, in a case within section 1(2)(c), may be a ‘material’ difference, that is, a significant and relevant difference, between the woman’s case and the man’s case.
When section 1 is thus analysed, it is apparent that an employer who satisfies the third of these requirements is under no obligation to prove a ‘good’ reason for the pay disparity. In order to fulfil the third requirement he must prove the absence of sex discrimination, direct or indirect. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity.’

Lord Nicholls
Times 08-Feb-2000, Gazette 17-Feb-2000, [2000] UKHL 5, [2000] 1 WLR 333, [2000] ICR 196, [2002] IRLR 272
House of Lords, Bailii
Equal Pay Act 1970 1 1(3)
England and Wales
Citing:
Cited – Strathclyde Regional Council and others v Wallace and others (Scotland) HL 22-Jan-1998
80% of the men who had been employed since 1 April 1997 had got protection under TUPE whereas only 66.66% of the women had. It was argued that this difference in percentages was sufficient to justify a claim of indirect discrimination.
Held: . .

Cited by:
Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
Cited – Home Office v Bailey and others CA 22-Mar-2005
Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
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 – South Tyneside Metropolitan Borough Council v Anderson and others EAT 26-Mar-2007
The council appealed a finding that there was no genuine material factor justifying a difference in pay, and in particular the availability of bonus schemes. . .
Cited – Grundy v British Airways Plc CA 23-Oct-2007
The claimant, a cabin crew member of the defendant’s staff sought damages for sex discrimination.
Held: Sedley LJ said that the pool chosen should be that which suitably tests the particular discrimination complained of. . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Leading Case

Updated: 01 November 2021; Ref: scu.80854

EAT SEX DISCRIMINATION – Direct
RACE DISCRIMINATION – Direct
VICTIMISATION DISCRIMINATION
Whistleblowing
Dismissal
DISABILITY DISCRIMINATION
Appeal withdrawn in respect of ‘ordinary’ unfair dismissal; wrongful dismissal and holiday pay.
Appeal allowed in respect of allegations of race and sex discrimination. In particular the Tribunal erred in law in holding that that failure to investigate an allegation of race discrimination in a thorough and reasonable manner was an act of race discrimination: see, for example, Royal Bank of Scotland v Morris [2012] Eq LR 412. The Tribunal also failed to resolve a key issue of fact underlying the question whether there was discrimination concerning the KS1 post; at one point applied the burden of proof provisions incorrectly; and had no sound basis in its reasoning for reaching other findings.
Appeal allowed in part in respect of issues concerning public interest disclosure. The Tribunal was entitled to find that there were 3 protected disclosures in 2007; but it failed to make findings as to other alleged protected disclosures and failed to relate the 3 protected disclosures in 2007 to the dismissal in 2008.
Appeal allowed in part in respect of issues concerning disability discrimination (reasonable adjustments).

David Richardson J
[2012] UKEAT 0107 – 11 – 1807
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.462960

EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
Reasonable adjustments
Exclusions/jurisdictions
VICTIMISATION DISCRIMINATION: Detriment
HARASSMENT: Conduct
This case raises issues of legal and practical importance for discrimination cases. It is one of a number of cases in which the Employment Appeal Tribunal is considering whether the judgment in Malcolm v Lewisham Borough Council [2008] IRLR 700 on the correct comparator in disability related discrimination cases applies to employment cases and in effect overrules Clark v Novacold Ltd [1999] IRLR 318. In this case the Employment Appeal Tribunal holds that the Employment Tribunal erred in failing to apply Malcolm.
The Employment Tribunal erred in finding direct discrimination by simply finding that the employers had a ‘stereotypical’ view of disabled persons.
Comments on the need for Tribunals to identify in discrimination cases the complaints which are justiciable and are subject to the statutory conditions relating to limitation periods and statutory grievances, and those which are relied on as evidence of such complaints.
The complaints under the Disability Discrimination Act 1995 are remitted to an Employment Tribunal.

[2009] UKEAT 0401 – 08 – 1103
Bailii
Employment Rights Act 2002
England and Wales
Citing:
Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Cited – Chapman and Another v Simon CA 1994
The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary . .
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
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 – Watt (Formerly Carter) v Ahsan HL 21-Nov-2007
The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .
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 – 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 – 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 – 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 – N, Regina (on the Application of) v London Borough of Barking and Dagenham Independent Appeal Panel CA 24-Feb-2009
The case of Malcolm has overruled Novacold. Toulson LJ said: ‘In Malcolm the House of Lords was concerned with the construction of the same phrase in Part III of the Act. It overruled the decision in Clark v Novacold and held that the proper . .
Cited – Selvarajan v Wilmot and others CA 23-Jul-2008
The appellant had employed the three claimants in his medical surgery, but they claimed automatic unfair dismissal when the practice closed on his suspension from practice and the statutory procedures were followed but not to the procedural . .
Cited – McAdie v Royal Bank of Scotland CA 31-Jul-2007
The claimant succeeded in her claim for unfair dismissal, but now appealed against the reversal of the decision by the EAT. She had been dismissed for incapability to which she had contributed by her conduct. She had refused a move to another bank . .
Cited – Home Office v Collins CA 19-May-2005
Disability discrimination and unfair dismissal. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.323715