EAT Disability Discrimination : Compensation
Causation – whether decision not to award employee sick pay was a consequence of the act found to have been an act of disability discrimination.

Keith J
[2012] UKEAT 0576 – 11 – 1712
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.467156

bivonas_EAT2012

EAT Sexual Orientation Discrimination or Transexualism – The Employment Tribunal correctly applied the law relating to detriment in a case of sexual orientation discrimination; see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. The Tribunal also made adequate findings of fact before reversing the burden of proof; see Igen v Wong [2005] IRLR 258. Appeal dismissed.

Birtles J
[2011] UKEAT 0254 – 11 – 3101
Bailii
England and Wales
Citing:
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 – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.450525

iteshi_ofwatEAT2011

EAT RACE DISCRIMINATION – Direct
The Employment Judge struck out the Claimant’s case of race discrimination on the ground of his Nigerian nationality as having no reasonable prospect, knowing how rare such an order is. On appeal the Claimant who did not attend the Employment Tribunal accepted he was not as qualified by experience etc as those sifted to interview. The case was bound to fail under section 3 (relevant comparator) and Madarassy and the judge did not err in striking it out.

McMullen QC J
[2011] UKEAT 0178 – 11 – 2209
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.445652

EAT DISABILITY DISCRIMINATION – Disability
Job offer to Claimant withdrawn allegedly as a result of her disclosing a history of depression – On a preliminary issue Tribunal holds that at the material time (June 2008) Claimant not suffering from ‘clinical depression’ amounting to a disability within the meaning of the Disability Discrimination Act 1995.
Appeal allowed, and issue remitted, because Tribunal
(a) had wrongly declined to give weight to the evidence of Claimant’s GP, on the issues both of impairment and of ‘deduced effect’, because she was not a specialist; and
(b) had made a perverse finding as to whether the Claimant’s past depression had amounted to an impairment having a substantial adverse effect on her ability to carry out normal day-to-day activities, which was material both to the question of whether she had an impairment in June 2008 and to the potential application of para. 2 (2) of Schedule 1 of the Act
(paras. 52-57)
Discussion of:
(1) correct approach to issue of ‘impairment’ in cases involving a mental disability following the repeal of para. 1 (1) of Schedule 1 by the Disability Discrimination Act 2005 – Morgan v Staffordshire University [2002] ICR 475 considered; College of Ripon and York St. John v Hobbs [2002] IRLR 185 and McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 held to remain good law – (paras. 35-40 and 43-44)
(2) distinction between ‘clinical depression’ and reactions to stress or other adverse circumstances producing similar symptoms (para. 42)
(3) whether claimant with a history of recurrent depressive episodes can be said to suffer an impairment in the intervals between episodes (para. 45).
Claimant refused permission to advance a point not raised before the Tribunal to the effect that even if she was not in fact disabled at the time of the acts complained of the Respondents perceived her to have been; that discrimination on the basis of such ‘perceived disability’ was contrary to EU law; and that the 1995 Act could be construed so as to give effect to that prohibition, by analogy with EBR Attridge LLP v Coleman [2010] ICR 242 – paras. 60-64.

Underhill P J
[2010] UKEAT 0263 – 09 – 1506
Bailii
Disability Discrimination Act 1995, Disability Discrimination (Meaning of Disability) Regulations 1996
England and Wales
Citing:
Cited – College of Ripon and York St John v Dr Hobbs EAT 14-Nov-2001
The college appealed a finding that the applicant who had been found to be disabled within the Act, but denied discrimination. They appealed the finding of the tribunal which had failed to identify whether the disability was mental or physical.
Cited – Woodrup v London Borough of Southwark EAT 4-Feb-2002
EAT Disability Discrimination – Disability . .
Cited – McNicol v Balfour Beatty Rail Maintenance Limited CA 26-Jul-2002
The Disability Rights Commission sought leave to intervene in a claim between the parties for disability discrimination.
Held: The Commission has important duties, but that did not give it the right, save in exceptional circumstances, to . .
Cited – Morgan v Staffordshire University EAT 11-Dec-2001
The EAT gave guidance on the approach to be adopted in cases where a mental impairment is alleged by a complainant. After referring to paragraph 1 of Schedule 1 of the Act: ‘Accordingly, in general there will be three or possibly four routes to . .
Cited – EBR Attridge Law Llp and Another v Coleman EAT 30-Oct-2009
EAT DISABILITY DISCRIMINATION – ‘Associative’ discrimination
The Disability Discrimination Act 1995 can be interpreted so as to apply to ‘associative’ discrimination as required by the decision of the . .
Cited – Goodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .
Cited – City of Edinburgh Council v Dickson EAT 2-Dec-2009
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Reinstatement/re-engagement
DISABILITY DISCRIMINATION – Disability-related discrimination
DISABILITY DISCRIMINATION – Direct . .
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 – D Woodrup v London Borough of Southwark CA 2003
Simon Brown LJ said: ‘As will readily be seen, it provides (perhaps rather surprisingly) that someone is to be treated as disabled even though they are not in fact disabled (even, that is, where they suffer no substantial adverse effect on their . .
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 – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.416806

EAT DISABILITY DISCRIMINATION: Reasonable adjustments
DISABILITY DISCRIMINATION: Disability related discrimination
The Claimant suffered from ME. The Tribunal found disability discrimination in that her employer had failed to make reasonable adjustments in that (1) over a short period it had failed to offer her the adjusted hours of work she wanted; (2) it had not installed a stair lift to enable her to access the employer’s first and second floor offices; (3) (alternatively) permitted some home working; and (4) (in the further alternative) rented adjoining ground floor accommodation for her use. There was no appeal in relation to (1).
Held: in relation to (2), the matter should be remitted to the Tribunal for further consideration in the light of the Tribunal’s apparent failure to take a number of important matters into account: in relation to (3), there was no evidentiary basis for finding that home working was a realistic possibility, and as to (4), assuming that renting further office space could in certain circumstances amount to a reasonable adjustment, there was no evidentiary basis for holding such office space was available.

[2009] UKEAT 0224 – 08 – 1102
Bailii
Disability Discrimination Act 1995
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.304524

EAT VICTIMISATION DISCRIMINATION
RACE DISCRIMINATION: Inferring discrimination
The Claimant was a police officer whose application for promotion failed. He claimed that the decisions of the relevant panels were motivated by direct racial discrimination and/or by the fact that he had previously brought successful discrimination proceedings against the Force (i.e. victimisation). The Tribunal dismissed the former claim but allowed the latter. Held that the facts relied on by the Tribunal in support of an inference of discrimination contained a serious factual mistake and the remaining matters were incapable of supporting the inference.

[2008] UKEAT 0598 – 07 – 0407
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.270726

delmonte_mundonEAT1980

The company had dismissed the employee for continued absence caused by gastroenteritis. On the following day they discovered that she was pregnant. Nevertheless they did not change the decision.
Held: This could not constitute a dismissal for pregnancy.
Slynn J said: ‘The section of the Act relied upon for the purposes of this claim, it seems to us, makes quite clear that there is to be a finding of unfair dismissal, without more, if either the reason or the principal reason for the dismissal is that the woman is pregnant or is for some other reason connected with her pregnancy. It must be shown in this case that the dismissal was because of the pregnancy or for another reason connected with the pregnancy. If this section is relied on, it seems to us essential that it be shown that the employers knew or believed that the woman was pregnant or that they were dismissing her for a reason connected with her pregnancy. If they do not know of the pregnancy, or do not believe that the pregnancy exists, it does not seem to us that it is possible for the employers to have as their reason for dismissal that the woman was pregnant. In a case where it is said that the reason for the dismissal is another reason connected with her pregnancy, not the pregnancy itself, it seems to us that the employers have to know the facts alleged by the employee as grounding the reason and also to know or believe that those facts relied upon are connected with the woman’s pregnancy.
In summary it must be shown that the employers have either the knowledge of, or a belief in, the pregnancy, or knowledge of the facts, and their connection with the pregnancy, if there is some other reason than the pregnancy, which is the reason for the dismissal.’

Slynn J
[1980] IRLR 224, [1980] ICR 694

Employment, Discrimination

Leading Case

Updated: 01 November 2021; Ref: scu.510136

EAT HARASSMENT – Conduct
Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of others whom her employer did not control, in what circumstances is that employer liable to her for damages for discrimination or harassment on the grounds of race? An argument that the employer of a Claimant subject to overtly racist abuse and hostility should be held liable for discrimination because the environment thus created was inherently racist and he adopted it by requiring the employee to continue to work in it was rejected by an Employment Tribunal, and that decision was upheld. Consideration was given to whether and if so when an employer’s failure to ameliorate a hostile environment could potentially give rise to a claim under s.3A of the Race Relations Act 1976.

Langstaff J
[2010] UKEAT 0288 – 10 – 1712
Bailii
Race Relations Act 1976 3A
England and Wales
Citing:
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – 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 – Gravell v London Borough of Bexley EAT 2-Mar-2007
EAT Race Discrimination
Racial harassment (s3A). Effect of House of Lords Judgment in Pearce v The Governing Body of Mayfield School re. Burton v de Vere Hotels Ltd on s3A claim. Employment Tribunal . .
Cited – Burton and Another v De Vere Hotels EAT 3-Oct-1996
Two black waitresses, clearing tables in the banqueting hall of a hotel, were made the butt of racist and sexist jibes by a guest speaker entertaining the assembled all-male company at a private dinner party.
Held: The employer of the . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.428720

EAT RACE DISCRIMINATION
The Claimant appealed against a decision by an Employment Judge discharging a party from proceedings, on the grounds of apparent bias. An issue arose as to the authenticity of a document prepared by another party. One of the other parties was the Chairman of the Judicial Appointments Board for Scotland and Claimant submitted that:
‘the honourable learned judge in Scotland would resist accepting the possibility that the document of 3 August 2005 was a forgery; the implications of such a finding would have an adverse impact career and income-wise, because the third respondent, [was]chairman of the Judicial Appointments Board for . . the honourable judge should and ought to have acknowledged the fact he was acting as judge in his own cause which he cannot do.’
No fair minded observer would regard the Employment Judge as having been acting in his own cause.
The Claimant drew attention to press reports in Scotland of a speech by Lord Hope reported in the Daily Herald in Scotland of 20 November 2011 who quoted remarks made to him by the late Lord about ‘a corrosive anti-English sentiment’ in the Scottish Courts system. The article is headed ‘Scottish court system is anti-English’.
Dr Singh submitted that he suffered from what he described as a ‘double-whammy’ in Scotland; firstly, he was a member of an ethnic minority, and, secondly, he speaks with a distinct English accent.
The background to the speech was that there is a vigorous debate taking place in Scotland as to the desirability of Scottish cases being decided by the Supreme Court in London, where the majority of Justices are English or from Northern Ireland. No fair-minded observer would conclude that Lord Hope was in any way suggesting that Scottish courts would be biased against English litigants. The Employment Appeal Tribunal regarded Dr Singh’s suggestion that he could not receive a fair hearing in the Scottish courts as being an unacceptable slur on the integrity of the Scottish judiciary and rejected the suggestion that he had not received a fair hearing.

Serota QC J
[2012] UKEAT 0006 – 11 – 1007
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.462442

EAT SEX DISCRIMINATION: Vicarious liability
Sexual harassment claim by an employee of an education authority. Circumstances in which tribunal had misdirected itself as to its own prior judgment and erred in continuing the claim straight to a remedies hearing when an issue of time bar, and, depending on the resolution of that issue, an issue regarding the appellants’ defence under s.41(3) of the Sex Discrimination Act 1975 both remained unresolved. Appeal upheld and case remitted to a freshly constituted tribunal; tribunal had shown clear and express sympathy for the claimant’s case and had been, evidently, striving to make a finding in her favour. It was not appropriate in these circumstances to remit to the same tribunal.

[2008] UKEAT 0055 – 07 – 2507
Bailii
Sex Discrimination Act 1975 41(3)
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 – Smiths Detection – Watford Ltd v Berriman EAT 9-Aug-2005
EAT The Employment Tribunal was wrong to find that the Respondent had discriminated against the Claimant under Section 6(1) of the Disability Discrimination Act 1995 because it omitted to find what arrangements . .
Cited – Environment Agency v Rowan EAT 1-Nov-2007
EAT Practice and Procedure – Perversity
Disability discrimination – Reasonable adjustments
An Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to . .

Cited by:
Cited – Stafford and Rural Homes Ltd and Another v Hughes EAT 9-Mar-2009
EAT DISABILITY DISCRIMINATION: Reasonable adjustments
Effect of Malcolm: on the facts of the case the decision in Malcolm did not make any difference to the conclusion. There is no requirement in law to set . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.272560

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 discrimination. The employer contended that she had not been dismissed within the section.
Held: There had been conflicting decisions. The word ‘dismissed’ in this context had to be construed widely. For the purposes of section 4(2) the 1995 Act, a constructive dismissal was a dismissal. The appeal was itself dismissed.

Thorpe, Keene LJJ, Bennett J
[2004] EWCA Civ 859, Times 15-Jul-2004, [2005] ICR 1, (2004) 80 BMLR 129, [2004] IRLR 703, [2004] 4 All ER 97
Bailii
Disability Discrimination Act 1995 4(2)
England and Wales
Citing:
Appeal from – Meikle v Nottinghamshire County Council EAT 19-Aug-2003
EAT Disability Discrimination – Less favourable treatment. The appellant brought proceedings against the Respondents alleging that they had failed to make adjustments to her workplace and conditions so as to . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – Lewis v Motorworld Garages Ltd CA 1985
The court considered the circumstances under which an employee might resign and successfully claim constructive dismissal.
Glidewell LJ said: ‘This breach of this implied obligation of trust and confidence may consist of a series of action on . .
Cited – Bracebridge Engineering Limited v Darby EAT 1990
The failure by an employer to treat an allegation of sexual harassment seriously was a breach of the implied term to maintain the trust and confidence of an employee, which entitled the employee to treat the contract as having been repudiated. . .
Cited – Jones v Sirl and Son (Furnishers) Limited EAT 1997
In constructive dismissal cases the repudiatory breach by the employer need not be the sole cause of the employee’s resignation. There may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental . .
Cited – Derby Specialist Fabrication Ltd v J N Burton EAT 27-Sep-2000
Race Discrimination – Direct. After dealing with the arguments based on the history of the various statutes: ‘Whether the employer deliberately dismisses the employee on racial grounds or he so acts as to repudiate the contract by racially . .
Cited – M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
Cited – Sutcliffe v Hawker Siddley Aviation Limited NIRC 1973
Though the 1971 Act made no reference to it, nonetheless there could be an unfair dismissal deriving from a constructive dismissal. An argument that the converse interpretation should be adopted because earlier legislation (the 1965 Act) had defined . .
Doubted – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Cited – Bliss v South East Thames Regional Health Authority CA 1985
General damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer’s breach of the implied term of confidence and trust. Dillon LJ said that damages for mental distress in contract are limited to certain . .
Cited – London Clubs Management Ltd v Hood EAT 18-Sep-2001
The employee developed a series of headaches. He was off work for many weeks, and the company cut his sick pay. He claimed disability discrimination. The company claimed he was not being paid because he was not at work, the company having exercised . .
Cited – Collins v Royal National Theatre Board Limited CA 17-Feb-2004
Can an employer’s failure to make adjustments to accommodate a disabled employee be unreasonable but justified?
Held: The justification under 5(2)(b) must be something other than the circumstances which are taken into account for the purpose . .
See Also – Meikle v Nottingham City Council EAT 14-Apr-1994
The appellant challenged dismissal of her claim for indirect racial discrimination based on two grounds. First, that the Tribunal’s decision was perverse; in other words that it was a decision which, on the evidence before it, no reasonable tribunal . .

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 – Jamie v Management Solution Partners Ltd EAT 31-Jan-2006
The claimant received an email from his employers and resigned claiming unfair dismissal saying that it was repudiatory. The employers objected to the admission of the email into evidence saying that it was marked without prejudice and subject to . .
Cited – BUPA Care Homes v Cann; Spillett v Tesco Stores EAT 31-Jan-2006
EAT Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment
Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, . .
Cited – Lisboa v Realpubs Ltd and Others EAT 11-Jan-2011
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 . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Leading Case

Updated: 01 November 2021; Ref: scu.198853

bury_hamiltonEAT11

EAT EQUAL PAY – Material factor defence and justification
BONUS CLAIMS (both appeals)
Equal pay claims by female local authority employees to the benefit of bonus paid to male colleagues under purported productivity bonus schemes – Councils’ section 1 (3) defences in both cases dismissed by the employment tribunal on the basis that by the relevant dates any link between the receipt of bonus and productivity on the part of the comparators had been lost and that accordingly the Councils’ explanation of the differential was a ‘sham’
Held, dismissing the appeals (save in respect of particular groups of claimants), that the Tribunal had been wrong to characterise the Council’s explanation as a sham but that the underlying finding that the link between productivity and receipt of bonus had been lost meant that the non-payment of bonus to the claimants could not be justified and that since the difference in gender break-down between the groups of employees who did and did not receive bonus gave rise (save in those groups) to Enderby-type prima facie indirect discrimination the Councils’ defences under section 1 (3) failed – Specific points:
(1) Discussion of meaning of ‘genuinely’ in section 1 (3) and of the effect of the case-law relating to ‘sham’ – Dicta in Hartlepool Borough Council v Dolphin [2009] IRLR 168 disapproved.
(2) Showing that the link between productivity and bonus had been lost did not mean that the Councils had failed in limine to discharge the burden of proof under section 1 (3) – They had sufficiently identified a ‘factor’ explaining the differential by referring to the existence of the bonus schemes – The loss of the link with productivity was a matter going to justification
(3) Showing that the schemes had in their inception been non-discriminatory did not mean that the Councils had shown that the differential during the period complained of was due to a non-discriminatory factor
(4) Observations on the ‘structured analysis of equal pay claims’ in the light of the criticisms of Arden LJ’s formulation in Armstrong v Newcastle upon Tyne NHS Hospitals Trust [2006] IRLR 124
PAY PROTECTION CLAIMS (Bury only)
Equal pay claims by female local authority employees to the benefit of payments made to male colleagues by way of pay protection following discontinuance of productivity bonus – Council’s section 1 (3) defence upheld by tribunal on the basis (a) that it was impossible to know in advance of the tribunal’s conclusion on the bonus claims what amounts might be payable to Claimants by way of pay protection and (b) that extending pay protection to the Claimants would in any event have been unaffordable
Held, allowing Claimants’ appeal:
(a) that the practical impossibility of knowing at the moment that the claimed cause of action arose whether any sums were payable, and if so in what amount, could not give rise to a defence under section 1(3)
(b) that the Council had adduced no sufficiently particularised evidence of unaffordability to found a defence under section 1 (3).
Redcar and Cleveland Borough Council v Bainbridge [2009] ICR 133 and Pulham v London Borough of Barking and Dagenham [2010] ICR 333 considered (and error in Pulham corrected).

Underhill P J
[2011] UKEAT 0413-5 – 09 – 2801, [2011] IRLR 358, [2011] ICR 655
Bailii
Cited by:
Cited – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.428376

Final Straw Act – Non-Trivial

The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was absent. They said he had not requested leave to attend the hearing, and if he had made a request it would have been granted. The employee said this was ‘the final straw’ and that it justified his resignation and claim of constructive dismissal.
Held: The employer’s appeal succeeded. Although the final straw may be relatively insignificant, it must not be utterly trivial.
May LJ said: ‘an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee’s trust and confidence has been undermined is objective’ and ‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.’ However, taking an objective view of all the circumstances, the failure to pay was not a final straw, and the Tribunal could reach this decision without considering in detail the nature and effect of the earlier acts.

Lord Justice May, Lord Justice Dyson Lord Justice Wall
[2004] EWCA Civ 1493, Times 26-Nov-2004, [2005] ICR 481, [2005] IRLR 35, [2005] 1 All ER 75
Bailii
England and Wales
Citing:
Appeal from – Omilaju v London Borough of Waltham Forest EAT 31-Mar-2004
EAT Unfair Dismissal
Constructive Dismissal
A novel point on whether the ‘last straw’ in a constructive dismissal case has to involve at least some blameworthy or unreasonable conduct by the employer – . .
Cited – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Woods v WM Car Services (Peterborough) Ltd EAT 1981
Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, but in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the . .
See Also – Omilaju v London Borough of Waltham Forest and others EAT 1-Dec-1999
EAT Procedural Issues – Employment Tribunal . .
See Also – Omilaju v Waltham Forest and others EAT 23-Apr-1999
. .
See Also – Omilaju v London Borough of Waltham Forest and others EAT 30-Apr-2003
. .

Cited by:
Cited – Lewisham Hospital NHS Trust v Diffang EAT 4-May-2005
EAT Unfair Dismissal – Compensation. ET (1) failed to apply correct test in ascertaining whether the implied form of trust and confidence was involved.
(2) gave no reasons for finding a 3 year period for . .
Cited – Barke v Seetec Business Technology Centre Ltd CA 16-May-2005
Challenge to the lawfulness of the practice of the EAT in referring back to the IT deficient reasons with an invitation to expand upon them.
Held: The words ‘disposing of’ in the section meant ‘dealing with conclusively’ rather than . .
Cited – O’Kane v United Hospitals Trust FENI 30-Jun-2005
. .
Cited – Barke v SEETEC Business Technology Centre Ltd EAT 13-Jan-2006
EAT The Tribunal rejected the employee’s claims that there had been constructive unfair dismissal and disability discrimination. On her appeal:
(1) In deciding to reject the constructive unfair dismissal . .
Cited – Kirby v National Probation Service for England and Wales Cumbria EAT 8-Mar-2006
. .
Cited – Quigley v University of St Andrews EAT 9-Aug-2006
EAT The claimant, a university lecturer, claimed that he had been unfairly constructively dismissed. The tribunal held that the university had acted reasonably throughout the period of his employment, that they . .
Cited – Gibson and others (T/A Blandford House Surgery) v Hughes EAT 13-Sep-2006
EAT Unfair Dismissal – Constructive dismissal
The Employment Tribunal erred in applying the last straw doctrine of constructive unfair dismissal when, on affirmation of the contract by the Claimant following . .
Cited – Royle v Greater Manchester Police Authority EAT 27-Sep-2006
The claimant appealed dismissal of her claim for constructive dismissal. The tribunal had decided that she had waived and could not rely upon several matters placed before it.
Held: ‘(1) Where the appeal is based on alleged failure by the . .
Cited – Bates v Liverpool City Council EAT 25-Jan-2007
EAT Unfair Dismissal – constructive dismissal
In a constructive dismissal claim based on a disciplinary sanction short of dismissal, the issue is whether the sanction was disproportionate. Although BHS v . .
Cited – Anderson v Wesley Housing Association Ltd and Another NIIT 1-May-2007
. .
Cited – GAB Robins (UK) Ltd v Triggs EAT 13-Jun-2007
EAT UNFAIR DISMISSAL
Constructive dismissal
Compensation
Last straw constructive unfair dismissal. Last straw; employer’s failure to deal properly with her grievance – Constructive dismissal . .
Cited – Robson v Happy Days (1999) Ltd NIIT 17-Jul-2007
. .
Cited – Secretary of State for Justice v Slee EAT 19-Jul-2007
EAT Unfair Dismissal – Constructive dismissal
Maternity Rights and Parental Leave – Sex discrimination
The Claimant was employed as a Magistrates’ Clerk and she brought successful claims to the . .
Cited – Martin v Openwork Services Ltd NIIT 4-Oct-2007
. .
Cited – GMB Trade Union v Brown EAT 16-Oct-2007
EAT Unfair Dismissal: Reason for dismissal including substantial other reason / Compensation
The employee claimed constructive unfair dismissal because the employers refused to modify their grievance . .
Cited – Black v Ballyrobert Ltd NIIT 21-Mar-2008
. .
Cited – Nigel Fryer Joinery Services Ltd and Another v Ian Firth Hardware Ltd ChD 23-Apr-2008
. .
Cited – Thornton Print Ltd v Morton EAT 8-Sep-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Whether infringed
The Respondent committed a repudiatory breach of the Claimant’s contract of employment. . .
Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – Fazal v National Westminster Bank EAT 28-May-2008
EAT Jurisdictional Points – Extension of time: just and equitable
Sex Discrimination – Indirect
>Unfair Dismissal – Constructive dismissal

The Appellant claimed constructive unfair dismissal and . .
Cited – Dalzell v Department for Social Development NIIT 12-May-2008
The unanimous decision of the tribunal is as follows:-
(i) the claimant was not unfairly (constructively) dismissed by the respondent Department for Social Development;
(ii) the claimant was not unlawfully discriminated against by any of . .
Cited – Edinburgh Council v Wood EAT 2-May-2008
EAT UNFAIR DISMISSAL: Constructive dismissal – Tribunal found two ‘stand alone’ material breaches, one in respect of penalty imposed for misconduct and one in respect of respondents’ response to claimant’s . .
Cited – Diamond v Montgomery Distribution Ltd NIIT 29-Apr-2008
. .
Cited – M Fergusson, R Fergusson v Shepherd Neame Brewery Ltd EAT 28-Apr-2005
EAT Claimants complained of constructive dismissal by reason of breach of the implied term of trust and confidence. The Employment Tribunal looked for a ‘continuous course of conduct’ – as constituting the breach . .
Cited – The Spirit Group Ltd v Bell EAT 30-Mar-2005
EAT Unfair Dismissal
The Employment Tribunal did not err when it held the Claimant was unfairly constructively dismissed. There was no break in the chain of events leading to the application of the last . .
Cited – O’Shea v Coventry City Council EAT 11-Feb-2005
EAT Applicant resigned ahead of disciplinary hearing. He asserted constructive dismissal. Employment Tribunal held he resigned in expectation of good reference enabling him to take another job. On appeal he . .
Cited – Bunning v G T Bunning and Sons Limited CA 9-Feb-2005
Application for leave to appeal. Leave granted but claimant warned as to likelihood of success. . .
Cited – Doherty v British Midland Airways Ltd EAT 7-Feb-2005
EAT Unfair Dismissal
Employment Tribunal made findings against the Applicant relating to malice and motive which were not the Respondent’s case and were not put to her. Lucas v Chichester Diocesan Housing . .
Cited – Gulf Offshore Guernsey Ltd v Struth EAT 7-Dec-2004
EAT Contract of Employment – Mutual trust and confidence. The ET was entitled to find on the facts that the Claimant was constructively dismissed, although he had misunderstood what was said to him by his ship’s . .
Cited – Muschett v Parkwood Healthcare EAT 16-Mar-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal did not approach the question of constructive unfair dismissal in a last straw case by reference to the steps in Omilaju. To take an . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Leading Case

Updated: 01 November 2021; Ref: scu.219330

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 disagreements as to findings on facts as faults in law. No appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the appeal tribunal. The EAT had made that mistake here. A finding of fact should be set aside only in the very clearest cases of perversity, and even though the appeal tribunal might have grave doubts about the decision, it had to proceed with great care, and an appeal: ‘ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal on a proper appreciation of the evidence and the law would have reached.’ Mummery LJ said: ‘Inevitably there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed.’

Brooke LJ, Mummery LJ, Sir Christopher Slade
Times 20-Jun-2002, [2002] EWCA Civ 794, [2002] IRLR 634, [2004] ICR 257
Bailii
England and Wales
Citing:
Appeal from – Crofton v Yeboah EAT 16-May-2001
After a very long hearing, the appellant had been found guilty of race discrimination in his making of allegations about the behaviour of the respondent in failing to investigate corruption within Hackney London Borough Council.
Held: The . .
Cited – British Telecommunications Plc v Sheridan CA 1990
The appellant employers challenged the decision of the EAT to reverse the tribunal’s finding that the claimant had been fairly dismissed.
Held: Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment . .
See Also – Crofton v Yeboah and Another EAT 8-Jul-1999
Application to amend notice of appeal. . .
See Also – Yeboah v Crofton CA 31-Jul-2001
Application for leave to appeal. . .
See Also – Crofton v Yeboah and Another EAT 6-Mar-2000
. .

Cited by:
Cited – Matthews and others v Kent and Medway Towns Fire Authority and others CA 2-Jul-2004
Part time retained firefighters claimed discrimination under the Regulations when their conditions of service were compared with those of full-time firefighters. They appealed a finding that they had been employed under different types of contract . .
See Also – Crofton v Yeboah EAT 26-Jul-2002
. .
See Also – Crofton v Yeboah EAT 12-Sep-2002
EAT Race Discrimination – Injury to feelings . .
Cited – Matthews and others v Kent and Medway Towns and Fire Authority and others HL 1-Mar-2006
Retained or part-time firefighters sought parity of working conditions with full time firefighters.
Held: The retained firefighters’ appeal succeeded (Lords Carswell and Mance dissenting). The test was whether the part-time and full time . .
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 – Hay v Surrey County Council CA 16-Feb-2007
The claimant had been employed driving a mobile library. She came to suffer back problems, and was dismissed when the respondent said that she could not work within a library without the ability to lift, after she turned down a move to a different . .
See Also – Yeboah v Crofton CA 31-Jul-2001
Application for leave to appeal. . .
Cited – Sandhu v Jan De Rijk Transport Ltd CA 10-May-2007
The court was asked whether the claimant had been dismissed or had resigned. He had attended a meeting to be told that his contract was to be finished. The company later complained that he had resigned when they were unable to reach a compromise on . .
See Also – Crofton v Yeboah EAT 12-Sep-2002
EAT Race Discrimination – Injury to feelings. . .
See Also – Crofton v Yeboah and Another EAT 17-Apr-2000
. .
Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been . .
Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Cited – Sunley v HMP Durham EAT 12-Mar-2009
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal / Review
Review of strike-out decision. Employment Tribunal misunderstanding of agreed fact on material to exercise of discretion. EAT allowed appeal and . .
Cited – Beasley v National Grid CA 6-Jun-2008
The claimant had presented his unfair dismissal claim 88 seconds late. He appealed against refusal of jurisdiction by the Employent tribunal and the EAT.
Held: Leave was refused. The tribunal had given proper consideration to the question of . .
Cited – Harding v Hampshire County Council EAT 10-May-2005
EAT Unfair dismissal
Appellant dismissed after internal disciplinary enquiry into allegations of sexual misconduct. The only issue before Employment Tribunal was the reasonableness of the employer’s . .
Cited – British Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
Applied – Zaiwalla and Co (a Firm) v Walia EAT 24-Jul-2002
The claimant sought aggravated damages for the aggressive way the respondent firm had defended her action for sex discrimination.
Held: In exceptional circumstances, and this was one, the tribunal could award additional damages where a . .
Cited – HM Land Registry v Grant EAT 15-Apr-2010
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 . .
Applied – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Cited – White v Burton’s Foods Ltd EAT 6-Jul-2010
EAT EQUAL PAY ACT – Like work
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site. She brought a claim under the Equal . .
Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
Cited – Tiffin v Lester Aldridge Llp EAT 16-Nov-2010
EAT CONTRACT OF EMPLOYMENT – Whether established
The Claimant, who is a solicitor, became a salaried partner in a partnership, which became a Limited Liability Partnership, which was the Respondent. The . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – Secretary of State for Justice v Slee EAT 19-Jul-2007
EAT Unfair Dismissal – Constructive dismissal
Maternity Rights and Parental Leave – Sex discrimination
The Claimant was employed as a Magistrates’ Clerk and she brought successful claims to the . .
Cited – Secretary of State for Justice v Slee (2) Admn 22-Jan-2010
The claimant had been unfairly dismissed from her position as justices’ clerk. After appeal her additional claims for retirement and other compensation under the 1978 Regulations had been remitted to the Employment tribunal which had reconsidered . .
Cited – Boardman v Nugent Care Society and Another EAT 10-Jul-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Appeal by employee against Employment Tribunal’s finding (majority decision) that claims of unfair and wrongful dismissal fail. Teacher dismissed for gross . .
Cited – DC v London Borough of Ealing UTAA 11-Jan-2010
Tribunal procedure and practice (including UT) – statements of reasons . .
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. . .
Cited – Punjab National Bank (International) Ltd and Others v Gosain EAT 7-Jan-2014
EAT PRACTICE AND PROCEDURE – Preliminary issues – Whether court recordings of relevant meetings prior to Claimant’s alleged dismissal were to be admissible in evidence at trial insofar as they involved private . .
Cited – Department for Work and Pensions v The Information Commissioner and Another CA 27-Jul-2016
The applicant sought disclosure of certain organisations who had provided placements for those seeking work. They said that in the past disclosure had led to adverse publicity for those organisations, and refused disclosure under the department’s . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 01 November 2021; Ref: scu.172252

rider_leedsEAT2012

EAT DISABILITY DISCRIMINATION
The Claimant worked for the Respondent as a Nursery Officer at Armley Moor Children Centre. She raised grievances against colleagues and she was seconded to another post away from Armley Hall at Red Hall. She also suffered from disability and was unable by reason of her disability to return to her post at Armley Hall. She had been able to work without problems at Red Hall. When the Claimant’s period of secondment at Red Hall ended the Respondent made it clear to her on a number of occasions over several months that she was required to return to her former post at Armley Moor. The Claimant maintained that the requirement that she return to that post placed her at substantial disadvantage as compared to other employees without her disabilities. She never returned to Armley Moor and was eventually dismissed on the grounds of capability [by reason of her disability]. At no stage did the Respondent offer her an alternative post or consider what reasonable adjustments might be made to enable her to return to work. The Employment Tribunal was in error to hold that as she never returned to Armley Hall the PCP of requiring her to return there had not been applied to her. The repeated requirement that she return to her post there, without consideration of alternative posts or there reasonable adjustments amounted to the application of the PCP.
The making of an assessment as to what reasonable adjustments might be made in respect of a disabled employee was not itself capable of amounting to a reasonable adjustment within the meaning of Sections 3(A) and 4(A) of the Disability Discrimination Act 1996. Tarbuck v Sainsbury’s Supermarkets [2006] IRLR 664 followed; Tarbuck is to be preferred to Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 566; HM Prison Service v Johnson [2007] IRLR 951; Environment Agency v Rowan [2008] ICR 218, Smith v Salford NHS Primary Care Trust UKEAT/0507/10 applied.

Setrota CQ J
[2012] UKEAT 0243 – 11 – 2711
Bailii
Disability Discrimination Act 1996 3(A) 4(A)
England and Wales
Citing:
Not preferred – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
Preferred – Tarbuck v Sainsbury’s Supermarkets EAT 8-Jun-2006
EAT The appellant was disabled. She was found to have been unfairly dismissed and the subject of three acts of disability discrimination. One of these was an alleged failure to consult which was treated as a . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.466344

EAT AGE DISCRIMINATION
Senior employee aged 55 dismissed for redundancy following restructuring – Not considered for possible alternative roles – Younger colleagues, affected by same restructuring or other changes at or around the same time, offered alternative employment – Claim of age discrimination – Tribunal finds that reasons for her treatment due to factors other than her age – Contended that Tribunal made no reference to the burden of proof
Held, dismissing appeal:
(1) Although Tribunal should have referred to the burden of proof provisions in view of their centrality to the Appellant’s submissions before it, its positive findings meant that if the burden had been on the Respondent to show that the treatment of the Appellant was for reasons other than her age that burden had been discharged – Laing v Manchester City Council [2007] ICR 1519 followed
(2) Miscellaneous challenges to the Tribunal’s particular reasoning ill-founded

Underhill P J
[2011] UKEAT 0452 – 10 – 1609
Bailii
England and Wales
Citing:
Cited – Laing v Manchester City Council EAT 28-Jul-2006
The Tribunal considered whether there was a need rigidly to approach the test for discrimination by application of the two stage test in Igen v Wong. Elias J said: ‘where the tribunal has effectively acted at least on the assumption that the burden . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.444528

chandhok_tirkeyEAT201412

EAT Race Discrimination – The Claimant worked for the Respondents as a domestic worker. She claimed that they treated her badly and in a demeaning manner, and (by amendment) that this was in part because of her low status which was infected with considerations of caste. The Respondents applied to strike out this amendment, on the ground that ‘caste’ did not fall within the definition of ‘race’ in s.9 of the Equality Act 2010, and that the enactment of s.9(5) both initially and as subsequently amended by the Enterprise and Regulatory Reform Act 2013 demonstrated that Parliament recognised it was excluded from the definition in s.9(1).
Held That though ‘caste’ as an autonomous concept did not presently come within s.9(1) many of the facts relevant in considering caste in many of its forms might be capable of doing so, since ‘ethnic origins’ in s.9(1)(c) had a wide and flexible ambit, including characteristics determined by ‘descent’, and it became common ground during the argument that it was possible that the facts found in hearing the present claim might come within the scope of that phrase. General observations were made about the inappropriateness of relying on assertions as to facts not set out in the claim form when seeking to strike out part of the claim.

Langstaff P J
[2014] UKEAT 0190 – 14 – 1912
Bailii
Equality Act 2010 9
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.540352

rover_shortEAT2011

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – Perversity
DISABILITY DISCRIMINATION
A list of issues was agreed between the parties. It was unclear whether the list permitted exploration of and argument about whether an employee could be required in breach of a collective agreement to move to another job so that a disabled employee no longer capable of doing his own job could take the vacated post. When the employer’s witnesses were cross-examined about this, counsel objected that an amendment would be needed, and if permitted would wish to call further evidence and might need an adjournment to do so. The Claimant’s counsel responded that no amendment was needed. The Employment Tribunal failed to rule, or give any view as to whether the issue was or was not before them for determination until making its decision, and by failing to do so deprived the employer of the opportunity of asking for an adjournment. In all the circumstances of the case, this was significantly unfair.

Langstaff J
[2011] UKEAT 0496 – 10 – 0610
Bailii
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.447632

EAT Disability Discrimination: Detriment – DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Section 15
Disability discrimination – ‘detriment’ – failure to make reasonable adjustments (sections 20 and 21 Equality Act 2010) – discrimination arising from the consequences of disability (section 15 Equality Act).
The ET had found for the Claimant on her claims of detriment short of dismissal by reason of the Respondent’s failure to make reasonable adjustments to find a position for the Claimant on the ground floor of its warehouse in an earlier relocation exercise. Although vacancies existed, the Respondent had given priority to longer serving employees and had failed to make a reasonable adjustment for the Claimant in this regard. In identifying the detriment suffered by the Claimant, however, the ET had appeared to limit its finding to her pecuniary losses. It had, further, rejected the Claimant’s case in respect of possible alternative positions at a later date and as to whether her dismissal had constituted an act of discrimination.
The Claimant appealed on three grounds: (1) the ET’s finding on detriment was unnecessarily limited – ‘detriment’ is a broad concept and can include physical discomfort or disadvantage as well as economic disadvantage (Ministry of Defence v Jeremiah [1979] 3 All ER 833); (2) the ET failed to determine part of the reasonable adjustments claim, specifically that during the period September 2012 to August 2013 redeployment into a specific pre-retail vacancy would have been a reasonable adjustment; (3) the ET also failed to address the Claimant’s claim that her dismissal had amounted to unfavourable treatment arising in consequence of her disability under section 15 Equality Act.
At an earlier Appellant-only Preliminary Hearing before HHJ Richardson, the appeal had been permitted to proceed subject to a request for further explanation from the ET under the Burns/Barke procedure.
Having received the ET’s response and upon the Respondent having thereafter taken a neutral position (at least so far as the first ground of appeal was concerned), allowing the appeal:
(1) Given the ET’s response on the question of ‘detriment’, it was apparent it had not intended to limit its findings to pecuniary losses (as appeared to be suggested at paragraph 82 of its Reasons) but had also found it included exacerbation of the Claimant’s asthma. That being so, any limitation to the Judgment on detriment at paragraph 82 should be set aside and substituted with a ruling that the detriment found included those matters identified by the ET at paragraphs 79, 80 and 82 of its Reasons.
(2) It was apparent from the Claimant’s submissions before the ET that she had relied on a specific vacancy apparently arising in March 2013, but the Reasons did not refer to this, and the ET had not rectified this on the Burns/Barke reference. Failing to address the Claimant’s case in this respect amounted to an error of law (Greenwood v NWF Retail Ltd [2011] ICR 896), and the ET’s rejection of that case could not (as the Respondent suggested) be inferred from the other, more general findings. That said, it could not be said there was only one answer to the point (there was insufficient information for that); this would need to be remitted to the ET for reconsideration.
(3) The ET had also failed to address the Claimant’s claim that her dismissal had amounted to unfavourable treatment arising in consequence of her disability under section 15 Equality Act. The closest the ET came to engaging with this claim was at paragraph 92 of its Reasons, but that addressed this as a potential detriment and failed to consider it as a separate head of claim under section 39(2) Equality Act. As dismissal was due to the Claimant’s ability to carry out her role on the top floor, the question was whether it was a proportionate means of achieving a legitimate aim. Although the burden of proof was on the Respondent, it was not possible to say that there was no basis for finding justification in this case (see the Respondent’s submissions before the ET at paragraph 6.1 and the ET’s findings more generally in respect of the other claims relating to dismissal). The ET needed to carry out the assessment identified by the Claimant’s counsel at paragraph 7.4; this point would also be remitted to it for consideration.

Eady QC HHJ
[2016] UKEAT 0156 – 15 – 1801
Bailii
Equality Act 2010 15 20 21
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.562521

EAT DISABILITY DISCRIMINATION
The Claimant was a bus driver who suffered from Type 2 diabetes which he controlled largely by avoiding sugary drinks.
The Employment Tribunal held that he was disabled within the meaning of the Equality Act 2010.
The Employment Appeal Tribunal allowed the appeal on the basis that the Employment Tribunal had misapprehended the concept of disability under the Act; the statutory guidance made clear that a condition controlled by a minor alteration of a diet was not a long term condition restricting the ability of the Claimant to carry out ordinary day-to-day tasks.

Serota QC HHJ
[2015] UKEAT 0302 – 14 – 2601
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.544856

EAT Race Discrimination : Direct
Detriment
Discrimination by other bodies
At a pre-hearing review an Employment Judge held that the Employment Tribunal had no jurisdiction to determine a doctor’s claims of race discrimination and harassment. She held that the Medical Act 1983 and judicial review provided ‘an appeal or proceedings in the nature of an appeal’ from such acts within the meaning of the Equality Act 2010 section 120(7) which would prevent the ET from hearing claims based on those acts. The acts complained of, although unparticularised in the judgment and not sufficiently by the Claimant were alleged to have occurred before his name was struck from the Register of Medical Practitioners and before he was made subject to immediate suspension. The EJ erred in replying on a right of appeal under the Medical Act 1983 as none was provided in relation to such acts. Further the EJ erred in deciding that judicial review proceedings were ‘proceedings in the nature of an appeal’ without identifying the acts complained of and considering whether judicial review would be available to challenge them. Further the EJ erred in relying on the obiter dictum of the EAT in paragraph 31 of the judgment in Tariquez-Zaman v GMC UKEAT/0292/06/DM UKEAT/0517/06/DM as holding that judicial review proceedings were proceedings in the nature of an appeal within the meaning of EA section 120(7) whose availability to the Claimant excluded the jurisdiction of the ET.
Appeal allowed. Case remitted to a different Employment Judge to consider whether the jurisdiction of the Employment Tribunal to hear the Claimant’s claims is excluded by Equality Act 2010 section 120(7), whether the claims were presented in time and whether the Claimant can pursue his claims against individual Trustee Members of the GMC.
The difference between EA section 53(2) and Race Relations Act 1976 section 12(1) considered.

Slade J
[2012] UKEAT 0078 – 12 – 1402
Bailii
Race Relations Act 1976 12(1), Equality Act 2010 120(7), Medical Act 1983
England and Wales

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.470990

The appellant was employed as a teacher. He became disabled on losing part of his arm. He had been located at a prison and was unable to manage the heavy doors. He complained that the respondent had not made reasonable adjustments by transferring him to other work. The respondent argued and the EAT agreed that his complaint was out of time, being one act and not a continuing one.
Held: The employee’s appeal succeeded. The court considered how it might find the date for starting the calculation: ‘in the context of this legislation and of the duty to make reasonable adjustments, even if the employer was not deliberately failing to comply with the duty, and the omission to comply with it was due to lack of diligence, or competence, or any reason other than conscious refusal, it is to be treated as having decided upon it at what is in one sense an artificial date. Certainly it may not be a date that is readily apparent either to employer or to employee. The date is imposed for the purposes of starting time running under the enforcement provisions of the 1995 Act.’ and ‘a failure to make adjustments, at any rate in this type of case, is an omission, not an act. There may of course be positive acts that are inconsistent with the duty but the failure to make the adjustments is in its nature an omission. ‘
This was in its nature a continuing omission, continuing until August 2006.
Sedley LJ said: ‘the effect – unfortunately not a readily obvious one – of paragraph 3 of Sch 3 to the 1995 Act is to eliminate continuing omissions from the computation of time by deeming them to be acts committed at a notional moment. The evident purpose is to prevent a situation of neglect from dragging on indefinitely, and to do this, where no overtly inconsistent act has set time running, by putting the onus on the claimant to decide when something should have been done about the omission and to bring his or her claim within 3 months of that date.
For obvious reasons this can create very real difficulties for claimants and their advisers. But there are at least two ways in which the problem may be eased.
One is that claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer’s attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission.’

Sedley, Jacob, Lloyd LJJ
[2009] EWCA Civ 22, [2009] 3 All ER 685, [2009] IRLR 288
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
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 . .
Appeal from – Kingston Upon Hull City Council v Matuszowicz EAT 28-Jan-2008
EAT JURISDICTIONAL POINTS: Claim in time and effective date of termination
Having correctly held that three of the Claimant’s four DDA claims were out of time, parity of reasoning made the fourth out of time . .
Cited – Humphries v Chevler Packaging Ltd EAT 24-Jul-2006
EAT The Appellant left her employment and claimed (a) unfair constructive dismissal and (b) disability discrimination. On a preliminary point the ET held the disability discrimination claim was out of time as . .
Cited – Barclays Bank Plc v Kapur HL 1991
The bank had decided not to credit re-located employees, for pension purposes, with their previous service in East Africa. The employees had been re-located to the United Kingdom some time in the early 1970s all upon terms that their prior service . .

Cited by:
Cited – Armstrong v Chief Constable Of the Police Service for Northern Ireland NIIT 3-Aug-2009
Claims for direct and indirect sex discrimination dismissed. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 31 October 2021; Ref: scu.282605

EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity – Although not an invariable requirement, where a finding of fact on a point of significance not previously argued for or mentioned by either side occurs to an Employment Tribunal, it is usually desirable for that possible finding to be raised with the parties. That was not done.
Accordingly, in this unlawful discrimination case based on harassment, where conclusions about jurisdiction/time and constructive unfair dismissal depended on it, there was a serious procedural irregularity amounting to an error of law when the Employment Tribunal made a critical finding of fact regarding a disputed allegation of harassment on 6 October 2012 which (a) neither side contended for in their pleadings or witness evidence; (b) neither side put to the other during cross-examination; and (c) was not canvassed with the parties by the Employment Tribunal at the hearing in the sense that no notice was given that the Employment Tribunal was minded to make the finding that it did.
All other findings of fact and conclusions remained and none were challenged. The proportionate course in the circumstances was to remit to the same Employment Tribunal for that issue to be determined afresh.

Simler J
[2014] UKEAT 0155 – 14 – 0711
Bailii
England and Wales

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.539744

EAT JURISDICTIONAL POINTS – Fraud and illegality
The Claimant brought claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay as well as racial discrimination arising out of her employment and her dismissal by the Respondents.
The Claimant had been engaged in Nigeria to come to the United Kingdom to work as a domestic servant for the Respondents. In order to come to this country the Claimant at the instigation of the First Respondent made an affidavit which contained many material inaccuracies such as stating that her surname was the same as that of the First Respondent, explaining that she had received a letter of invitation to visit the United Kingdom from the mother of the First Respondent and that she had described that lady as her grandmother.
The Claimant was party to this dishonesty. She received a six-month visa to come to England as a visitor but after its expiry in July 2007, she remained in the country illegally. The Claimant was subjected to harsh treatment by the First Respondent and was dismissed in unacceptable circumstances.
The Employment Tribunal held that:-
(a) That the contract of employment between the Claimant and the Respondents was tainted with illegality and she therefore could not bring claims for unfair dismissal, breach of contract, unpaid wages and holiday pay;
(b) The unlawful race discrimination claim of the Claimant succeede
(c) The other racial discrimination claims of the Claimant other than relating to dismissal should have been, but were not the subject of a grievance procedure and so the employment Tribunal had no jurisdiction;
(d) The Claimant was not entitled to an award of loss of earnings following her dismissal; and
(e) The Claimant was entitled to compensation of andpound;6,000 for injury to feelings together with some interest.
The Claimant appealed against (a), (c), (d) and (e) and the First Respondent cross-appealed against (b).
The Second Respondent was debarred from taking part in the appeal.
Held:
Dismissing the appeal and the cross-appeal as: –
(a) This was an illegal contract, the claims for unfair dismissal, breach of contract, unpaid wages and holiday pay could not be enforced (Enfield Technical Services v. Payne [2008] ICR 30 and [2008] ICR 1423 applied);
(b) The discriminatory dismissal illegality issue could proceed because the claim was not inextricably bound up or linked with the illegal conduct (Hall v Woolston Hall Leisure Ltd [2001] ICR 99 applied);
(c) The Claimant had failed to comply with the compulsory grievance procedures and was also unable to take advantage of any of the exceptions with the result that the non-dismissal racial discrimination claims failed; and
(d) The Claimant was not entitled to an award for loss of earnings as she was not allowed to work in this country; and
(e) There was no error of law in the award of damages for injury to feelings.

Silber J
[2011] UKEAT 0326 – 10 – 3103
Bailii
England and Wales
Cited by:
Appeal From – Hounga v Allen and Another CA 15-May-2012
. .
At EAT – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.431870

EAT Sex Discrimination: Indirect – Discrimination by other bodies
Indirect Sex Discrimination – Employment service-providers (section 55 Equality Act 2010) – Students: admission and treatment etc (section 91 Equality Act 2010)
This case concerns the relationship between the education and employment provisions within the Equality Act 2010. Specifically as to the operation of section 56(5), which precludes training or guidance covered by section 91 of the Act from falling within the employment services protection otherwise afforded by section 55.
Held:
The Employment Tribunal correctly construed the reference to ‘power to afford access’ in section 56(5) as the ability to place students on the relevant training. To require this phrase to be construed more narrowly – as requiring that the educational body in question had the ability to act without the need to obtain the consent of another – would deprive it of any real world meaning, which could not have been Parliament’s intention.
This construction was entirely consistent with a purposive construction and was compatible with EU law. The Claimant was not thereby deprived of a protection; it simply fell within a different enforcement regime (education rather than employment) and there was no basis for concluding that it was thereby a second-class form of protection.
Although Employment Tribunals will normally be required to hear evidence before deciding preliminary points of law such as this, in the present case the Claimant did not properly identify any real dispute on the facts relevant to this issue. No error of law was disclosed.
Appeal dismissed.
Permission to Appeal:
Granted, on the basis that the appeal raised a real point of law – as to the correct construction of section 56(5) Equality Act 2010 – on which there was more than one potential view and which was of some wider importance given the absence of appellate authority on this question.

Eady QC HHJ
[2014] UKEAT 0130 – 14 – 2209
Bailii
Equality Act 2010 55 56(5) 91
England and Wales
Cited by:
Appeal from – Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust CA 23-Jun-2016
The Appellant claimed to have suffered indirect sex discrimination in connection with a work placement which she was offered as part of her studies to become a nurse, and she brought proceedings in the Employment Tribunal. The issue raised by this . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.538272

canavanSECCSEAT201502

EAT Victimisation Discrimination: Detriment – PRACTICE AND PROCEDURE – Amendment
By this appeal the Claimant attacked a lengthy and detailed decision of the Tribunal at a Pre-Hearing Review at which the Respondents sought to prevent the Claimant from pursuing to trial a large number of allegations of detriment for making protected disclosures and for trade union activities set out in a ‘Further Information’ document put forward months after the ET1 and an ‘Amended Particulars’ document put forward well over a year after the ET1.
The Judge permitted most of the disputed allegations in the former to proceed but did not allow most of the disputed allegations in the latter to proceed.
The appeal involved, in large measure, the application to many paragraphs, on which the Claimant sought to rely, of familiar principles as to interference on appeal with interlocutory orders and as to time limits. The only possibly unusual point was the application of the decision of the Court of Session in Miklaszewicz v Stolt Offshore Ltd ([2002] IRLR 344) that in a protected disclosure case, time runs from the occurrence of the alleged detriment and not from the alleged disclosure.

Jeffrey Burke QC HHJ
[2015] UKEAT 0187 – 13 – 1302
Bailii
England and Wales
Citing:
Cited – Stolt Offshore Ltd v Miklaszewicz SCS 21-Dec-2001
In a protected disclosure case, time runs from the occurrence of the alleged detriment and not from the alleged disclosure.
Lord Nimmo Smith said: ‘It would appear to us to be consistent with the main purpose of the 1998 Act to approach the . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.542625

EAT RACE DISCRIMINATION – Victimisation
The judgment of this Tribunal in Martin v Devonshire Solicitors [2011] ICR 352 should not be used as a template into which to fit the factual aspects of a case in which victimisation was alleged. It related to exceptional circumstances and Employment Tribunals need to be cautious about regarding features such as a multiplicity of grievances and obsessive over-reaction by an employee as exceptional. Here the Employment Tribunal had erred in regarding the instant case as ‘on all fours’ with Martin; it was not and few cases will be. The appeal was allowed and a finding of victimisation substituted.
UNFAIR DISMISSAL – Polkey Deduction
Having regard to the substituted finding of victimisation, the Polkey deduction appeal was also allowed and the deduction quashed. If it had been necessary to consider the appeals on the merits, it would have been allowed on the basis that neither party had been given the opportunity to make submissions by the Employment Tribunal been remitted to the same Tribunal of a re-hearing on that point.

Hand QC
[2013] UKEAT 0007 – 12 – 0506, [2013] IRLR 773, [2013] Eq LR 796
Bailii
Race Relations Act 1976
England and Wales
Citing:
Cited – Martin v Devonshires Solicitors EAT 9-Dec-2010
EAT VICTIMISATION
C, a legal secretary in a firm of solicitors, as a result of mental illness makes false allegations against partners of discriminatory conduct (contrary to SDA and DDA) – Unwilling to . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.510274

EAT Disability Discrimination : Reasonable Adjustments – Whether, on a claim of disability discrimination, the employment tribunal made sufficient findings on (a) whether a particular requirement imposed on the employee had placed her at a substantial disadvantage when compared with persons who were not disabled, (b) what that substantial disadvantage had been, (c) whether the employer had taken any steps to prevent the requirement from having had that effect, (d) what those steps had been, and (e) whether those steps had been reasonable.

Keith J
[2013] UKEAT 0091 – 12 – 1604
Bailii
England and Wales

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.510166

EAT RACE DISCRIMINATION – Direct
SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
VICTIMISATION
DISCRIMINATION
HARASSMENT
The ET held that the Appellant was liable in respect of unlawful discrimination by way of direct discrimination, harassment and victimisation on grounds of race and sexual orientation in respect of a large number of complaints raised by the Claimant in two claims that were heard together.
The Appellant appealed a number of findings on 17 grounds. The common threads of appeal were whether the ET erred in three respects: first, by failing to set out the primary facts with clarity so that the validity of the inference can be examined (in accordance with the judgment of the CA in Chapman v Simon [1994] IRLR 124); second by wrongly causing or permitting the burden of proof to transfer; and third, by failing to establish a prima facie case that treatment was on grounds of a prescribed characteristic, before permitting the burden of proof to transfer (in accordance with the judgment of the CA in Madarassy v Nomura International plc [2007] ICR 867). In addition there were limitation appeals. The EAT concluded that the ET considered all the evidence in relation to each and every allegation with considerable care. The criticism of the ET that it failed to set out the primary facts with clarity is without merit. Further, in respect of the complaints of direct discrimination the ET had the two-stage process set out in Igen v Wong [2005] ICR 931 well in mind. There was no obligation on the tribunal to refer to the two-stage process in relation to each and every complaint or indeed to adopt the two-stage process in relation to each and every complaint if the tribunal considered that it was not appropriate to do so, having regard to all the circumstances of the case.
The EAT dismissed the appeal in relation to both claims save in relation to one finding of direct discrimination. Further the EAT held that the ET had no jurisdiction to consider two complaints, which it had failed to address, on grounds of limitation.
Supperstone J
[2013] UKEAT 0232 – 12 – 1405
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.509325

EAT Disability related discrimination
Direct disability discrimination
Claim for disability discrimination and unfair dismissal. Employment Tribunal upheld one claim of a failure to make reasonable adjustments and dismissed remainder of claims. Appeal principally on the grounds that the ET should have applied the ‘but for’ test in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 instead of looking for a comparator. Appeal dismissed. This was a claim of direct discrimination and a comparator is required: London Borough of Lewisham v Malcolm [2008] 1 AC 1399. In any event Shamoon is only guidance and was not relevant in this case.
Birtles J
[2012] UKEAT 0271 – 12 – 1705
Bailii
England and Wales
Citing:
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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509329

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Employment Tribunal found that the Respondent was under a duty to make reasonable adjustments to provide one to one counselling for the Claimant’s disability (long-term depression) and failed to do so.
The EAT held that the ET had misdirected itself as to the correct comparator, which should have been not all employees who were able to attend work, but other employees who were ill and subject to the Respondent’s Managing Attendance policy but not disabled. Further, and in any event, the ET had erred in its understanding of the facts, since there was un-contradicted evidence before it that in fact the counselling service made available by the Respondent did include one to one counselling. Accordingly, even if a duty to make reasonable adjustments had arisen, the ET was wrong in law to conclude that it had been breached as there was no evidence to support that finding. On that basis, the case did not need to be remitted and an order would be substituted dismissing the claim for breach of the Disability Discrimination Act 1995.
Singh J
[2013] UKEAT 0421 – 12 – 2802
Bailii
Disability Discrimination Act 1995
England and Wales

Updated: 30 October 2021; Ref: scu.509319

EAT Disability Discrimination : Reasonable Adjustment
UNFAIR DISMISSAL – Reasonableness of dismissal
Employment Tribunal finding of failure to make reasonable adjustment and unfair dismissal upheld. Claimant’s cross-appeal against finding that dismissal was not discriminatory also upheld.
Peter Clark J
[2013] UKEAT 0090 – 12 – 0905
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.509328

EAT DISABILITY DISCRIMINATION – PRACTICE AND PROCEDURE
An employee suffering from MS was subjected by his line manager (he said) to comments adverse to his performance, who was dismissive of his difficulties arising from his illness. He fell off work on 4 February 2011, and did not return, eventually taking ill-health retirement on 30 December 2011. During that period he was told (in September 2011) that he had formally been assigned Performance Improvement Required status. On 29 March 2012 he claimed he had been discriminated against in contravention of both ss.15 and 20 of the Equality Act 2010. An Employment Judge at a Pre-Hearing Review called to consider whether the claim was time-barred held that the imposition of the PIR status was an act which continued until 30 December 2011, such that his claim was within time so far as it relied on that, but did not give sufficiently clear reasons to say why he had not determined that the claims based on the line manager’s comments should be held out of time: instead, he had noted that that question should be determined in the light of further evidence at the substantive hearing. On a challenge to the latter finding, it was held that the EJ was therefore in error of law, but the Appeal Tribunal exercised its powers to decide the matter as the EJ had done, though with expanded reasoning.
Langstaff P J
[2013] UKEAT 0057 – 12 – 2203
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.503541

Carswell LCJ, Nicholson LJ and Kerr J
[2003] NICA 36(1)
Bailii
Northern Ireland

Updated: 27 October 2021; Ref: scu.187861

Disability Discrimination : Section 15 – ‘I allowed an appeal against the dismissal of the Claimant’s claim of discrimination contrary to section 15 of the Equality Act 2010. I held that the Employment Tribunal had erred in its interpretation of section 15 by imposing too stringent a causal link between the Claimant’s disability and the unfavourable treatment to which she was subjected by the Respondent. I also held that on the true construction of section 15, the only decision open to the Employment Tribunal was that the claim succeeded.’
Laing DBE J
[2015] UKEAT 0057 – 15 – 0707
Bailii
Equality Act 2010 15
England and Wales

Updated: 26 October 2021; Ref: scu.552078

The applicant sought judicial review of the defendant’s refusal to employ him to work at GCHQ, which had a policy not to employ anyone with non-British parents save exceptionally. The claimant said this was racially discriminatory.
Held: The nationality rules and waiver policy are maintained to ensure in the interest of national security, the loyalty of those employed at GCHQ: ‘Consequently, this decision, the content of the rules and their application are not justiciable.’
[1996] EWHC Admin 153
Bailii
International Covenant on Civil and Political Rights 1966 26, Race Relations Act 1976 75(5)(a)
England and Wales
Citing:
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Regina v Director of GCHQ ex parte Hodges QBD 20-Jul-1988
The Court accepted evidence that the positive vetting procedure operated at GCHQ was required in the interests of national security.
Held: The withdrawal of the applicant’s positive vetting clearance was not justiciable. As to the Civil . .
Cited – Regina v Secretary of State for the Home Department ex parte Chahal CA 27-Oct-1993
Chahal was a Sikh separatist leader who was refused asylum and whom the Secretary of State proposed to deport to India as a threat to national security here.
Held: The Home Secretary must balance the need to deport against against any threat . .
Cited – Kruse v Johnson QBD 16-May-1898
The validity of a by-law prohibiting the playing of music in a public place within fifty yards of any dwelling after being requested by a constable or resident of that dwelling to desist was upheld. A private citizen taxed with a criminal charge . .
Cited – Regina v Immigration Appeal Tribunal ex parte Begum QBD 1986
The court declared invalid a discrete part of one of the Immigration Rules which had a discriminatory effect which operated unjustly in the cases of those against whom it discriminated. . .
Cited – Regina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.136701

Lady Justice Smith
[2008] EWCA Civ 1224
Bailii
England and Wales
Citing:
Appeal from – F and C Asset Management Plc and others v Switalski EAT 23-May-2008
EAT Sex Discrimination – Comparison – Burden of proof
Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
Direct sex discrimination – less favourable treatment – comparative exercise – . .

Cited by:
See Also – F and C Asset Management Plc and others v Switalski EAT 9-Dec-2008
EAT PRACTICE AND PROCEDURE: Review
UNFAIR DISMISSAL: Constructive dismissal
SEX DISCRIMINATION: Direct
Two appeals in respect of two matters heard together by the Employment Tribunal:
(i) . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.277772

[2001] UKEAT 0245 – 01 – 0207
Bailii
England and Wales

Updated: 22 October 2021; Ref: scu.204074

The claimant renewed his application for leave to appeal.
Held: The claimant’s first ground was unarguable. His original application failed to comply with the requirements of the 2002 Act. On the second ground, the tribunal had disagreed with the claimant but not made an error of law. As to the second hearing, the tribunal had reached an adverse view of the claimant, and on the facts were entitled to that view, and no point of law arose.
[2008] EWCA Civ 1158
Bailii
Employment Act 2002
England and Wales
Citing:
See Also – James v Blockbuster Entertainment Ltd EAT 6-Oct-2005
EAT Practice and Procedure
Strike out case. ET struck out two claims for failing to comply with tribunal orders. Whether a proportionate sanction; whether they erred on a proper understanding of facts. . .
See Also – Blockbuster Entertainment Ltd v James CA 25-May-2006
The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a . .
Appeal from – James v Blockbuster Entertainment Ltd EAT 18-Aug-2006
EAT Practice and Procedure – Costs
Costs orders for andpound;10,000 and andpound;1000 did not exceed the statutory maximum order Reg 14. Order for andpound;10000 made after striking-out order; that order was . .
Cited – Hendricks v The Commissioner of Police of the Metropolis CA 27-Nov-2002
The appellant appealed a finding of the Employment Appeal Tribunal against her. She had complained of sex and race discrimination. She alleged that the Tribunal had concentrated on the issues of policy within the respondent police force.
Held: . .
Cited – Canary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
Cited – Selkent Bus Co Ltd v Moore EAT 2-May-1996
The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.277143

Claimant was disabled in that she suffered from a reactive depression which she said resulted from bullying and harassment at work. On her return to work after a period of sick leave she sought an undertaking from her employer R that they would not require her to work with the two colleagues concerned and, if at a later stage there was no alternative, that she would be offered a severance package equivalent to that provided on redundancy. R refused to give any undertaking to that effect.
The EAT held that the ET had been entitled to find for her on a claim of disability discrimination based on a failure to make reasonable adjustments on the following grounds:
(a) that on the facts R had a ‘practice’ of not giving firm undertakings in circumstances like these;
(b) that that practice had put Claimant at a substantial disadvantage in comparison with others not suffering a disability because she suffered a level of anxiety and fear about the possibility that she would be required to work with the colleagues in the absence of an undertaking which a non-disabled person who had been bullied and harassed would not have;
(c) that the giving of an undertaking would have alleviated the disadvantage because it would have alleviated that fear;
(d) that it would have been reasonable for Respondent to give a firm undertaking in the form requested.
The EAT also held that there was no reason in principle preventing the ET, having found for the C on this basis, from making a recommendation under section 124(3) EqA 2010 requiring R to give a written undertaking along the same lines. The question of a recommendation would therefore be remitted to the ET.
The ET had anonymised the two colleagues concerned in their judgment but without seeking representations, giving any reasons or apparently considering the relevant law (rule 50 of the ET rules and Fallows v News Group [2016] IRLR 827; that issue was also remitted to be decided by the ET.
[2020] UKEAT 0173 – 19 – 0603
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.653270

The parties had agreed to compromise the appeal on the basis that a new trial would be ordered. The EAT had to consider whether the settlement was appropriate.
Held: The employers had not accepted during his employment that he was disabled within the section. Having now accepted that he had been treated worse, the only issue was as to whether that treatment had been reasonable under 5(1)(b). The tribunal had held following Quinn that they could not claim proper consideration if they had not considered him disabled. Quinn does not now reflect good practice. The case of Callaghan was to be preferred. The tribunal had misdirected itself.
Peter Clark HHJ
[2002] UKEAT 1154 – 01 – 1804, 1154/01
Bailii, EAT
Disability Discrimination Act 1995 5(1)(b)
England and Wales
Citing:
Disapproved – Desmond A Quinn v Schwarzkopf Ltd EAT 10-Oct-2000
EAT Disability Discrimination – Disability . .
Cited – Callaghan v Glasgow City Council 2001
. .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.202727

Renewed application for permission to appeal.
Mummery LJ
[2008] EWCA Civ 993
Bailii
England and Wales

Updated: 13 October 2021; Ref: scu.273158

EAT Race Discrimination : Direct – Other losses
This was essentially an appeal on the grounds of perversity which failed to cross the high threshold required for successful appeals on this ground.
The Claimant appealed against a Decision of the Employment Tribunal, that although she had suffered a single act of discrimination on the grounds of race (having rejected some 30 other allegations of discriminatory acts), she had not been dismissed unfairly by reason of her race. This part of the appeal failed on the facts.
She also appealed on the ground that the single act of discrimination caused her to suffer personal injury, contrary to the finding of the Employment Tribunal. This ground of appeal also failed on the facts.
An appeal against an award of compensation for injury to feelings was dismissed as the award was within the Vento guidelines and was of an amount within the bounds of the level of award that the Employment Tribunal could properly make.
An appeal as to the level of the compensation for unfair dismissal was dismissed on the facts.
Serota QC HHJ
[2015] UKEAT 0122 – 14 – 0406
Bailii
England and Wales

Updated: 08 October 2021; Ref: scu.547614

Bean, Males, Phillips LJJ
[2020] EWCA Civ 1075, [2020] WLR(D) 476
Bailii, WLRD
Equality Act 2010 64 65 66 69
England and Wales

Updated: 30 September 2021; Ref: scu.653180

EAT Sexual Orientation Discrimination/Transexualism
Harrassment
Reach of Regulation 5 (harassment) of the Sexual Orientation Regulations 2003. Whether it covers homophobic banter directed towards a man who (a) is not gay (b) is not perceived / assumed to be gay by his fellow workers and (c) accepts they do not believe him to be gay.
Held: ET entitled to find, on those facts, Claimant not protected by Regulation 5; but query whether covered by the Directive (2000/78/EC).
Judgment of Burton J in EOC v Secretary of State for Trade and Industry [2007] IRLR 327 applied to S.O. Regs.
Permission to appeal granted to Appellant/Claimant.
[2008] UKEAT 0556 – 07 – 2002, [2008] IRLR 342, [2008] ICR 607
Bailii
England and Wales
Cited by:
Appeal from – 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 . .
See Also – Thomas Sanderson Blinds Ltd v English EAT 21-Feb-2011
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
PRACTICE AND PROCEDURE – Review
Harassment on grounds of sexual orientation. The Tribunal directed itself correctly in looking at the Claimant’s own . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.264640

EAT Disability Discrimination – Disability.
The Honourable Mr Justice Holland
[2002] UKEAT 1402 – 00 – 2503, EAT/1402/00
Bailii, EAT
England and Wales
Citing:
See Also – Drury v Bedford Hospital NHS Trust EAT 7-Jun-2001
. .

Lists of cited by and citing cases may be incomplete.
Updated: 23 September 2021; Ref: scu.202604

His Honour Judge Peter Clark
[2001] UKEAT 1135 – 00 – 0405
Bailii
England and Wales

Updated: 23 September 2021; Ref: scu.203844

The appellant’s allegations of racial discrimination had been dismissed. He argued that the reasons given were inadequate. Because such claims are often unusually sensitive to the particular facts, it can be more important for the tribunal to deal properly with the facts found in its reasons. Where one person’s evidence is preferred to another’s, explanations should be given. In this case the reasons were inadequate, and the case was remitted to a different tribunal.
EAT Unfair Dismissal – Contributory Fault
His Honour Judge Peter Clark
EAT/368/99
Race Relations Act 1976 1(1)(a) 4(2)(c)
England and Wales
Citing:
Followed – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 September 2021; Ref: scu.168280