The employee appealed against the dismissal of his claim for disability discrimination.
Held: The appeal succeeded. A comparator for the treatment of a disabled person who was away from work sick, was the treatment of a non-disabled person who had been absent for a similar period but for a non-disablement reason. (1) On the construction of section 5(1) the tribunal had correctly approached the identity of the comparator as a person who is unable to fulfil all the requirements of his job, but whose inability is not related to disability as defined by the 1995 Act. The Appeal Tribunal, like the Industrial Tribunal, rejected the contention that the comparator is a person who is able to fulfil all the requirements of his job. However, it was not apparent from the decision what characteristics the Industrial Tribunal assumed the hypothetical comparator to have. It should be asked to deal expressly with that point and the case was remitted for that purpose.
(2) The Industrial Tribunal had erred in law in holding that the duty of adjustment in Section 6 had no application to a case where an employee was complaining of dismissal. The Tribunal was not given the assistance it needed on this point. Mr Clark’s case should have been based on a breach by Novacold of their duty to make adjustments to accommodate him within their employment eg by altering his hours of work, allocating some of his duties to others or providing supervision before dismissing him. Those are matters which form part of the arrangements on which Novacold afforded employment to him. The Industrial Tribunal had erred in law in not treating these as additional rights under section 5(2) and section 6, which were not contingent on Mr Clark succeeding in his discrimination claim under section 5(1). The matter should be remitted to the Industrial Tribunal to consider whether there was discrimination under Section 5(2), in particular having regard to the relevant provisions of the Code of Practice.
(3) Although the issue of justification did not arise for decision on the appeal, there did not appear to be any ground on which the tribunal’s factual decision on that point could be faulted. The EAT directed that the case be remitted for re-hearing to the Industrial Tribunal.
Morison P J
Times 11-Jun-1998, [1999] IRLR 420
Disability Discrimination Act 1995
England and Wales
Cited by:
Appeal from – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Cited – Clark v Novacold Ltd EAT 11-Jun-1998
The EAT heard arguments as to whether its decision to remit the case to the Industrial Tribunal was correct.
Held: The matter should be stayed pending the hearing of the matter at the Court of Appeal. . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.374031

The extended reasons given by a Tribunal, must be sufficient to allow a party to assess whether the Tribunal has fallen into an error of law. In this case, it was not clear whether the applicant had been found to be disabled, under section 1 or section 2 of the Act, and the reasons were therefore inadequate.
EAT Procedural Issues – Employment Appeal Tribunal
His Honour Judge Peter Clark
EAT/0373/00
Disability Discrimination Act 1995 1
England and Wales

Updated: 11 September 2021; Ref: scu.168299

The applicant had been employed as a bank nurse, subject to requirements not to work back to back shifts. She had worked such shifts. She complained of race discrimination, and on then being disciplined for working the shifts, she alleged sex and race discrimination. Her allegations were rejected by the ET, and she appealed, also alleging bias in the tribunal. A previous employee had not been treated differently, since the employers had, following that case seen the need to clarify procedures, and that had been done. The first complaint was not a protected act since the employer had not known of it when the decision was made to dismiss. There appeared no error of law in the tribunal’s decision.
EAT Race Discrimination – Victimisation
The Honourable Mr Justice Lindsay (President)
EAT/0248/00
England and Wales

Updated: 10 September 2021; Ref: scu.168298

Remedies where the tribunal decision did not say what was the direct cause of the dismissal.
[2008] EWCA Civ 435, [2008] IRLR 546, [2008] ICR 923
Bailii
England and Wales

Updated: 09 September 2021; Ref: scu.267357

EAT Practice and Procedure – Appellate jurisdiction
The Honourable Mr Justice Burton (P)
UKEAT/907/03, [2004] UKEAT 0907 – 03 – 2402
Bailii
England and Wales
Citing:
See Also – Carter v Ahsan EAT 21-Jun-2004
The claimant alleged discrimination in the failure to select him as a candidate. As a Pakistani, he was excluded by a decision not to select such a candidate for this constituency after allegations (later shown false) had been made against that . .
See Also – Tom Sawyer and All Other Members of the Labour Party v R Ahsan EAT 5-May-1999
EAT Race Discrimination – Jurisdiction . .
See Also – Sawyer and others v Ahsan EAT 14-Jul-1999
. .

Cited by:
See Also – Carter v Ahsan EAT 21-Jun-2004
The claimant alleged discrimination in the failure to select him as a candidate. As a Pakistani, he was excluded by a decision not to select such a candidate for this constituency after allegations (later shown false) had been made against that . .
Cited – Saggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
See Also – Carter (Sued on Her Own Behalf of the Other Members of the Labour Party) v Ahsan EAT 23-Apr-2004
EAT Race Discrimination – Comparison. . .
See Also – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
At EAT – Watt (Formerly Carter) v Ahsan HL 21-Nov-2007
The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.194661

A white barmaid was dismissed for refusing to turn away black customers. She claimed in race discrimination.
Held: Treating people less favourably not because of their race but because of the race of others is also discrimination on grounds of race. The black customers were not in fact treated less favourably, as the white employee refused to carry out the unlawful order to treat them less favourably. It was the white employee who was treated less favourably ‘on racial grounds’ because he was dismissed for refusing to carry out his employer’s racially discriminatory policy or practice to discriminate against others on racial grounds.
[1979] ICR 184, [1978] IRLR 532
England and Wales
Cited by:
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
Cited – E, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.229694

The applicants sought selection as candidates for the Labour Party. The respondent asserted that such issues were not ones of employment, and therefore not covered by the Act, and appealed a finding of the EAT against them.
Held: Sawyer was wrongly decided. The party, when selecting candidates for local elections or allowing nomination to the pool from which candidates were to be selected, was not a body conferring an authorisation or qualification needed for or facilitating engagement in a profession. For section 20(1), the question was whether members of the party were a section of the public. They were not. Section 25 applied to the party.
Lord Justice Peter Gibson, Lord Justice Mantell and Lady Justice Arden
Times 11-Mar-2002, [2002] EWCA Civ 93, [2002] ICR 1026
Bailii
Race Relations Act 1976 12(1)(c) 20(1) 25
England and Wales
Citing:
Wrongly decided – Tom Sawyer and All Other Members of the Labour Party v R Ahsan EAT 5-May-1999
EAT Race Discrimination – Jurisdiction . .
Cited – Charter v Race Relations Board HL 1973
The East Ham South Conservative Club had refused on racial grounds to admit Mr Amarjit Singh Shah as a member. The Board brought proceedings under section 2(1). But the club said that they were not supplying anything to the public. They were a . .
See also – Sawyer and others v Ahsan EAT 14-Jul-1999
. .
Appeal from – Mcdonagh (Sued on Her Own Behalf and on Behalf of All Other Members of the Labour Party) v Z Ali H S Sohal EAT 10-Apr-2000
The applicants were suspended from membership of the Labour party. As a result they were unable to stand for election as councillors. They alleged racial discrimination.
Held: The position as councillor fell within the Act, and the claim for . .

Cited by:
Appealed to – Mcdonagh (Sued on Her Own Behalf and on Behalf of All Other Members of the Labour Party) v Z Ali H S Sohal EAT 10-Apr-2000
The applicants were suspended from membership of the Labour party. As a result they were unable to stand for election as councillors. They alleged racial discrimination.
Held: The position as councillor fell within the Act, and the claim for . .
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
Cited – Watt (Formerly Carter) v Ahsan HL 21-Nov-2007
The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.167745

The appellant appealed a finding that he had not been unfairly dismissed and had not sufferred discrimination for his disability. He said his case had been ambushed by the respondent being allowed, in closing, to raise matters to which he was given no right of reply.
Held: The issue had been raised on the first of a five day hearing, and the ground was without basis. Although the claimant suffered multiple sclerosis, the finding that he was not disabled was not perverse. The tribunal had rejected the applicant’s evidence of the extent of the symptoms he claimed. The impairment was one which might arise in future, but the medical evidence was inconclusive. The appeal was dismissed.
EAT Disability Discrimination – Disability
His Honour Judge J R Reid QC
EAT/462/00
England and Wales

Updated: 08 September 2021; Ref: scu.168439

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 perceptions and feelings in order to decide whether the alleged unwanted conduct had the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Richmond Pharmacology v Dhaliwal [2009] IRLR 336 applied. Claimant’s appeal dismissed.
Review. The Tribunal reviewed its earlier judgment on the grounds that there was an issue, A2, which it had not considered. However it was clear from the procedural history that issue A2 was not argued by the Claimant at the September hearing, and in particular that the way in which the Tribunal interpreted issue A2 (as a racially discriminatory constructive dismissal) had been positively disavowed in 2007 and was never argued at the September hearing. In those circumstances there was no proper basis for the Tribunal to hold a review.
Richardson J
[2011] UKEAT 0316 – 10 – 2102
Bailii
England and Wales
Citing:
Applied – Richmond Pharmacology v Dhaliwal EAT 12-Feb-2009
EAT HARASSMENT: Purpose
Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being ‘married off in India’ had the . .
See Also – English v Thomas Sanderson Blinds Ltd EAT 20-Feb-2008
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 . .
See Also – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.430553

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 European Court of Justice ([2008] ICR 1128)
Underhill J P
[2009] UKEAT 0071 – 09 – 3010, Times 05-Nov-2009, [2010] ICR 242
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
See Also – Attridge Law (A Firm of Solicitors) v Coleman and Law EAT 20-Dec-2006
The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could . .
ECJ Opinion – S Coleman v Attridge Law, Steve Law ECJ 31-Jan-2008
ECJ (Opinion) The claimant accepted voluntary redundancy, but then alleged disability discrimination and constructive dismissal. She claimed to have been subjected to unfair treatment because she had a disabled . .
At ECJ – S. Coleman v Attridge Law, Steve Law ECJ 17-Jul-2008
ECJ Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment related to . .
At ECJ – Coleman v Attridge Law, Law ECJ 17-Jul-2008
ECJ Grand Chamber – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment . .

Cited by:
Cited – J v DLA Piper UK Llp EAT 15-Jun-2010
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.377542

The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could be read consistently with such an obligation. The EAT had power itself to refer a question to the ECJ, and the Employment Tribunal had been correct so to do even on facts assumed and not yet established. The European Court would interpret the directive, not the national law.
Judge Peter Clark
[2006] UKEAT 0417 – 06 – 2012, Times 12-Jan-2007, UKEAT/0417/06
Bailii, EAT
Disability Discrimination Act 1995, Equal Treatment Framework Directive (2000/78/EC)
England and Wales
Citing:
Cited – Bulmer (HP) Ltd v Bollinger SA CA 1974
The plaintiff complained that the respondent had described its drink ‘Babycham’ as a champagne perry, which it said was a misuse of the appellation ‘champagne’.
Held: The court considered the effect of European legislation on the law of . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 2) HL 20-Oct-1995
The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Duke v GEC Reliance Systems Limited HL 2-Jan-1988
The court was asked about the differential in retirement ages between men and women in private sector employment, and whether it constituted sex discrimination.
Held: Section 2(4) of the 1972 Act did not allow a British Court to distort the . .
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 . .
Cited – Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
pfeiffer_deutchesrotesreuzECJ102004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Thetford Corporation And Others v Fiamma Spa And Others ECJ 30-Jun-1988
The court considered a reference to the European Court on assumed facts where the domestic court had not yet established those facts.
Europa In the present state of Community law, characterized by the . .

Cited by:
Reference from – S Coleman v Attridge Law, Steve Law ECJ 31-Jan-2008
ECJ (Opinion) The claimant accepted voluntary redundancy, but then alleged disability discrimination and constructive dismissal. She claimed to have been subjected to unfair treatment because she had a disabled . .
At EAT – S. Coleman v Attridge Law, Steve Law ECJ 17-Jul-2008
ECJ Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment related to . .
See Also – Coleman v Attridge Law, Law ECJ 17-Jul-2008
ECJ Grand Chamber – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment . .
See Also – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.247858

The employment tribunal erred in law in concluding that the PCP asserted by the claimant in a reasonable adjustments claim was only the terms of a Management of Absence Policy and/or that because the policy included discretion that could allow, amongst other things, the claimant to be moved into an alternative role, the application of the policy to the claimant did not constitute the application of a PCP that placed her at a substantial disadvantage in comparison with non-disabled persons. The employment tribunal did not err in its alternative analysis that the respondent had made such adjustments as were reasonable. The appeal was dismissed.
[2021] UKEAT 000460 – 20 – 290
Bailii
England and Wales

Updated: 05 September 2021; Ref: scu.666687

EAT Race Discrimination – Direct; Burden of proof
Claims of race discrimination arising out of a dismissal were rejected. Tribunal found both that the Appellant had failed to establish a prima facie case and that, in any event, the employers had satisfied them that there was a reason untainted by race for the treatment. Alleged that the Tribunal failed properly to apply Igen v Wong. Other grounds of appeal also pursued, but largely sought to re-argue the facts. Employment Appeal Tribunal dismissed appeal on the basis that there was no error of law.
Elias J P
[2006] UKEAT 0157 – 06 – 0507
Bailii
England and Wales
Citing:
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .

Cited by:
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.243444

Sex Discrimination – Direct – Inferring Discrimination
SEX DISCRIMINATION – Burden of proof
SEX DISCRIMINATION – Continuing act
SEX DISCRIMINATION – Justification
EQUAL PAY ACT – Equal value
EQUAL PAY ACT – Work rated equivalent
EQUAL PAY ACT – Material factor defence and justification
The Employment Appeal Tribunal heard an appeal disputing the basis of an ET’s finding of direct sex discrimination. The EAT noted that the pay disparity had its origin in a pay negotiation which the ET accepted gave rise to a material factor defence. However in the period of time that followed these material factors ceased to apply. The Claimant’s comparators ceased to occupy the roles they had at the time of the pay negotiation and the role of the Claimant increased in significance. This disparity was evidenced in a Hay survey instructed by the Appellants and supplied to them about a year after the pay agreement in dispute. The ET felt able to assume that there had been direct discrimination in the period prior to the survey. On appeal the EAT held that in the absence of a decision or its equivalent which had the effect of displacing the original pay agreement, the original justifications offered in the material factor defence persisted. The EAT held that the Hay survey had the effect of alerting the Appellants that a pay disparity existed notwithstanding the fact that its conclusions were not reported to the committee of the Appellants responsible for setting executive pay. It was not possible however to extrapolate the findings of the Hay survey backwards standing the authority of Bainbridge v Redcar and Cleveland Borough Council and a lack of evidence as to when one or all of the material factors ceased to have effect.
[2019] UKEAT 0087 – 19 – 1110
Bailii
England and Wales

Updated: 21 August 2021; Ref: scu.646853

EAT Sex Discrimination – Direct
Mr Recorder Langstaff QC
[2001] UKEAT 0707 – 00 – 2409, EAT/707/01
Bailii, EAT
England and Wales
Citing:
See Also – Fuller v Mastercare Service and Distribution EAT 24-Nov-2000
. .

Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2021; Ref: scu.204179

Where a dismissal was properly related to poor work performance, the fact that such a deterioration in performance was associated with a gender reassignment process being undergone by the employee, did not make the dismissal sex discrimination. To extend liability in this way was to try to take such liability too far.
EAT Disability Discrimination – Disability
His Honour Judge Peter Clark
Times 15-Nov-2000, EAT/1381/99, [2000] EAT 1381 – 99 – 2707
EAT, Bailii
Sex Discrimination Act 1975
England and Wales
Citing:
Distinguished – P v S and Cornwall County Council ECJ 30-Apr-1996
An employee at an educational establishment told management that he intended to undergo gender reassignment. He was given notice of dismissal.
Held: The scope of the Directive was not confined to discrimination based on the fact that a person . .
Cited – Chessington World of Adventures Ltd v Reed EAT 27-Jun-1997
News Group Newspapers Ltd had been joined as a party, in order that it could argue the obvious public interest relating to the importance, which has long been accepted in the courts, of the interest, not just of the press but of the public . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.171484

A party sought to be joined to the case order to appeal it to the Curt of Appeal, and in turn to the European Court of Justice to challenge implementation of a European directive.
Held: Leave to join refused, but leave allowed to appeal further.
Mummery LJ
[1996] UKEAT 812 – 96 – 1110
Bailii
Equal Pay Act 1970
England and Wales
Cited by:
See Also – Levez v T H Jennings (Harlow Pools) Ltd EAT 6-Nov-1996
. .
See Also – Levez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
See Also – Levez etc v T H Jennings (Harlow Pools) Ltd (No 2) EAT 1-Oct-1999
The restriction on the awards of compensation for sex discrimination to payments in respect of a period of two years prior to the claim was unlawful. Claims of other natures were not so limited, and this could not be supported, since it was in . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.208620

Mummery LJ
[1996] UKEAT 812 – 96 – 0611
Bailii
Equal Pay Act 1970
England and Wales
Citing:
See Also – Levez v T H Jennings (Harlow Pools) Ltd EAT 11-Oct-1996
A party sought to be joined to the case order to appeal it to the Curt of Appeal, and in turn to the European Court of Justice to challenge implementation of a European directive.
Held: Leave to join refused, but leave allowed to appeal . .

Cited by:
Reference from – Levez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
See Also – Levez etc v T H Jennings (Harlow Pools) Ltd (No 2) EAT 1-Oct-1999
The restriction on the awards of compensation for sex discrimination to payments in respect of a period of two years prior to the claim was unlawful. Claims of other natures were not so limited, and this could not be supported, since it was in . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.208714

peter Gibson LJ, may LJ, Scott Baker LJ
[2003] EWCA Civ 119, [2003] ICR 1068, [2003] IRLR 238
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
Appeal from – H M Prison Service v J A Beart EAT 13-Mar-2002
EAT Disability Discrimination – Disability . .

Cited by:
Cited – Rothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
See Also – HM Prison Service v Beart EAT 14-Sep-2004
EAT Disability Discrimination – Compensation . .
See Also – Beart v HM Prison Service CA 26-Apr-2005
The claimant had been dismissed by reason of disability and so was entitled to compensation for the associated psychological injury. She was then dismissed unfairly, and the employer sought to argue that the dismissal constituted a novus actus and . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.271052

Simler LJ, Sir Jack Beatson
[2020] EWCA Civ 112, [2020] WLR(D) 80, [2020] ICR 1204
Bailii, WLRD
England and Wales
Cited by:
Cited – Rowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. The parties agreed that the steps taken for later broadcasts had satisfied the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.648157

EAT UNFAIR DISMISSAL – Compensation
DISABILITY DISCRIMINATION – Reasonable adjustments
AGE DISCRIMINATION
The Appellant, a senior art director at a marketing and advertising agency, was aged 50 when he was dismissed for redundancy. The Employment Tribunal did not err in dismissing the Appellant’s claim under the Disability Discrimination Act 1975. He sought an adjustment by the substitution of some redundancy selection criteria which required communication skills which he contended placed him at a disadvantage as he has a social anxiety disorder with objective criteria such as attendance and length of service. The ET held that the substitution of the three offending criteria with those suggested by the Appellant would have made no difference to his final score. Applying DDA section 18(1)(a) the ET did not err in having regard to the extent to which taking the suggested step would prevent the effect in relation to which the duty is imposed in deciding that the adjustment was not reasonable. Further the ET did not err in holding that replacing all the redundancy selection criteria with objective measures would not be a reasonable adjustment. The ET was entitled to so conclude on the evidence having regard to the creative and senior level of the post held by the Appellant.
The ET was entitled to hold on the evidence that the Appellant’s age discrimination claim was to be dismissed.
The ET held that the Appellant’s dismissal for redundancy was unfair for failure to consult him. The ET erred in limiting the compensatory award to 4 week’s pay without considering whether the Respondent had made reasonable efforts to identify and offer suitable alternative employment and whether the Appellant would have accepted such employment. Case remitted to the Employment Tribunal for assessment of compensation in the light of evidence on this issue.
Slade J said: ‘in our judgment an adjustment which gives a Claimant ‘a chance’ to achieve a desired objective does not necessarily make the adjustment reasonable. The material question for an ET in considering its effect, which is one of the factors to which regard is to be paid in assessing reasonableness, is the extent to which making the adjustment would prevent the PCP having the effect of placing the Claimant at a substantial disadvantage. That enquiry is fact sensitive.’
Slade J
[2011] UKEAT 0460 – 10 – 1702
Bailii
England and Wales
Cited by:
Cited – Firstgroup Plc v Paulley CA 8-Dec-2014
The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .
Cited – Firstgroup Plc v Paulley SC 18-Jan-2017
The claimant wheelchair user alleged discrimination by the bus company. The space reserved for wheelchair users on a bus had been wrongly occupied by a passenger who refused to vacate the space. The claimant said that the bus driver should have . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.441149

EAT EQUAL PAY ACT
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Collective grievances and compliance with the statutory grievance procedures. Whether, in the context of public sector equal pay claims and TUPE transfers, the submission by a union representative of a written grievance to the County Council, copying in the NHS Trust as employer and forwarded to the Trust by the Council, not by the union representative, constitutes compliance with the requirement in regulation 9(1)(a) of the Dispute Resolution Regulations 2004 that the grievance be written to the employer. Appeal against ET’s decision that it did not allowed, so that there is jurisdiction to determine these claims.
Cox J
[2010] UKEAT 0023 – 10 – 1805
Bailii
England and Wales

Updated: 30 July 2021; Ref: scu.417097

The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act.
Held: The statutory definition of employment went beyond the relationship of master and servant; ‘what is contemplated by the legislature in this extended definition is a contract the dominant purpose of which is the execution of personal work or labour.’ The parties anticipated that the claimant would carry out the work personally, but there was no obligation in the agreement to do that. There was no evidence that the agent was required personally to carry out the work though his personality was important and his personal involvement might be regarded as desirable. The dominant purpose of the contract was to ensure that newspapers were efficiently distributed. For a contract to fall within the Act, the claimant had to establish that the dominant purpose of the contract was to require the work to be carried out personally by the claimant. ‘However I do accept Mr. Irvine’s alternative submission that the phrase in its context contemplates a contract whose dominant purpose is that the party contracting to provide services under the contract performs personally the work or labour which forms the subject matter of the contract.’
Oliver LJ, Balcombe LJ, Sir David Cairns
[1986] ICR 145, [1986] 1 WLR 546, Times 06-Nov-1985, [1986] IRLR 26
Sex Discrimination Act 1975 82(1)
England and Wales
Cited by:
Adopted – Kelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive HL 29-Jul-1998
Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the . .
Cited – Mingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – James v Redcats (Brands) Ltd EAT 21-Feb-2007
EAT National Minimum Wage
Who is a ‘worker’?
Was the Appellant who worked as a courier for the Appellant company, providing her own vehicle, a worker or home worker within the meaning of ss.54(3) and . .
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.194279

EAT What is meant by ‘mutuality of obligations’ where the claim relies on the Working Time Regulations; whether finding that there was no mutuality of obligations was inconsistent with holding that the Claimant was a ‘worker’; whether it is sufficient for claim under the WTR for there to have been a series of separate short-term assignments, as opposed to one over-arching agreement; and what should be the correct approach to deriving the terms of a contract from the performances of it by the parties in the absence of any written or express oral agreement. Unclear ET decision remitted.
The distinction between a limb (b) worker and an independent contractor working on his own account could often be determined by focusing on whether the: ‘putative worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal’s operations, will in most cases demonstrate on which side of the line a given person falls’.
‘ . . a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal’s operations, will in most cases demonstrate on which side of the line a given person falls.’
Langstaff J
UKEAT/0457/05, [2005] UKEAT 0457 – 05 – 2112, [2006] IRLR 181
Bailii, EATn
England and Wales
Cited by:
Cited – Clyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .
Cited – Macalinden (T/A Charm Offensive) v Lazarov and Others EAT 17-Oct-2014
macalindenEAT1410
EAT JURISDICTIONAL POINTS – Worker, employees or neither
WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE
The Employment Judge did not approach the question of whether the Claimants were . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.238268

EAT EQUAL PAY ACT
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
The question in this appeal and cross-appeal was whether women bringing equal pay claims, in multiple public sector litigation, were to be prevented from pursuing their claims because of an alleged failure to comply with Step 1 of the statutory grievance procedure (SGP). The Employment Judge held at a PHR that one category of Claimants (Type A) was so prevented. Each of them had sent to her employers a grievance document which was held not to comply with the SGP because, although it was headed, in part, ‘Statutory Grievance’ and contained statements of complaint sufficient to comply with a Step 1 grievance, some questions or requests for information from the employer were also included in the same document. Regulation 14 was held to invalidate the entire document. The judge distinguished Type B Claimants, who had submitted exactly the same document, save for its heading, and whose claims were permitted to continue.
The Claimants’ appeal, in respect of the Type A Claimants, was allowed. The Respondents’ cross-appeal, in respect of the Type B Claimants, was dismissed.
The EAT held that Holc-Gale did not decide that regulation 14 applied to shut out the Type A or Type B Claimants in the particular circumstances of this case. The Employment Judge below was wrong to distinguish the documents on the basis of their headings. The matter should be addressed as a matter of substance, not form. The grievance documents submitted, which preceded the submission of pro forma Equal Pay Act questionnaires, and which had initially been treated by the Respondents as grievances complying with the SGP, were held to be dual purpose documents, so that questions outlawed by regulation 14 were excluded, and the remainder of the grievance, accepted as otherwise SGP compliant, was upheld as a valid grievance.
Cox J
[2010] UKEAT 0121 – 10 – 1009
Bailii
Employment Act 2002, Employment Act 2002 (Dispute Resolutions) Regulations 2004
England and Wales

Updated: 19 July 2021; Ref: scu.423247

EAT Race Discrimination – Burden of proof – Other Losses – Tribunal failed to make key finding to discrimination case as to whether at the time of the interview the position was still vacant – conflicting findings within the decision remedies decision failed to assess the loss of a chance.
His Honour Judge Ansell
[2007] UKEAT 0554 – 06 – 2302, UKEAT/0554/06 and UKEAT/0094/07
Bailii, EAT
England and Wales

Updated: 19 July 2021; Ref: scu.253157

Disability Discrimination; Time Limits

The Appellant has the protected characteristic of disability by virtue of having Parkinson’s Disease. In May 2019 she brought a claim of disability discrimination against the Respondent. She alleged two separate failures by the Respondent to make reasonable adjustments in terms of section 20 of the Equality Act, 2010 (‘EA’) by failing to:
a) adjusting her shift pattern to accommodate the symptoms of fatigue associated with Parkinson’s Disease; and
b) re-classify the reason for her absences so that her pay would not be adversely affected.
The Respondent argued that both claims were time-barred under section 123 EA. A preliminary hearing was fixed to consider that issue. The Employment Judge concluded that the claims related to decisions which were made by the Respondent in the past and rejected an argument that the claims concerned ‘conduct extending over a period’ in terms of section 123(3)(a) EA. He also declined to extend the time limit on ‘just and equitable’ grounds.
Held: The Employment Judge had erred in regarding the claim about the shift pattern as being about an ‘act’ rather than an ‘omission’ of the Respondent consisting of a failure to make an adjustment in terms of section 20 EA. That had led to a failure properly to consider and apply the provisions of sections 123(3) and (4) EA. The Employment Judge had also erred in concluding that by continuing to pay the Appellant on an un-reclassified basis the Respondent was deemed to have acted in a way that was inconsistent with making the adjustment sought in terms of section 123(4)(a). The case was remitted to a differently constituted Tribunal for a full merits hearing, under reservation of all issues of time-bar.
Lord Fairley
[2021] UKEAT 0022 – 20 – 0906
Bailii
England and Wales

Updated: 07 July 2021; Ref: scu.663592

Direct Discrimination For Race and Award

Direct Discrimination For Race and Associated Award
The Respondent’s appeal against the ET’s finding that it had directly discriminated against the Claimant because of race, and associated award, was allowed.
In concluding that the Claimant had discharged his burden at stage one of the test established in Igen v Wong [2005] ICR 931, CA, the ET had failed to identify a suitable hypothetical comparator and to explain the bases upon which it had drawn secondary inferences of fact from the primary factual findings which it had made. Had it done so, the Respondent might not have been called upon to discharge its burden at stage two of the test. The matter would be remitted to a differently constituted tribunal for its determination afresh of liability and (if appropriate) remedy.
[2021] UKEAT 0248 – 19 – 1603
Bailii
England and Wales

Updated: 06 July 2021; Ref: scu.663583

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 out a decision by reference to Berriman when dealing with failure to make reasonable adjustments so long as the statutory requirements are met. On the facts the decision was Meek compliant.
Reid QC J
[2009] UKEAT 0360 – 08 – 0903
Bailii
Disability Discrimination Act 1995
England and Wales
Citing:
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 – Dundee City Council v Malcolm EAT 25-Jul-2008
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 . .
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 – 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 . .

These lists may be incomplete.
Updated: 28 June 2021; Ref: scu.317869

The Claimant was dismissed by the Respondent. In considering claims that the dismissal constituted discrimination because of something arising in consequence of disability and was unfair, the Tribunal failed to properly determine the decision maker’s reason for dismissal, substituted its view for that of the Respondent, and so erred in law.
[2021] UKEAT 0039 – 20 – 1901
Bailii
England and Wales

Updated: 25 June 2021; Ref: scu.663119

Appeal from rejection of claim of unfair dismissal. ‘The question that we have to ask ourselves, is whether it is arguable, on the material that was available to the Tribunal that the Tribunal should have recognised a possible claim under the Disability Discrimination Act 1995. Looking at the definition of disability in Section 1 of the Act, we take the view that this is not arguable . . there was nothing in the pleadings to suggest that the definition was satisfied.’
Hooper J
[2001] UKEAT 1501 – 00 – 0904
Bailii
Disability Discrimination Act 1995
England and Wales

Updated: 21 June 2021; Ref: scu.203783

An appeal from the Employment Tribunal’s judgment, which significantly extended time for the presentation of the claim form, would be allowed and the matter remitted to a differently constituted tribunal for determination of all aspects of the question of whether it is just and equitable to extend time for the presentation of the Claimant’s claims of race discrimination until the date on which he presented his claim form.
The events giving rise to the Claimant’s claims had taken place, respectively, in January 2018 (at the latest) and in February 2018. His claim form was presented in June 2019. The EAT held that, having found that the Claimant had been genuinely ignorant of his legal rights, the Tribunal had erred in failing to have: (1) considered whether such ignorance had been reasonable at all material times and, if so, to have identified the facts and matters which informed that conclusion; and (2) assessed the relative weight to be given to all relevant factors, including the prejudice sustained by the Respondent, arising from its destruction (prior to the presentation of the claim form) of relevant documentation in accordance with its policy. The omission of one significant consideration (the reasonableness of the Claimant’s ignorance) from the balance inevitably rendered the Tribunal’s overarching conclusion perverse. In any event, the Tribunal’s analysis of the prejudice sustained by the Respondent had been flawed and its conclusions on that issue were not Meek-compliant.
[2021] UKEAT 0211 – 20 – 2801
Bailii
England and Wales

Updated: 21 June 2021; Ref: scu.663121