Citations:

[2003] EWCA Civ 380, [2004] ICR 227, [2003] Pens LR 137, [2003] ICR 1000, [2003] IRLR 364

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 October 2022; Ref: scu.181120

Citations:

[2001] EWCA Civ 1282, [2001] IRLR 681, [2001] Emp LR 1165

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 25 October 2022; Ref: scu.201237

Citations:

[1998] UKEAT 346 – 97 – 2104

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 October 2022; Ref: scu.206311

EAT Race Discrimination – Direct.

Judges:

His Hon Judge McMullen QC

Citations:

EAT/292/01, EAT/1024/00, [2002] UKEAT 1024 – 00 – 0803

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Als – Southwark v Afolabi EAT 8-Feb-2001
. .

Cited by:

Appeal from – Afolabi v Southwark London Borough Council CA 24-Jan-2003
The claimant applied for leave to bring an action for race discrimination nine years after the acts complained of. Leave was granted. The respondent said the tribunal should have heard the complaint first before deciding to extend time.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 24 October 2022; Ref: scu.202576

The claimant appealed the refusal of her claim for a finding that her dismissal was automatically unfair. She had been employed for less than a year, and had taken several absences to care for her child. She claimed protection saying that her absences had been ‘dependants leave’.
Held: When considering such a claim, the tribunal should look at an ordered series of precise questions, namely how many absences and when, was an appropriate reason given, saying how long might be needed, and other factors. A failure to meet the section requirements would defeat any claim that a consequent dismissal was automatically unfair. In general, the right was for all employees and to take reasonable time off, but it was for time to make arrangements for care, not to provide the care themselves (at least in the first year of employment), and temporary assistance should be made available to an employee. Time could be taken to make longer term arrangements. The time was what was reasonably necessary in that employee’s individual circumstances. In this case however the triubunal had failed to distinguish between the various absences and teir purpose, and had therefore erred. The case was remitted for re-hearing.
Mrs Recorder Cox said: ‘By way of general observation, and having regard to the Directive and in particular the use of the words ‘force majeure’ when referring to time off from work during working hours, we agree with the Tribunal’s conclusions at paragraph 22 as to the nature of the absences contemplated in this section. The statutory right is, in our view, a right given to all employees to be permitted to take a reasonable amount of time off work during working hours in order to deal with a variety of unexpected or sudden events affecting their dependants, as defined, and in order to make any necessary longer-term arrangements for their care . . The right to take time off to ‘ . . provide’ assistance etc. at sub-section (1)(a) does not in our view enable employees to take off in order of themselves to provide care for a sick child, beyond the reasonable amount necessary to enable them to deal with the immediate crisis.’ Time off is to be permitted to enable an employee to make longer term arrangements for the care of a dependant, for example, by employing a temporary carer or making appropriate arrangement with friends or relatives: ‘Subsection (1)(d) would include, for example, time off to deal with problems caused by a child-minder failing to arrive or a nursery or playgroup closing unexpectedly.’ and: ‘The right is a right to a ‘reasonable’ amount of time off, in order to take action which is ‘necessary’. In determining whether action was necessary, factors to be taken into account will include, for example, the nature of the incident which has occurred, the closeness of the relationship between the employee and the particular dependant and the extent to which anyone else was available to help out . . We consider that, in determining what is a reasonable amount of time off work, an employer should always take account of the individual circumstances of the employee seeking to exercise the right. It may be that, in the vast majority of cases, no more than a few hours or, at most, one or possibly two days would be regarded as reasonable to deal with the particular problem which has arisen. Parliament chose not to limit the entitlement to a certain amount of time per year and/or per case, as they could have done pursuant to Clause 3.2 of the Directive. It is not possible to specify maximum periods of time which are reasonable in any particular circumstances. This will depend on the individual circumstances in each case and it will always be a question of fact for a tribunal as to what was reasonable in every situation.’

Judges:

Mrs Recorder Cox QC, Edmondson and Palmer

Citations:

Times 06-Feb-2003, [2003] UKEAT 884 – 01 – 1401, EAT/884/01, [2003] IRLR 184, [2003] ICR 482

Links:

Bailii, EAT

Statutes:

Employment Rights Act 1996 57A, Maternity and Parental Leave Regulations 1999 (1999 No 3312), Parental Leave Directive 96/34/EC

Jurisdiction:

England and Wales

Cited by:

Cited – MacCulloch and Wallis Ltd v Moore EAT 11-Feb-2003
EAT Time Off – Public duties . .
Cited – Forster v Cartwright Black Solicitors EAT 25-Jun-2004
EAT Time Off – Parental Leave – Time off for dependant care. Construction of ERA section 57A and Parental Leave Directive to cover death of elderly dependant. Application of Qua [2003] IRLR 184. . .
Cited – Safeway Stores Plc v Truelove EAT 1-Nov-2004
EAT Maternity Rights and Paternity Leave
Time of work necessitated by unexpected failure of baby-sitter. It is not necessary for the ‘reason’ in section 57A(2) Employment Rights Act to be articulated with . .
Cited – Uzowuru v London Borough of Tower Hamlets EAT 2-Mar-2005
EAT Race Discrimination – Victimisation. Appeal in respect of victimisation based on incorrect application of Barton; and of unfair dismissal under both Section 99 and Section 98 of the Employment Rights Act 1996 . .
Cited – RKS Services v Palen EAT 2-Nov-2006
EAT Unfair Dismissal – Reinstatement/re-engagement
No appearance by Appellant but the EAT had the advantage of a Skeleton Argument. There was a manifest error in the decision in that the ET had awarded sum . .
Cited – Royal Bank of Scotland Plc v Harrison EAT 27-Jun-2008
EAT TIME OFF: Parental leave/dependant
The employee was told on 8 December that her childminder was unavailable for 22 December. She did all she could to make alternative care arrangements but was . .
Cited – Cortest Limited v O’Toole EAT 7-Nov-2007
The tribunal was asked, inter alia, whether the tribunal had erred in law in determining that a father’s request for ‘a month or two’ of unpaid leave to look after his children, when his partner had unexpectedly left home, was a request to take off . .
Cited – Cortest Ltd v O’Toole EAT 7-Nov-2007
EAT Unfair dismissal – Constructive dismissal – Dismissal/ambiguous resignation – Reason for dismissal including substantial other reason – Automatically unfair reasons
Dismissal or resignation. The . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 24 October 2022; Ref: scu.178988

Citations:

[2002] UKEAT 0696 – 01 – 2406

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ayobiojo v NALGO Unison – Lambeth EAT 13-Nov-2002
Appeal against strike oout of claim as vexatious or frivolous. . .
See Also – Ayobiojo v NALGO/Unison Trade Union CA 19-Aug-1999
. .

Cited by:

See Also – Ayobiojo v NALGO Unison – Lambeth EAT 13-Nov-2002
Appeal against strike oout of claim as vexatious or frivolous. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 23 October 2022; Ref: scu.202906

Citations:

[1997] EWCA Civ 3082

Jurisdiction:

England and Wales

Citing:

See Also – D’Souza v London Borough of Lambeth EAT 6-Dec-1994
. .
See Also – D’Souza v London Borough of Lambeth EAT 1-May-1995
. .
See Also – D’Souza v Lambeth Borough Council EAT 18-Oct-1995
The employment tribunal held that it had not been practicable for the council to reinstate Mr D’Souza. He had succeeded in a claim for unfair dismissal and sought reinstatement, but this had been refused.
Held: An award of damages was made for . .
See Also – D’Souza v Lambeth Borough Council CA 3-Mar-1996
The claimant challenged a decision that the council could properly refuse to re-instate him after a wrongful dismissal. . .
See Also – D’Souza v London Borough of Lambeth EAT 2-Jul-1997
. .
Cited – D’Souza v London Borough of Lambeth EAT 9-Oct-1997
. .

Cited by:

See Also – D’Souza v London Borough of Lambeth and Another EAT 22-Jul-1998
. .
See Also – D’Souza v London Borough of Lambeth EAT 1-Jul-1998
. .
See Also – D’Souza v London Borough of Lambeth EAT 14-Jan-1998
A re-instatement award after a finding of racial discrimination is in two stage process. The first part consisting of the order for re-instatement stays the balance of the award provisionally until the order for re-instatement has been complied with . .
See Also – D’Souza v London Borough of Lambeth EAT 14-Jan-1998
A re-instatement award after a finding of racial discrimination is in two stage process. The first part consisting of the order for re-instatement stays the balance of the award provisionally until the order for re-instatement has been complied with . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 23 October 2022; Ref: scu.200702

The claimant applied for leave to bring an action for race discrimination nine years after the acts complained of. Leave was granted. The respondent said the tribunal should have heard the complaint first before deciding to extend time.
Held: The discretion given was to act as the tribunal thought just and equitable. There was no checklist to be gone through. Each party would be equally disadvantaged by the delay, and the tribunal’s decision was not wrong in law.
Peter Gibson LJ, with whom Sedley and Rix LJJ agreed on this issue, said: ‘Nor do I accept that the ET erred in not going through the matters listed in s. 33(3) of the 1980 Act. Parliament limited the requirement to consider those matters to actions relating to personal injuries and death. Whilst I do not doubt the utility of considering such a checklist (or that in CPR 3.9(1)) in many cases, I do not think it can be elevated into a requirement on the ET to go through such a list in every case, provided of course that no significant factor has been left out of account by the ET in exercising its discretion.’

Judges:

Peter Gibson, Sedley and Rix LJJ

Citations:

Times 30-Jan-2003, Gazette 20-Mar-2003, [2003] EWCA Civ 15, [2003] IRLR 220, [2003] ICR 800

Links:

Bailii

Statutes:

Race Relations Act 1976 68(1)(a), Limitation Act 1980 33

Jurisdiction:

England and Wales

Citing:

Appeal from – Afolabi v Southwark EAT 8-Mar-2002
EAT Race Discrimination – Direct. . .
Cited – Regina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .

Cited by:

Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Novak v Phones 4U Ltd EAT 14-Sep-2012
EAT Race Discrimination : Continuing Act – The Claimant complained of entries made on Facebook by work colleagues, said to be acts of discrimination on the grounds of disability and nationality. He was found to . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 23 October 2022; Ref: scu.181189

EAT The claimant said that she had been subjected to crass sexual banter by her senior manager. She refused to take up a post unless he was moved, and when he declined to so, she was dismissed.
The court cited a US case ‘the trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate and that the work environment may exceed the sum of the individual episodes.’
Where an act may be so obviously detrimental as being intimidating or undermining of the dignity at work of the Claimant the the lack of any contemporaneous complaint was of little or no significance: ‘By contrast [the complainant] may complain of one or more matters which if taken individually may not objectively signify much, if anything, in terms of detriment. Then a contemporaneous indication of sensitivity on [the complainant’s] part becomes obviously material as does the evidence of the alleged discriminator as to his perception. That which in isolation may not amount to discriminatory detriment may become such if persisted in notwithstanding objection, vocal or apparent. The passage . . from the judgment of the US Federal Appeal Court is germane. By contrast the facts may simply disclose hyper-sensitivity on the part of the [complainant] to conduct which was reasonably not perceived by the alleged discriminator as being to [the complainants] detriment – no finding of discrimination can then follow.’

Judges:

The Honourable Mr Justice Holland

Citations:

EAT/1120/98, [1999] UKEAT 1120 – 98 – 1712, [2000] IRLR 151

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Citing:

See Also – Driskel v Peninsula Business Services Ltd and others EAT 14-Apr-1999
. .
Cited – Payzu Limited v Saunders CA 1919
The innocent plaintiff buyers had been found to have failed to mitigate their damages because they had not accepted an offer from the defendant sellers (who were in breach of contract) to supply goods on cash terms, the contract having originally . .
Cited – Qureshi v Victoria University of Manchester EAT 21-Jun-1996
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. The questions on a complaint of race discrimination are: (a) Did the act complained of actually occur? (b) If the act . .

Cited by:

See Also – Driskel v Peninsula Business Services Ltd and Another EAT 7-Dec-2001
The claimant sought leave to appeal against a finding that though there had been serious sex discrimination, the affect on her had been low, and the damages for injury to feelings reduced accordingly.
Held: The appeal was dismissed. The . .
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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 21 October 2022; Ref: scu.171732

The company had entered into collective agreements with the union governing criteria and procedures for redundancy selection. The company said that the criteria were not compliant with the age discrimination regulations.
Held: The union was correct and the agreement was compliant.

Judges:

Morison J

Citations:

[2008] EWHC 2420 (QB)

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 2006 3(1), Directive 2000/78/EC 2(2)

Jurisdiction:

England and Wales

Citing:

Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – MacCulloch v Imperial Chemical Industries Plc EAT 22-Jul-2008
EAT AGE DISCRIMINATION
UNFAIR DISMISSAL: Compensation
The claimant contended that she suffered both direct and indirect discrimination on grounds of age because of the way in which the employer’s . .
Cited – Rainey v Greater Glasgow Health Board HL 27-Nov-1986
The House considered the scope of the ‘genuine material factor’ defence in section 1(3) of the Act where prima facie indirect discrimination exists and objective justification needs to be established.
Held: The House adopted the approach of . .
Cited – Hardys and Hansons Plc v Lax CA 7-Jul-2005
The issue of justification of discrimination is rarely a simple matter. No margin of appreciation was to be allowed to an employer. It is for the tribunal to make its own judgment as to whether the practice complained of by the employee was . .
Cited – Loxley v BAE Systems Land Systems (Munitions and Ordnance) Ltd EAT 29-Jul-2008
EAT AGE DISCRIMINATION
The claimant was excluded by the terms of a voluntary redundancy scheme because he had reached the age of 60. There were tapering provisions in place between the ages of 57-60. When . .
Cited – Cadman v Health and Safety Executive, intervener: Equal Opportunities Commission ECJ 3-Oct-2006
Social Policy – The court considered what went to make up age discrimination: ‘the Court acknowledged that rewarding, in particular, experience acquired which enables the worker to perform his duties better constitutes a legitimate objective of pay . .

Cited by:

Appeal From – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 21 October 2022; Ref: scu.277125

The Trust appealed against a finding of race discrimination.

Judges:

Waite, Potter LJJ

Citations:

[1997] EWCA Civ 1527

Jurisdiction:

England and Wales

Citing:

Leave – Mensah v East Hertfordshire NHS Trust EAT 13-May-1996
Leave to appeal granted. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 October 2022; Ref: scu.141923

Citations:

[2003] EAT 510 – 02 – 0302, [2003] UKEAT 510 – 02 – 0302

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 October 2022; Ref: scu.191338

Equal Pay – Jurisdictional Points
The Claimant had been continuously employed by the Respondent from 2009 until June 2017, progressing by promotion from an administrative grade into technical roles and then into a managerial position. Upon each promotion, the Claimant was issued with a new contract save that when she first moved into a managerial role as Office Manager, in June 2014, she remained working under her existing contract. Following the termination of her employment, the Claimant submitted a claim to the Employment Tribunal (ET), which included a claim for equal pay going back to her first promotion. The Respondent objected that the claim was out of time for all but the last position held by the Claimant, the stable working relationship between the parties having been broken by each of the Claimant’s promotions. This question was initially considered by an ET, which agreed with the Respondent, save in respect of the Claimant’s final promotion. The Claimant successfully appealed against that decision and the issue was remitted to a different ET for determination. Although the ET found that there had been a continuing stable working relationship for the earlier promotions, it concluded that this had been broken when the Claimant moved into a managerial role; consequently, the Claimant’s equal pay claim was limited to her employment in managerial positions. The Claimant appealed.

Held: allowing the appeal:
The ET had failed to adopt a broad, non-technical test, looking at the character of the work and the employment relationship in practical terms (North Cumbria University Hospitals NHS Trust v Fox and Ors [2010] IRLR 804 CA applied); it had elevated the change in job content on the Claimant’s promotion into a managerial position into a determining factor when that had to be seen in context – the Claimant’s promotion was a ‘natural progression’ and was part of an incremental progression into higher grades (initially on a temporary basis, under her existing contract) that was entirely indicative of the continued stable working relationship between the parties. In the alternative, the ET’s conclusion was perverse: none of the factors it had taken into account suggested other than that the stable working relationship had continued. There being only one answer to this question, the ET’s decision would be set aside and a finding substituted that there was no end in the stable working relationship on the Claimant’s move to the position of Office Manager in June 2014.

Citations:

[2019] UKEAT 0145 – 19 – 1912

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 October 2022; Ref: scu.646866

Citations:

[2002] EWCA Civ 809

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 October 2022; Ref: scu.217257

EAT HARASSMENT
SEX DISCRIMINATION
Direct
Pregnancy and discrimination
In the course of a heated discussion between the Claimant and her manager about pay, each accused the other of lying. To emphasise his contention in the context of this argument, the manager accused the Claimant of having lied about her pregnancy and miscarriage. The Employment Tribunal found this created an environment of a hostile kind such as to constitute harassment if it found that the accusation related to, or was on the grounds of, the Claimant’s sex. It declined to do so.
Held: the ET was entitled so to hold. Context was of the greatest importance, and the ET had been entitled to regard the purpose of speaking the words to be related to proof of lying, and neither inherently nor otherwise spoken on the ground of sex.

Judges:

Langstaff P

Citations:

[2012] UKEAT 0434 – 11 – 2701

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Henderson v The General Municipal and Boilermakers Union CA 11-Oct-2016
The claimant appealed against rejection of his claims for unfair dismissal and otherwise. The union appealed against a finding in favour of the claim for discrimination (and otherwise) on account of his religion or belief, namely ‘left wing . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 October 2022; Ref: scu.454072

EAT RACE DISCRIMINATION – Continuing act
PRACTICE AND PROCEDURE – Preliminary issues
A self-represented party complained that an Employment Judge had not addressed his claim that within 3 months prior to his lodging proceedings he had agreed compensation (or had an offer of compensation) which was revoked/withdrawn/broken by the employer, and that this was an act of discrimination against him. The EJ should thus not have ruled his earlier complaints out of time, since this was the last in a series of linked events.
Since none of the hearing had (it appeared) concerned the allegation that the Respondent had welched on or had withdrawn an agreement, the EJ was held entitled to hold as she did.

Judges:

Langstaf P J

Citations:

[2012] UKEAT 0386 – 11 – 1901

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 13 October 2022; Ref: scu.454071

Victimisation Discrimination – Protected Disclosure – Interim Relief
UNFAIR DISMISSAL
The Claimant applied for interim relief pursuant to s.128 of the Employment Rights Act 1996 following the termination of his contract allegedly because he had made protected disclosures. The Respondent contended that there was no entitlement to make such an application as the Claimant was not an ’employee’ within the meaning of that section. The Respondent’s application for a postponement of the interim relief application pending a determination of the employee issue was refused. At the interim relief hearing, the Tribunal considered that the ‘likely to succeed’ test under s.129 of the 1996 Act applied not just to the reason for dismissal but also to the contested issue of employee status. It determined that the Claimant had a ‘pretty good chance’ of success in showing that he was an employee and that he was dismissed for having made protected disclosures. The Respondent appealed on the grounds that the Tribunal erred in entertaining the application for interim relief before first concluding that the Claimant was indeed an employee.
Held (dismissing the appeal): On a proper construction of ss.128 and 129 of the 1996 Act, all elements of a complaint of unfair dismissal for a proscribed reason (including that it was because of protected disclosures) were to be determined at the interim relief hearing on the likely to succeed test. That included the question of employment status if that were put in issue by the employer. That construction was consistent with the intention of the interim relief regime, that being to provide a speedy remedy to preserve the status quo pending the full hearing. The Respondent’s contention that there should be a Preliminary Hearing to determine conclusively whether the Claimant was an employee before determining the application for interim relief would cause delay and would undermine the interim nature of the remedy under s.129.

Judges:

Choudhury J (President)

Citations:

[2019] UKEAT 0138 – 19 – 2507, [2020] WLR(D) 24

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 October 2022; Ref: scu.646843

Judges:

Underhill, Peter Jackson LJJ, Lord Sales

Citations:

[2019] EWCA Civ 44, [2019] 2 CMLR 18, [2019] ICR 1118, [2019] 4 All ER 450, [2019] WLR(D) 56, [2019] IRLR 335

Links:

Bailii, WLRD

Statutes:

Equality Act 2010 79(4)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Asda Stores Ltd v Brierley and Others SC 26-Mar-2021
Whether employees in Asda’s retail operations are entitled to compare themselves with employees in the distribution centres so that they can rely on section 79(4)(c) of the Equality Act 2010 (‘2010 Act’) or, as regards the period covered by the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 October 2022; Ref: scu.633080

EAT Disability Discrimination – Disability

Judges:

His Hon Judge D M Levy QC

Citations:

EAT/837/02, [2003] EAT 0837 – 02 – 2006, [2003] UKEAT 0837 – 02 – 2006

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 11 October 2022; Ref: scu.186806

Judges:

Lady Justice Macur
Lord Justice Bean
And
Lord Justice Haddon-Cave

Citations:

[2020] EWCA Civ 859, [2020] IRLR 884

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 07 October 2022; Ref: scu.652314

EAT Race Discrimination : Direct – Discrimination by other bodies
Indirect race discrimination. Tribunal had not erred in concluding that section 12 Race Relations Act did not apply to the PCP relied on (rule imposed on barristers’ chambers re: funding of pupillages). Further, no evidence of discriminatory effect. Claim misconceived.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0161 – 11 – 3003

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452501

EAT SEX DISCRIMINATION
Detailed challenges were made to the operation of a redundancy procedure. The EAT held that regard should be had to the judgment of the Tribunal taken overall and in context, and this was clear. Thus both appeal and cross appeal as to a finding of unfair dismissal (by a majority) and nil compensation (applying Polkey) were rejected.
A claim for sex discrimination causing the detriment of dismissal, because the Claimant was regularly late for work by reason of her childcare commitments as a single mother, was rejected since no detriment could be shown in consequence: this decision was not perverse.
An appeal against a finding of race discrimination was also rejected. The act which was held discriminatory was that the Claimant was told not to appeal ‘in her own tongue’ (she being Polish) in a cosmopolitan office, when no one else was so instructed, they being (generally) of other nationalities. The Employment Tribunal was entitled to regard this as so potentially inherently and directly discriminatory as to cause the burden of proof to shift. Having no explanation from the employer, it was entitled to find discrimination established

Judges:

Langstaff P J

Citations:

[2012] UKEAT 0270 – 11 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452494

Equal pay claim – Whether difference in pay due to material factor other than sex

Judges:

Maurice Kay VP, Rimer, Tomlinson LJJ

Citations:

[2012] EWCA Civ 413, [2012] Eq LR 480, [2012] ICR 1216, [2012] IRLR 507, [2012] WLR(D) 113

Links:

Bailii, WLRD

Statutes:

Equal Pay Act 1970 1(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .

Cited by:

See Also – 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 . .
See Also – 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: 06 October 2022; Ref: scu.452437

EAT VICTIMISATION DISCRIMINATION – Other forms of victimisation
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
Reverse burden of proof not applied to DDA victimisation claim; unclear what burden of proof was applied to direct and disability related discrimination claims. Appeal allowed; claims remitted to same Employment Tribunal for rehearing.

Judges:

Peter Clark J

Citations:

[2012] UKEAT 0485 – 11 – 1702

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452337

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
The Appellant was employed as a radiographer. Following an accident at work she made a phased return to work until her condition worsened and she recommenced long term sick leave and was eventually dismissed. The Employment Tribunal found a failure to implement various reasonable adjustments and awarded (a) andpound;30,000 plus interest for injury to feelings and (b) andpound;10,000 aggravated damages. The EAT found none of the provisions, criteria or practices (PCP’s) identified by the Tribunal were capable on analysis of being PCP’s. Alternatively the andpound;30,000 award for injury to feelings was well outside the Vento guidelines and there was no basis for awarding aggravated damages: Commissioner of Police for the Metropolis v Shaw UKEAT/0125/11/ZT applied.

Judges:

Birtles J

Citations:

[2012] UKEAT 0417 – 11 – 2303

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 October 2022; Ref: scu.452343

The claimant appealed against rejection of his claim of age discrimination. the claimant complained that the trust had deliberately failed to comply with a requirement to consult before declaring him to be redundant, so that his employment would cease before he reached the age which would trigger a higher severance payment. The tribunal and EAT had found the action a proportionate means of achieving a legitimate aim.
Held: The dismissal notice was not served with the simple aim of dismissing him before his 49th birthday but in order to give effect to a genuine decision that his position was redundant. It was justifiable to implement that decision in a way which saved money.

Judges:

Arden, Rimer LJJ, Ryder J

Citations:

[2012] ICR 1126, [2012] EWCA Civ 330

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 2006

Jurisdiction:

England and Wales

Citing:

Appeal from – Woodcock v Cumbria Primary Care Trust EAT 12-Nov-2010
EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – 2002 Act
Claimant’s post as Chief Executive of NHS Primary Care Trust disappears in reorganisation – Not selected for successor post – After twelve months . .

Cited by:

Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 October 2022; Ref: scu.452251

EAT RACE DISCRIMINATION
Direct
Comparison
The Appellant was found to have been guilty of direct race discrimination arising from specific incidents of racial abuse and failure to consider his grievances properly while promptly investigating allegations against him. There were 15 grounds of appeal – attacking the Employment Tribunal’s finding as to a contributory act, as to comparators and as to factual conclusions. Held – none of the grounds succeeded. No new principle involved.

Judges:

Burke QC

Citations:

[2012] UKEAT 0056 – 11 – 0202

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 October 2022; Ref: scu.451892

EAT JURISDICTIONAL POINTS – Fraud and illegality – RACE DISCRIMINATION
Comparison
Direct
An Employment Tribunal rejected a claim by an Indonesian domestic worker who had freely and voluntarily participated in arrangements to enter the UK by pretending to be someone else, so that she could work for the Respondents, for rights based on the contract of employment on the basis it was illegal from the outset. She claimed to have been trafficked.
Held: that the ET correctly refused to consider whether that enabled her to obtain compensation in respect of a breach of rights dependent upon the contract. Also rejected was her complaint that the ET were wrong to compare her with others who had no right to stay or work in the UK, and that it should have concluded that but for her immigration status (dependent on her nationality) she would have succeeded in her claim.

Judges:

Lansgatff P J

Citations:

[2012] UKEAT 0400 – 11 – 1801

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 October 2022; Ref: scu.451685

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

Judges:

Serota QC J

Citations:

[2011] UKEAT 0595 – 10 – 2402

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – NwosuagwuIbe v Royal Bank of Scotland EAT 23-May-2011
Race Discrimination : Inferring Discrimination – The Employment Tribunal was entitled to conclude on the facts that the Claimant had not been unfairly dismissed; Claimant’s appeal dismissed.
In relation to two claims for victimisation the . .

Cited by:

See Also – NwosuagwuIbe v Royal Bank of Scotland EAT 23-May-2011
Race Discrimination : Inferring Discrimination – The Employment Tribunal was entitled to conclude on the facts that the Claimant had not been unfairly dismissed; Claimant’s appeal dismissed.
In relation to two claims for victimisation the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 05 October 2022; Ref: scu.451684

The appellant employee seeks to challenge a decision of the Employment Tribunal dismissing his claim for disability discrimination in relation to his dismissal from his employment with the respondents.

Judges:

Lord Johnston

Citations:

[2000] UKEAT 1276 – 99 – 3003

Links:

Bailii

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.451311

EAT DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
The Employment Tribunal confused the relevant tests for disability discrimination under s.3A of the Disability Discrimination Act 1995 as amended. Case remitted to the Employment Tribunal to consider the issue of disability discrimination in the light of the judgment and London Borough of Lewisham v Malcolm [2008] IRLR 700 (HL).

Judges:

Birtles J

Citations:

[2008] UKEAT 0392 – 08 – 2611

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 3A

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
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.

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.317882

Citations:

[2001] EWCA Civ 2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Dr I Kovacs v Queen Mary and Westfield College, the Royal Hospital NHS Trust EAT 1-Dec-2000
EAT Procedural Issues – Employment Tribunal
EAT Procedural Issues – Employment Tribunal. . .

Cited by:

See Also – Dr I Kovacs v Queen Mary and Westfield College and Another CA 22-Mar-2002
The claimant had had mixed success in claims for race discrimination, but appealed orders to pay to the costs of the respondents. She claimed to be impecunious and that that should have been taken into account before deciding whether a costs order . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.218632

EAT RACE DISCRIMINATION
Inferring discrimination
Comparison
Appeal by the Hospital Trust on grounds that (a) there was a failure to construct a true hypothetical comparator (b) there was a failure to properly consider whether the treatment of the Claimant was on racial grounds under s.1(1)(a) of the Race Relations Act 1976 and (c) there were insufficient grounds to establish a finding of victimisation. The EAT dismissed the appeal. There were careful findings of fact to permit the Tribunal to find (a) race discrimination, and (b) victimisation.

Judges:

Birtles J

Citations:

[2011] UKEAT 0294 – 11 – 1002

Links:

Bailii

Statutes:

Race Relations Act 1976 1(1)(a)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.451168

EAT Disability Discrimination – Less Favourable Treatment / Reasonable Adjustments / Justification
The Claimant was a prison psychologist who developed a depressive illness amounting to a disability within the terms of the 1995 Act following, and at least partly caused by, an episode of bullying at work. After a prolonged sickness absence she was dismissed for ‘medical inefficiency’. The Tribunal found that the Prison Service had failed to make reasonable adjustments to accommodate her disability – principally by transferring her to other work – and that it had discriminated against her for reasons related to her disability in various specific respects including her dismissal.
Held that the Tribunal had misdirected itself as regards the reasonable adjustments claim by relying on Mid-Staffordshire General Hospitals NHS Trust v. Cambridge [2003] IRLR 566: which was disapproved in Tarbuck v. Sainsbury’s Supermarkets Ltd. [2006] IRLR 664. The reasonable adjustments claim would have to be remitted in respect of the earlier period of her employment; but as regards the later period, it was clear that her condition had deteriorated to a point at which it was not reasonable to expect the Service to make the proposed adjustments, notwithstanding that that deterioration may have been caused or contributed to by earlier breaches, so that the claim in respect of that period fell to be dismissed.
Held that in relation to the discrimination claims, the Tribunal had wrongly failed to consider whether the disability-related factors on which it relied were the reason for the acts complained of and that if it had directed itself correctly it could not have found that they were. Taylor v. OCS Group Ltd. [2006] ICR 1602 relied on. Other misdirections also found: Macdonald v. Ministry of Defence [2003] ICR 937 and Project Management Institute v. Latif (UKEAT/0028/07) applied.

Citations:

[2007] UKEAT 0420 – 06 – 0608, [2007] IRLR 95

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .

Cited by:

Cited – HM Land Registry v Wakefield EAT 17-Dec-2008
hmlr_wakefieldEAT2008
EAT DISABILITY DISCRIMINATION: Reasonable adjustments
PRACTICE AND PROCEDURE: Perversity
The claimant applied for promotion to a more senior management post. He was disabled by his stammer. The . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.258611

EAT Disability Discrimination – In this case the Claimant had not been diagnosed as having dyslexia but he did have certain difficulties and it was common ground that with his sleep apnoea he was disabled. The Employment Tribunal was entitled to hold that it was the Claimant’s refusal to co-operate that frustrated any attempt to assist the Claimant. In construing a decision a broad approach should be taken and it was wrong to subject a decision to myopic scrutiny when on an overview it was clear why an ET had reached a particular decision.

Judges:

Pugsley J

Citations:

[2011] UKEAT 0123 – 11 – 2408

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450617

EAT Disability Discrimination – The Respondent’s case, as pleaded, was that the Claimant was guilty of dishonesty. This was never fully adjudicated upon although it seems this was a matter raised at the Employment Tribunal for determining the issues of the reason for dismissal, and in particular, whether it was a reason connected with the employee’s disability; it was vital that the ET make full findings as to the allegations set out in the ET3.

Judges:

Pugsley J

Citations:

[2011] UKEAT 0142 – 11 – 1608

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450620

EAT Jurisdictional Points : Claim In Time and Effective Date of Termination – More than three weeks after the employer decided against the Claimant’s request for flexible working, she resigned in writing with immediate effect on 19 July, claiming constructive dismissal. The employer invited her in to discuss it and she affirmed in writing her previous letter. A claims management body sent a letter before action on her behalf. It and the Claimant mistook the EDT, thinking it was 31 July or 1 August. The Employment Judge permissibly held it was reasonably practicable to present the claim in time, even if the claims management body did not have the right to represent her and told her to present the claim herself. The Judgment would be sent to the Regulator.
There was no challenge to the Judge’s finding that it was just to extend time for the Sex Discrimination Act 1975 claim which now proceeds.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0262 – 11 – 2110

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450621

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
Disability Discrimination Act and unfair dismissal claims struck out for non compliance with an unless order for further and better particulars. Relief granted against that sanction in respect of the claim for unfair dismissal but not in respect of the DDA claim. Employment Judge failed sufficiently to articulate his reasoning so as to reflect the now settled state of the legal tests and approach to these issues. Decisions that there was non compliance and to refuse relief on the DDA claim overturned and remitted to a different Employment Tribunal constitution for determination.

Judges:

Wilkie J

Citations:

[2011] UKEAT 0516 – 11 – 2212

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450284

EAT DISABILITY DISCRIMINATION – Disability related discrimination

Judges:

Lady Smith J

Citations:

[2011] UKEAT 0007 – 11 – 0911

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450271

EAT DISABILITY DISCRIMINATION – Compensation
Disability Discrimination – Remedy.
Whether there be continuing loss of earnings – remitted to Tribunal to make relevant findings.
Pension loss – whether Tribunal erred in adopting simplified approach rather than substantial loss approach. Remitted to Tribunal only to consider if continuing loss of earnings, simplified approach still correct. Tribunal to consider paragraph 4.14(c) of the Guidance.

Judges:

Supperstone J

Citations:

[2011] UKEAT 0378 – 11 – 1811

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450266

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
RACE DISCRIMINATION
HARASSMENT
Consideration of ss.12(1A) and 27A Race Relations Act 1976. Employment Judge correct in striking out Claimant’s complaint of harassment under s.3A RRA on particular facts of this case.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0201 – 11 – 0411, [2011] UKEAT 0202 – 11 – 0411

Links:

Bailii, Bailii

Statutes:

Race Relations Act 1976 3A 12(1A) 27A

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450273

EAT JURISDICTIONAL POINTS
Worker, employee or neither
Agency relationships
Claim in time and effective date of termination
Extension of time: just and equitable
DISABILITY DISCRIMINATION – Reasonable adjustments
HARASSMENT – Conduct
PRACTICE AND PROCEDURE
Amendment
Case management
This is judgment on a preliminary hearing. The appeal had no prospect of success. The Employment Judge considered preliminary issues relating to claims under the Disability Discrimination Act 1995 by a Britain’s Got Talent contestant. The Employment Judge did not err in holding that the claims were presented out of time and that it was not just and equitable to extend time for their presentation. Metropolitan Police Commissioner v Hendricks and British Coal v Keeble were correctly applied. Further, the Employment Judge did not err in holding that none of the Respondents was acting in a capacity which brought them within the scope of the DDA. As for the complaint that the First Respondents failed to make reasonable adjustments for the Complainant’s audition, the Employment Judge was entitled to hold that they were unaware that any adjustments may be needed. In relation to the complaint that the Respondents harassed the Claimant within the meaning of the DDA by posting footage of the audition for Britain’s Got Talent on YouTube or doing so without posting and linking it to her better performance for Britain’s Got More Talent the Employment Judge did not err in holding that the evidence did not support a contention that any of the acts complained of were carried out for a reason related to the Claimant’s disability. The Amended Notice of Appeal contained no arguable grounds. The appeal was dismissed at a preliminary hearing.

Judges:

Slade J

Citations:

[2011] UKEAT 0606 – 10 – 1210

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450262

EAT VICTIMISATION DISCRIMINATION
The Employment Tribunal did not err in rejecting the Claimant’s PIDA claims as she did not make a relevant allegation. She did not suffer any detriment and was not constructively dismissed. There was no connection with her complaints about what she was required to do as part of her contract. Complaints about her representative are properly in the hands of the Regulator and are not for the EAT.

Judges:

McMullen QC J

Citations:

[2012] UKEAT 0028 – 11 – 1201

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 October 2022; Ref: scu.450257

Judges:

Mummery, Richards, Rimer LJJ

Citations:

[2011] EWCA Civ 1519

Links:

Bailii

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Citing:

Appeal from – Bouzir v Country Style Foods Ltd EAT 18-May-2011
EAT RACE DISCRIMINATION – Burden of proof
The Employment Tribunal did not apply section 54A(2) of the Race Relations Act 1976. The facts upon which the Claimant relied, taken as a whole were such that the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 October 2022; Ref: scu.449855

EAT RACE DISCRIMINATION: Aiding and abetting
Issues relating to s11 and s33 Race Relations Act 1976 correctly dealt with by a Tribunal on a striking-out application.

Judges:

Ansell J

Citations:

[2008] UKEAT 0270 – 08 – 1408

Links:

Bailii

Statutes:

Race Relations Act 1976 11 33

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 October 2022; Ref: scu.276424

EAT Race Discrimination – Discrimination by other bodies
Practice and Procedure – Amendment
(a) The Employment Tribunal correctly held it had no jurisdiction to hear Claimant’s case brought under the Race Relations Act 1976 s12 against the General Medical Council as a qualifying body.
(b) If it did, and if it were necessary to decide the point, the claim would be excluded by s54 as there is an alternative ‘appeal’ mechanism.
(c) The Claimant was permitted to amend his claim to add a claim of harassment if he could provide particulars. He did so in a form which satisfied a regional Chairman. There is no error and the General Medical Council’s appeal was dismissed.
Judge McMullen dealt with the argument that judicial review was in the nature of an appeal in these terms: ‘judicial review is aptly described as proceedings in the nature of an appeal. Judges in the administrative court are familiar with dealing with cases under the Medical Act in the form of appeals proper; thus, they constitute the obvious destination intended by Parliament for disputes of this nature, once a decision had been made at first instance. So, if I were required to make a decision, I would uphold the submission that section 54(2) ousts the jurisdiction of the ET because, in this case, proceedings can be brought by way of judicial review.’

Judges:

His Honour Judge McMullen QcC

Citations:

[2006] UKEAT 0292 – 06 – 2012, UKEAT/0517/06, UKEAT/0292/06

Links:

Bailii, EAT

Statutes:

Race Relations Act 1976 12

Jurisdiction:

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:

See also – Tariquez-Zaman v London Deanery of Postgraduate Medical and Dental Education EAT 14-Feb-2008
EAT Race Discrimination – Other losses
Victimisation Discrimination
Victimisation – remedies hearing – inconsistent findings of fact in critical paragraph of Tribunal’s decision – cross-appeal allowed . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 October 2022; Ref: scu.248315

The appellant’s application for full registration as a qualified medical practitioner had been refused by the GMC after a five-year maximum period of limited registration. His application for full registration in accordance with section 25 of the Medical Act 1983 was refused by the GMC. He then applied to the Review Board for Overseas Qualified Practitioners for a review pursuant to section 29 of the Act. That application failed, as did a second application and request for review. The appellant then made a complaint to an industrial tribunal that he had been indirectly discriminated against on the ground of his race within the meaning of section 1(1)(b) of the Race Relations Act 1976, contrary to section 12(1) of the Act. On a preliminary issue the industrial tribunal found that the right under section 29 of the Medical Act 1983 to apply for a review of the decision of the General Medical Council was a proceeding, ‘in the nature of an appeal’ for the purposes of section 54(2) of the Race Relations Act 1976 and the appellant’s right to present a claim under section 54(1) was therefore excluded.
Held: The appeal failed. The application to the Review Board constituted a proceeding in the nature of an appeal. No claim of indirect discrimination lay in the Industrial Tribunal for the refusal of registration by a statutory body.
Hoffmann LJ said: ‘It is a short question of construction which, in my judgment, admits of an easy answer, namely, ‘Yes’. Section 29 of the Act of 1983 allows the decision of the General Medical Council to be reversed by a differently constituted set of persons. For present purposes, I think that this is the essence of what is meant by ‘proceedings in the nature of an appeal’. I note that in Wootton v Central Land Board [1957] 1 WLR 424 Lord Evershed MR had to consider whether an application to the Lands Tribunal by a party who was dissatisfied with the determination of a land value by the Central Land Board was in the nature of an appeal. He maintained that it was. He said that it might fairly be described as an appeal to another body having the right either of affirming the development value or altering it.’
Dealing with an argument that claimants such as Dr Khan were not able to pursue claims for race or sex discrimination if they were not permitted to make complaints to an industrial tribunal, he said: ‘For my part, I do not see why [an application for review under section 29] should not be regarded as an effective remedy against sex or race discrimination in the kind of case with which section 12(1) of the Race Relations Act 1976 deals. That concerns qualifications for professions and trades. Parliament appears to have thought that, although the industrial tribunal is often called a specialist tribunal and has undoubted expertise in matters of sex and racial discrimination, its advantages in providing an effective remedy were outweighed by the even greater specialisation in a particular field or trade or professional qualification of statutory tribunals such as the review board, since the review board undoubtedly has a duty to give effect to the provisions of section 12 of the Act of 1976: see per Taylor LJ in R v Department of Health, Ex p Gandhi [1991] ICR 805, 814. This seems to me a perfectly legitimate view for Parliament to have taken. Furthermore, section 54(2) makes it clear that decisions of the review board would themselves be open to judicial review on the ground that the board failed to have proper regard to the provisions of the Race Relations Act 1976. In my view, it cannot be said that the Medical Act 1983 does not provide the effective remedy required by Community law.’

Judges:

Hoffmann LJ

Citations:

Ind Summary 11-Apr-1994, [1996] ICR 1032

Statutes:

Medical Act 1983 29

Jurisdiction:

England and Wales

Citing:

Appeal from – Khan v General Medical Council EAT 24-Mar-1993
An Asian Doctor had repeatedly been refused full registration by the council. It was held that he could not bring a claim of indirect discrimination, because he had not exhausted his rights of appeal. An application for review under the Act gave . .

Cited by:

Appealed to – Khan v General Medical Council EAT 24-Mar-1993
An Asian Doctor had repeatedly been refused full registration by the council. It was held that he could not bring a claim of indirect discrimination, because he had not exhausted his rights of appeal. An application for review under the Act gave . .
Cited – British Medical Association v Chaudhary CA 15-May-2003
The claimant had sought registration as a specialist medical practitioner by the respondent. His complaint that the crtiria used to reject his claim were discriminatory had been rejected by the employment tribunal and EAT on the basis that they had . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 October 2022; Ref: scu.82760

EAT SEX DISCRIMINATION – Marital status
The Employment Tribunal, which upheld the Claimant’s unfair dismissal claim, was wrong to hold that the protection under section 3 of the Sex Discrimination Act as amended of married persons does not include protection of a person who is discriminated against on the ground that she is married to a particular person. Although the Respondent did not discriminate against married people generally, the Claimant was entitled to claim that her unfavourable treatment was marriage-specific and specific to that marriage. The 1976 Equal Treatment Directive was not of assistance in interpretation. The Claimant’s ECHR rights under Arts 8, 12 and 14 were engaged. Two findings of the Employment Tribunal on marital discrimination remitted to it. The cross appeal on victimisation was dismissed.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0531 – 10 – 0212

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 September 2022; Ref: scu.449420

EAT Practice and Procedure : Service : Parties
Respondents to a discrimination claim sought joinder, in reliance on rule 10 (2) (h) and/or 10 (2) (r) of the Employment Tribunal Rules of Procedure, of the Appellant, an ex-employee based in the U.S., who they said was jointly liable for any discrimination found against them – Application to strike out claim as against him on the basis (a) that service had not been effected in accordance with rule 61 (4) (h) (ii) and/or (b) that the application was made for an ulterior motive and/or (c) that the claim of joint liability had no reasonable prospect of success – Application dismissed.
By the time of the appeal the Respondents and the Claimant had settled, and neither had any wish to pursue the Appellant further; but he sought to pursue the appeal in order to be able to make an application for costs on the basis that he should not have been joined in the first place. Appeal allowed to proceed, but only as regards issues that could have justified an application for costs.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0121 – 11 – 1410

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 September 2022; Ref: scu.449407

EAT Disability Discrimination : Reasonable Adjustments
An Employment Tribunal did not identify what it was in respect of Claimant’s disability that resulted in a requirement for him to attend at a place of work on a flexible timetable causing him substantial disadvantage. This was a necessary finding if the ET were to determine what adjustment it was reasonable for the Respondent to have to make. Case remitted.
DISABILITY DISCRIMINATION – Compensation
The question arose whether an ET should adopt Ogden tables in place of the tables annexed to the Employment Tribunals guidelines to determine pension loss. Held it was not an error of law to do so if cogent and credible reasons were articulated for doing so, as they were here, though it was not to be encouraged.

Judges:

Langstaff J

Citations:

[2011] UKEAT 0174 – 11 – 1910

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 September 2022; Ref: scu.449405

EAT AIDING AND ABETTING; DISCRIMINATION BY OTHER BODIES
The parties took part in an Employment Tribunal hearing of a preliminary issue as to whether, in a case where the Appellant alleged a discriminatory practice in the course of his nurse’s training, the NHS Trust Respondents, against whom he brought a claim under s14 of the Sex Discrimination Act, were the agents of the University Respondents. The Employment Tribunal found that the Trusts were such agents, and that the Appellant’s claim could thus not be brought against them in the Employment Tribunal under s14, but only in the County Court as aiders and abettors of the University under s22. Found (upon Appellant withdrawing at the Employment Appeal Tribunal a concession made below as to the construction of s14(2))
(i) s14(2) does not have the effect of preventing a primary claim under s14(1) simply because the alleged discriminator was also acting as the agent of an educational establishment suable under s22
(ii) in any event, the onus being upon the NHS Respondents to oust the jurisdiction, if such agency were relevant, the NHS Respondents had failed to establish it.

Citations:

[2005] UKEAT 0851 – 04 – 0305, UKEAT/0851/04

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Cited by:

See Also – Moyhing and Another v Barts and London NHS Trust EAT 28-Apr-2006
EAT The appellant was a student nurse. He was required to be chaperoned when carrying out intimate procedures on female patients whereas a female student nurse was not required to have a chaperone when carrying . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 September 2022; Ref: scu.228642

The Council appealed against an order dismissing its application for the claimants’ claims under equal pay legislation to be struck out for want of jurisdiction. The claims had been brought in the High Court rather than te hEmployment Tribunal, thus extending the effective limitation date from 6 months to six years.
Held: The Council’s appeal failed. To strike out an in-time claim for breach of an equality clause is an extreme exercise of judicial discretion: ‘if the court struck out these equal pay claims under s.2(3) on the ground that they could be ‘more conveniently’ disposed of in the ET, the claims would have to be rejected by the ET for want of jurisdiction and the Claimants would be left without remedy for claims that might otherwise be well founded.’
The reasons why the claimants hadfailed to lodge their claims in time at the Tribunal were not relevant when considering convenience. The ‘basic assumption’ behind the first part of section 2(3) was that both the court and the tribunal would have jurisdiction to decide the claim on its merits; that the purpose behind the provision was, in that context, to identify the forum more fitted for its resolution; that, in that Birmingham was not alleging that the claims represented an abuse of the process of the court, the reasons why the claims had not been made to the tribunal were irrelevant; and that the deputy judge’s decision had been correct.

Judges:

Mummery, Davis LJJ, Janet Smith Dame

Citations:

[2011] EWCA Civ 1412, [2012] IRLR 116, [2012] ICR 20, [2012] Eq LR 81, [2012] 2 All ER 591, [2012] CP Rep 9

Links:

Bailii

Statutes:

Equal Pay Act 1970 2(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – Abdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Cited – Restick v Crickmore CA 3-Dec-1993
The High Court can transfer proceedings wrongly started in High Court to the County Court as an alternative to its jurisdiction to strike out the claim. Stuart-Smith LJ said: ‘. . provided proceedings are started within the time permitted by the . .

Cited by:

Appeal from – Birmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 28 September 2022; Ref: scu.449031

EAT PRACTICE AND PROCEDURE – Case management – RACE DISCRIMINATION – Direct – SEX DISCRIMINATION – Direct
The Employment Tribunal did not err in taking statements as read, and in not adjourning. It dealt with each of the 12 issues raised by the Claimant and dismissed them all, either because the event did not take place or when it did, the Employment Tribunal directed itself correctly on the law.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0229 – 11 – 2906

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448163

Elias LJ said: ‘This appeal raises a short point of some importance relating to the rights which certain female part-time workers can assert once they are able to establish that their employer’s pension scheme indirectly discriminated against part-timers on grounds of sex by denying them access to the employer’s occupational pension scheme. The critical feature of these part-time workers is that they would not in fact have chosen to join the pension scheme even if they had been eligible to do so.’

Judges:

Mummery, Elias, Davis LJJ

Citations:

[2011] EWCA Civ 1281

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448133

EAT DISABILITY DISCRIMINATION
Direct disability discrimination
Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal did not follow earlier CMD orders for the trial of issues and made findings on different issues. It did not address time-bar and justification. Its finding on unfair dismissal was so connected with the failure to deal adequately or correctly in law with the Disability Discrimination Act 1995 points that it could not stand. Appeal allowed and a controlled remission to a fresh Employment Tribunal.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0263 – 11 – 0510

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448111