EAT Race Discrimination : Continuing Act – JURISDICTIONAL POINTS – Extension of time: just and equitable
Whether grievance process carried out by employer arising immediately from act of discrimination found (suspension) formed part of a continuing act; held it did, as ET found. Whether just and equitable to extend time; ET failed to consider balance of prejudice and visited legal advisor’s mistake as to time limits on Claimant (Chohan). Extension of time granted by EAT.

Judges:

Peter Clark J

Citations:

[2011] UKEAT 0029 – 11 – 1910

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448109

EAT Race Discrimination : Direct – Indirect – Continuing act
The Employment Tribunal was correct to find that it had no jurisdiction to entertain claims for direct and indirect discrimination on the grounds of race as the claims were issued out of time, and no application had been made to extend time.
Although the Employment Tribunal may have misdirected itself as to the definition of direct discrimination, the claim was clearly presented out of time. There was no basis for saying that the Claimant had been subject to a continuing act of discrimination. The Employment Tribunal, had, however failed to deal with the issue.
Insofar as the Claimant’s claims related to an alleged discriminatory policy or discriminatory advertisement such claims could only be brought by the CRE under ss28 and 29 of the Race Relations Act 1976.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0337 – 10 – 0411

Links:

Bailii

Statutes:

Race Relations Act 1976 28 29

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448113

EAT RACE DISCRIMINATION
Direct and Victimisation
Burden of Proof
The Employment Tribunal conflated the two concepts of firstly less favourable treatment and secondly whether there was a prima facie case that it was on the grounds of race. The phrase ‘from which it could conclude’ at paragraph 45 of the judgment is redolent of precisely the same error identified by the Court of Appeal at paragraph 31 of the judgment in Igen v Wong [2005] ICR 93 and there had to be a finding that Mr McGill had treated the Respondent less favourably before the second concept arose.
The conclusion that there was less favourable treatment of the Respondent by TFL rested to a considerable extent, on the finding at paragraph 57 of ‘institutional, unconscious, attitudinal racism, at least in relation to persons of black African ethnicity’ in TFL and was a finding based on a collection of single incidents of limited scope not justifying an inductive conclusion so broad in scope; the conclusion was unsound; Commissioners of Inland Revenue v Morgan [2002] IRLR 776 followed.
Victimisation also rested in part on the above finding and was equally unsound.
Remitted to a differently constituted Tribunal for a complete re-hearing.

Judges:

Hand QC J

Citations:

[2011] UKEAT 0006 – 11 – 0411

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Commissioners of Inland Revenue and Cleave CB v Morgan EAT 6-Feb-2002
EAT Race Discrimination – Direct . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448114

Disability Discrimination – Disability.

Citations:

[2001] UKEAT 1116 – 00 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Rowden v Dutton Gregory Solictors EAT 17-Dec-2001
EAT Disability Discrimination – Disability
EAT Disability Discrimination – Disability. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 September 2022; Ref: scu.203736

EAT SEX DISCRIMINATION – Other losses
RACE DISCRIMINATION – Other losses
Appellant gives notice to leave the Army as a result of sex and race discrimination (see [2010] IRLR 471) – During notice period offered a new posting on the basis that it would resolve the childcare difficulties which had given rise to the discrimination claim – Offer not accepted – At remedy hearing awarded compensation for injury to feelings but no compensation for loss of earnings, on the basis that she had failed to mitigate her loss, and no aggravated damages.
Held, dismissing appeal:
(1) Tribunal entitled to find that Appellant had failed to mitigate her loss – Wilding v British Telecommunications Plc [2002] ICR 1079 followed
(2) Tribunal not obliged to make an award of aggravated damages

Judges:

Underhill P J

Citations:

[2011] UKEAT 0075 – 11 – 1509

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – F and G Cleaners v Saddington and Others EAT 16-Aug-2012
EAT UNFAIR DISMISSAL – Mitigation of loss
The Claimants worked for Respondent 1 who supplied window cleaning services under contract to a local authority. The contract was subject to a re-tendering process; . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 September 2022; Ref: scu.445647

EAT DISABILITY DISCRIMINATION – Reasonable Adjustments
Appellant, who is deaf, employed by the Foreign and Commonwealth Office – FCO declines to post her to Kazakhstan because of the problems, and in particular the cost (about andpound;230,000 p.a.), of providing English-speaking lipspeaker support – Brings claims of direct discrimination under section 3A (5) of the Disability Discrimination Act 1995 and discrimination by way of failure to make reasonable adjustments under section 3A (2) – In relation to both ways of putting the claim the Appellant relies in particular on the fact that the FCO would have to pay commensurate sums by way of Continuity of Education Allowance to staff with a large number of school-age children – Claims dismissed by Tribunal
Held, dismissing appeal:
(1) As regards the claim of direct discrimination, the reason for the Appellant’s non-appointment was not her disability as such but the cost of the adjustments which it necessitated – The material circumstances of staff benefiting under the CEA policy were different.
(2) The Tribunal had made no error of law in its decision that it was not reasonable to expect the FCO to incur the costs of providing English-speaking lipspeaker support in Kazakhstan – Observations on the nature of the exercise required in assessing reasonableness for the purpose of section 4A of the Act.

Judges:

Underhill P

Citations:

[2012] ICR 280, [2011] UKEAT 0016 – 11 – 0510, [2011] Eq LR 1210

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 3A

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 September 2022; Ref: scu.444952

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
RACE DISCRIMINATION – Direct
The Employment Judge correctly struck out the Claimant’s case against his employers and numerous members of staff as being out of time. In respect of his claim to be an employee of the solicitors he instructed to pursue the employment claims, because he did work to provide instructions to them, this was misconceived.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 1799 – 10 – 2408

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 September 2022; Ref: scu.444682

EAT Disability Discrimination : Reasonable Adjustments
If there is a real prospect of an adjustment removing a disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, but that does not mean that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one: Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) and Romec Ltd v Rudham (UKEAT/0069/07/DA) applied.

Judges:

Keith J

Citations:

[2011] UKEAT 0552 – 10 – 1406

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 September 2022; Ref: scu.444680

EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity
RACE DISCRIMINATION – Direct
Application to recuse refused. Neither the Employment Tribunal nor the EAT gave the appearance of bias. The Claimant, a member of the Bar, was rejected for interview for reasons given by the Respondent and accepted by the Employment Tribunal as having nothing to do with race or gender. The Respondent did not fabricate CVs for those it had interviewed.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0378 – 11 – 3008

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 20 September 2022; Ref: scu.444683

The claimant had taken maternity leave under which she had been entitled to return up to five years later. The Council transferred its workforce to Capita, and she now said that the Council and Capita had failed to comply with the contractual and statutory obligations.

Citations:

[2001] UKEAT 1060 – 00 – 0103

Links:

Bailii

Statutes:

Employment Rights Act 1996

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 19 September 2022; Ref: scu.203732

EAT JURISDICTIONAL POINTS – Claim in time and effective date of termination
Time limit in discrimination and whistle blowing claims.
The Employment Judge declared that the Claimant had no reasonable prospect of success in arguing that the pre-dismissal discrimination claims comprise a continuing act/act extending over a period. She so declared because she took the view that the Claimant’s only real allegation concerning the period in question was a lack of contact by the Respondent. The Claimant’s case was however broader; what she alleged arguably amounted to a continuing act/act extending over a period. Declaration set aside.

Judges:

Richardson J

Citations:

[2011] UKEAT 0112 – 11 – 2207

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 19 September 2022; Ref: scu.443571

EAT RACE DISCRIMINATION – Inferring discrimination
Tribunal entitled on the evidence before it to find that the Respondent had discharged the burden of showing a non-discriminatory reason for the Appellant’s non-selection for promotion.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0554 – 10 – 1006

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 19 September 2022; Ref: scu.443638

EAT RACE DISCRIMINATION – Discrimination by other bodies
The Claimant was employed by the local authority as well as being a local resident. In its capacity as a prosecuting authority, the local authority brought criminal proceedings against the Claimant in his capacity as a local resident over his claims for housing benefit and council tax benefit. In its capacity as his employer, the local authority gave the Claimant in his capacity as an employee a final written warning to last for 2 years for making false claims for benefit. The Claimant alleged that the decision to prosecute him (and not to impose an administrative penalty instead) and the length of his warning amounted to acts of race discrimination. It was held that the alleged acts of discrimination to prosecute him (and not to impose an administrative penalty instead) could not amount to acts of discrimination in the employment field, and that the Employment Tribunal had no jurisdiction to consider them.

Judges:

Keith J

Citations:

[2011] UKEAT 0069 – 11 – 2306

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 September 2022; Ref: scu.442770

EAT RACE DISCRIMINATION – Direct
The Appellant, a qualified barrister, was not shortlisted for the post of Legal Assistant but he was successful in obtaining a position as a Legal Services Officer. This was subsequently withdrawn after he suggested that the Third Respondent with whom he would have to work was not telling the truth about delays in processing his appointment. The Employment Tribunal found that he had not been discriminated against on the grounds of race in respect of either matter. His appeal complained of errors of fact, perversity, misdirection and inadequacy of reasons but all his grounds were really an attempt to re-argue the facts and the appeal was dismissed.

Judges:

Hand QC J

Citations:

[2010] UKEAT 0240 – 10 – 0308

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 September 2022; Ref: scu.442777

Citations:

[2006] EWCA Civ 1508

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 September 2022; Ref: scu.246004

EAT A claim was made for sex discrimination. The tribunal considered the approach to be taken in the absence of a real comparator.
Held: The tribunal had been correct to construct an hypothetical comparator. from how the employers treated actual unidentical, but not wholly dissimilar, cases.
‘Where there is no evidence as to the treatment of an actual male comparator whose position is wholly akin to the applicant’s, a tribunal has to construct a picture of how a hypothetical male comparator would have been treated in comparable surrounding circumstances. Inferences will frequently need to be drawn. One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases were treated in relation to other individual cases. It is not required that a minutely exact actual comparator has to be found. If that were the case then isolated cases of discrimination would almost invariably go uncompensated.’

Judges:

The Honourable Mr Justice Lindsay (President)

Citations:

EAT/52/00, [2000] UKEAT 52 – 00 – 0806, [2001] IRLR 124

Links:

EATn, Bailii

Jurisdiction:

England and Wales

Citing:

See also – The Chief Constable of West Yorkshire Police v Vento EAT 19-Oct-2001
EAT Sex Discrimination – Victimisation . .

Cited by:

See also – The Chief Constable of West Yorkshire Police v Vento EAT 19-Oct-2001
EAT Sex Discrimination – Victimisation . .
See also – The Chief Constable of West Yorkshire Police v Vento EAT 4-Dec-2001
EAT Sex Discrimination – Direct . .
See Also – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 16 September 2022; Ref: scu.171468

‘This appeal concerns the application of the Disability Discrimination Act 1995 to the situation where an employer is considering dismissal, or ill health retirement, due to the incapacity of the employee resulting in his or her long-term absence from work either in the past or anticipated for the future.’

Judges:

Altman HHJ

Citations:

[2001] UKEAT 1366 – 99 – 3001

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Employment, Discrimination

Updated: 16 September 2022; Ref: scu.442032

EAT Contract of Employment – Written particulars.
Appeal against dismissal of unfair dismissal and disability discrimination claims.

Judges:

Lindsay J P

Citations:

EAT/1432/00, [2001] UKEAT 1432 – 00 – 1705, [2001] Emp LR 1285, [2001] IRLR 653

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Messrs Caesar and Howie v Cosgrove EAT 13-Dec-2002
EAT Disability Discrimination – Compensation
EAT Disability Discrimination – Compensation.
EAT Procedural Issues – Employment . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 16 September 2022; Ref: scu.442037

EAT UNFAIR DISMISSAL – Reasonableness of dismissal
DISABILITY DISCRIMINATION – Reasonable adjustments
Long-serving employee. Multiple grievances against her line managers. Unable to continue working in the same department. Employer willing to provide suitable alternative employment. After long period of negotiations between employer and employee, in order to bring matters to a head, employer gives three months notice of dismissal but continues to offer alternative employments (with continuity of employment) which are unreasonably refused during the notice period. Employment Tribunal hold that the dismissal was unfair because at the date notice was given it was premature (no precise offer had been made and the grievance procedure was incomplete).
The Tribunal also held that the same two matters constituted failure to make reasonable adjustments for the disabled employee.
Issue on appeal: whether Employment Tribunal should have considered reasonableness of dismissal as a whole i.e. embracing all matters between giving of notice and its expiry – including rejection of reasonable offers carrying continuity of employment and abandonment of grievances which had had no prospect of success.
Appeal allowed and remitted to same Tribunal to further consider.

Judges:

Luba QC J

Citations:

[2011] UKEAT 0358 – 10 – 1207

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 16 September 2022; Ref: scu.441843

EAT EQUAL PAY ACT – Material factor defence and justification
Equal Pay. Genuine material factor defence. TUPE applying to both Claimants and comparators. Employment Tribunal which upheld claims on basis that employers should have taken action to ‘red circle’ the comparator’s pay found to have erred in law. On Tribunal’s findings, the causal chain between TUPE and the disparate pay complained of had not been broken. Further, no basis on which Tribunal could have found that Respondents’ explanation tainted by sex. Appeal upheld and claims dismissed.

Judges:

Lady Smith

Citations:

[2011] UKEAT 0042 – 10 – 2505

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 16 September 2022; Ref: scu.441833

EAT RELIGION OR BELIEF DISCRIMINATION
RACE DISCRIMINATION – Indirect
Discrimination on grounds of religion or belief.
Employee required to join a fridge-cleaning rota as a condition of using the communal staff kitchen. Complaint that the requirement infringed his religious belief that he cannot touch meat or meat products. At pre-hearing review the Employment Tribunal found that he failed to meet the burden of proving a sufficient cohort – of others holding the same belief – to constitute a ‘group’. The issue on appeal was whether the Tribunal had correctly addressed such evidence as it had received on the point or given adequate reasons for rejecting it.

Judges:

Luba QC J

Citations:

[2011] UKEAT 0487 – 10 – 0607

Links:

Bailii

Statutes:

Employment Equality (Religion or Belief) Regulations 2003 3(1)(b)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 16 September 2022; Ref: scu.441829

EAT RACE DISCRIMINATION – Direct
HARASSMENT
This was an employee’s claim that she had been subjected to race discrimination and harassment on grounds of her nationality and/or national origins. Of 24 discrete allegations tried by the Tribunal only five were upheld. Despite a six-day hearing, the Tribunal’s findings of fact on those five matters were limited and the reasoning and conclusions were collapsed into two short paragraphs each addressing whether the five matters taken together amounted respectively to discrimination and/or harassment. The EAT allowed the employer’s appeal as the Tribunal’s Judgment (of which no party had been able to obtain a complete coherent copy) had failed to make the essential linkage between factual findings, reasons and conclusions in respect of each one of the allegations upheld. The claims in respect of the five allegations were remitted to a differently constituted Tribunal.

Judges:

Luba QC R

Citations:

[2011] UKEAT 0512 – 10 – 2405

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 16 September 2022; Ref: scu.441830

EAT Equal Pay Act – Equal value
When an Independent Expert has been appointed by an Employment Tribunal to report on an equal value question, rule 11(4) of Sched 6 to Employment Tribunal Regulations 2004 allows a party to call another expert provided this evidence does not challenge the facts. When an IE did not disclose his full methodology until he published his report, the Respondent was entitled to call an expert to challenge the IE’s methodology on weighting of factors and conventions to avoid double counting. Employment Tribunal Chairman’s Judgment set aside.

Judges:

McMullen QC J

Citations:

[2007] UKEAT 0417 – 07 – 2408, [2008] ICR 349, [2007] IRLR 981

Links:

Bailii

Statutes:

Equal Pay Act 1970 2A(4), Employment Tribunal Regulations 2004

Jurisdiction:

England and Wales

Citing:

See Also – Middlesbrough Borough Council v Surtees and others EAT 17-Jul-2007
EAT EQUAL PAY ACT
Material factor defence
European law
Certain employees of the Council claimed equal pay with respect to their chosen comparators. In some cases the claim related to a period . .
Cited – Hayward v Cammell Laird Shipbuilders Ltd HL 1984
The system of job evaluation when selecting for redundancies, for which there is uniquely by statue the designation of an expert, is one which is susceptible to different methodologies. . .
Cited – Aldridge v Telecommunications Plc EAT 1989
. .

Cited by:

Cited – Sheffield City Council v Crosby and others EAT 17-Feb-2009
EAT EQUAL PAY ACT: Material factor defence and justification
GMF defence- whether objective justification required from employer. ET distinguished permissibly between 2 groups of (predominantly female) . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 16 September 2022; Ref: scu.259820

VICTIMISATION DICRIMINATION – Protected disclosure
The Claimant alleged in her Particulars of Claim that the Respondent subjected her to a detriment because she had alleged in an email of 1 December 2015 that asking her to work certain hours would be a breach of the Working Time Regulations 1998. A list of issues agreed at the outset of the hearing of her claims, categorised the allegation as a working time claim under Employment Rights Act 1996 section 45A(1) and not one under section 48(1A), detriment on the grounds of making a protected disclosure within the meaning of section 43B(1). The Employment Tribunal erred in failing to consider the substance of the claim before them and wrongly categorising it in the list of issues as an allegation of past breach of the Working Time Regulations. Parekh v London Borough of Brent [2012] EWCA 1630 applied. Dismissal of claim of detriment for making a protected disclosure on the only basis considered by the Employment Tribunal, endangering health and safety, set aside. Claim remitted to the same Employment Tribunal for decision on the claim that the email of 1 December 2015, contained a protected disclosure of a likely breach of the Working Time Regulations within the meaning of section 43B(1)(b). Ground 2 of the appeal which alleged an error in holding that another email, that of 7 December 2015, was not a protected disclosure dismissed.

Citations:

[2018] UKEAT 0080 – 18 – 2911

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 September 2022; Ref: scu.631193

EAT VICTIMISATION DISCRIMINATION – Protected disclosure
The issue was whether a complaint under section 47B of the Employment Rights Act 1996 had been presented in time. The employment judge ruled that that issue should be decided when the Claimant’s other claims were considered on their merits, because evidence was required to decide whether the various detriments to which the Claimant had allegedly been subjected formed part of a series of similar acts or failures within the meaning of section 48(3)(a). The Employment Appeal Tribunal allowed an appeal against that ruling on the ground that no evidence was required to resolve that issue, since the latest detriment (which could not be regarded as a continuing act) had not occurred within three months of the date of the presentation of the complaint, and accordingly the question whether there was a link between the latest detriment and earlier detriments did not arise.

Judges:

Keith J

Citations:

[2011] UKEAT 0129 – 11 – 0107

Links:

Bailii

Statutes:

Employment Rights Act 1996 47B

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 September 2022; Ref: scu.441463

EAT AGE DISCRIMINATION
Appeals against liability and remedy for age discrimination against a 34 year old woman by a French Lycee subject to English employment law having been dismissed by the EAT and the CA, only the recommendations made by the ET were live. The ET in its discretion made permissible recommendations to correct the discriminatory culture and conduct of the Lycee’s leadership.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0563 – 10 – 0504

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 September 2022; Ref: scu.441459

EAT DISABILITY DISCRIMINATION – Direct disability discrimination
DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Constructive dismissal
Claimant, working as a debt adviser, suffers from agoraphobia and travel anxiety – Resigns when Respondent refuses to move her to bureau closer to her home on a guaranteed permanent basis – Tribunal dismisses claim under section 3A (2) of Disability Discrimination Act 1995 (failure to make reasonable adjustments) on basis (a) that Respondent had neither the actual nor the constructive knowledge required by section 4A (3) (b) and (b) that in any event the refusal was reasonable – Claim of direct discrimination dismissed on basis that Respondent’s decision was not on grounds of Claimant’s disability – In so far as constructive dismissal claim based on the same matters, claim dismissed on basis that Respondent had not breached the contract in any relevant respect – Constructive dismissal claim also based on reduction in Claimant’s salary two years previously: as to that, Tribunal holds that in so far as that was a breach Claimant did not resign in response to it.
Held, dismissing appeal:
(1) Tribunal entitled to find that Respondent did not have the necessary knowledge at any relevant time – Eastern and Coastal Kent Primary Care Trust v Grey [2009] IRLR 429 and Secretary of State for Work and Pensions v Alam [2010] ICR 665 explained
(2) Tribunal entitled to find that Respondent’s conduct was not on the ground of the Appellant’s disability
(3) Tribunal decision on constructive dismissal not vitiated by having directed itself by reference to Claridge v Daler Rowney Ltd. [2008] ICR 1262, notwithstanding Buckland v University of Bournemouth [2010] ICR 908 – Tribunal entitled to find Claimant had not resigned in response to salary reduction.

Judges:

Underhill P J

Citations:

[2011] UKEAT 0293 – 10 – 2306

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 September 2022; Ref: scu.441356

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
AGE DISCRIMINATION
A Claimant does not establish an inference of discrimination simply by showing that he has been dismissed and replaced by someone whose protected characteristics are different from his own. Since the Claimant had done no more than that in respect of the allegations of sex and race discrimination, the Employment Judge should have struck them out. However, the complaint of age discrimination was sufficiently arguable to be tried on the merits by the Employment Tribunal, and the Judge’s refusal to strike that claim out would be upheld.

Judges:

Bean J

Citations:

[2011] UKEAT 0024 – 11 – 0804

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 September 2022; Ref: scu.441345

EAT EQUAL PAY ACT – Work rated equivalent
The Judgment of the Employment Tribunal concluded work had been rated as equivalent because it could be inferred that the male comparators’ job had been evaluated under a job evaluation study; that conclusion was inadequately reasoned. It was implicit in the Judgment that the evidence of the Respondent’s witnesses there had never been such an evaluation had been rejected but no reasons for arriving at such a conclusion were stated and the inferential basis for the conclusion that there must have been such a study rested on a series of speculative assumptions. Alternatively the conclusion was one that no reasonable Tribunal properly directing itself on the evidence could have reached.

Citations:

[2011] UKEAT 0216 – 09 – 0505

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 September 2022; Ref: scu.441351

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 Tribunal could conclude in the absence of an adequate explanation that the Respondent refused or deliberately omitted to offer him employment on racial grounds. The Tribunal, however, failed to make findings on some matters of primary fact and failed to consider whether those facts which the Claimant established brought his case within section 54A(2).

Judges:

Richardson J

Citations:

[2011] UKEAT 0310 – 10 – 1805

Links:

Bailii

Statutes:

Race Relations Act 1976 54A(2)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Country Style Foods Ltd v Bouzir CA 8-Dec-2011
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 September 2022; Ref: scu.441348

EAT SEX DISCRIMINATION: Direct / Inferring discrimination
The Employment Tribunal dismissed a claim for direct sex discrimination brought by a woman in the Royal Navy Reserve who complained that she had been rejected for the post of Captain and Medical Director by reason of her sex. The claimant appealed, contending that the Tribunal ought to have drawn inferences from the primary facts which shifted the burden of proof in accordance with the well known criteria of Igen v Wong [2005] ICR 931; and that the circumstances disclosed clear discrimination.
The EAT dismissed the appeal. Although it would have been desirable for the Tribunal to have dealt more fully with some of the arguments of the claimant, this was not a case like Anya v University of Oxford [2001] IRLR 377, where material primary facts had not been found or incidents of alleged discrimination not dealt with. The EAT was satisfied that even had the arguments been addressed specifically by the Tribunal the result would have been the same. The Employment Tribunal’s finding that there was no discrimination did not disclose any material error of law so as to undermine its conclusions.

Judges:

Elias P J

Citations:

[2008] UKEAT 0614 – 07 – 3107

Links:

Bailii

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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 September 2022; Ref: scu.271326

EAT UNFAIR DISMISSAL – Constructive dismissal
SEX DISCRIMINATION – Inferring discrimination
The Employment Tribunal had conflated the common law concept of affirmation of contract after breach with extension of the time limited for submission of a claim because it had not been reasonably practicable to present it in time and on that ground the appeal succeeded and the issue was remitted to a differently constituted Employment Tribunal for a re-hearing.
There had been no error of law in the conclusion reached that there had been no sex discrimination and the appeal was dismissed on that point.

Judges:

Hand QC J

Citations:

[2011] UKEAT 0587 – 10 – 0605

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 September 2022; Ref: scu.441156

EAT RACE DISCRIMINATION – Direct
PART TIME WORKERS
Discrimination on grounds of race and/or part-time status – whether Tribunal addressed the Claimant’s case and gave adequate reasons in respect of an alleged failure to afford the Claimant training, including in particular attendance at an NVQ course.
Held: On this issue the Tribunal did not address a significant part of the Claimant’s case and did not give adequate reasons.

Judges:

Richardson J

Citations:

[2011] UKEAT 0592 – 10 – 2305

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 September 2022; Ref: scu.441164

EAT SEX DISCRIMINATION
Pregnancy and discrimination
Injury to feelings
MATERNITY RIGHTS AND PARENTAL LEAVE – Sex discrimination
The ET was entitled to find that the burden of proof passed to the Respondent to explain his treatment when he made gender-related comments about the Claimant’s pregnancy, and subjected her to discipline on her return to work. It correctly rejected the explanations. It did not err in placing injury to feelings in the middle of the middle Vento Da’bell band.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0369 – 10 – 0804

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 September 2022; Ref: scu.440149

EAT RELIGION OR BELIEF DISCRIMINATION
C was employed as a security guard by R at a site in Highgate where R had a contract with Land Securities Trillium to provide safety and security services. Trillium required a specified number of security officers to be on site for the full duration of operating hours. Thus all security officers working at the site were required to remain on site throughout their shifts. C, a Muslim, was refused permission to leave the site on Fridays in the middle of the day to attend a mosque in Finsbury Park. Apart from financial penalties the continuation of the contract was in danger if a full complement of security staff was not on site throughout. R offered C a variety of alternatives to meet his requirements but C refused them all. C claimed religious discrimination, both direct (in respect of other matters) and indirect (in respect of the subject matter of the appeal). The ET dismissed his claim in this regard. C appealed.
Held: Appeal dismissed. R’s provision, criterion or practice was a proportionate means of achieving a legitimate aim.

Judges:

Reid QC J

Citations:

[2011] UKEAT 0379 – 11 – 2405

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 September 2022; Ref: scu.440155

EAT DISABILITY DISCRIMINATION
UNFAIR DISMISSAL – Constructive dismissal
Disability discrimination. On the question of reasonable adjustments, the Tribunal mis-stated the law and failed to deal with the essential issues. The Tribunal failed to address claims of direct disability discrimination and disability related discrimination.
Constructive dismissal. The Tribunal’s conclusions on this issue are vitiated by its failure to deal with the disability discrimination issue properly and by a further failure to deal with a significant part of the Claimant’s case.

Judges:

Richardson J

Citations:

[2011] UKEAT 0523 – 10 – 1104

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 September 2022; Ref: scu.440154

Citations:

[2004] EWCA Civ 1351

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Camden and Islington Mental Health NHS Trust (Now Materially Succeeded By Camden and Islington Mental and Social Care Trust) v Akinmolasire EAT 9-Oct-2003
EAT Race Discrimination – Indirect . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 12 September 2022; Ref: scu.219132

EAT Unfair Dismissal – Reason for dismissal including substantial other reason.

Judges:

His Hon Judge Ansell

Citations:

[2003] UKEAT 0823 – 03 – 1212, UKEAT/823/03

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 12 September 2022; Ref: scu.202374

EAT EQUAL PAY ACT – Other establishments
PRACTICE AND PROCEDURE – Amendment
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Three groups of appeals arising out of mass equal pay litigation
(A) Amendment permitted to correct misdescriptions by Claimants of the jobs that they were doing
(B) Employees employed by the Council in non-teaching roles in community schools entitled to compare themselves with employees in other Council establishments, notwithstanding power of school governors to require Council to engage employees in schools otherwise than on recommended terms – ‘Single source’ requirement discussed – North Cumbria Acute Hospitals NHS Trust v Potter and South Tyneside Metropolitan Borough Council v Anderson followed
(C) Claimants who had purported to submit grievances under the modified procedure which failed properly to state the basis of their complaints – see City of Bradford Metropolitan District Council v Pratt – not debarred by section 32 (2) of the Employment Act 2002 because the grievances in question fell within the terms of reg. 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 – Discussion of whether agreement to the use of the modified procedure can be withdrawn.

Judges:

Underhill P J

Citations:

[2010] UKEAT 0040 – 10 – 0905

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 September 2022; Ref: scu.439853

EAT SEX DISCRIMINATION
Inferring discrimination
Burden of proof
RACE DISCRIMINATION
Inferring discrimination
Burden of proof
In respect of two out of two of a large number of complaints the Employment Tribunal had not made clear findings as to whether the Claimant had established facts raising an inference of sex discrimination under the ‘first stage’ of Igen v Wong and, if she had, whether the employers had discharged the ‘second stage’ burden of proof. Case remitted in respect of sex discrimination complaints only but not race discrimination complaints since the Claimant had plainly not established ‘first stage’ facts establishing a possible inference of race discrimination.

Judges:

Bean J

Citations:

[2011] UKEAT 0536 – 10 – 1204

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 September 2022; Ref: scu.439850

EAT EQUAL PAY ACT – Other establishments
PRACTICE AND PROCEDURE – Amendment
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Three groups of appeals arising out of mass equal pay litigation
(A) Amendment permitted to correct misdescriptions by Claimants of the jobs that they were doing
(B) Employees employed by the Council in non-teaching roles in community schools entitled to compare themselves with employees in other Council establishments, notwithstanding power of school governors to require Council to engage employees in schools otherwise than on recommended terms – ‘Single source’ requirement discussed – North Cumbria Acute Hospitals NHS Trust v Potter and South Tyneside Metropolitan Borough Council v Anderson followed
(C) Claimants who had purported to submit grievances under the modified procedure which failed properly to state the basis of their complaints – see City of Bradford Metropolitan District Council v Pratt – not debarred by section 32 (2) of the Employment Act 2002 because the grievances in question fell within the terms of reg. 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 – Discussion of whether agreement to the use of the modified procedure can be withdrawn.

Judges:

Underhill P J

Citations:

[2010] UKEAT 0055 – 10 – 0905

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 September 2022; Ref: scu.439855

EAT EQUAL PAY ACT – Other establishments
PRACTICE AND PROCEDURE – Amendment
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Three groups of appeals arising out of mass equal pay litigation
(A) Amendment permitted to correct misdescriptions by Claimants of the jobs that they were doing
(B) Employees employed by the Council in non-teaching roles in community schools entitled to compare themselves with employees in other Council establishments, notwithstanding power of school governors to require Council to engage employees in schools otherwise than on recommended terms – ‘Single source’ requirement discussed – North Cumbria Acute Hospitals NHS Trust v Potter and South Tyneside Metropolitan Borough Council v Anderson followed
(C) Claimants who had purported to submit grievances under the modified procedure which failed properly to state the basis of their complaints – see City of Bradford Metropolitan District Council v Pratt – not debarred by section 32 (2) of the Employment Act 2002 because the grievances in question fell within the terms of reg. 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 – Discussion of whether agreement to the use of the modified procedure can be withdrawn.

Citations:

[2010] UKEAT 0056 – 10 – 0905

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 September 2022; Ref: scu.439854

EAT EQUAL PAY ACT – Other establishments
PRACTICE AND PROCEDURE – Amendment
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Three groups of appeals arising out of mass equal pay litigation
(A) Amendment permitted to correct misdescriptions by Claimants of the jobs that they were doing
(B) Employees employed by the Council in non-teaching roles in community schools entitled to compare themselves with employees in other Council establishments, notwithstanding power of school governors to require Council to engage employees in schools otherwise than on recommended terms – ‘Single source’ requirement discussed – North Cumbria Acute Hospitals NHS Trust v Potter and South Tyneside Metropolitan Borough Council v Anderson followed
(C) Claimants who had purported to submit grievances under the modified procedure which failed properly to state the basis of their complaints – see City of Bradford Metropolitan District Council v Pratt – not debarred by section 32 (2) of the Employment Act 2002 because the grievances in question fell within the terms of reg. 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 – Discussion of whether agreement to the use of the modified procedure can be withdrawn

Judges:

Underhill P J

Citations:

[2010] UKEAT 0037 – 10 – 0905

Links:

Bailii

Statutes:

Employment Act 2002, Employment Act 2002 (Dispute Resolution) Regulations 2004 9, Equal Pay Act 1970

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 September 2022; Ref: scu.439852

The federation, an organisation supporting and promoting the interests of small firms, is ‘an employers organisation’ for sex discrimination purposes.

Citations:

Times 13-Feb-1997, [1997] UKEAT 787 – 96 – 3101

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 12

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 11 September 2022; Ref: scu.207136

Citations:

[2004] EWCA Civ 432

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 11 September 2022; Ref: scu.195894

Lord Reid said that that statutory provisions for claims for unfair dismissal ‘must be construed in a broad and reasonable way so that legal technicalities shall not prevail against industrial realities and common sense’
The idea of discrimination connotes a comparison.

Judges:

Lord Reid

Citations:

[1974] 1 WLR 89, [1974] 1 All ER 229

Jurisdiction:

England and Wales

Cited by:

Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 September 2022; Ref: scu.645434

EAT VICTIMISATION; DISCRIMINATION; DISMISSAL
Race discrimination. Sex discrimination. Employment Tribunal found that a Claimant who had done a protected act (he had complained of race discrimination) had, in one respect, suffered less favourable treatment than a comparator who had not carried out such an act would have done. Claim failed, however, since Tribunal also found that the allegation on which the Claimant’s complaint was based was false and made in bad faith.
Appeal dismissed.

Judges:

Smith J

Citations:

[2010] UKEAT 0298 – 10 – 0811

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 10 September 2022; Ref: scu.425813

Judges:

Lord Justice Underhill VP CA

Citations:

[2021] EWCA Civ 255

Links:

Bailii, Judiciary

Jurisdiction:

England and Wales

Citing:

See Also – Page v Lord Chancellor and Another CA 26-Feb-2021
The appellant was a Christian, opposed to adoption by same sex couples. He expressed his views publicly, and refused to sign an order for such. He complained that his removal from the Magistracy was an act of unlawful discrimination and/or . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 September 2022; Ref: scu.658971

Lord Cairns said: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness.’

Judges:

Cairns LJ, Lord Denning MR

Citations:

[1974] ICR 323, [1974] IRLR 213

Jurisdiction:

England and Wales

Cited by:

Cited – Kenneth Cobley v Forward Technology Industries Plc CA 14-May-2003
The claimant had been chief executive and a director of the respondent for many years, but was dismissed upon it being taken over. His contract of employment as chief executive provided that it was to be coterminous with his appointment as director. . .
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .
Cited – W Devis and Sons Ltd v Atkins HL 6-Jul-1977
The ‘just and equitable’ test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. ‘The paragraph does not, nor did s. 116 of the Act of 1971, . .
Cited – Associated Society of Locomotive Engineers and Firemen v Brady EAT 31-Mar-2006
The reason adduced by the union for the dismissal of the climant was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee’s political antipathy to Mr Brady.
Held: It . .
Cited – Victoria and Albert Museum v Durrant EAT 5-Jan-2011
EAT UNFAIR DISMISSAL
Reason for dismissal including some other substantial reason
The correct interpretation of section 106 of Employment Rights Act 1996 (‘the Act’) was considered.
The . .
Cited – Hotson v Wisbech Conservative Club EAT 1984
As long as the employer did not change the facts upon which he relied at the date of dismissal, it was open to him to change the label he attached to the reasons for the dismissal where that led to no procedural or evidential disadvantage to the . .
Cited – Royal Mail Group Ltd v Jhuti SC 27-Nov-2019
The employee was a whistleblower, but her manager in response bullied her and dismissed her on the grounds of alleged poor performance. J suffered stress and was away from work and unable to defend herself. The decision maker, acting honestly . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 September 2022; Ref: scu.182400

EAT VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE – Costs
R1, C’s former academic supervisor, declines to give her a reference – C brings victimisation claim on basis that he knew, and was motivated by the fact, that she had previously brought a sex discrimination claim against the University, R2 – He denies knowledge of the previous claim – Tribunal invited to draw inferences from what are said to be evasive answers to statutory questionnaire
Tribunal dismisses claim, accepting that R1 had no knowledge of the previous proceedings and not drawing inferences from the answers to questionnaire – Costs awarded
Held, dismissing appeal:
(1) Tribunal entitled to dismiss claim – Answers to questionnaire did not justify inference of discrimination
(2) Tribunal entitled to award costs – Claim had been misconceived from the start, since there was no evidence supporting C’s suspicions, and a deposit order had been made

Judges:

Underhill P J

Citations:

[2010] UKEAT 0283 – 10 – 2004

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 08 September 2022; Ref: scu.434908

EAT RACE DISCRIMINATION – Burden of proof
PRACTICE AND PROCEDURE – Review
The Claimant alleged race and religious discrimination, harassment on racial and religious grounds and victimisation against the Respondent in respect of her treatment on a training course. The ET dismissed all but one of her claims of direct race discrimination but held in relation to one matter the onus of proof had been transferred to the Respondent and he had not discharged it. In addition the ET made a finding of unlawful race and religious discrimination by victimisation in relation to another complaint. On review the ET set aside the finding of victimisation on the basis that the claim had never been made as a claim in victimisation. The Respondent appealed against the finding of race discrimination and the Claimant against the decision on review.
Held: the ET’s judgment was not Meek-compliant but in any event the onus of proof had not been transferred to the Respondent and the review decision was correct. Respondent’s appeal allowed and Claimant’s appeal dismissed.

Judges:

Reid QC J

Citations:

[2011] UKEAT 0406 – 09 – 1804

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 08 September 2022; Ref: scu.434901

EAT RACE DISCRIMINATION – Burden of proof
PRACTICE AND PROCEDURE – Review
The Claimant alleged race and religious discrimination, harassment on racial and religious grounds and victimisation against the Respondent in respect of her treatment on a training course. The ET dismissed all but one of her claims of direct race discrimination but held in relation to one matter the onus of proof had been transferred to the Respondent and he had not discharged it. In addition the ET made a finding of unlawful race and religious discrimination by victimisation in relation to another complaint. On review the ET set aside the finding of victimisation on the basis that the claim had never been made as a claim in victimisation. The Respondent appealed against the finding of race discrimination and the Claimant against the decision on review.
Held: the ET’s judgment was not Meek-compliant but in any event the onus of proof had not been transferred to the Respondent and the review decision was correct. Respondent’s appeal allowed and Claimant’s appeal dismissed.

Judges:

Reid QC J

Citations:

[2011] UKEAT 0320 – 10 – 1804

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 08 September 2022; Ref: scu.434902

The EAT remitted a case to the Employment tribunal and stressed the importance of determining, as between alleged incidents of discrimination on different dates, when the act of discrimination ‘crystallized’.

Judges:

Wood J

Citations:

[1991] UKEAT 605 – 89 – 2409, [1992] ICR 312

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 September 2022; Ref: scu.211263

EAT Equal Pay Act – Out of Time
Contract of Employment – Variation
The issue before the Employment Tribunal was whether certain equal pay claims were brought in time. This depended upon whether alterations in terms and conditions were simply variations of an existing contract (in which case they were) or whether they involved the termination of one contract and the creation of another (in which case they were not). There were ten sample claims. In some cases there were new written contracts agreed and in others there were contractual offers made but no indication of any acceptance by the employee. The Tribunal found that in most, but not all, cases the claims were in time. The EAT upheld appeals with respect to two of the claims. Discussion of how to determine whether a contract is merely varied or whether there is a termination of the old contract and the creation of a new one.

Citations:

[2007] UKEAT 0148 – 06 – 2505, [2008] IRLR 109

Links:

Bailii

Employment, Discrimination

Updated: 06 September 2022; Ref: scu.431886

EAT EQUAL PAY ACT
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Statutory grievance procedures. Collective grievance. Whether compliance with Employment Act 2002 s.32. Employment Act 2002 (Dispute Resolution) Regulations 2004 paragraph 9. Employment Tribunal’s finding that there had been compliance reversed on appeal. Claimant’s representative had referred, for the names of those on behalf of whom a grievance was being raised, to the list in a Schedule but failed to enclose the Schedule. Computer disc sent with letter did not, on the facts, contain that Schedule. Obiter observations on issue of whether or not transmission of a computer disc/USB stick could comply with the obligation to specify ‘in writing’ the names of at least two employees, to the employer.

Citations:

[2011] UKEAT 0050 – 10 – 1103

Links:

Bailii

Statutes:

Employment Act 2002 32, Employment Act 2002 (Dispute Resolution) Regulations 2004 9

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 September 2022; Ref: scu.431878

EAT CONTRACT OF EMPLOYMENT – Disciplinary/grievance procedures
RACE DISCRIMINATION
The Claimant had applied to adjourn the hearing on the ground that he was not fit to conduct the proceedings properly and was unable to obtain representation without an adjournment. The Tribunal refused the application.
Held: the Tribunal did not err in law and the Tribunal’s decision did not render the hearing unfair.

Judges:

Richardson J

Citations:

[2011] UKEAT 0336 – 09 – 1102

Links:

Bailii

Employment, Discrimination

Updated: 06 September 2022; Ref: scu.431863

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge erred in striking out the Claimant’s claim. The Claimant, a job applicant, was interviewed about a competency different to that which had been (mistakenly) set out in the advertisement for the post. The Employment Judge correctly proceeded on the basis that the Claimant, who was disabled, had been placed at a substantial disadvantage by a PCP applied by the Respondent. She ought not to have struck out the claim unless it was plain and obvious that there was no step which it was reasonable for the Respondent to take in order to prevent the PCP having that effect. It was arguable that there were steps which it was reasonable for the Respondent to take in order to prevent the PCP having that effect. Project Management v Latif Institute [2007] IRLR 57 considered. The Employment Judge also erred in her construction of section 18B(1)(a) of the Disability Discrimination Act 1995; HM Prison Services v Beart [2002] EAT/650/01 applied. Appeal allowed.

Judges:

Richardson J

Citations:

[2011] UKEAT 0470 – 10 – 1402

Links:

Bailii

Employment, Discrimination

Updated: 06 September 2022; Ref: scu.431867

EAT Equal Pay Act – Article 141

Judges:

His Honour Judge McMullen QC

Citations:

[2004] UKEAT 0745 – 02 – 2110, UKEAT/0746/02, UKEAT/0745/02

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Citing:

Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 September 2022; Ref: scu.219237

EAT RACE DISCRIMINATION – Vicarious liability
An employer is only liable for the discriminatory acts committed by an agency worker who became part of its workforce if either:
1. he became its employee as defined in cases such as, James v London Borough of Greenwich [2008] ICR 545, or,
2. if he acted as the employer’s agent in the sense that when doing a discriminatory act he was exercising authority conferred by the employer. In other words if he had authority to do an act which was capable of being done in a discriminatory manner just as it was capable of being done in a lawful manner.

Judges:

Serota QC J

Citations:

[2011] UKEAT 0228 – 10 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 September 2022; Ref: scu.430751

The claimant appealed against the strike out of her case for failing to comply with an order requiring her to submit to medical examination and otherwise to pursue her disability discrimination claim.
Held: The claimant’s further application for an adjournment was denied. There had been consistent and repeated failure to co-operate with the tribunals and the court. The employment ceased in 2005. The respondent was entitled eventually to a decision. The appeal would be decided, and it was refused.

Judges:

Lord Neuberger MR, Hooper, Rimer LJJ

Citations:

[2011] EWCA Civ 277

Links:

Bailii

Statutes:

Employment Tribunals Rules of Procedure 2004 18(7)(c)

Jurisdiction:

England and Wales

Citing:

At EAT – Chambers-Mills v Allied Bakeries EAT 18-Nov-2008
EAT PRACTICE AND PROCEDURE: Striking-out/dismissal
The Appellant appealed a strike out order, but the correct authority (Blockbuster) was applied and there was (i) no perversity in the ET’s findings of . .
Leave granted – Chambers-Mills v Allied Bakeries CA 26-Nov-2009
The claimant renewed orally her request for leave to appeal against the EAT which had upheld loss of her claim, after the Employment Tribunal had found her conduct of the proceedings unreasonable in failing to co-operate in a medical enquiry into . .
Cited – De Keyser Limited v Wilson EAT 20-Mar-2001
The claimant appealed against an order striking out her claim.
Held: The right to respect for private life is qualified by the right for both parties to have a just trial of the issues between them; and it has to be borne in mind that it was . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 September 2022; Ref: scu.430734

Judges:

Lord Justice Laws Lord Justice Lloyd Lord Justice Wall

Citations:

[2006] EWCA Civ 531

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 September 2022; Ref: scu.241571

The appellant sought to appeal a striking out of her complaint of race discrimination. She appealed from the Employment Appeal Tribunal which had rejected her appeal in its preliminary hearing procedure.
Held: The Court of Appeal had the power to return a case to the full Employment Appeal Tribunal so that it could hear and determine points necessary for the decision in the Appeal. An appeal from a decision under the preliminary hearing procedure risked matters coming to the Court of Appeal which would be better have been resolved before the appeal. This case was one such.

Judges:

Perter Gibson, Mance, Longmore LJJ

Citations:

Times 14-Aug-2003, [2003] EWCA Civ 1192

Links:

Bailii

Statutes:

Civil Procedure Rules 52.10(2)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Grady v HM Prison Service CA 11-Apr-2003
The applicant appealed striking out of her employment claims against the respondent. She had been made bankrupt after lodging her appeal to the EAT, and the EAT had held that she lacked standing to pursue her claim.
Held: Employment claims are . .
Appeal from – Sukul-Lennard v Croydon Primary Care Trust EAT 5-Nov-2002
. .

Cited by:

Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
See Also – Sukul-Lennard v Croydon Primary Care Trust CA 22-Jul-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Civil Procedure Rules

Updated: 03 September 2022; Ref: scu.185657

EAT Disability Discrimination – Disability

Judges:

His Hon Judge J Burke QC

Citations:

[2003] EAT 0045 – 03 – 1211, [2003] UKEAT 0045 – 03 – 1211, UKEAT/0045/03

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.191921

The employment tribunal had been bound to dismiss the claimant’s claim for discrimination arising from the claimant’s disability. The claimant had a disability which caused her to suffer from migraines caused by computer software, which the respondent unsuccessfully tried to address by use of screen magnification software. The respondent eventually moved the claimant to a paper based role and, the tribunal found, delayed unreasonably in dealing with the claimant’s grievances.
The tribunal must have applied an impermissible ‘but for’ test in finding a breach of section 15 of the Equality Act 2010 through failure to protect the claimant from stress and detriment to her wellbeing and (if they so found) for failure to implement the adjustments recommended.
If (which was unclear) the tribunal meant to uphold the allegation that changing the claimant’s role was a breach of section 15, that conclusion was inconsistent with failure of the reasonable adjustments claim and the respondent’s defence of justification ought to have succeeded.
The tribunal’s reliance on delays in finding a technical solution and in dealing with the claimant’s grievances were not capable of amounting to a breach of section 15, applying the reasoning in Dunn v Secretary of State for Justice [2019] IRLR 298.
The claimant’s cross-appeal was against the tribunal’s rejection on the facts of the claimant’s ‘reasonable adjustments’ claim under section 20 of the 2010 Act. The tribunal found that particular magnification software had been adequately considered. That finding was sound, supported by evidence and not perverse. Nor could the claimant succeed in impugning the tribunal’s conclusion by reliance on evidence that came into existence after the hearing, though before the tribunal gave its reserved decision.
The appeal therefore succeeded and the cross-appeal failed. The appeal tribunal would not remit the case but would substitute a finding that the claim under section 15 must fail. There was no basis for interfering with the tribunal’s decision to dismiss the section 20 claim.

Citations:

[2019] UKEAT 0021 – 19 – 2307

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.642743