EAT DISABILITY DISCRIMINATION – Disability
The Claimant appealed against an Employment Tribunal decision, on a pre-hearing review, that he did not suffer from a disability within the meaning of the DDA 1995. The decision was upheld. The case had turned on the credibility and reliability of the Claimant’s account of his injury and its effects upon him and the ET did not accept his evidence. No errors of law were identified in the ET’s approach. Criticism of the ET’s failure to refer expressly to the 2006 Guidance was found to be misplaced in circumstances where the Claimant’s credibility and disputed facts lay at the heart of the case.

Judges:

Cox J

Citations:

[2011] UKEAT 0400 – 10 – 0802

Links:

Bailii

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.430530

Mrs Wallis was employed by the Ministry of Defence at the international school attached to SHAPE in Belgium. Mrs Grocott was employed by the Ministry in the British section of the Armed Forces North International School in the Netherlands. Both SHAPE and JFC are entities within the structure of NATO. They were recruited because they were the wives of forces personnel. Both were dismissed when their husbands left the armed forces. In the agreed facts, the Ministry saw it desirable for the harmony of the family life of forces members, or the ancillary civilian component, that there are employment opportunities for their spouses and other dependants. Their employments were governed by English law and the Ministry reassure such employees that their terms and conditions were essentially English. They were not ‘directly employed labour’, those engaged locally with the help of the host state, on local (host state) labour terms, regardless of their nationality, and pay local taxes.
The employment judge rejected the argument that the women were working within a British enclave; they were working within an international enclave. However, their employment was so closely connected to England as to be within section 94(1) of the Employment Rights Act 1996. They were ‘piggy-backed’ by their husbands into the same terms and conditions as employees of the British armed forces posted to serve abroad, within the ‘Botham’ exception. They were in a quite different position from the locally engaged ‘directly employed labour’ such as Mrs Bryant: Mrs Bryant’s connection was the fortuitous one of nationality in what would otherwise be a standard case of directly employed labour.
Held: The reasoning was accepted. Elias LJ said: ‘They were the spouses of persons who formed part of a British contingent working in an international enclave, and they obtained their employment only because of that relationship. In my judgment they have equally strong connections with Great Britain and British employment law as those employed in British enclaves abroad’.
Mummery LJ rejected the Ministry’s submission that this would be to ‘export’ British unfair dismissal law to a foreign country and contrary to the principles of sovereignty and equality of states in international law: ‘Considerations of international comity could not possibly affect the claimants’ husbands’ access to an employment tribunal for unfair dismissal from the armed forces and I do not see how they could affect claims by the claimants if there is a sufficiently strong connection of their employment to Great Britain and its unfair dismissal law’. He explained the correct approach of national courts to the interpretation of European Directives: ‘It is the function of the national courts to interpret the statutory provisions of domestic law, so far as it is possible to do so, to be compatible with the Directive . . If a compatible construction is not possible then effect must be given to the directly effective superior norms of the Directive. Domestic courts are required to disapply incompatible provisions of domestic law to the extent necessary to give effect to the directly enforceable rights derived from the Directive or other EU measure.’

Judges:

Mummery, Etherton, Elias LJJ

Citations:

[2011] EWCA Civ 231, [2011] 2 CMLR 42, [2011] ICR 617

Links:

Bailii

Statutes:

Employment Rights Act 1996 94(1) 230(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Ministry of Defence v Wallis and Another EAT 30-Jul-2010
EAT JURISDICTIONAL POINTS – Working outside the jurisdiction
The Claimants were wives of service personnel working at NATO headquarters in Belgium and in the Netherlands – Because of that status they were . .

Cited by:

Cited – Molaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .
Cited – Ravat v Halliburton Manufacturing and Services Ltd SC 8-Feb-2012
The respondent was employed by the appellant. He was resident in GB, and was based here, but much work was overseas. At the time of his dismissal he was working in Libya. The company denied that UK law applied. He alleged unfair dismissal.
See Also – Clyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.430368

The claimants appealed against the strike out of their claims for damages for breach of contract on imposing changes in employment contract and conditions. The County Court had accepted the Council’s arguments on the construction and application of s.2(3) and struck out the equal pay claims saying that the expiry of time for presenting the claims to the ET was an irrelevant factor.
Held: The court rejected the proposition that equal pay claims cannot be more conveniently disposed of in the ET because, due to the expiry of the limitation period, they could only be struck out in that forum.
Slade DBE J said: ‘In my judgment the inability of the appellants to commence proceedings before an employment tribunal could be a factor affecting the convenience of the tribunal as a forum for equal pay claims or one affecting the judge’s discretionary decision to strike out such claims in the county court. Whether that factor is taken into account in determining whether the equal pay claims can be more conveniently disposed of in the employment tribunal or if such a conclusion is reached on other grounds, in deciding whether to strike out the claims, in my judgment the reasons why the proceedings had not been issued in the employment tribunal in time would be relevant to the decision under . . s.2(3) . . Claimants cannot rely on letting the limitation period for claims to an employment tribunal go by in order to ensure that their equal pay claims are heard in the courts. It cannot be said that because such claims to an employment tribunal would be out of time a judge could not decide that it would be more convenient for them to be disposed of in the employment tribunal and to strike out the claims in the county court or High Court. In my judgment applying the approach of Lord Goff in Spiliada practical justice would require the reason for not commencing employment tribunal proceedings to be taken into account. If not presenting such proceedings was reasonable, the interests of justice are likely to be served by enabling claimants to continue litigating in a forum which has jurisdiction to hear their claims. Such considerations could affect the decision as to whether the claims could be more conveniently disposed of in the employment tribunal, or, if a judge so concluded, whether discretion should be exercised to strike out the claims in the county court.’

Judges:

Slade DBE J

Citations:

[2011] EWHC 424 (QB), [2011] IRLR 473, [2011] 4 All ER 182, [2011] Eq LR 339, [2012] ICR 1

Links:

Bailii

Statutes:

Equal Pay Act 1970 2(3)

Citing:

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 by:

Cited – 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: 03 September 2022; Ref: scu.430292

EAT EQUAL PAY ACT
SEX DISCRIMINATION – Jurisdiction
Whether allocation of share options, which differed between Claimant and her male comparator, gave rise to a claim under the Equal Pay Act 1970 or Sex Discrimination Act 1975 (see SDA s6(6)). On the facts found, the scheme being truly discretionary, the claim fell under the SDA. Since that claim was time-barred the employer’s appeal against the Employment Tribunal award under the Equal Pay Act succeeded.

Judges:

Peter Clarke QC J

Citations:

[2011] UKEAT 0475 – 09 – 0701

Links:

Bailii

Employment, Discrimination

Updated: 03 September 2022; Ref: scu.430297

Citations:

[2002] EWCA Civ 627

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 02 September 2022; Ref: scu.217056

EAT Disability Discrimination – Justification.

Judges:

His Hon Judge J Burke Qc

Citations:

[2003] EAT 0857 – 02 – 2909, [2003] UKEAT 0857 – 02 – 2909, EAT/857/02

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 September 2022; Ref: scu.191818

EAT Equal Pay Act – Like work

Judges:

His Hon Judge Prophet

Citations:

[2003] EAT 1107 – 02 – 1709, [2003] UKEAT 1107 – 02 – 1709, EAT/1107/02

Links:

Bailii, Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 September 2022; Ref: scu.191797

RACE DISCRIMINATION – Harassment, Third-Party Harassment

The issue in this appeal is whether s . 26 (1) of the Equality Act 2010 (‘the 2010 Act’) should be interpreted so as to impose liability on an employer for third-party harassment against employees. The Claimant worked as a mental health nurse and was assaulted by a patient on racial grounds. Whilst the Tribunal found that as a result of various failures on the part of the employer, including a failure to ensure that all incidents of racial abuse were reported, the Claimant had been indirectly discriminated against, it rejected the Claimant’s claim of harassment because the employer’s failings were not themselves related to race. On appeal, the Claimant argued that s.26(1) of the 2010 Act should be construed in accordance with Directive 2000/43/EC (‘the Race Directive’) under which it is sufficient for liability to arise where the act of harassment ‘takes place’ without any requirement that the employer’s failings themselves had to be related to race.
Held : Dismissing the appeal, that on a proper construction of the Race Directive there is a requirement for the unwanted act (in this case, the employer’s failings) to be related to race and the words ‘takes place’ in Article 2(3) of the Race Directive do not give rise to the interpretation for which the Claimant contends. The EAT is in any event bound by the decision of the Court of Appeal in Unite the Union v Nailard [2019] ICR 28, which confirms that there is currently no explicit liability under the 2010 Act on an employer for failing to prevent third-party harassment.

Citations:

[2019] UKEAT 0247 – 18 – 1810

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 September 2022; Ref: scu.642766

The employee appealed rejection of his claim that the requirement to sign over to his employers the copyright in his works was a discrimination against his sincere belief as to ownership of copyrights.
Held: The appeal failed.

Judges:

Bean, Simler , Arnold LJJ

Citations:

[2019] EWCA Civ 1720, [2019] WLR(D) 569

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 September 2022; Ref: scu.642667

EAT DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
An Employment Tribunal failed to focus on the wording of the Disability Discrimination Act 1995 in concluding there had been no reasonable adjustment when the employer failed further to extend the benefits of the sick pay scheme to her, when they were already well beyond that which the evidence showed was given to non-disabled employees when sick. The ET had approached it as if a claim for unfair dismissal, when the employer’s reasons would be relevant, whereas ‘reasonable adjustment’ is to be judged by the result, not the process by which it is reached. Comprehensive errors of approach, law and fact pervaded the ET’s approach.

Judges:

Langstaff J

Citations:

[2010] UKEAT 0542 – 09 – 1612, [2011] ICR 632

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Cited by:

Cited – General Dynamics Information Technology Ltd v Carranza EAT 10-Oct-2014
EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal, by a majority, found that the Respondent was in breach of a duty to make . .
Cited – Firstgroup Plc v Paulley CA 8-Dec-2014
The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 September 2022; Ref: scu.428725

EAT AGE DISCRIMINATION
Age Discrimination. Civil Service Pension Scheme. Claim that lack of actuarial adjustment in respect of retiral after age 60 amounted to age discrimination struck out by the Employment Tribunal as having no reasonable prospects of success. Appeal dismissed.

Citations:

[2010] UKEAT 0013 – 10 – 0511

Links:

Bailii

Employment, Discrimination

Updated: 01 September 2022; Ref: scu.428714

EAT RACE DISCRIMINATION – Other losses
UNFAIR DISMISSAL – Compensation
PRACTICE AND PROCEDURE – Costs
Other losses
The Claimant’s appeal against the assessment of future loss rejected.
Compensation
The Employment Tribunal had not explained why it rejected the claim for exemplary damages in a case in which the facts could (possibly) have merited it, and had appeared to think such an award was compensatory rather than punitive.
Costs
An argument that having found the case a suitable one for the award of aggravated damages, a costs order in the Claimant’s favour should follow, was rejected. The ET had a discretion whether to order costs or not and had not misdirected itself.

Citations:

[2010] UKEAT 0325 – 10 – 1412

Links:

Bailii

Employment, Discrimination

Updated: 01 September 2022; Ref: scu.428726

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 the Defendant that convenience must be judged in some abstract way by reference to whether a case with the characteristics of that being considered by the Court would be more conveniently dealt with by an Employment Tribunal. On the true construction of Section 2(3), it cannot be more convenient for a claim to be disposed of separately by an Employment Tribunal in circumstances where the Employment Tribunal could not determine the claim on its merits but would be bound to refuse jurisdiction to deal with the claim because it was time barred. In those circumstances, whether or not the claim made by these Claimants will or will not prove to be a complex one is not a relevant consideration.’

Judges:

Colin Edelman QC

Citations:

[2010] EWHC 3303 (QB), [2011] IRLR 309

Links:

Bailii

Statutes:

Equal Pay Act 1970 2(3), Employment Rights (Dispute Resolution) Act 1998 1(2)(a), Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994

Jurisdiction:

England and Wales

Citing:

Cited – Sorbie v Trust House Forte Hotels EAT 1976
Phillips J considered an alteration to the terms of an employment contract, saying: ‘One then goes on to see what the effect as prescribed is, and it is that that term, so identified, in the appellants’ contracts shall be treated, as so modified, as . .
Cited – Levez etc v T H Jennings (Harlow Pools) Ltd (No 2) EAT 1-Oct-1999
The restriction on the awards of compensation for sex discrimination to payments in respect of a period of two years prior to the claim was unlawful. Claims of other natures were not so limited, and this could not be supported, since it was in . .
Cited – EA Gutridge and Others v Sodexo and Another CA 14-Jul-2009
The employees appealed against dismissal of their equal pay claims. They said that having been transferred under a TUPE arrangement, and now having to claim against the new employer, they argued that the six months time limit started from the time . .
Cited – McAvoy and Others v Llewellyn and Others; Hartlepool Borough Council v Llewellyn and Others EAT 24-Jun-2009
EAT EQUAL PAY ACT – Material factor defence
Male colleagues of female equal pay claimants may bring ‘piggyback’ contingent claims using the female claimants as comparators and may recover sums equivalent to . .
Cited – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .

Cited by:

Appeal from – Birmingham City Council v Abdulla and Others CA 29-Nov-2011
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 . .
At first instance – 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: 01 September 2022; Ref: scu.428324

Renewed application for permission to appeal against a decision of the Employment Appeal Tribunal

Citations:

[2002] EWCA Civ 1463

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 September 2022; Ref: scu.217585

Leave to appeal application

Citations:

[2002] EWCA Civ 1455

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 September 2022; Ref: scu.217568

Citations:

[1999] UKEAT 397 – 98 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 September 2022; Ref: scu.205033

Disability Discrimination – Reasonable Adjustments
The Claimant suffers from ME/chronic fatigue syndrome (‘CFS’). This makes it more likely that she will have higher absences than other employees. In 2011, the Respondent made an adjustment to its sickness absence management policy (‘SAMP’) whereby the Claimant could have up to 5 absences in a 12-month period before triggering the policy instead of the standard 3 absences. That adjustment seemed to operate successfully for a period of almost 4 years. However, the adjustment was abruptly removed in 2015. Whilst the Respondent made other adjustments, such as a reduction in working hours, the Claimant was unable to meet the attendance requirements under the SAMP and was subjected to the various stages of the absence management process leading eventually to her dismissal. Her complaints of discrimination because of something arising in consequence of her disability and for failure to make reasonable adjustments (under ss.15 and 20 of the Equality Act 2010 (‘the 2010 Act’) respectively) were upheld by the Employment Tribunal (‘the Tribunal’) as was her claim of unfair dismissal, albeit that it was held that there was a 50% chance that she would have been dismissed within 4 months in any event. The Respondent appealed on the grounds that: (a) the decision on the s.20 claim was inadequately reasoned, (b) the Tribunal erred in its approach to justification; (c) the decision on unfair dismissal, which was based on the findings on justification, was similarly flawed; and (d) the decision on the Polkey reduction was inadequately reasoned. As to the Tribunal’s subsequent judgment on Remedy, the Respondent appealed on the ground that the Tribunal erred in its analysis of causation.
Held: Dismissing the Liability Appeal, that: (a) the Tribunal had not erred in its approach to the claim for reasonable adjustments and gave adequate reasons for its decision; (b) the Tribunal was entitled to deal with justification in the way that it did, particularly given that this was a case where an adjustment that had worked well for years was abruptly removed without cause; (c) as there had been no error in the justification decision, the challenge to the unfair dismissal claim fell away ; and (d) the Polkey decision was adequately reasoned.
The Remedy Appeal was also dismissed as there was no inconsistency between the finding that the Claimant would be able to return to some form of work within 12 months and the award of 2 years 9 months’ future loss of earnings.

Judges:

Choudhury J P

Citations:

[2019] UKEAT 0249 – 18 – 1810

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 September 2022; Ref: scu.643081

The Claimant is pursuing claims of disability discrimination in the Employment Tribunal, which are defended. It is common ground between the parties that for the purposes of an Equality Act 2010 claim the 2006 United Nations Convention on the Rights of Persons with Disabilities has indirect effect. At a Preliminary Hearing the Employment Tribunal correctly held that it does not have direct effect.

Citations:

[2019] UKEAT 0291 – 18 – 1608

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 September 2022; Ref: scu.642757

DISABILITY DISCRIMINATION – disability – disabled person – section 6 Schedule 1 Equality Act 2010
In finding that the Claimant, who suffered work related stress, was not a disabled person for the purposes of the Equality Act 2010 (‘the EqA’), the Employment Tribunal (‘ET’) accepted that he suffered an impairment that had a substantial adverse effect on his ability to carry out normal day to day activities but held this was not long-term. In reaching that conclusion, the ET noted the Claimant had suffered work related stress from January to June 2017, but that had not continued after his dismissal; the effect had not been long-term for the purposes of paragraph 2 Schedule 1 EqA. The Claimant appealed.
Held: allowing the appeal
The ET’s finding, that the effect of the Claimant’s impairment was not likely to last at least 12 months or to recur, was informed by the fact that the Claimant had been dismissed, which had removed the cause of the impairment – the work-related stress. The decision to dismiss was, however, one of the matters of which the Claimant complained as an act of disability discrimination. The ET had needed to consider the question of likelihood – whether it could well happen that the effect would last at least 12 months or recur – at the time at which the relevant decisions were being taken, which was prior to the implementation of the decision to dismiss. This error of approach meant the ET’s conclusion could not stand and the question whether the Claimant’s impairment was ‘long-term’ for the purposes of Schedule 1 of the EqA would be remitted to differently constituted ET for re-hearing.

Judges:

Eady QC HHJ

Citations:

[2019 UKEAT 0025 – 19 – 1907

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 31 August 2022; Ref: scu.642753

Sex discrimination – pregnancy and discrimination; Contract Workers; Jurisdiction
Contract of employment
Maternity Rights and Parental leave – sex discrimination
In this case the Employment Appeal Tribunal heard an appeal against the Employment Tribunal’s decision under s 83(2)(a) of the Equality Act 2010. The EAT allowed the appeal and concluded on the facts found proved the work provided by the Claimant was not under ‘a contract personally to do work’. The EAT considered that the ability of the Claimant to provide a substitute to do the work of receptionist in the business in question deprived the contract of its personal character. The EAT discussed the degree of latitude the Claimant enjoyed in the provision of a substitute and concluded that the main interest of the Respondents was the provision of a suitably qualified worker and that the identity of the worker was not a significant factor.

Citations:

[2019] UKEAT 0035 – 18 – 2307

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 31 August 2022; Ref: scu.642754

EAT EQUAL PAY ACT – Equal value
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Equal Pay. Statutory grievance procedure (standard procedure). Where comparators in ET1 were materially different from comparators specified in earlier grievances and Employment Tribunal had not carried out a qualitative exercise to assess correlation of complaints, it had erred in law in holding that the requirements of section 32 of the Employment Act 2002 had been satisfied: Cannop and others v Highland Council sub nom Highland Council v TGWU and others [2008] IRLR 634. Comparators having been specified in the Claimants’ grievances, the fact that grievances and subsequent complaints to the Employment Tribunal both involved equal pay claims was not sufficient.

Citations:

[2010] UKEAT 0027 – 10 – 0311

Links:

Bailii

Employment, Discrimination

Updated: 31 August 2022; Ref: scu.428053

EAT VICTIM DISCRIMINATION – Protected disclosure
CONTRACT OF EMPLOYMENT – Mitigation
An Employment Tribunal held that when the Claimant wrote a letter complaining amongst several other matters in a tirade of vehement comment that staff had been bullied and harassed she had not been making a protected disclosure: because the letter had been written to undermine her line manager, out of feelings of antagonism toward her, it was for an ulterior purpose. The two grounds of appeal against this were dismissed: the first was that the Tribunal should have considered what the relative strengths of the motivations were which caused the Claimant to write the letter. It was held unnecessary that a Tribunal should do more than determine whether a disclosure was made ‘in good faith’ as that phrase had been interpreted in Street v Derbyshire Unemployed Workers Centre. The second was that an allegation of bad faith should have been put specifically to the Claimant not only at the hearing but sufficiently in advance of it so that she was not surprised by it when giving evidence. This was held unnecessary for a fair hearing, where the substance of the allegation was put in circumstances where the Claimant had a proper opportunity to rebut or explain it.

Citations:

[2010] UKEAT 0065 – 10 – 0712

Links:

Bailii

Employment, Discrimination

Updated: 31 August 2022; Ref: scu.428058

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
This appeal was a challenge on the facts to an alleged failure to make reasonable adjustments. The Employment Tribunal carefully considered the alternative employment offered but decided that as the employer had not considered that the employee was disabled it had not considered what reasonable adjustments needed to be made to the alternative employment available.
Appeal dismissed.

Citations:

[2010] UKEAT 0292 – 10 – 0311

Links:

Bailii

Employment, Discrimination

Updated: 31 August 2022; Ref: scu.428052

EAT EQUAL PAY ACT – Part time pensions
The Claimant women were unlawfully excluded from an occupational pension scheme as part-timers, but they would never have joined it if it had been open to them. There is no basis for ordering a declaration that the Respondents breached the implied equality term during the period when the pension scheme was closed to them without there being a corresponding loss. Those who would not have opted to join the scheme are not entitled to the declaration of admission to the scheme. For those who succeeded, the declarations endure only for the closed period. The purely discretionary remedy of a declaration is not inconsistent with EU law.
Appeals dismissed.

Citations:

[2010] UKEAT 0116 – 10 – 2312

Links:

Bailii

Employment, Discrimination

Updated: 31 August 2022; Ref: scu.427755

EAT RACE DISCRIMINATION:
Inferring Discrimination and the Burden of Proof
Although the stated belief of the employer may amount to the reason for dismissal in terms of section 98 of the Employment Rights Act, a combination of the different statutory wording in terms of direct race discrimination (here section 1 of the Race Relations Act) and the application of the reverse burden of proof may lead in some cases, the instant case being possibly an example, to a finding that the reason for dismissal, e.g. misconduct was also less favourable treatment for the purposes of anti-discrimination legislation; Chamberlain v Emokpae [2005] ICR 931 distinguished.
Appellate jurisdiction/reasons/Burns-Barke
But the ET appeared to have relied only on the difference of nationality and the difference of treatment to reverse the burden of proof and did not deal at all with a subsequent case of dismissal of an Italian national in similar circumstances. Accordingly, it being too late for the Burns Barke procedure, case remitted for further consideration as to whether the factual material, apart from the difference of nationality and the fact that others had not been dismissed, led to a reversal of the burden of proof and where the later dismissal fitted into that analysis.

Citations:

[2010] UKEAT 0205 – 10 – 1410

Links:

Bailii

Employment, Discrimination

Updated: 31 August 2022; Ref: scu.427298

Citations:

[2010] EWCA Civ 1266

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 29 August 2022; Ref: scu.445043

EAT DISABILITY DISCRIMINATION – Disability
The Employment Judge erred in focusing on a joint report on disability through mental impairment which did not reflect the more liberal approach under the DDA 2005 and the subsequently decided J v DLA Piper. Remitted to a different Employment Judge for rehearing.

Citations:

[2010] UKEAT 0397 – 10 – 0511

Links:

Bailii

Employment, Discrimination

Updated: 28 August 2022; Ref: scu.426699

Appeal from dismissal of claims for direct race discrimination and victimisation

Judges:

Kerr J

Citations:

[2019] UKEAT 0006 – 19 – 3107

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 August 2022; Ref: scu.642748

EAT RACE DISCRIMINATION
Inferring discrimination
Burden of proof
UNFAIR DISMISSAL
Procedural fairness / automatically unfair dismissal
The Employment Tribunal misdirected themselves in applying Section 54A of the Race Relations Act 1976. They erred in holding that the burden of proof passed to the Respondents on the Claimant establishing a prima facie case that they could have rather than had discriminated against her on grounds of race (Madarassy v Nomura at para 55 citing Igen v Wong para 28). Further the Employment Tribunal erred in the basis upon which they inferred race discrimination. Finding of race discrimination set aside and claim remitted for rehearing before a differently constituted Employment Tribunal.
The Employment Tribunal erred in holding that the otherwise fair dismissal for redundancy was unfair because the Respondents were in breach of Section 188 Trade Union and Labour Relations (Consolidation) Act 1992 although the breach had caused the Claimant no loss and in respect of which she received a protective award. Finding of unfair dismissal set aside.

Judges:

Slade J

Citations:

[2010] UKEAT 0026 – 10 – 0110

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 188, Race Relations Act 1976 54A

Employment, Discrimination

Updated: 25 August 2022; Ref: scu.425024

EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
MATERNITY RIGHTS AND PARENTAL LEAVE – Pregnancy
UNFAIR DISMISSAL – Contributory fault
The Employment Tribunal which found in favour of the Claimant in part did not show apparent bias on five grounds, although it made errors of fact on two of them. Observations disapproving the Respondent’s showing the Judge an offer of settlement before judgment.
The Claimant’s case was that gossip about her pregnancy following her conduct after the solicitors’ Christmas party was spread by the HR manager, which the Respondent failed to control. It constituted sex discrimination and pregnancy related discrimination. The Employment Tribunal’s judgment to the contrary was set aside.
The judgment in her favour on constructive unfair dismissal was correct but the Employment Tribunal was wrong to reduce compensation by 90%. Post-dismissal conduct is not relevant to Employment Rights Act 1996 ss 122 and 123.
The appeal was allowed in part, the cross appeal dismissed. Remitted to the same Employment Tribunal to determine remedies for detriment by sex discrimination, and for unfair dismissal.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0108 – 10 – 0608

Links:

Bailii

Employment, Discrimination

Updated: 25 August 2022; Ref: scu.425014

EAT SEX DISCRIMINATION – COMPENSATION
H, a partner in a firm of solicitors, PWW, by whose predecessor C had previously been employed gave an unfavourable reference to another firm, S, with whom she was seeking employment – Job offer withdrawn in consequence – Both H and S held to have been influenced by previous protected act on the part of C and thus all three held to have discriminated against C by way of victimisation – Tribunal holds that S’s act in withdrawing the offer ‘broke the chain of causation’, so that H and PWW were not liable for any loss of earnings consequent on the loss of the job – andpound;7,500 awarded for injury to feelings by reference to Vento guidelines.
Held:
(1) Tribunal wrong to find loss of earnings too remote – Observations on whether loss should be apportioned as between H and PWW on the one hand and S on the other
(2) Award for injury to feelings unimpeachable, notwithstanding absence of explicit reference to incidence of inflation since Vento

Judges:

Underhill P J

Citations:

[2010] UKEAT 0189 – 10 – 2109, [2011] IRLR 18, [2010] IRLR 572

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Pothecary Witham Weld (A Firm) and Another v Bullimore and Another EAT 29-Mar-2010
EAT VICTIMISATION DISCRIMINATION
SEX DISCRIMINATION – Burden of Proof
Ex-employee given unfavourable reference – Claim that terms of reference were partly on account of her having previously brought . .

Cited by:

Cited – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 25 August 2022; Ref: scu.425019

EAT RACE DISCRIMINATION – Indirect
JURISDICTIONAL POINTS – Extension of time: just and equitable
Extension of time for presentation of a claim for indirect race discrimination where claim presented 19 months after the act complained of. Employment Judge erred in failing to take account of two important aspects of evidence from witnesses who he had found to be truthful. Since that evidence demonstrated that it could not be said that the Claimant was reasonably ignorant of the possibility of presenting a claim to an Employment Tribunal and, furthermore, that the Claimant had no relevant case of indirect discrimination, the Tribunal’s decision was set aside by the Employment Appeal Tribunal and claim dismissed.

Citations:

[2010] UKEAT 0010 – 10 – 1708

Links:

Bailii

Employment, Discrimination

Updated: 25 August 2022; Ref: scu.425016

EAT PRACTICE AND PROCEDURE – Application/claim
DISABILITY DISCRIMINATION – Reasonable adjustments
Appeal against Tribunal’s refusal to allow the Claimant to amend his case dismissed in circumstances where the amendment sought to introduce a claim under s.3A(2) of Disability Discrimination Act when a previous amendment, over nine months earlier had specifically restricted the Claimant’s claim to one advanced solely under s.3A(1). The Tribunal had considered all relevant factors and reached a decision which was manifestly open to it.

Judges:

Lady Smith

Citations:

[2010] UKEAT 0056 – 09 – 1405

Links:

Bailii

Employment, Discrimination

Updated: 25 August 2022; Ref: scu.424999

EAT SEX DISCRIMINATION – Indirect
Appeal against Employment Tribunal’s refusal to strike out claim of indirect sex discrimination by Claimant employed as a property manager where employers were said to have operated a rule that no property managers were allowed to work part time. Appeal refused. Employment Judge’s observations on appropriate pool should not, however, be followed.

Citations:

[2010] UKEAT 0054 – 09 – 2705

Links:

Bailii

Employment, Discrimination

Updated: 25 August 2022; Ref: scu.425001

EAT Practice and Procedure : Amendment – Employment Judge allowed claimant to amend claim form to introduce fresh equal pay claim. Held that Employment Judge had erred in law in failing to appreciate that time bar was an issue in the sense that had the claim been presented independently of the ongoing proceedings, it would have been time barred. No explanation for the lateness having been tendered and no grievance in respect of the new claim having been intimated, the amendment clearly ought to have been refused and decision to that effect substituted.

Judges:

Lady Smith

Citations:

[2010] UKEAT 0051 – 09 – 1203

Links:

Bailii

Employment, Discrimination

Updated: 25 August 2022; Ref: scu.424995

EAT UNFAIR DISMISSAL – S.98A(2) ERA
Claimant’s claims of race discrimination, age discrimination and unfair dismissal all dismissed following a full hearing before the Employment Tribunal. Lengthy notice of appeal failed to pass the sift apart from one ground to the effect that the Tribunal had erred in finding that the Respondents had complied with the requirements of the statutory dismissal procedures (which were in force at the time of the Claimant’s dismissal). On appeal to the EAT it was submitted for the Claimant that there required to be read into the statutory procedure a requirement that the employer notify the employee in advance of an appeal hearing if he has encountered new material to which he intends to refer at that hearing. That was in circumstances where a document of which the Respondents had not been aware at the time of the disciplinary hearing and dismissal was referred to at the appeal and in the letter refusing the appeal. Appeal dismissed by the EAT. No such provision could be read into the statutory procedure. Even if it could, it was plain on the facts of the case that it was only at the appeal hearing that the Respondents decided to refer to the document, being prompted into doing so by appeal and grievance letters that were produced by the Claimant at that stage.

Citations:

[2010] UKEAT 0044 – 09 – 2605

Links:

Bailii

Employment, Discrimination

Updated: 25 August 2022; Ref: scu.425000

EAT SEX DISCRIMINATION – Indirect
The Employment Tribunal failed to make sufficient findings of fact on: the issue of the Claimant suffering individual detriment as a result of the application of a discriminatory PCP; and on the issue of proportionality to justify their conclusion that there was actionable indirect discrimination.

Judges:

Wilkie J

Citations:

[2010] UKEAT 0161 – 10 – 2707

Links:

Bailii

Employment, Discrimination

Updated: 24 August 2022; Ref: scu.423814

EAT SEX DISCRIMINATION
Burden of proof
Pregnancy and discrimination
UNFAIR DISMISSAL – Automatically unfair reasons
Regulation 10(3)(a) and Regulation 10(3)(b) of the Maternity and Parental Leave Regulations 1999 must be read together in determining whether there is a suitable available vacancy under Regulation 10(2).

Judges:

Ansell J

Citations:

[2010] UKEAT 0544 – 09 – 2708, [2011] ICR 75

Links:

Bailii

Statutes:

Maternity and Parental Leave Regulations 1999 10(3)(a) 10(3)(b), Employment Rights Act 1996 99, Council Directive 92/85/EC of 19 October 1992 on the introduction of measures to encourage improvement in the safety and health at work of pregnant workers and workers who have recently given birth or breast feeding, Council Directive 89/391/EEC 16(1), Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation

Citing:

Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – Fletcher, Parkes, Wilkinson v NHS Pensions Agency/Student Grants Unit the Secretary of State for Health EAT 3-Jun-2005
EAT An appeal from the dismissal of their sex discrimination claim by trainee midwives in the NHS, from whom the facility of a bursary was withdrawn during authorised absence from their training for a specified . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 23 August 2022; Ref: scu.423246

EAT AGE DISCRIMINATION
REDUNDANCY – Protective award
The Tribunal did not err in law in concluding that in the age discrimination claim the burden of proof passed to the Appellant nor that the Respondent had failed to discharge it.
In making a protective award, the Tribunal did not err in law in not including a discretionary bonus scheme as part of a week’s pay where the date for paying or considering whether to pay such a bonus had not yet occurred.

Citations:

[2010] UKEAT 0141 – 10 – 2408

Links:

Bailii

Employment, Discrimination

Updated: 22 August 2022; Ref: scu.421589

EAT SEX DISCRIMINATION – Injury to feelings
Damages for injury to feelings for victimisation pitched at too high a level.
Recommendation that the employer send a letter of apology should not require a person to make a statement with which they disagree.

Citations:

[2010] UKEAT 0330 – 09 – 0608

Links:

Bailii

Employment, Discrimination

Updated: 22 August 2022; Ref: scu.421396

EAT JURISDICTIONAL POINTS – Working outside the jurisdiction
The Claimants were wives of service personnel working at NATO headquarters in Belgium and in the Netherlands – Because of that status they were eligible for, and they obtained, employment in schools attached to those headquarters – They were dismissed when their husbands’ service came to an end – They claimed for unfair dismissal and sex discrimination – Held by Tribunal that it had jurisdiction to entertain both claims notwithstanding that Claimants worked abroad.
Held, upholding the Tribunal:
(1) that there was a sufficient special link between the Claimants’ employments and Great Britain for them to come within the scope of the unfair dismissal legislation – Serco Ltd v Lawson [2006] ICR 250 applied;
(2) that it was necessary to qualify the territorial limitation imposed by s. 6 (1) of the Sex Discrimination Act 1975 in view of the fact that the Claimant had directly-effective rights under the Equal Treatment Directive – Bleuse v MTB Transport Ltd [2008] IRLR 264 and Duncombe v Department of Education and Skills [2010] IRLR 331 followed.

Judges:

Underhill P

Citations:

[2010] UKEAT 0546 – 08 – 3007

Links:

Bailii

Statutes:

Sex Discrimination Act 1975, Employment Rights Act 1996 94(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Ministry of Defence v Wallis and Grocott CA 8-Mar-2011
Mrs Wallis was employed by the Ministry of Defence at the international school attached to SHAPE in Belgium. Mrs Grocott was employed by the Ministry in the British section of the Armed Forces North International School in the Netherlands. Both . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 22 August 2022; Ref: scu.421392

Appeal against dismissal of claim based on claimant’s assertion of disability.

Judges:

Judge Hand QC

Citations:

[2009] UKEAT 0322 – 09 – 2310

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.421017

EAT VICTIMISATION DISCRIMINATION – Interim relief
Explanation of meaning of ‘likely’ given in Taplin v C Shippam Ltd [1978] IRLR 450 held not to have been invalidated by SCA Packaging Ltd v Boyle [2009] IRLR 746 and to represent the correct approach in applications under section 128 of Employment Rights Act 1996
Observations on nature of evidence required in interim relief applications
OTE: This decision, having been made at a preliminary hearing, was not at first put on the Tribunal’s website – But it has been thought right to do so now, since the Appellant has been refused permission to appeal to the Court of Appeal (in fact, refused twice because of an unusual procedural history), but the decisions in question are not on BAILII ([2010] EWCA Civ 305 and 785) and may be overlooked.

Citations:

[2009] UKEAT 0408 – 09 – 1011

Links:

Bailii

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.421018

EAT DISABILITY DISCRIMINATION
Reasonable adjustments
Compensation
Failure to make reasonable adjustments. Utility of making relevant adjustment properly considered by Employment Tribunal.
Compensation under DDA. Treatment of incidence of taxation; applying the Gourley principle. Application of personal tax rates in calculating grossed up award.

Judges:

Peter Clark J

Citations:

[2010] UKEAT 0397 – 09 – 1607

Links:

Bailii

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.421016

EAT DISABILITY DISCRIMINATION – Disability
Employment Tribunal decision pre-dated House of Lords decision in SCA Packaging Ltd v Boyle [2009] IRLR 746, disapproving Employment Appeal Tribunal approach in Latchman [2002] ICR 1453 as to meaning of word ‘likely’ in para. 2(2)(b) of Schedule 1 to Disability Discrimination Act 1995.
Appeal allowed on Latchman misdirection and failure to ask the four sequential questions under s1 DDA identified in Goodwin v Patent Office [1994] IRLR 4.
‘Bias’ ground of appeal rejected but in allowing appeal case remitted to a fresh ET for hearing on disability question.

Citations:

[2010] UKEAT 0322 – 09 – 1806

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.421014

EAT DISABILITY DISCRIMINATION
Disability
Employment Judge erred in finding that the Claimant was disabled in the face of the Claimant’s assertions that she was not disabled and in the absence of any medical evidence. He was therefore in error in allowing the claim for disability discrimination to be brought out of time. The EAT refused to permit the Claimant to withdraw her concession that she was not disabled: Jones v The Governing Body of Burdett Coutts School [1998] IRLR 521 applied.

Citations:

[2009] UKEAT 0293 – 09 – 1211

Links:

Bailii

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.421019

EAT RACE DISCRIMINATION
Comparison – Detriment
Finding of direct race discrimination. On analysis the act relied on disclosed no difference in treatment nor detriment suffered by Claimant.
Appeal allowed and finding set aside.

Citations:

[2010] UKEAT 0010 – 10 – 0906

Links:

Bailii

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.421011

EAT PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
RACE DISCRIMINATION
Direct
Indirect
Whether Employment Tribunal reasons Meek compliant. Direct race discrimination; ET accepted Respondent’s non-discriminatory explanation for treatment complained of. Indirect discrimination; Claimant failed to establish PCP contended for.

Judges:

Peter Clark J

Citations:

[2010] UKEAT 0095 – 10 – 0907

Links:

Bailii

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.420755

EAT AGE DISCRIMINATION
Contractual redundancy scheme incorporating a cap preventing employees recovering more than they would have earned if they had remained in employment until retirement age – Cap applied to Claimant, reducing the amount that he would otherwise have received by some andpound;14,000 – Tribunal holds that cap disproportionately applied to those approaching retiring age and was unjustifiable and accordingly that it constituted unlawful discrimination contrary to the Employment Equality (Age) Regulations 2006
Held, allowing appeal, that, since the purpose of the scheme was to compensate employees for the loss of the expectation of remaining in employment, to impose a cap preventing the ‘windfall’ of an employee recovering more than he could have recovered had he stayed in employment until retirement necessarily constituted a proportionate means of achieving a legitimate aim – Dicta in Loxley v BAE Systems Land Systems (Munitions and Ordnance) Ltd [2008] ICR 1348 applied – Alternative grounds of appeal based on alleged bias rejected.

Judges:

Underhill P J

Citations:

[2010] UKEAT 0024 – 10 – 0607

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 2006

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.420260

EAT SEX DISCRIMINATION – Direct
RACE DISCRIMINATION – Direct
1. Unincorporated association – practice and procedure. The Claimant was employed by the management committee of an unincorporated association. By the time of the hearing the only Respondents were (1) the unincorporated association in its own name and (2) two individual members of the management committee alleged to bear responsibility for racial and sexual harassment and discrimination. It was argued that (1) it was impermissible to name the unincorporated association as such, (2) all the members of the committee had to be joined as respondents and (3) the two individuals were not properly on notice that they were joined as members of the committee rather than individual perpetrators. Arguments rejected. It remained good practice to join an individual member of the committee as a representative – Affleck and others v Newcastle Mind and others (1999) IRLR 405 considered and applied. In any event it was permissible, in employment tribunal procedure, for an employee to make a claim against the employing management committee of an unincorporated association using the name of the unincorporated association. Observations on matters to be considered by a Tribunal when managing proceedings where an unincorporated association is a respondent.
2. Sexual and racial harassment and discrimination – burden of proof. The Tribunal wrongly applied the burden of proof provisions within the Sex Discrimination Act 1975 and the Race Discrimination Act 1976: Madarassy v Nomura [2007] ICR 867 applied.
3. Specific criticisms of individual findings were also upheld.

Judges:

Richardson HHJ

Citations:

[2010] UKEAT 0332 – 09 – 2906, [2010] ICR 1225

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 21 August 2022; Ref: scu.420258

The employer had altered existing employment contracts. The claimants having commenced discrimination claims then sought to add to the existing proceedings comparators from different job groups. The tribunal had been asked whether, given that this amounted to a new claim (applying Bainbridge), that new claim was out of time and if so whether its discretion should be used to allow it.
Held: The Trust’s appeal was dismissed. There had been a ‘stable employment relationship’ allowing the application of the Bainbridge and Slack principles. The nurses in the present case continued to do the same work for the Trust, without any break in either the work itself or the succession of contracts. Although the tribunal found that there was a ‘fundamental’ change, that judgment was based entirely on the differences in the terms of employment, most notably the introduction of the KSF requirement. There was no suggestion that the nature of their jobs as nurses changed materially, nor that there was any other practical break in the employment relationships.

Judges:

Carnwath, Smith, Rimer LJJ

Citations:

[2010] EWCA Civ 729, [2010] WLR (D) 169, [2010] IRLR 804

Links:

Bailii, WLRD

Statutes:

Equal Pay Act 1970 2 2ZA, The Equal Pay Act 1970 (Amendment) Regulations 2003

Jurisdiction:

England and Wales

Citing:

Cited – Preston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
Cited – Cumbria County Council v Dow and others EAT 24-May-2007
EAT Equal Pay – Material Factor Defence.
The Tribunal considered a whole series of GMF defences and rejected most of them. There were numerous appeals and cross appeals and the Council contended that the . .
Cited – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
Cited – Preston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
Cited – Dr Thatcher v Middlesex University, Secretary of State for Education EAT 10-Jun-2005
EAT Equal Pay Act – Part-time worker’s pension. – The Employment Tribunal Chairman erred in concluding the claim was submitted out of time when a stable employment relationship had been established. The analysis . .
Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Applied – Slack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 August 2022; Ref: scu.420021

Sex need not be the sole ground on which the less favourable treatment is based. Provided that it is a significant factor, albeit one of a number of factors, the others being gender-neutral, it will be open to an Industrial Tribunal to find that discrimination on the ground of sex had occurred.
Held: Stephenson LJ approved the dictum of Slynn J at the EAT now appealed from.

Judges:

Stephenson LJ

Citations:

[1982] ICR 618, [1982] IRLR 502

Jurisdiction:

England and Wales

Citing:

Appeal from – Owen and Briggs v James EAT 1981
Slynn J said: ‘if the Tribunal finds that a substantial reason for what has happened is that a candidate has not been considered for a post or has been refused an appointment because of his or her race then it seems to us that the Tribunal is . .

Cited by:

Cited – Murphy v Sheffield Hallam University EAT 11-Jan-2000
The claimant challenged refusal of his claim of discrimination. He was profoundly deaf. He applied for work, and indicated his disability, but no provision was made for a signer to appear at the interview. The interview was re-arranged, but he . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 August 2022; Ref: scu.198255

EAT DISABILITY DISCRIMINATION
Direct disability discrimination
Reasonable adjustments
The Employment Tribunal rejected the Appellant’s contention that the reason for his treatment by the Respondent of which he complained was a perception that he had a dangerous mental illness. Any argument that action taken on grounds of a perception of mental illness is for a reason relating to or on grounds of disability within the meaning of the Disability Discrimination Act 1975 is therefore academic in this appeal. In any event on the current state of the law, conduct of which complaint is made under DDA must be for a reason relating to or on grounds of actual not perceived disability. Coleman v Attridge Law [2008] ICR 1128, EBR Attridge LLP v Coleman [2010] ICR 242 and English v Thomas Sanderson Blinds Ltd [2009] IRLR 206 considered. An argument that bad behaviour was so much part and parcel of the Appellant’s disability that treatment because of such behaviour was unlawful discrimination was not in the ET and would have required relevant findings of fact.
In making the statutory comparison for determining whether there has been less favourable treatment the bad behaviour is not to be ‘stripped out’. London Borough of Lewisham v Malcolm [2008] IRLR 700 applied. The appeal from the dismissal of disability discrimination claims dismissed.
In assessing the reasonableness of the adjustment the Employment Tribunal was entitled to have regard to the need that a police officer should not appear to present a danger to colleagues or to the public.
The appeal from the dismissal of reasonable adjustments claims also dismissed.

Judges:

Slade DBE J

Citations:

[2010] UKEAT 0226 – 09 – 2106

Links:

Bailii

Statutes:

Disability Discrimination Act 1975

Employment, Discrimination

Updated: 19 August 2022; Ref: scu.417098

EAT TRADE UNION RIGHTS – Action short of dismissal
VICTIMISATION DISCRIMINATION – Other forms of victimisation
The Employment Tribunal did not err in failing to determine the Appellant’s claim under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 on a balance of probabilities.
The Appellant had also claimed victimisation under the Race Relations Act 1976 by being taken through the disciplinary process and being dismissed. The Employment Tribunal erred in failing to consider as a separate claim of victimisation under the Race Relations Act 1976 being taken through the Respondent’s disciplinary process. Being taken through such a process was capable of constituting a detriment.
The case was remitted to the same Employment Tribunal for determination of the claim of victimisation under the Race Relations Act 1976.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0338 – 09 – 1604

Links:

Bailii

Statutes:

Trade Union and Labour Relations (Consolidation) Act 1992 8146, Race Relations Act 1976

Cited by:

Appeal from – Gayle v Sandwell and West Birmingham Hospitals NHS Trust CA 28-Jul-2011
The claimant said that in deciding her case, the Employment tribunal had wrongly taken account of a final warning on her record when that warning had been given on prohibited grounds. The EAT said that a tribunal could only go behind such a record . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 19 August 2022; Ref: scu.417095

EAT DISABILITY DISCRIMINATION – Exclusions/jurisdictions
Was the Claimant ‘ordinarily resident in Great Britain’ for the purposes of section 68(2A)(c) Disability Discrimination Act and regulation 10(2)(c) Employment Equality (Age) Regulations 2006, so as to found jurisdiction to determine his complaints of disability and age discrimination?
Employment Tribunal’s decision that he was not was upheld on the evidence. Notwithstanding a mis-direction as to the test to be applied, the decision was plainly and unarguably right on the evidence and facts found.

Citations:

[2010] UKEAT 0101 – 10 – 1706

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 2006 10(2)

Employment, Discrimination

Updated: 19 August 2022; Ref: scu.416807

EAT RACE DISCRIMINATION
Inferring discrimination
Burden of proof
Findings of race discrimination by the Employment Tribunal were set aside by the Employment Appeal Tribunal because (a) the acts which were said to be acts of race discrimination were not the ones of which complaint had been made, (b) the Tribunal did not identify the facts from which race discrimination could be inferred, (c) the Tribunal did not explain why race discrimination could be inferred from the facts which it found proved and (d) for other reasons.

Citations:

[2010] UKEAT 0068 – 09 – 1305

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 18 August 2022; Ref: scu.415915

Citations:

[2002] EWCA Civ 1716

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 18 August 2022; Ref: scu.441311

The council appealed against a refusal to strike out the claimant’s claim of race discrimination.

Judges:

Thorpe, Smith LJJ, Baron J

Citations:

[2010] EWCA Civ 410, [2010] IRLR 625

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 August 2022; Ref: scu.414585

Withdrawal of appeal – mediation

Judges:

Underhill J P

Citations:

[2010] UKEAT 0175 – 10 – 1404

Links:

Bailii

Employment, Discrimination

Updated: 17 August 2022; Ref: scu.410577

EAT DISABILITY DISCRIMINATION
Reasonable adjustments
This appeal concerns the extent of a Chief Constable’s duty of reasonable adjustments under the Disability Discrimination Act towards a serving police officer with chronic anxiety syndrome. The Employment Tribunal found that in the particular circumstances of the case it would have been reasonable (1) to swap the jobs being undertaken by the Claimant and another police constable in the circumstances; or alternatively (2) to medically retire the Claimant on a police pension and immediately re-employ him in a civilian support staff role in the Force. The Chief Constable appealed on several grounds, the main challenge being that the Tribunal was precluded as a matter of law from deciding that either of these could be reasonable adjustments under the Act. Appeal dismissed on this and other points, but appeal allowed on the basis of an inadequately reasoned decision on the medical retirement issue.

Judges:

Cox J

Citations:

[2010] UKEAT 0491 – 09 – 2904

Links:

Bailii

Citing:

Cited – Project Management Institute v Latif EAT 10-May-2007
EAT The Appellant is a qualifying body, subject to section 14 of the Disability Discrimination Act. The Tribunal found that it had failed to make a reasonable adjustment in the arrangements it made for sitting an . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 17 August 2022; Ref: scu.410573

The claimant alleged indirect age discrimination, in not having received a promotion to a post of legal adviser to the defendant. He did not have a law degree and did not want to undertake the study required which would have him acquiring the degree only after retirement. The EAT had allowed the employer’s appeal finding no ‘particular disadvantage’ affecting people within the claimant’s age group comparators.
Held: The employee’s appeal failed. What put Mr Homer at a disadvantage was not his age but his impending retirement. Had it not been for that, he would have been able to obtain a degree and reach the third threshold. He had not established a particular group or individual disadvantage related to age. The essential question was ‘did the introduction and application of the law degree provision put the appellant and others in his age group at a particular disadvantage?’ The ET had been wrong to find a particular disadvantage.
Maurice Kay LJ said: ‘the claimed disadvantage in relation to status is not sustainable because, on close analysis, it is no different from the perceived disadvantage in relation to remuneration. Whatever his age had been on the introduction of the provision, criteria or practice, the appellant would have failed to achieve the status of the third threshold unless and until he obtained the requisite degree. The fact that, as a man in his sixties, he would not have time to enjoy the status between graduation and retirement is no different from the fact that he would have no opportunity to enjoy the increased remuneration.’
Mummery LJ said: ‘what is prohibited is not perceived unfairness as such but proven unjustified age discrimination. That is defined as either direct and overt by reference to treatment on the ground of age or indirect and covert in the form of a particular disadvantage resulting from the application of an apparently neutral provision impacting disparately on age.’

Judges:

Mummery LJ, Maurice Kay LJ, Richards LJ

Citations:

[2010] EWCA Civ 419, [2010] ICR 987, [2010] IRLR 619

Links:

Bailii

Statutes:

Equal Treatment Framework Directive (2000/78/EC), Employment Equality (Age) Regulations 2006 83

Jurisdiction:

England and Wales

Citing:

Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Appeal from – West Yorkshire Police and others v Homer EAT 27-Oct-2008
EAT AGE DISCRIMINATION
The Tribunal found that the claimant had been discriminated on grounds of age. The employers introduced a requirement that to be graded at the top grade, and to receive the higher . .

Cited by:

Appeal from – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 17 August 2022; Ref: scu.408607

EAT DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
Reasonable adjustments
The Employment Tribunal correctly dismissed claims that the Respondent had failed to make two reasonable adjustments. But it failed to deal with the Claimant’s comparators in respect of discretionary payment systems and this aspect of direct or disability-related discrimination was remitted to the same Employment Tribunal.

Judges:

McMullen QC J

Citations:

[2010] UKEAT 0382 – 09 – 1903

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 August 2022; Ref: scu.408516