Where a tribunal had found unfair dismissal and was considering an award of damages for injury to feelings under the Disability Discrimination Act, it had to recognise the different needs of unlimited awards, and take great care in assessing factual materials.
Morison J said: ‘What one might describe as the relatively brief and informal hearing on remedy appropriate in unfair dismissal cases may not be appropriate where the compensation is uncapped. In the former category of case, the judgment and experience of the lay members may be especially important in relation to the state of the job market in their locality and the potentiality for the applicant obtaining new employment, and thus, the tribunal may not be assisted by much, if any, evidence. But where the case involves unlimited compensation, it will often be the case that the remedies hearing should involve the parties in careful preparation under the management of the tribunal. For this purpose, directions may be required involving, amongst other things, an exchange of statements of case and any witness statements.’

Judges:

Morison J

Citations:

Times 03-Dec-1998, Gazette 06-May-1999, [1999] IRLR 158, [1998] UKEAT 337 – 98 – 1911, [1999] ICR 269

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Citing:

See Also – Buxton v Equinox Design Ltd EAT 30-Apr-1998
. .

Cited by:

Cited – Woodlands School (Newton Stewart) Ltd v Gordon EAT 5-Oct-2001
The employer appealed against a finding of disability discrimination. The tribunal was claimed not to have taken account of the codes of practice and the need for a risk assessment.
Held: The absence of a risk assessment mean that no . .
See Also – Buxton v Equinox Design Ltd EAT 30-Apr-1998
. .
Cited – Sterlite Industries (India) Ltd v Bhatia EAT 27-Mar-2003
The respondent had been found to be unfairly dismissed. The appellants wished to appeal and sought disclosure of certain documents from the respondent’s solicitors. They now appealed against that refusal.
Held: The appeal succeeded. The . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 16 August 2022; Ref: scu.206868

1. Social policy – Male and female workers – Equal pay – Pay – Concept – Right to join a private occupational pension scheme – Included – Exclusion of married women from membership – Not permissible – Exclusion of part-time workers – Part-time staff composed principally of women – Not permissible where there is no objective justification
(EEC Treaty, Art. 119)
2. Social policy – Male and female workers – Equal pay – Article 119 of the Treaty – Applicability to the right to join a private occupational pension scheme – Finding in the judgment of 13 May 1986 in Case 170/84 Bilka – Limitation of the effects in time – None – Possibility of retroactively claiming equal treatment from the time (8 April 1976) when the Court first recognized that Article 119 has direct effect
(EEC Treaty, Art. 119)
3. Social policy – Male and female workers – Equal pay – Protocol on Article 119 annexed to the Treaty on European Union – Scope – Right to join an occupational social security scheme – Excluded
(EC Treaty, Protocol on Article 119)
The pension scheme did not admit married women until 1990. Among the questions referred to the CJEU was whether the Barber limitation applied to Mrs Vroege’s claim for equal access to the scheme.
Held: It was ‘important to remember the context in which it was decided to limit the effects in time of the Barber judgment’, and the court reaffirmed the two ‘essential criteria’ for such a limitation, viz, ‘the general principle of legal certainty . . and the serious difficulties which its judgment may create as regards the past for legal relations established in good faith’, both of which had been met in Barber. On that basis, it stated that the Barber limitation ‘concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions’ .

Citations:

C-C-57/93, [1994] EUECJ C-C-57/93, [1995] 1 CMLR 881, [1994] ECR I-4541, [1994] IRLR 651, [1995] All ER (EC) 193, [1995] ICR 635

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 16 August 2022; Ref: scu.215808

The Tribunal lifted the stay of the claimant’s claim of disability discrimination.

Judges:

Morison J P

Citations:

[1998] UKEAT 1004 – 98 – 1911

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Cited by:

See Also – Kapadia v London Borough of Lambeth EAT 27-May-1999
The claimant appealed against rejection of his claim for disability discrimination which had been on the ground that his condition did not amount to a disability within section 1(1). He suffered from anxiety, stress, tension and depression.
Cited – Kapadia v Lambeth London Borough Council CA 4-Jul-2000
The claimant asserted disability discrimination, and consented to a medical report for the purpose of the claim. He was then to be obliged to consent to its release to the other party. To order otherwise would be contrary to the need for expeditious . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 16 August 2022; Ref: scu.206905

The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex discrimination lies initially on the employee. The burden of proof in indirect discrimination cases should be approached in the same way irrespective of whether they are brought under article 119 (141), under the 1975 Act, or under the 1970 Act. ‘It is for the claimant to provide the necessary statistics, to show on the balance of probabilities a disproportionate adverse impact and thereby establish a prima facie case that she had suffered indirect discrimination, and that she had failed to do so.’

Judges:

Lord Justice Simon Brown, (Vice-President Of The Court Of Appeal Civil Division), Lord Justice Dyson and Lord Justice Scott Baker

Citations:

Times 02-May-2003, Gazette 03-Jul-2003, [2003] EWCA Civ 544, [2002] ICR 1256

Links:

Bailii

Statutes:

Equal Pay Act 1970 1, Council Directive 75/117EC (the Equal Pay Directive).

Jurisdiction:

England and Wales

Citing:

Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Cited – Strathclyde Regional Council and others v Wallace and others (Scotland) HL 22-Jan-1998
80% of the men who had been employed since 1 April 1997 had got protection under TUPE whereas only 66.66% of the women had. It was argued that this difference in percentages was sufficient to justify a claim of indirect discrimination.
Held: . .
Cited – Glasgow City Council and Others v Marshall and Others HL 8-Feb-2000
Although instructors in special schools, carried out work of a broadly similar nature to qualified teachers, and the majority were women, they were not entitled to an equality of pay clause, since there was no evidence of sex discrimination, and the . .
Cited – Specialarbejderforbundet i Danmark v Dansk Industri ECJ 31-May-1995
Equal pay provisions apply to piece rate work- Employer to justify differences. where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the . .
Cited – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Cited – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
Appeal from – M Nelson v Carillion Services Ltd EAT 26-Jun-2002
EAT Equal Pay Act – . .

Cited by:

Appealed to – M Nelson v Carillion Services Ltd EAT 26-Jun-2002
EAT Equal Pay Act – . .
Cited – Home Office v Bailey and others CA 22-Mar-2005
Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 16 August 2022; Ref: scu.180744

Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the employment relationship, which facilitates his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment. Such benefits paid in connection with a compulsory redundancy consequently fall within the scope of the second paragraph of Article 119 of the Treaty, whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis. Unlike the benefits awarded by national statutory social security schemes, retirement pensions paid under private occupational schemes, which are characterized by the fact of being established either by an agreement between workers and employers or by a unilateral decision taken by the employer – whether financed by the employer alone or by both the employer and the workers – which may by law with the employee’ s agreement operate in part as a substitute for the statutory scheme and which apply only to workers employed by certain undertakings, constitute consideration paid by the employer to the worker in respect of his employment and consequently fall within the scope of Article 119 of the Treaty. The fact that a private occupational scheme has been set up in the form of a trust and is administered by trustees who are technically independent of the employer does not affect that interpretation of Article 119 since that provision also applies to consideration received indirectly from the employer.
3. Article 119 of the Treaty prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality. Accordingly, it is contrary to that provision to impose an age condition which differs according to sex for the purposes of entitlement to a pension under a private occupational scheme which operates in part as a substitute for the statutory scheme, even if the difference between the pensionable age for men and that for women is based on the one provided for by the national statutory scheme.
4. With regard to equal pay for men and women, genuine transparency, permitting an effective review by the national court, is assured only if the principle of equal pay must be observed in respect of each of the elements of remuneration granted to men and women, and not on a comprehensive basis in respect of all the consideration granted to men and women.
5. Article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that provision, without national or Community measures being required to define them with greater precision. The national court before which that provision is relied upon must safeguard the rights which it confers on individuals, in particular where a private occupational pension scheme which operates in part as a substitute for the statutory scheme refuses to pay to a man on redundancy an immediate pension such as would be granted in a similar case to a woman.
6. Since the Member States and the circles concerned may, in the light of Directives 79/7 and 86/378, have misunderstood the precise extent of their obligations with regard to the implementation of the principle of equality between men and women for the purposes of the grant of certain retirement benefits, overriding considerations of legal certainty preclude the direct effect of Article 119 of the Treaty from being relied upon in order to claim, under a private occupational pension scheme which operates as a substitute for the statutory scheme, entitlement to a pension with effect from a date prior to that of the judgment upholding, in proceedings for a preliminary ruling, the applicability of that article to pensions of that type, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.
he court recorded the submissions of the Commission and the UK government:
‘the Commission has referred to the possibility for the court of restricting the effect of this judgment ratione temporis in the event of the concept of pay, for the purposes of the second paragraph of article 119 of the Treaty, being interpreted in such a way as to cover pensions paid by contracted-out private occupational schemes, so as to make it possible to rely on this judgment only in proceedings already pending before the national courts and in disputes concerning events occurring after the date of the judgment. For its part the United Kingdom emphasised at the hearing the serious financial consequences of such an interpretation of article 119. The number of workers affiliated to contracted-out schemes is very large in the United Kingdom and the schemes in question frequently derogate from the principle of equality between men and women, in particular by providing for different pensionable ages.’ Taking the course that the Commission and the UK government had invited it to follow was only possible as an exceptional measure. It said that ‘it may, by way of exception, taking account of the serious difficulties which its judgment may create as regards events in the past, be moved to restrict the possibility for all persons concerned of relying on the interpretation which the court, in proceedings on a reference to it for a preliminary ruling, gives to a provision.’

Citations:

(1990) ICR 616, C-262/88, [1990] ECR I-1889, [1991] 1 QB 344, R-262/88, [1990] EUECJ R-262/88

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – William James Quirk v Burton Hospital NHS Trust the National Health Service Pensions Agency CA 12-Feb-2002
The applicant appealed a refusal to rule that the system of allowing females better retirement options than would be granted to him as a Health Service employee were sexually discriminatory. The difference arose because of differentials applied . .
Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Cited – In the Matter of the Universities Superannuation Scheme – Universities Superannuation Scheme Ltd v Simpson, Mcadoo, University of London ChD 29-Apr-2004
Members of the superannuation scheme complained that trustees were calculating the benefits payable on early retirement by reference to the standard terms of employment, and even though they had particular and different terms.
Held: The . .
Cited – Barry v Midland Bank Plc HL 22-Jul-1999
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and . .
Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
Cited – Coloroll Pension Trustees v Russell and others (Judgment) ECJ 28-Sep-1994
The trustees of a pension fund have the same equal treatment obligations as do employers. The effect of the judgment in Barber was that: ‘i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male . .
Cited – Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 16 August 2022; Ref: scu.134949

The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and therefore against women.
Held: A severance pay scheme, which calculated the amount payable according to length of service and terminal salary, was not sexually discriminatory, or indirectly so, even though more women than men worked part-time at the end of their employment and so received lesser amounts. A scheme which was fair to employees as a whole might still be unfair to individuals.
Lord Nicholls described the operation of the principle of proportionality: ‘In other words, the ground relied upon as justification must be of sufficient importance for a national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification. There seems to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied upon.’

Judges:

Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Steyn Lord Hoffmann Lord Clyde

Citations:

Times 23-Jul-1999, Gazette 11-Aug-1999, [1999] UKHL 38, [1999] ICR 859, [1999] 1 WLR 1465, [1999] 3 All ER 974

Links:

House of Lords, Bailii

Statutes:

Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

Appeal from – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
Cited – Stadt Lengerich and others v Helmig and others (Judgment) ECJ 15-Dec-1994
ECJ The Court of Justice is in principle bound to give a preliminary ruling if the questions raised by the national court or tribunal, which is best placed to appreciate, in the light of the circumstances of the . .
Cited – Maria Kowalska v Freie und Hansestadt Hamburg ECJ 27-Jun-1990
Europa Compensation paid to a worker on termination of the employment relationship is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of . .
Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – Kuratorium fur Dialyse und Nierentransplantation v Lewark ECJ 6-Feb-1996
Europa The concept of pay within the meaning of Article 119 of the Treaty comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit . .
Cited – Francovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .

Cited by:

Appealed to – Barry v Midland Bank Plc CA 18-Dec-1997
No sex discrimination was involved in company’s retirement benefits scheme even though it was affected by differences for part time workers, and even though more women worked part time . .
Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
Cited – Home Office v Bailey and others CA 22-Mar-2005
Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 16 August 2022; Ref: scu.78267

Appeal from rejection of claim for sex discrimination – gender reassignment

Judges:

Hooper LJ

Citations:

[2006] EWCA Civ 132, [2006] IRLR 471

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 2A

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 August 2022; Ref: scu.239106

Judges:

Stephens LJ and Sir Paul Girvan

Citations:

[2018] NICA 41

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment, Discrimination

Updated: 15 August 2022; Ref: scu.641380

EAT RACE DISCRIMINATION: Direct
The black Claimant was employed as a maths teacher subject to a policy for dealing with classroom disruption and racism which counselled against public confrontation with pupils. He did not follow the policy and was given a final warning. He did not change and was dismissed. The Employment Tribunal did not err when it defined the issue as relating to ‘his race’ rather than ‘on grounds of race’. The former is narrower than the latter but both are correct according to how the issue was defined. On the facts the Employment Tribunal was entitled to dismiss the claims.

Citations:

[2009] UKEAT 0660 – 09 – 0212

Links:

Bailii

Employment, Discrimination

Updated: 14 August 2022; Ref: scu.401696

EAT SEX DISCRIMINATION:
CONTINUING ACT
An Employment Judge at a CMD has no power to limit a claim of sex discrimination, said to be of a continuing act extending back for the 6 years of the Claimant’s employment, to the last 2 years.

Citations:

[2009] UKEAT 0280 – 09 – 1812

Links:

Bailii

Employment, Discrimination

Updated: 14 August 2022; Ref: scu.401697

EAT DISABILITY DISCRIMINATION: Reasonable adjustments
The Employment Tribunal erred in law in failing to properly apply s. 18B of the Disability Discrimination Act 1995 to the evidence and to make the necessary findings of fact about reasonable adjustments: Smiths Detection – Watford Ltd v Berriman (UKEAT/0712/04/CK) and Romec Ltd v Rudham (UKEAT/0069/DA) applies.

Judges:

Birtles J

Citations:

[2010] UKEAT 0289 – 09 – 1902

Links:

Bailii

Employment, Discrimination

Updated: 14 August 2022; Ref: scu.401672

EAT DISABILITY DISCRIMINATION: Disability related discrimination
PRACTICE AND PROCEDURE: Striking-out/dismissal
Disposal of appeal including remission
On a previous appeal the EAT remitted the issue of justification of disability related discrimination for reconsideration by the ET. After the EAT judgment but before the remitted hearing the HL gave judgment in Malcolm v London Borough of Lewisham [2008] IRLR 700. At the remitted hearing the Appellant Chief Constable contended that the ET should consider first whether the Chief Constable had treated the claimant less favourably than others for a reason relating to his disability before, if necessary, considering the issue of justification. The EAT held that the ET did not err in holding that it had no power to consider the issue of less favourable treatment as it was bound by the terms of the order on remission to consider only the issue of justification. Aparau v Iceland Frozen Foods PLC (No 2) [2000] IRLR 196 applied. If this were a case of issue estoppel the relevant facts did not fall within the exception referred to in Arnold v National Westminster Bank PLC [1991] 2 AC 93 relied on by the Chief Constable. Further, the ET did not err in refusing to consider the issue of less favourable treatment at the remitted hearing if and insofar as it relied on the possibility that it may have wished to hear additional evidence if it were to consider that new issue.
Understandably on the then state of authority, until the judgment in Malcolm, the Chief Constable had not asserted that the claimant’s treatment was not less favourable than others. This was not an issue in the ET3, no such issue was identified at a CMC or raised at the liability hearing. No application was made to amend the original Notice of Appeal or the terms of the Order on remission from the EAT. Employment Tribunals are creatures of statute. The ET did not err in refusing to decide an issue which it was not empowered to consider (see Aparau para 24).

Citations:

[2009] UKEAT 0295 – 09 – 1711

Links:

Bailii

Employment, Discrimination

Updated: 14 August 2022; Ref: scu.401691

EAT EQUAL PAY – Material factor defence and justification
EQUAL PAY – Indirect discrimination
Appeal from decision of Employment Tribunal on issues remitted by the Court of Appeal in Armstrong v Newcastle upon Tyne NHS Hospitals Trust [2006] IRLR 124.
Held: The Tribunal was entitled to find:
(a) that the factor relied on by the Respondent was ‘tainted by sex’ because it originated in the Respondent’s intention (on a CCT exercise) to match market rates which it appreciated were depressed by factors peculiar to women (Ratcliffe v North Yorkshire County Council [1995] ICR 833 applied);
(b) that the continuation of the resulting differential in the period to which the complaint related had not been shown to be objectively justified by the costs or industrial relations implications of removing it or by the Respondent’s attempts to phase it out.
Discussion of ratio of Ratcliffe and of whether the Court of Appeal adopted the correct analysis of the necessary steps in considering a ‘GMF’ defence where the factor relied on is alleged to be indirectly discriminatory.

Citations:

[2010] UKEAT 0069 – 09 – 2202

Links:

Bailii

Citing:

See Also – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
See Also – Armstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 14 August 2022; Ref: scu.401671

EAT PRACTICE AND PROCEDURE: Perversity
SEX DISCRIMINATION: Injury to feelings
The Respondent’s perversity challenge to Employment Tribunal liability finding of sex discrimination and unfair dismissal failed.
The Claimant’s appeal against the remedy judgment allowed in relation to ‘cut-off date’ for lost earnings. The Employment Tribunal failed to consider, on the face of their reasons, a material factor, namely whether the new employment secured by the Claimant was coming to an end in any event due to economic circumstances. That point remitted to same Employment Tribunal for further consideration.

Citations:

[2010] UKEAT 0309 – 09 – 2601

Links:

Bailii

Employment, Discrimination

Updated: 14 August 2022; Ref: scu.401653

EAT RACE DISCRIMINATION: Inferring discrimination; Burden of proof.
The Respondent complained of race discrimination by her employers on many grounds. All but one was dismissed. On the single ground the Tribunal held that there was conduct from which it could conclude that Respondent would have been treated differently if she was white and the Appellants had not discharged the onus of proof. On appeal, held there was no basis on which the ET could have held that the onus had passed to the Appellants. Appeal allowed.

Citations:

[2010] UKEAT 0373 – 09 – 2202

Links:

Bailii

Employment, Discrimination

Updated: 14 August 2022; Ref: scu.401670

The employees appealed against dismissal of their claims of sex discrimination, saying that the employer’s explanation of the pay differential was not adequate.
Held: The appeal succeeded. The tribunal had failed to distinguish between what was given namely an account and explanation of the differences, and a non-discriminatory reason for the differences whuch had not been given. It was for the employer to provide objective justification for the differences. The case of Armstrong was to be limited to particular circumstances.

Judges:

Lord Justice Pill, Lady Justice Smith and Lord Justice Maurice Kay

Citations:

[2010] EWCA Civ 63, [2010] ICR 708, [2010] IRLR 311

Links:

Bailii, Times

Statutes:

Equal Pay Act 1970 1

Jurisdiction:

England and Wales

Citing:

See Also – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.396711

EAT JURISDICTIONAL POINTS
Working outside the Jurisdiction
Hong Kong based cabin crew employed on Hong Kong to London flights. Whether working partly at an establishment in Great Britain for purposes of s.8(1) Race Relations Act 1976; reg 10(1) Age Regulations 2006. Employment Tribunal finding that they were upheld.

Citations:

[2010] UKEAT 0055 – 09 – 2001

Links:

Bailii

Statutes:

Race Relations Act 1976 8(1)

Cited by:

Appeal from – British Airways Plc v Mak and Others CA 24-Feb-2011
The court was asked whether the Employment Tribunal had jurisdiction to hear claims of age discrimination brought by the appellant’s employees, based in Hong Kong, but working as crew on flights between there and London.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.393329

EAT DISABILITY DISCRIMINATION
Disability
In determining whether the effects of an impairment are long term for the purposes of Schedule 1 paragraph 2 (1)(a) and (b) of the Disability Discrimination Act 1975 the duration of effects of a condition which is likely to develop or has developed from a different condition may be aggregated with the duration of the effects of the original condition.

Citations:

[2010] UKEAT 0225 – 09 – 1501

Links:

Bailii

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.392918

EAT DISABILITY DISCRIMINATION
Disability related discrimination
Reasonable adjustments
JURISDICTIONAL POINTS: 2002 Act and pre-action requirements
Appeal by Respondents against ET’s findings on disability related discrimination, reasonable adjustments and unfair dismissal. No error of law found in ET’s reasoning or decisions on these claims. Given their findings of fact, they were held to be entitled to find in the Claimant’s favour and their judgment was held to be sufficiently reasoned. Appeal dismissed.
The Cross-appeal by Claimant against ET’s conclusions on statutory grievance procedures was successful, the ET having erred in their approach to the relevance of the Claimant’s failures in the circumstances. Cross-appeal allowed.

Citations:

[2010] UKEAT 0123 – 09 – 1801

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.392916

EAT DISABILITY DISCRIMINATION: Disability
PRACTICE AND PROCEDURE: Case management
In a case involving the question of whether the Claimant was disabled the Employment Judge did not have regard to SCA Packaging Ltd v Boyle [2009] IRLR 746. As all the facts had been heard in evidence the EAT applied Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 and upheld the judgment of the Employment Judge that the Claimant was not disabled. Ancillary grounds of appeal relating to the hearing were also dismissed.

Citations:

[2010] UKEAT 0390 – 09 – 1401

Links:

Bailii

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.392852

EAT UNFAIR DISMISSAL: Constructive dismissal
RACE DISCRIMINATION: Direct
The Claimant’s appeals against the Employment Tribunal’s conclusions on the issues of constructive dismissal and four specific allegations of discrimination on the grounds of race failed on the facts. The Employment Tribunal had adequately set out the facts it found and explained the reasons for its findings.

Judges:

Serota QC J

Citations:

[2010] UKEAT 0086 – 09 – 0701

Links:

Bailii

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.392834

EAT PRACTICE AND PROCEDURE: Perversity
RACE DISCRIMINATION: Direct / Indirect
The appeal of an unsuccessful Claimant on perversity grounds against the dismissal of his claims for discrimination on the grounds of race and victimisation failed on the facts.
The First Respondent, an Education Authority was entitled to decline to give a substantive answer to a letter seeking advice and assistance, after the commencement of proceedings, where the reason for the First Respondent’s conduct was not that proceedings had been commenced but that the proceedings remained on foot and the First Respondent reasonably considered it might be prejudiced in the proceedings by giving a substantive reply and offering further assistance; Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 applied.
The cases of Yeboah v Crofton [2002] IRLR 634 and Meek v City of Birmingham [1987] IRLR 250 are well known to anyone who sits in the Employment Appeal Tribunal. In future copies of those cases should not be supplied to the Employment Appeal Tribunal. It is perfectly possible for advocates to refer to the principle of those cases, without referring to the report. A quotation of the appropriate citation in a skeleton argument will generally suffice and it will only be in rare cases that it is necessary for a copy of the entire case to be provided.

Citations:

[2010] UKEAT 0369 – 08 – 0701

Links:

Bailii

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.392833

EAT EQUAL PAY ACT: Part time pensions< br />Part-time pensions. NHS employee did not join a voluntary scheme for about 5.5 years after having become eligible to do so. Pre-hearing review. Claimant’s evidence that she did not join immediately as she was paying into a private pension and could not afford to do so; she would have been penalised if she had ceased contributing to the private pension. Tribunal proceeded on the basis of a presumption that the claimant would not have joined the NHS scheme when she became eligible to do so and asked whether the claimant would, on a balance of probabilities, have joined the NHS scheme when she became eligible to do so had she not been contributing to her private pension. Claim struck out. The EAT held that the Tribunal had not focussed on the right question. It required to ask whether, on a balance of probabilities the claimant would have joined the NHS scheme when she should first have been entitled to do so.

Citations:

[2008] UKEAT 0033 – 08 – 3110

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.279791

EAT Disability Discrimination – Did the effect of the claimant’s impairment have ‘a long-term effect’? Did the Employment Tribunal consider this issue and the question of whether proper adjustments were made properly? The answer to both questions was in the affirmative.
Did the Employment Tribunal err in concluding (a) that the Whitley Council conditions did not apply and (b) that the claimant’s wages while suspended continued to be calculated in accordance with various e-mails after she was taken ill while still suspended? The answers to both questions are in the negative.

Judges:

The Honourable Mr Justice Silber

Citations:

[2006] UKEAT 0087 – 06 – 1406, UKEAT/0087/06 and UKEAT/0225/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.242597

Judges:

Jack J

Citations:

[2006] EWHC 1399 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 August 2022; Ref: scu.242711

EAT SEX DISCRIMINATION – Pregnancy and discrimination
SEX DISCRIMINATION – Detriment
HARASSMENT
Sex discrimination/harassment claims by claimant undergoing IVF treatment – Held that the Tribunal was entitled to find that the acts complained of either, in some cases, did not amount to a detriment/harassment or, in the remainder, even if they arose out of it or of circumstances connected with it were not done on the grounds that the Claimant was undergoing IVF treatment – Discussion of extent to which discrimination on the ground that an employee is receiving IVF treatment is to be regarded as discrimination on the ground of her sex or of pregnancy – London Borough of Greenwich v Robinson (unreported; EAT/745/94) and Mayr v Backerei und Konditorei Gerhard Flockner OHG [2008] IRLR 387.

Citations:

[2009] UKEAT 0342 – 09 – 1512

Links:

Bailii

Employment, Discrimination

Updated: 11 August 2022; Ref: scu.392545

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 her discrimination.
Held: The test in Blockbuster was applicable and had been correctly applied. However she had not been given sufficient notice that her application might be struck out, and leave was given.

Judges:

Etherton LJ

Citations:

[2009] EWCA Civ 1414

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Blockbuster Entertainment Ltd v James CA 25-May-2006
The defendant company appealed against an order re-instating the claimants’ claims for damages for race discrimination and victimisation after they had been struck out for wilful disobedience of the tribunal’s orders.
Held: When making a . .
Appeal from – 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 . .

Cited by:

Leave granted – Chambers-Mills v Allied Bakeries CA 21-Feb-2011
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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 11 August 2022; Ref: scu.392661

EAT RACE DISCRIMINATION: Injury to feelings
Tribunal found Claimant to have been dismissed partly because he had made a complaint of racial discrimination – it declined to make any award of injury to feelings or personal (psychiatric) injury because although there was evidence that he had suffered both the Claimant had in his evidence attributed his distress to the dismissal and its manner generally and not to the element of victimisation (of which indeed he was arguably unaware at the time) – it reached that conclusion reluctantly but believed it was bound by the observation of Lawton LJ in Skyrail Oceanic Ltd v Coleman [1981] ICR 864 that ‘any injury to feelings must result from the knowledge that it was an act of sex discrimination . . ‘
Held that the Clamant was entitled to recover for any injury to feelings and personal injury attributable to the act complained of, namely, the dismissal, without the need to attribute the injury specifically to knowledge of the element of discrimination, and that Skyrail was not authority to the contrary.

Citations:

[2009] UKEAT 0385 – 09 – 0911

Links:

Bailii

Employment, Discrimination

Updated: 11 August 2022; Ref: scu.392536

EAT SEX DISCRIMINATION
Direct
HARASSMENT
Conduct
Dress/appearance policy. Whether hair length for male police officer in training discriminatory; whether threat of disciplinary action harassment. Consideration of Smith v Safeway ; DWP v Thompson. No error of approach by Employment Tribunal in dismissing claim.

Judges:

Peter Clark J

Citations:

[2009] UKEAT 0234 – 09 – 2010

Links:

Bailii

Employment, Discrimination

Updated: 11 August 2022; Ref: scu.392527

EAT RACE DISCRIMINATION
Inferring discrimination
CONTRACT OF EMPLOYMENT
Damages for breach of contract
There was a claim for breach of contract by failing to pay her notice pay. The ET encouraged the parties to settle this outside the hearing but then failed to incorporate the agreement in the final order as there was a dispute over the correct amount to be paid. This ground of appeal was agreed.
The remaining claim of perversity in failing to infer race discrimination was dismissed. The Appellant failed to satisfy Yeboah v Crofton [2002] IRLR 634.

Judges:

Birtles J

Citations:

[2009] UKEAT 0204 – 09 – 0611

Links:

Bailii

Employment, Discrimination

Updated: 11 August 2022; Ref: scu.392534

EAT Preliminary hearing of an appeal dismissing a claim of sex discrimination. Appeal allowed through to a full hearing on grounds of inadequate findings of fact and failure to address the Claimant’s submissions in its conclusions.

Judges:

Birtles J

Citations:

[2009] UKEAT 0288 – 09 – 0411

Links:

Bailii

Employment, Discrimination

Updated: 11 August 2022; Ref: scu.392530

EAT RACE DISCRIMINATION: Discrimination by other bodies
PRACTICE and PROCEDURE: Costs
Claims brought under ss12 and 13 Race Relations Act 1976. Properly struck out by Employment Tribunal under Rule 18(7)(b) as having no reasonable prospect of success.
Costs of aborted EAT hearing to be paid by Appellant who was wholly responsible for those wasted costs.

Citations:

[2009] UKEAT 0036 – 09 – 0312

Links:

Bailii

Statutes:

Race Relations Act 1976 12 13

Employment, Discrimination

Updated: 11 August 2022; Ref: scu.392542

EAT PRACTICE AND PROCEDURE: New evidence on appeal
SEX DISCRIMINATION: Direct
RACE DISCRIMINATION: Direct
Applications by the Claimant for admission of new evidence were refused: Ladd v Marshall applied. The Employment Tribunal examined the 40-odd claims and dismissed all but one contract claim. No error of law. The Claimant contended that the Employment Judge displayed an error of law in oral exchanges with her leading counsel but these were not reflected in her counsel’s evidence to the EAT nor in the reserved judgment of the full Tribunal, which is the proper source of the its self-directions.

Judges:

McMullen QC J

Citations:

[2009] UKEAT 0167 – 09 – 2907

Links:

Bailii

Employment, Discrimination

Updated: 11 August 2022; Ref: scu.392520

EAT RACE DISCRIMINATION
Comparison
Direct
VICTIMISATION DISCRIMINATION
Other forms of victimisation
Relevance of out of time complaints by way of background evidence in determining timeous complaints of discrimination/victimisation.
Comparators and the ‘reason why’ question.

Judges:

Peter Clark J

Citations:

[2009] UKEAT 0096 – 09 – 0412

Links:

Bailii

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: 11 August 2022; Ref: scu.381853

EAT PART TIME WORKERS
DISABILITY DISCRIMINATION: Reasonable adjustments
UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal did not err when it held the Claimant was Head of Art and so appointment of another constituted constructive unfair dismissal, and since the employer required the new Head to be full-time and the Claimant was not, it discriminated against her as a part-time worker and failed to make reasonable adjustments for her need as a disabled person not to work full-time.

Citations:

[2009] UKEAT 0110 – 09 – 0307

Links:

Bailii

Employment, Discrimination

Updated: 11 August 2022; Ref: scu.381849

EAT Sex Discrimination – Direct

Judges:

Mr Recorder Langstaff QC

Citations:

[2001] UKEAT 245 – 00 – 1503, EAT/245/00, [2001] IRLR 501

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Lana v Positive Action Training In Housing (London) Ltd EAT 16-Jun-2000
. .

Cited by:

Cited – Bungay and Others v Saini and Others EAT 27-Sep-2011
EAT RACE DISCRIMINATION
Vicarious liability
Post employment
The Appellants were members of the board of a Centre. As a result of decisions of the Employment Tribunal and the Employment Appeal . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 August 2022; Ref: scu.203689

The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week for a radio and access to their company system, which allocated calls from customers to a fleet of drivers. He was required to wear a uniform and prohibited from working for any other operator, but was not required to work, nor to accept any fare allocated to him by the system. All the fare money was his to keep.
Held: The driver was not required by the contract to carry out the driving personally. He would pay a sum each week to be included on the respondent’s radio and computer system for allocating work. The test was whether the dominant purpose of the agreement would require him to do the work personally. It did not, and the tribunal did not have jurisdiction. The claimant was not ’employed’ by the operator within the meaning of section 78.

Judges:

Buxton, Maurice Kay LJJ, Sir Martin Nourse

Citations:

Times 04-Mar-2004, [2004] EWCA Civ 328, Gazette 18-Mar-2004, [2004] ICR 727, [2004] IRLR 373

Links:

Bailii

Statutes:

Race Relations Act 1976 78(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Mingeley v Pennock and Ivory T/A Amber Cars EAT 1-May-2003
EAT Race Discrimination – Prospective employees . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Kelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive HL 29-Jul-1998
Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the . .

Cited by:

Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 August 2022; Ref: scu.194278

EAT AGE DISCRIMINATION
PRACTICE AND PROCEDURE – Striking-out
Appeal against refusal of Employment Judge to strike out three heads of an age discrimination claim; cross-appeal against striking-out of fourth.
(1) Judge wrong not to strike out claim of discriminatory selection of redundancy when claim was prima facie implausible and there were no facts indicative of such discrimination.
(2) Judge wrong not to strike out claim based on a difference of age profile between those made redundant before and after the date of introduction of less generous terms as to payment of bonus to dismissed employees – A change of this character did not constitute a ‘provision criterion or practice’.
(3) Judge right not to strike out a claim that the length of service element in the Appellants’ redundancy payment scheme was discriminatory.
(4) Judge right to strike out claim that requirement that Respondent sign a compromise agreement as a condition of entitlement to enhanced redundancy pay was age-discriminatory.
Underhill J concluded that the practice of requiring a compromise agreement in return for an enhanced redundancy payment involved a legitimate interest in achieving finality: ‘Further, it seems to me . . that even if a case of discriminatory impact could be made out the requirement could plainly be justified. Employers have a legitimate interest in achieving finality as regards all issues arising out of the dismissal of an employee. Offering a further payment to achieve a binding compromise of all such issues is plainly a proportionate means of achieving that aim. Its proportionality is unassailable because the choice always remains with the employee: if he thinks it is a bad deal he need not take the offer. He will of course, by definition, have access to legal advice. The fallacy in the Claimant’s case is that it overlooks the fact that he otherwise has no right to this payment: although it may be described as an enhanced redundancy payment, it is in fact a payment offered to redundant employees in return for a full and final settlement of all claims. It is of course for that reason that the contention that the payment could be made while [accepting] the right to advance outstanding claims makes no sense.’

Judges:

Underhill P J

Citations:

[2009] UKEAT 0266 – 09 – 0111

Links:

Bailii

Citing:

Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

Cited by:

Cited – Garratt v Mirror Group Newspapers Ltd CA 13-Apr-2011
The claimant had been employed by the defendant. They made him redundant. He claimed and enhanced payment saying that his emloyment was covered by a collective agreement, but when he refused to sign a compromise agreement, the company paid him only . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 August 2022; Ref: scu.381632

EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
Held: Tribunal right to dismiss claims of discrimination (direct and indirect) contrary to the Employment Equality (Religion or Belief) Regulations 2003 and of unfair dismissal – London Borough of Islington v Ladele [2009] ICR 387 followed

Judges:

Underhill J P

Citations:

[2009] UKEAT 0106 – 09 – 3011, [2010] IRLR 196, [2010] ICR 507

Links:

Bailii

Statutes:

Employment Equality (Religion or Belief) Regulations 2003

Citing:

Cited – Ahmad v United Kingdom ECHR 1981
(Commision) The applicant was a devout Muslim. His religious duty was to offer prayers on Fridays and to attend a mosque if possible. He was employed as a full time primary school teacher. He complained that he was forced to resign because he was . .
Cited – Chondol v Liverpool City Council EAT 11-Feb-2009
EAT RELIGION OR BELIEF DISCRIMINATION
Social worker dismissed on charges which included inappropriate promotion of his religious beliefs and arranging a visit to his home by a service user in a manner which . .
Cited – London Borough of Islington v Ladele EAT 19-Dec-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Registrar who, amongst other things, registered marriages. When the Civil Partnerships Act came into force, she refused to participate in registering . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Eweida v British Airways Plc EAT 20-Nov-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Christian who objected to BA’s policy of requiring jewellery to be worn concealed by the uniform. There were exceptions for those whose religions . .
Cited – McClintock v Department of Constitutional Affairs EAT 31-Oct-2007
The claimant had resigned as a magistrate after a refusal of his requirement that he not be asked to sit on adoption applications involving same sex couples.
Held: The request was an abdication of the duties of a magistrate, and his claim . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
Cited – Thlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The applicant was a Jehovah’s Witness who had been convicted of insubordination under the Military Criminal Code for refusing to wear a military uniform at a time of general mobilisation. He was subsequently refused appointment as a . .
Cited – Kalac v Turkey ECHR 1-Jul-1997
In exercising his freedom to manifest his beliefs an individual ‘may need to take his specific situation into account.’ ‘The Commission recalls that the expression ‘in accordance with the law’, within the meaning of Article 9(2), requires first that . .

Cited by:

Appeal from – McFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .
Cited – Hall and Another v Bull and Another Misc 4-Jan-2011
(Bristol County Court) The claimants, homosexual partners in a civil partnership, sought damages after being refused a stay at the bed and breakfast hotel operated by the defendants, who said that this was their home, and that they were committed . .
Appeal from – Ladele and McFarlane v The United Kingdom ECHR 12-Apr-2011
Statement of Facts and Questions to parties . .
At EAT – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 August 2022; Ref: scu.381635

Solicitor Firm Member was a Protected Worker

The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found that a member of such a firm was not a worker or an employee.
Held: The court was struck by how hard the company had had to work to establish that the claimant was not a worker. The simple statutory tests were satisfied: ‘she is employed under a contract personally to perform work or services for the LLP; she was an integral part of their business and the LLP was not her client or customer.’ and ‘ the appellant clearly is a ‘worker’ within the meaning of section 230(3)(b) of the Employment Rights Act 1996 and entitled to claim the protection of its whistle-blowing provisions. That conclusion is to my mind entirely consistent with the underlying policy of those provisions, which some might think is particularly applicable to businesses and professions operating within the tightly regulated fields of financial and legal services.’ The case was remitted to the employment tribunal.
Baroness Hale of Richmond observed that employment law distinguishes between three types of people: those employed under a contract of employment; those self-employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else. Some statutory rights, such as the right not to be unfairly dismissed, are limited to those employed under a contract of employment; but other rights, including those claimed in these proceedings, apply to all ‘workers’.

Judges:

Lord Neuberger, President, Lady Hale Deputy President, Lord Clarke, Lord Wilson, Lord Carnwath

Citations:

[2014] WLR(D) 222, [2014] UKSC 32, UKSC 2012/0229, [2014] ICR 730, [2014] 1 WLR 2047, [2014] 3 All ER 225, [2014] IRLR 641

Links:

WLRD, Bailii, Bailii Summary, SC Summary, SC

Jurisdiction:

England and Wales

Citing:

Appeal from – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
See Also – Van Winkelhof v Clyde and Co Llp and Another 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. . .
At EAT – Clyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
Cited – Ellis v Joseph Ellis and Co CA 1905
A member of a partnership formed to work a mine worked in it as foreman. He took weekly wages from the profits. He suffered a fatal accident in the mine and his widow sought compensation under the 1897 Act from the surviving partners. To qualify he . .
Cited – Cowell v Quilter Goodison Co Ltd and QG Management Services Ltd 1989
It is not possible for an individual to be an employee of himself and his of co-partners. . .
Cited – Allison v Alison’s Trustees 1904
A person cannot be an employee of a body of partners of which he is also a member. . .
Cited – Heinisch v Germany ECHR 21-Jul-2011
The applicant alleged, in particular, that her dismissal without notice from her employment as a geriatric nurse on the ground that she had brought a criminal complaint against her employer alleging deficiencies in the institutional care provided, . .
Cited – Deborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Byrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
Cited – Cotswold Developments Construction Ltd v Williams EAT 21-Dec-2005
EAT What is meant by ‘mutuality of obligations’ where the claim relies on the Working Time Regulations; whether finding that there was no mutuality of obligations was inconsistent with holding that the Claimant . .
Cited – James v Redcats (Brands) Ltd EAT 21-Feb-2007
EAT National Minimum Wage
Who is a ‘worker’?
Was the Appellant who worked as a courier for the Appellant company, providing her own vehicle, a worker or home worker within the meaning of ss.54(3) and . .
Cited – Jivraj v Hashwani ComC 26-Jun-2009
The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment . .
Cited – Kudeshkina v Russia ECHR 24-Feb-2009
Article 10 applies to the workplace in general, and a professional person such as a judge is entitled to the freedom to criticise the judicial system. . .
Cited – The Hospital Medical Group Ltd v Westwood CA 24-Jul-2012
The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the . .
See Also – Clyde and Co Llp and Another v Winkelhof CA 5-Jul-2011
. .

Cited by:

Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .
Cited – Stuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 August 2022; Ref: scu.525969

EAT Disability Discrimination – Reasonable adjustments – Practice and Procedure – Disclosure.
EAT Practice and Procedure – Disclosure.

Judges:

The Honourable Mr Justice Burton

Citations:

UKEAT/0812/03, [2004] UKEAT 0812 – 03 – 0607, [2004] UKEAT 0472 – 04 – 0607, UKEAT/0472/04

Links:

Bailii, Bailii, EAT, EAT

Jurisdiction:

England and Wales

Citing:

See Also – Sivanandan v Hackney Action for Racial Equality (Hare) EAT 20-Oct-1999
EAT Procedural Issues – Employment Tribunal . .
See Also – Sivanandan v Hackney Action for Race Equality (Hare) EAT 1-Feb-2001
. .
See Also – Sivanandan v Hackney Action for Racial Equality Executive Committee CA 25-Jan-2002
. .
See Also – Sivanandan v Hackney Action for Racial Equality and others EAT 18-Nov-2003
EAT Race Discrimination – Aiding and abetting . .

Cited by:

See Also – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 August 2022; Ref: scu.214692

EAT Procedural Issues – Employment Tribunal

Judges:

His Honour Judge J Hicks QC

Citations:

[1999] UKEAT 616 – 99 – 2010, EAT/616/99

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Cited by:

See Also – Sivanandan v Hackney Action for Race Equality (Hare) EAT 1-Feb-2001
. .
See Also – Sivanandan v Hackney Action for Racial Equality Executive Committee CA 25-Jan-2002
. .
See Also – Sivanandan v Hackney Action for Racial Equality and others EAT 18-Nov-2003
EAT Race Discrimination – Aiding and abetting . .
See Also – Sivanandan v Hackney Action for Racial Equality etc EAT 6-Jul-2004
EAT Disability Discrimination – Reasonable adjustments – Practice and Procedure – Disclosure.
EAT Practice and Procedure – Disclosure. . .
See Also – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 August 2022; Ref: scu.205788

The appicant sought leave to appeal against refusal of his claim of race discrimination.
Held: Leave was granted on one point. The Industrial Tribunal under the heading ‘Dismissal’, referred to the fact that: ‘The applicant lacked the ability to be a ‘team player’ and lack interpersonal and management skills.’
‘It seems to us to be arguable that an Industrial Tribunal when faced with a contention that an employee who is of an ethnic minority was not a team player or did not fit in, should recognise it as one of the warning signals which they should be astute to detect as being a potential sign of discrimination. It seems to us, therefore, that it is arguable that the Industrial Tribunal have not carried out the function which Parliament has imposed on them in a case such as this. We express no view one way or the other on this question, but it seems to us to call for debate before a full panel of the Employment Appeal Tribunal.’

Judges:

Morison J P

Citations:

[1997] UKEAT 1378 – 96 – 1407

Links:

Bailii

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Cited by:

See Also – Tchoula v Netto Foodstores Ltd EAT 6-Mar-1998
A bald statement saying that X’s evidence was preferred to Y’s is implausible and unreasoned and unacceptable; included simply to try and prevent any appeal. It is likely that there will be a great deal of background material which is . .
See Also – Tchoula v Netto Foodstores (UK) Limited CA 15-Oct-1998
The complainant alleged bias on the part of the tribunal, saying that a tribunal member had fallen asleep. He now sought leave to appeal against the decision of the EAT. The Employment Appeal Tribunal had indicated certain areas of dissatisfaction . .
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: 06 August 2022; Ref: scu.207691

EAT Race Discrimination – Direct

Judges:

His Hon Judge Clark

Citations:

[2001] UKEAT 0965 – 00 – 1412, EAT/965/00

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 06 August 2022; Ref: scu.204637

Citations:

[1999] UKEAT 1330 – 98 – 1003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ayobiojo v Nalgo/Unison Trade Union CA 20-May-1998
. .

Cited by:

Appeal from – Ayobiojo v NALGO/Unison Trade Union CA 19-Aug-1999
. .
See Also – Ayobiojo v Nalgo/Unison Trade Union CA 20-May-1998
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 August 2022; Ref: scu.204906

An issue was whether a notice had been sent to solicitors as the authorised representative of the Appellant. The Appellant had occasionally used one firm of solicitors but at other times she had acted in person at the hearing and also when communicating with the Tribunal.
Held: The tribunal’s decision that notice had been sent to the solicitors as authorised representatives was approved (Mummery LJ): ‘In my judgment there was no error of law in the decision of the review tribunal regarding non-receipt of notice. On that point I agree with the submissions made by Miss Maclaren on behalf of the council. It is clear, reading the extended reasons of the review tribunal, that they made findings of fact on that point without any error of law. The applicant accepted in her evidence to them that she had instructed Balogun Kirvan to act on her behalf throughout. They had instructed counsel to appear in the tribunal on her behalf at an earlier hearing; they had corresponded with the tribunal as her solicitors; and the tribunal had corresponded with them and sent notices and documents to them. The evidence adduced on behalf of the applicant did not establish that either the applicant or Balogun Kirvan had even given any notice to the tribunal under regulation 20(4), indicating that the tribunal should now send notices and documents to her personally rather than to the firm of solicitors who had started to act for her.’

Judges:

Mummery LJ

Citations:

[2003] EWCA Civ 902

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Shah v Haden Building Management Ltd EAT 28-Sep-2005
The tribunal had served a pre-hearing notice on employment dispute consultants who had acted for the claimant, but who had reserved their position in correspondence with the employers, and had asked that any documents be served on the claimant . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 August 2022; Ref: scu.184607

EAT DISABILITY DISCRIMINATION
Reasonable adjustments
Section 4A(1) and (3) of the Disability Discrimination Act 1995.
The Tribunal found that employer had failed to make a reasonable adjustment when it gave the Claimant a 12 month written warning for leaving work early without asking for or obtaining permission. On appeal, the Employment Appeal Tribunal held: no basis in fact for the Tribunal’s conclusion that difficulty in asking for such permission was an effect of the Claimant’s disability, no basis for holding that the Respondent should have known that it was and, further, the Tribunal ought to have found that the Respondent came within the provisions of section 4A(3) of the DDA so no duty to make reasonable adjustments was imposed. Eastern and Coastal Kent PCT v Grey [2009] IRLR 429, discussed.

Citations:

[2009] UKEAT 0242 – 09 – 0911, [2010] IRLR 283, [2010] ICR 665

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 4A(a)

Citing:

Cited – Eastern and Coastal Kent Pct v Grey EAT 23-Jan-2009
eastern_greyEAT2009
EAT DISABILITY DISCRIMINATION:
Reasonable adjustments
Disability related discrimination
The claimant suffers from dyslexia and was therefore ‘disabled’ as defined in the Disability Discrimination . .

Cited by:

Cited – Croft Vets Ltd and Others v Butcher EAT 2-Oct-2013
EAT Disability Discrimination : Disability Related Discrimination – Reasonable adjustments – The Respondent was employed by the Appellants as a reception and finance manager. She suffered from work-related stress . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 05 August 2022; Ref: scu.377790

EAT UNFAIR DISMISSAL:
Reasonableness of dismissal
RACE DISCRIMINATION:
Direct
Where discrimination and unfair dismissal allegations overlap and the Employment Tribunal hears and disbelieves evidence about a discriminatory remark from a manager, which the employer heard and believed during the investigation, the Employment Tribunal was correct to conclude that such evidence did not make the employer’s dismissal of the Appellant unfair: Small v London Ambulance Service applied.
Nor did the fact that discrimination had been proved in relation to the remark make it inevitable that direct discrimination had been proved in relation to the dismissal. The Employment Tribunal had correctly asked itself what was the reason why the Appellant had been dismissed and a ‘but for’ test of causation is not the correct approach; Shamoon v Chief Constable of the Royal Ulster Constabulary, Martin v Lancehawk Ltd (t/a European Telecom Solutions), A v B, Olasehinde v Panther Securities PLC and Amnesty International v Ahmed considered and applied.

Citations:

[2009] UKEAT 0506 – 08 – 0511

Links:

Bailii

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 – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Cited – Olasehinde v Panther Securities Plc EAT 10-Jun-2008
EAT RACE DISCRIMINATION

Detriment

CONTRACT OF EMPLOYMENT

Wrongful dismissal

Appellant wrongly and unreasonably accused by employers of sexual harassment. Employers accept his denial but instruct him not . .
Cited – London Ambulance Service NHS Trust v Small EAT 21-Jan-2008
EAT Unfair dismissal: Reasonableness of dismissal / Contributory fault
The Claimant, an ambulance paramedic, was summarily dismissed for gross misconduct as a result of an incident when he attended an . .
Cited – Martin v Lancehawk Limited T/A European Telecom Solutions EAT 15-Jan-2004
EAT Sex Discrimination – Indirect
The (male) managing director of the respondent company had dismissed a (female) fellow employee when an affair which they had been having came to an end. She claimed that . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 05 August 2022; Ref: scu.377569

EAT VICTIMISATION DISCRIMINATION: Protected disclosure
The claimant, who had less than one year’s continuous employment fell out with his fellow directors and equal shareholders. He was removed as a director. His solicitors wrote on his behalf stating that they had given advice to their client as a shareholder, director and employee. The Employment Tribunal erred in holding that the letter contained a protected disclosure within the meaning of the Employment Rights Act 1996 Section 43. As can be seen from Section 43L(3) the ERA recognises a distinction between an allegation and information. It set out a statement of position in the context of known difficulties between the parties. The letter did not contain a protected disclosure within the meaning of the ERA. Accordingly the Employment Tribunal erred in holding that the Claimant could bring a claim for unfair dismissal although he had less than one year’s qualifying employment and that his dismissal because of the letter was automatically unfair. The decision of the Employment Tribunal was set aside.

Judges:

Slade J

Citations:

[2009] UKEAT 0195 – 09 – 0608, [2010] ICR 325, [2010] IRLR 38

Links:

Bailii

Statutes:

Employment Rights Act 1996 43, Public Interest Disclosure Act 1998

Citing:

Distinguished – Parkins v Sodexho Ltd EAT 22-Jun-2001
The applicant had been employed for a short period. He was dismissed, and he claimed that this was because he had made a protected disclosure in complaining about the respondent’s health and safety practices. He had applied for interim relief. The . .

Cited by:

Cited – Freeman v Ultra Green Group Ltd EAT 9-Aug-2011
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
UNFAIR DISMISSAL – Automatically unfair reasons
The Tribunal erred in law in holding that words spoken at a meeting by the Claimant did not amount . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.377539

EAT AGE DISCRIMINATION
The Council operated a scheme rewarding loyalty and experience under which employees were paid increments if they satisfied both a length-of-service and an age criterion. The scheme was terminated with effect from 1.4.07, but employees already in receipt of increment were allowed to retain it by way of ‘pay protection’. The Claimant sought payment of increment on the coming into force of the Employment Equality (Age) Regulations 2006 on 1.10.06 but was refused. She claimed that she had been discriminated against on the grounds of her age (a) between 1.10.06 and 30.3.07 by being excluded from the scheme and (b) from 1.4.07 by being excluded from the pay protection arrangements.
The Tribunal dismissed the claim in relation to both periods.
As regards the first period its reasoning was unclear but was either that because under the terms of the scheme employees only became entitled to payment from the 1 April following their fulfilment of both qualifying conditions no detriment occurred prior to the abolition of the scheme or that the discrimination was justified because the Council was in the course of negotiating the abolition of the scheme.
As regards the second period, it held that the limitation of the pay protection arrangements to those employees already in receipt of benefit was justified because of the cost of extending it to all persons who had satisfied the length-of-service criterion but not the age criterion and because the arrangements in question had been negotiated with the recognised trade unions.
Held: In relation to the first period, that the Claimant could not be equated with a newly-qualifying employee and was discriminated against by being refused payment of increment with effect from 1.10.06; but that the Tribunal had either not considered the question of justification at all or had done so inadequately.
In relation to the second period, that, while pay protection arrangements of the kind adopted could in principle be justified, the Tribunal had not applied the appropriate test but (a) had attached a significance to the fact that the arrangements had been negotiated with the unions which on the evidence it could not have and (b) had wrongly treated the fact that a particular sum allocated by the Council for a different purpose had been exhausted as indicating that the Council had no funds to meet the additional costs.

Judges:

Underhill J P

Citations:

[2009] UKEAT 0516 – 08 – 2810

Links:

Bailii

Statutes:

Employment Equality (Age) Regulations 2006

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.377312

EAT SEX DISCRIMINATION
Indirect
RACE DISCRIMINATION
Indirect
Appeal by MOD against ET’s findings of indirect sex and race discrimination. Claimant was a female soldier in the army, from St. Vincent and the Grenadines, who was also a single parent with a young daughter. The ET found that two provisions, criteria or practices were applied to her by the MOD, namely that she be a soldier available for deployment on a 24/7 basis; and also that she could not have a member of her extended family (a half-sister) to stay with her in the Service Families Accommodation because she was a foreign national only entitled to stay in the UK for a short period. The ET found that these PCPs had not been shown to be a proportionate means of achieving a legitimate aim and upheld the claims.
The EAT dismissed the MOD’s appeal.

Judges:

Cox J

Citations:

[2009] UKEAT 0048 – 09 – 1210, [2010] IRLR 471

Links:

Bailii

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.376158

EAT RACE DISCRIMINATION: Direct / Burden of proof
VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke
Numerous complaints of direct discrimination/victimisation under the Race Relations Act 1976 (RRA). Whether the Employment Tribunal reasoning passed the Meek test. With one exception it did not; those matters remitted to fresh Employment Tribunal for rehearing.
On the question, does s.54A RRA apply to Direct Discrimination on ground of colour Chagger [2009] IRLR 86 (Underhill P) affirmative answer preferred to negative answer in Okonu [2008] ICR 598.

Judges:

Peter Clarke J

Citations:

[2009] UKEAT 0003 – 09 – 0910

Links:

Bailii

Statutes:

Race Relations Act 1976 54A

Citing:

Not preferred – Okonu v G4S Security Services (UK) Ltd EAT 11-Feb-2007
EAT Race discrimination
The burden of proof in section 54A of the Race Relations Act 1976 does not apply to cases of direct discrimination on the grounds of nationality or colour. In such cases the less . .
Preferred – Abbey National Plc and Another v Chagger EAT 16-Oct-2008
EAT RACE DISCRIMINATION: Direct / Burden of proof / Other losses
PRACTICE AND PROCEDURE: Delay in ET judgment
STATUTORY DISCIPLINE and GRIEVANCE PROCEDURES: Impact on compensation
C, aged 40, . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.375965

EAT PRACTICE AND PROCEDURE: Case management
UNFAIR DISMISSAL: Constructive dismissal
RACE DISCRIMINATION: Burden of proof
An Employment Tribunal did not err in law when it upheld the Claimant’s claim in part that she had been discriminated against by being excluded from a recruitment process, in which as a manager she should have been involved, on the ground of her race, and as an aggregate of all the events of which the Claimant complained she was constructively unfairly dismissed. The Tribunal’s refusal to allow a Respondent’s late application to call new witnesses was not an error of law or an unfair procedure but was within its case-management powers.

Judges:

McMullen QC J

Citations:

[2009] UKEAT 0412 – 08 – 0810

Links:

Bailii

Cited by:

Appeal from – St Christopher’s Fellowship v Walters-Ennis CA 30-Jul-2010
The court was asked whether the statutory burden of proof in a case of alleged direct race discrimination was properly understood and applied by the Employment Tribunal in accordance with section 54A(2) of the Race Relations Act 1976, as amended. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.375934

EAT EQUAL PAY ACT: Part time pensions
PRACTICE AND PROCEDURE: Amendment
The Employment Judge erred in her assessment that the Claimant’s amendment to contend that it was not necessary for her to show that she would have joined the pension scheme when eligible (the opters’ defence), had no reasonable prospect of success. Discrimination claims should be given a full trial absent a clear defence.

Judges:

McMullen QC J

Citations:

[2009] UKEAT 0222 – 09 – 2107

Links:

Bailii

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: 04 August 2022; Ref: scu.375927

EAT SEX DISCRIMINATION: Pregnancy and discrimination
The Appellant was discriminated against on the grounds of her pregnancies. She was then made redundant in a way which constituted unfair dismissal. The Employment Tribunal held that the employer had paid only lip service to the possibility of finding her an alternative role. It failed to deal with the question whether this failure of the employer was itself a further act of discrimination. Remitted to the same Employment Tribunal to make findings on this point.

Judges:

Reid QC

Citations:

[2009] UKEAT 0017 – 09 – 1506

Links:

Bailii

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.375924

EAT RACE DISCRIMINATION
Comparison
Mr Dhillon was dismissed for misconduct after he had received a final written warning in respect of previous conduct. The Employment Tribunal found his dismissal to be unfair. It held that Mr Dhillon’s final written warning was unreasonable and the employers would not have dismissed him for the subsequent incident but for the warning. In any event the Employment Tribunal considered that dismissal for the subsequent incident was outside the range of reasonable responses. It dismissed Mr Dhillon’s complaint of race discrimination. It held that he had failed to identify an actual or hypothetical comparator in that he had failed to show that a white comparator in comparable circumstances would have been treated more favourably. The decision could have been more clearly reasoned but there was no error of law. The appeal was dismissed as was the Company’s appeal from the finding of unfair dismissal.

Citations:

[2009] UKEAT 0120 – 09 – 0508

Links:

Bailii

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.375195

EAT DISABILITY DISCRIMINATION
PRACTICE AND PROCEDURE: procedural irregularity
The Employment Judge in error in holding that a letter constituted a valid grievance, the letter also being sent more than 3 months from the act or omission complained of.

Citations:

[2009] UKEAT 0145 – 09 – 2808

Links:

Bailii

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.375197

EAT SEX DISCRIMINATION – Inferring discrimination
PRACTICE AND PROCEDURE – Restricted Reporting Order
Claimant summarily dismissed, without any kind of process, on the basis of an allegation that he had raped a colleague – Dismissal without due process held by the Tribunal to constitute sex discrimination on the basis that the employer had feared that if Claimant were not dismissed summarily he might commit violence towards the complainant or others; and that that fear was on the ground of his sex.
Held that there was no sufficient basis in the evidence for the inference of discrimination – Observations about the drawing of inferences
Held also that parties entitled to anonymisation in order to protect the complainant’s confidentiality – X v Commissioner of Metropolitan Police [2003] ICR 1031 followed.

Judges:

Underhill P J

Citations:

[2009] UKEAT 0503 – 08 – 2808, [2010] IRLR 400

Links:

Bailii

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.374683

EAT RACE DISCRIMINATION
Aiding and abetting
Contract workers
The Employment Tribunal erred in law in finding that a contract worker made the Claimant’s employer liable for direct race discrimination under sections 32 and 33 of the Race Relations Act 1976. The Tribunal failed to (a) make necessary findings of fact (b) to analyse the facts and the statutory provisions and apply them correctly. Observations on the correct meaning and appreciation of sections 32 and 33.

Citations:

[2010] UKEAT 0278 – 09 – 1702

Links:

Bailii

Statutes:

Race Relations Act 1976 32 33

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 August 2022; Ref: scu.401636

EAT Disability Discrimination – Disability

Judges:

The Honourable Mr Justice Burton (President)

Citations:

EATS/0065/02, [2003] UKEAT 0065 – 02 – 1605

Links:

Bailii

Jurisdiction:

Scotland

Discrimination, Employment

Updated: 03 August 2022; Ref: scu.202312

EAT DISABILITY DISCRIMINATION: Disability
The Employment Tribunal found that the claimant, an applicant for appointment as a regular constable, was a disabled person. She failed the screening for the requisite vision standard. Employment Tribunal erred in finding that the respondent’s refusal to allow the claimant to go forward in her professional life amounted to a substantial adverse effect. Further, Employment Tribunal’s alternative conclusion that the claimant suffered from a visual impairment which had a substantial adverse affect on her ability to carry out normal day to day activities was perverse.

Judges:

Smith, Lady

Citations:

[2010] IRLR 109, [2009] UKEAT 0077 – 08 – 2907

Links:

Bailii

Employment, Discrimination

Updated: 30 July 2022; Ref: scu.373193

EAT SEX DISCRIMINATION: Pregnancy and discrimination,br />The Employment Tribunal upheld complaint of continuing course of conduct amounting to discrimination on grounds of pregnancy. On appeal, the employers sought to argue that the Employment Tribunal had misapplied the statutory requirement that discrimination must be ‘on the ground of’ pregnancy. The Employment Tribunal found to have correctly stated and correctly applied the law to the facts found and appeal dismissed.

Judges:

Cox J

Citations:

[2009] UKEAT 0465 – 08 – 2807

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 July 2022; Ref: scu.372608