EAT DISABILITY DISCRIMINATION: Disability
PRACTICE AND PROCEDURE
The issue for the Employment Tribunal was whether the claimant had suffered from an impairment which had a substantial adverse effect on his day to day activities for over 12 months. He had answered a question by the respondent (pre-hearing) as to what precisely his disability was by saying that he suffered from ‘TB’. Expert medical evidence was that impairments attributable to tuberculosis alone would have lasted for less than 12 months. Despite this, it was held that an employment tribunal was entitled to hold that he was disabled by reason of a constellation of symptoms not medically attributed to TB, which lasted over a year. An argument based on Chapman v Simon that it was outwith its jurisdiction or procedurally unfair to the respondent for the Tribunal to determine this, because in the light of the claimant’s answer to the respondent’s question such a case had not been advanced before it, was rejected.

Judges:

Langstaff J

Citations:

[2008] UKEAT 0571 – 07 – 2107, [2008] IRLR 928, [2008] ICR 1247

Links:

Bailii

Employment, Discrimination

Updated: 17 July 2022; Ref: scu.270924

Renewed application for permission to appeal.

Citations:

[2001] EWCA Civ 399

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 July 2022; Ref: scu.200934

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

Judges:

The Honourable Mr Justice Burton

Citations:

EAT/419/02, [2003] EAT 0419 – 02 – 2003, [2003] UKEAT 0419 – 02 – 2003

Links:

Bailii, Bailii, EATn

Jurisdiction:

England and Wales

Discrimination, Employment

Updated: 17 July 2022; Ref: scu.184364

EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new provisions included reference to the Code of Practice issued by the Equal Opportunities Commission, which provided that the employer should provide a transparent system for setting pay so as to encourage equal treatment. The tribunal set out guidelines now to be followed under the new rules for determining whether discrimination had occurred, emphasising the need to follow the two stage procedure carefully. Inferences drawn against the employer under the new sections might also inform decisions under the 1970 Act.

Judges:

His Hon Judge Ansell

Citations:

EAT/18/03, Times 16-Apr-2003, Gazette 05-Jun-2003, [2003] EAT 18 – 03 – 0304, [2003] UKEAT 18 – 03 – 0304, [2003] ICR 1205

Links:

Bailii, Bailii

Statutes:

Sex Discrimination Act 1975 56A 63A, Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (2001 No 2660), Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

Updated – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Followed – Brunnhofer v Bank der Osterreichischen Postparkasse AG ECJ 26-Jun-2001
Europa Equal pay for men and women – Conditions of application – Difference in pay – Definition of ‘the same work and ‘work of equal value – Classification, under a collective agreement, in the same job category . .
Followed – 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 by:

Applied – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Cited – Igen Ltd (Fomerly Leeds Careers Guidance) and others v K Wong EAT 5-Apr-2004
EAT Race Discrimination
Burden of proof in Race Relations Act 1976 s 54A. Whether a prima facie case had been made to transfer the burden. Application of Barton v Investec. . .
Cited – High Quality Lifestyles Ltd v Watts EAT 10-Apr-2006
EAT The Employment Tribunal had erred in its construction of direct discrimination under s3A(5) of the Disability Discrimination Act 1995 as amended when it failed to construct a correct hypothetical comparator . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 17 July 2022; Ref: scu.180594

(Employment Tribunal) The Claimant brought complaints of direct age discrimination, age victimisation, direct sex discrimination and sex victimisation
.

Citations:

[2011] EW Misc 1 ET

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 July 2022; Ref: scu.430059

EAT PRACTICE AND PROCEDURE:
Preliminary issues
EQUAL PAY ACT
Material factor defence and justification

This case involves complicated equal pay claims against the council in which different claimants (some 1050 in all) compare themselves with a range of comparators. There are also discrimination claims against the two trade unions. The claims relate to two periods, one pre-October 2005 and the second after that date. There were separate GMF defences with respect to each period. A hearing with respect to both was ordered on the premise, accepted by the council, that the jobs were either of equal value or had been rated as equivalent in a job evaluation study (JES). Subsequently the lawyers for the claimants indicated that they wished to amend the claim to challenge the validity of a JES. The basis of the claim for many of the claimants had hitherto been that this was valid and that they had been rated equally with their chosen comparators under it. In the light of this proposed amendment the employers sought to have the GMF hearing stayed until the application to amend, and the determination of the JES challenge if the amendment was permitted, had been determined. The Employment Tribunal resolved to adjourn consideration of the amendment and to continue with the GMF hearings.
The EAT held, contrary to the submissions of the employers, that the Tribunal was entitled to take the view that the hearing should continue with respect to the GMF defence pre-October 2005 since that would remain in issue whatever the outcome of the JES challenge. However, the Tribunal did not act reasonably in determining that the post 2005 GMF defence should also be determined. There were potentially significant adverse consequences if that were to be decided against the employers and the challenge against the JES were subsequently to be accepted and prove successful.
The order of the Tribunal was varied so that at the resumed hearing it should only hear and determine the pre-October 2005 GMF defence.

Judges:

Elias P J

Citations:

[2008] UKEAT 0219 – 08 – 2006

Links:

Bailii

Statutes:

Equal Pay Act 1970

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

Employment, Discrimination

Updated: 17 July 2022; Ref: scu.270230

EAT VICTIMISATION DISCRIMINATION:
Dismissal
UNFAIR DISMISSAL:
Reasonableness of dismissal
Reason for dismissal for purposes of (a) s2 RRA victimisation claim and (b) unfair dismissal. Whether s2(2) RRA disqualified the Claimant from pursuing victimisation claim. Reasonableness under s98(4) dependant on (a) finding of victimisation being upheld (it was not) and (b) finding of failure to carry out reasonable investigation into a matter which did not form part of the reason for dismissal as found by ET. Appeal allowed. Consequent remedy appeal by Claimant (and cross-appeal by Respondent) dismissed.

Citations:

[2008] UKEAT 0408 – 07 – 0204, [2008] IRLR 940

Links:

Bailii

Statutes:

Race Relations Act 1976

Employment, Discrimination

Updated: 17 July 2022; Ref: scu.270226

EAT Equal Pay
Material factor defence
Although the Claimant had a reasonably arguable point that the Employment Tribunal erred in its approach to overall pay when if applied Degnan v Redcar CA and not Hayward v Cammell Laird HL, the finding for the employer on its material factor defence means that the appeal could not succeed on either approach.

Judges:

McMulklen QC J

Citations:

[2008] UKEAT 0050 – 08 – 2703

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 17 July 2022; Ref: scu.269763

EAT Jurisdictional Points – Extension of time: just and equitable
Sex Discrimination – Indirect
>Unfair Dismissal – Constructive dismissal

The Appellant claimed constructive unfair dismissal and race and sex discrimination. At a PHR the Tribunal struck out the race discrimination claim on the basis that it was not just and equitable to extend time and ordered payment of andpound;300 deposit on each of the other 2 claims. On appeal, held:
1) as to race discrimination the Tribunal erred in law (a) in considering only one of the complaints made by the Appellant some of which arose later than the complaint on which the Tribunal focussed (b) in failing to consider the issue of prejudice and whether a fair trial would be had despite the delay.
2) as to sex discrimination the Tribunal had failed to understand that the claim was one of indirect discrimination off the true nature of the claim, based as it was on a length of service requirement before an employee could be considered for promotion or a change of post. It could not reasonably be concluded that there was little reasonable prospect of success.
3) as to constructive dismissal the Tribunal had erred in law in regarding as decisive that the last straw was not a breach of contract and in concluding that it was not such a breach.
As to 2) and 3) the Tribunal’s decision was set aside; no deposit was required. As to 1) issue of extension of time remitted to a fresh Tribunal.

Citations:

[2008] UKEAT 0451 – 07 – 2805

Links:

Bailii

Citing:

Cited – London Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 July 2022; Ref: scu.268113

EAT Sex Discrimination – Comparison – Burden of proof
Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
Direct sex discrimination – less favourable treatment – comparative exercise – Respondents’ explanation – adequacy of reasons.

Citations:

[2008] UKEAT 0080 – 08 – 2305

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 . .

Cited by:

Appeal from – F and C Asset Management Plc and others v Switalski CA 20-Oct-2008
. .
See Also – F and C Asset Management Plc and others v Switalski EAT 9-Dec-2008
EAT PRACTICE AND PROCEDURE: Review
UNFAIR DISMISSAL: Constructive dismissal
SEX DISCRIMINATION: Direct
Two appeals in respect of two matters heard together by the Employment Tribunal:
(i) . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 July 2022; Ref: scu.268112

EAT Race Discrimination – Detriment
The Appellant is a police officer in the Derbyshire Constabulary. He made a race discrimination complaint against a colleague which he withdrew. He subsequently brought race discrimination proceedings against the Chief Constable. Among many complaints was one of victimisation by his colleagues on the ground of the earlier proceedings. His colleagues had recorded a number of matters about him. This recording and reporting was said to amount to a detriment because of the effect on the Appellant. The ET dismissed all his complaints and in dealing with the victimisation complaint held that the mere act of making a written record where no inappropriate action was taken in respect of the issues recorded was not a detriment. On the correctness of this single point the Appellant was given permission to appeal.

Citations:

[2008] UKEAT 0499 – 07 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 15 July 2022; Ref: scu.268109

EAT Disability Discrimination – Reasonable adjustments
The Employment Tribunal did not fail to consider the Claimant’s suggested adjustments to accommodate his disability. Whether or not the employer knew of the disability, as a matter of fact it did all it could be required to do.

Citations:

[2008] UKEAT 0600 – 07 – 3103

Links:

Bailii

Employment, Discrimination

Updated: 15 July 2022; Ref: scu.267952

Renewed application for permission to appeal against decision of EAT allowing appeal against finding of race discrimination.

Citations:

[2008] EWCA Civ 521

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Centrewest London Buses Ltd v Ukachukwu EAT 20-Dec-2007
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
RACE DISCRIMINATION
Direct
The comparative exercise in race discrimination and victimisation claims. Application of the CRE Code of Practice. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 July 2022; Ref: scu.267897

EAT Jurisdictional points – Agency relationships
Sex discrimination – Contract workers
The Claimant was employed by CSV to work at a prison. The prison had an arrangement, but not a contract, with CSV and so the prison could not be liable to the Claimant as a contract worker under Sex Discrimination Act 1975 s9, nor under s41 for the acts of prison officers. It was not necessary to imply a contract of employment with the prison.

Judges:

McMullen QC J

Citations:

[2008] UKEAT 0462 – 07 – 2102

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 9

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266971

EAT EQUAL PAY ACT – Case Management
Multiple equal pay claims – Lead cases – Problem caused by possibility that jobs done by lead Claimants or their comparators might have materially changed over the claim period – Held that it was a proper exercise of the Chairman’s discretion initially to limit the experts’ consideration to the facts as they stood at the date that the claims were presented and to defer consideration of the issues that might arise if it were subsequently alleged that the facts had been materially different at some earlier date within the claim period – General observations about the proper analysis of an equal pay claim extending over a period and about how cases involving alleged changes during that period may be case-managed (including whether it is necessary for a Tribunal to obtain an expert’s report in respect of the entire period, even where it is alleged that changes have occurred).

Citations:

[2008] UKEAT 0004 – 08 – 1704

Links:

Bailii

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266972

EAT Practice and Procedure – Costs
Race discrimination – Burden of proof
Position of costs order made by Tribunal because of conduct where the ground upon which an appeal is allowed is independent of and unrelated to the reasons for which the Tribunal made the costs order.

Citations:

[2008] UKEAT 0461 – 07 – 1404

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266731

EAT Race Discrimination – Continuing Act
Practice and Procedure – Striking-out/dismissal
Allegations of racial discrimination occurring over lengthy period of time. Meaning of ‘act extending over a period’ and the Employment Tribunal’s approach on a pre hearing review. Claimant’s appeal from case management decision to limit allegations dismissed.

Citations:

[2008] UKEAT 0487 – 07 – 1404

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Owusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266732

The claimant said that she had been discriminated against on the ground of her pregnancy having been suspended from her post as duty manager, the company saying that the job involved a risk to her health. The tribunal found that her managers had not conducted a proper assessment, but had assumed a patronising and dismissive view of her condition. However, her claim had failed as a pregnancy related claim, but succeeded as a simple sex discrimination claim, and that she should succeed in her claim of unfair constructive dismissal.

Judges:

Serota QC

Citations:

[2006] ICR 761, [2005] UKEAT 0313 – 05 – 2811, [2006] IRLR 266

Links:

Bailii

Statutes:

Employment Rights Act 1996

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266682

EAT Sex Discrimination: Indirect
On the issue of disparate adverse impact, Tribunal correct in taking as a pool for comparison women with childcare responsibilities who suffered detriment by reason of fixed rotational shifts.

Judges:

Ansell J

Citations:

[2007] UKEAT 0044 – 07 – 2012

Links:

Bailii

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266654

EAT Race Discrimination – Burden of proof
Contract of Employment – Implied term/variation/construction of term
The issue on the appeal was whether it had been open to the ET to conclude that a firm of solicitors had not discharged the burden of proof on it that the withdrawal of an offer of employment to a locum solicitor, who was a black Nigerian national, was unconnected with his colour or ethnic origin. The EAT dismissed the appeal, concluding that the ET’s conclusion had been open to it. The issue on the cross-appeal was whether the ET had erred in law in dismissing the Claimant’s claim that the withdrawal of the offer (which he had by then accepted) before the employment was due to begin amounted to a breach of contract, bearing in mind that the terms of the Claimant’s employment permitted the firm to terminate his employment at any time without notice or liability. The EAT allowed the appeal, concluding that the provision for termination only applied after the employment had started and did not apply to the withdrawal of the offer before the employment had commenced, but commenting that the Claimant’s damages were likely to be nominal since his employment could have been terminated with immediate effect and without liability on the day when it was due to begin.

Judges:

Keith J

Citations:

[2007] UKEAT 0315 – 07 – 2011

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266650

EAT DISABILITY DISCRIMINATION
The EAT held that there were arguable errors in the ET’s approach to the factual questions raised by sections 5 and 6 of the Disability Discrimination Act 1995 before their repeal.

Judges:

Keith J

Citations:

[2007] UKEAT 0370 – 07 – 3011

Links:

Bailii

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266652

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 stringent burden of proof set out in King v Great Britain – China Centre [1992] ICR 516 and Anya v University of Oxford [2001] ICR 847 applies.

Citations:

[2007] UKEAT 0035 – 07 – 1102, [2008] ICR 598

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 . .

Cited by:

Not preferred – Milton Keynes General Hospital NHS Trust and Another v Maruziva EAT 9-Oct-2009
EAT RACE DISCRIMINATION: Direct / Burden of proof
VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke
Numerous complaints of direct . .
Cited – Ministry of Defence v Fletcher EAT 9-Oct-2009
mod_fletcherEAT2009
EAT SEX DISCRIMINATION
Injury to feelings
SEXUAL ORIENTATION DISCRIMINATION
Where there is overlap between the basis of aggravated damages and compensation for injury to feelings, double counting . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266634

EAT Disability Discrimination – Reasonable adjustments
The Employment Tribunal found that there has been a failure to make a reasonable adjustment. The EAT held that the tribunal had misdirected itself in determining that question and remitted the case to a fresh tribunal.

Citations:

[2008] UKEAT 0622 – 07 – 1903

Links:

Bailii

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266410

EAT Race Discrimination – Continuing Act
The correct approach to considering whether complaints about individual matters, prima facie out of time, can be coincided by the ET because they form part of a continuing act.

Citations:

[2008] UKEAT 0495 – 07 – 1701

Links:

Bailii

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.266406

Disability related discrimination – section 15(2) – knowledge; section 15(1)(b) – justification; loss and mitigation; compensation
It was accepted that the Claimant was a disabled person for the purposes of the Equality Act 2010 – by reason of the fact she suffered from mental and psychiatric impairments, namely stress, depression, low mood and schizophrenia – but she had not disclosed these conditions to the Respondent and had given alternative reasons for health-related absences during her employment. The ET accepted that the Respondent had no actual knowledge of the Claimant’s disability but found it should have made more enquiries into the position and that it therefore had constructive knowledge for the purposes of section 15(2) Equality Act.
The Respondent had dismissed the Claimant because of her poor attendance and time-keeping. The first reason related to something arising from her disability; the second did not. The Respondent was able to demonstrate that it had a legitimate aim – in that it needed a dependable person in the Claimant’s post – but, the ET concluded, given the intemperate and precipitate nature of the decision-making process, the Respondent could not show its summary dismissal of the Claimant was a reasonably necessary means of achieving that aim. It therefore upheld the Claimant’s complaint of unlawful disability discrimination under section 15 EqA.
Going on to consider remedy, the ET sought to apply the guidance in Abbey National plc v Chagger [2010] ICR 397, finding that – had the Respondent made further enquiries – the Claimant would have continued to hide her mental health problems and would have refused to engage with any occupational health or other medical referral that might disclose her history. That being so, the ET found that there would then have been a 50% chance that the Claimant would have been the subject of a non-discriminatory dismissal and that, in any event, her employment would have ended before she had reached two years’ service. Allowing that the Claimant’s poor time-keeping had also fed into the decision to dismiss, the ET considered that this should result in a 20% reduction in her compensation for contributory fault.
The Respondent appealed against each of these findings.
Held: allowing the appeal in part
On the question of constructive knowledge, the ET had focused on what it considered might have been the further steps the Respondent could reasonably have been expected to take; it had failed, however, to ask itself whether the Respondent could then have reasonably have been expected to know of the Claimant’s disability. Its further findings relevant to loss answered that question: had the Respondent made the further enquiries the ET considered might have been expected, it would still not have known of the Claimant’s disability because she would have continued to hide the true facts of her mental health condition. That being so, the answer for section 15(2) purposes was that the Respondent neither knew, nor could reasonably have been expected to know, of the Claimant’s disability. The Respondent’s appeal was allowed on this basis.
As for justification, the question for the ET was whether the Respondent had made good its justification of the Claimant’s dismissal. The ET’s reasoning went to the question whether the summary nature of the dismissal was justified but did not fully engage with the issue of the dismissal more generally. Doing so, the ET would have needed to take into account the business needs of the employer (Hensman v MoD UKEAT/0067/14 applied) but its reasoning did not demonstrate that it had. Had it been necessary to determine this point, the Respondent’s appeal on this ground would also have been allowed.
On the question of loss, in the circumstances of this case, the ET had permissibly taken account of the other, non-discriminatory reason for the Claimant’s dismissal (her poor time-keeping) when assessing contributory fault. Ultimately the Respondent’s appeal against the ET’s findings on loss amounted to perversity challenges and did not meet the high threshold required. If the challenges to the ET’s liability findings had not been upheld, the Respondent’s appeal on the question of loss would not have been successful.

Citations:

[2019] UKEAT 0273 – 18 – 2803

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.639324

DISABILITY DISCRIMNATION – Exclusions/jurisdictions
The Tribunal had not erred in concluding that a manifestation of the Claimant’s post-traumatic stress disorder and dissociative amnesia was a tendency to steal which was an excluded condition pursuant to Regulation 4(1)(b) Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128). The ET was entitled, on the evidence, to reject the Claimant’s contention that his behaviour merely memory loss and forgetfulness and not dishonest. The Tribunal had correctly applied Ivey v Genting Casinos (UK) Ltd t/a Crackfords [2017] UKSC 67. Since the effective cause of the Claimant’s dismissal – the discriminatory treatment complained of – was the excluded condition, it followed that the ET did not err in dismissing the complaint of disability discrimination ( Edmund Nuttall Ltd v Butterfield [2006] ICR 77 followed and applied).
The ET did not err in conducting the Preliminary Hearing before a Judge sitting alone rather than a full Tribunal since neither party had made a request for a full Tribunal pursuant to Rule 55 Employment Tribunal Rules of Procedure . The Tribunal’s findings of fact were not perverse. The Tribunal decision was upheld.

Citations:

[2018] UKEAT 0099 – 18 – 0309

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 July 2022; Ref: scu.630728

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Constructive dismissal
Employment Tribunal (a) found the wrong comparator; (b) found a reasonable adjustment to encourage a disabled employee to return to work was to hold a disciplinary hearing whilst she was on sick leave; (c) found that a failure to do so amounted to constructive dismissal. Appeal allowed on all 3 grounds. The EAT decided that the claims should be dismissed.

Judges:

Birtles J

Citations:

[2011] UKEAT 0258 – 10 – 0103

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 July 2022; Ref: scu.430307

EAT Race discrimination – Inferring discrimination / Burden of Proof
whether Tribunal erred in its approach to the shifting burden of proof – whether it was open to the Tribunal on the primary facts which it found to draw inferences of race discrimination.
Unfair dismissal – Reason for dismissal including substantial other reason / Reasonableness of dismissal
whether it was open to the Tribunal on the primary facts which it found to conclude that the employee had been dismissed for a reason which related to his conduct – whether, on the assumption that the employee had been dismissed for a reason which related to his capability, it was open to the Tribunal to find that a further invitation to the employee to discuss the effect of his medical condition on his future employment might have been accepted.

Judges:

Peter Clark J

Citations:

[2008] UKEAT 0506 – 07 – 2802

Links:

Bailii

Employment, Discrimination

Updated: 13 July 2022; Ref: scu.266072

EAT Race Discrimination – Jurisdiction.

Judges:

Levy QC HHJ

Citations:

EAT/1177/98, [2000] UKEAT 1177 – 98 – 1212

Links:

EAT, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Bayliss v London Borough of Hounslow and others EAT 22-Oct-1999
. .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 13 July 2022; Ref: scu.265817

Judges:

Peter Clark HHJ

Citations:

[2000] EAT 387 – 99 – 2605

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Employment, Discrimination

Updated: 13 July 2022; Ref: scu.265144

Citations:

[2000] UKEAT 381 – 00 – 0906

Links:

Bailii

Cited by:

See Also – Martin v Goldsobel EAT 6-Sep-2001
The employee had been dismissed. She alleged that it was because of her pregnancy, and was automatically unfair. The employers, a firm of solicitors, alleged that it related to her standards of work.
Held: To establish sex discrimination a . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 July 2022; Ref: scu.265265

EAT Disability Discrimination – Reasonable adjustments.

Judges:

The Honourable Mr Justice Charles

Citations:

EAT/785/99, [2000] UKEAT 785 – 99 – 1201

Links:

EAT, Bailii

Employment, Discrimination

Updated: 13 July 2022; Ref: scu.264684

EAT Disability Discrimination – disability
The Claimant suffered a dislocation of her left knee cap on two occasions. She was a person who had an increased risk of dislocation of the patella. Between the first and second dislocations she made a complete recovery.
Held: the Employment Tribunal was entitled to find the impairment continued though there were no adverse effects between the two dislocations and to hold she was disabled within the meaning of the Disability Discrimination Act 1995 (DDA).

Judges:

Reid QC J

Citations:

[2008] UKEAT 0322 – 07 – 2301

Links:

Bailii

Statutes:

Disability Discrimination Act 1995

Employment, Discrimination

Updated: 13 July 2022; Ref: scu.263972

EAT PRACTICE AND PROCEDURE: Disclosure
Disclosure of specific documents is necessary where evidence in a different employee’s grievance, of a ‘smoking gun’ supporting the Claimant’s case of race discrimination, is found and sought to be pursued. Employment Judge’s refusal set aside and a fresh narrower application granted.

Citations:

[2009] UKEAT 0064 – 09 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.317867

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 blurred the distinction between client and friend. Claims for unfair dismissal and religious discrimination.
Tribunal found that evidence did not justify any finding of inappropriate promotion of religious beliefs but that dismissal justified on other charge – Dismissal did not constitute religious discrimination because it was on grounds of inappropriate proselytisation rather than of Appellant’s religion as such.
Held:
(1) Tribunal entitled to find dismissal fair on basis of only part of the employer’s reasoning; and conclusion on fairness not perverse.
(2) Tribunal entitled to dismiss discrimination claim on the basis that it did – No error in identification of comparator: Shamoon and Ladele relied on.

Citations:

[2009] UKEAT 0298 – 08 – 1102

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .

Cited by:

Cited – McFarlane v Relate Avon Ltd EAT 30-Nov-2009
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.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.304520

EAT Equal Pay Act – Equal value/Material factor defence
Tribunal Chairman correct in refusing to allow an equal value expert on a GMF hearing.

Judges:

Ansell J

Citations:

[2007] UKEAT 0428 – 07 – 1812

Links:

Bailii

Statutes:

Equal Pay Act 1970

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.262897

EAT Disability discrimination – Reasonable adjustments/Justification
1. The employers appealed against two findings by the Tribunal that they had failed to make reasonable adjustments for her disability and against the finding that their admittedly disability-related dismissal of the employee was not justified.
2. The first adjustment which the Tribunal concluded the employers ought to have made and which was the subject of the appeal was the obtaining of a medical report as to the employees’ condition and prognosis. Held (i) that in the light of the EAT’s decision in Tarbuck and subsequent cases it was not in law open to the Tribunal to find that such an adjustment should have been made (ii) the Tribunal had, following Mid Staffordshire (Tarbuck not being yet reported) concluded that the adjournment should be made without carrying out the balancing exercise required by s18B(1) of the DDA.
3. The second adjustment was re-allocation of the employee’s-duties while she was unable to work or to work fully. Held that the Tribunal had failed to take all the relevant evidence as to the employees’ condition and prognosis into account and had not concluded whether it was reasonable for the employers to have to make the adjustment.
4. As to justification, the Tribunal had failed to conclude whether, had the adjustment by way of provision of equipment to assist the employee (which adjustment was not the subject of appeal) the employee would have been enabled thereby to return to work.
5. The decision as to the first adjustment was reversed. The decisions as to the second adjustment and justification were remitted for reconsideration by the same Tribunal.

Judges:

Burke QC J

Citations:

[2007] UKEAT 0507 – 06 – 1812

Links:

Bailii

Citing:

Cited – Tarbuck v Sainsbury’s Supermarkets EAT 8-Jun-2006
EAT The appellant was disabled. She was found to have been unfairly dismissed and the subject of three acts of disability discrimination. One of these was an alleged failure to consult which was treated as a . .
Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
Cited – British Gas Services Ltd v McCaull EAT 28-Sep-2000
EAT Disability Discrimination – Adjustments . .
Cited – Smiths Detection – Watford Ltd v Berriman EAT 9-Aug-2005
EAT The Employment Tribunal was wrong to find that the Respondent had discriminated against the Claimant under Section 6(1) of the Disability Discrimination Act 1995 because it omitted to find what arrangements . .
Cited – Rothwell v Pelikan Hardcopy Scotland Ltd EAT 23-Sep-2005
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
UNFAIR DISMISSAL
Procedural fairness
The claimant, who suffered from Parkinson’s Disease, claimed that he had been unfairly dismissed and . .
Cited – Hay v Surrey County Council CA 16-Feb-2007
The claimant had been employed driving a mobile library. She came to suffer back problems, and was dismissed when the respondent said that she could not work within a library without the ability to lift, after she turned down a move to a different . .
Cited – Southampton City College v Randall EAT 22-Sep-2005
EAT Disability Discrimination: Reasonable Adjustments and Justification; Unfair Dismissal: Reasonableness of Dismissal
The Employment Tribunal is correct in finding that as employer did not regard the . .
Cited – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.262898

EAT Equal Pay Act – Material factor defence
The claimant police officers received less than their male comparator doing like work. The reason was that he worked shifts involving night work and received a special payment (effectively a bonus) for this, but they did not work those hours because they were incompatible with their child care responsibilities. The Tribunal held that it was a legitimate objective to reward night work, but that the Chief Constable could have paid the claimants as though they had done night work, even though they had not. It would not have been a significant expenditure and would have eliminated the discrimination. The EAT upheld the Chief Constable’s appeal and held that the Tribunal had misunderstood the nature of the justification defence and had erred in concluding that the differential was not reasonably justified.

Judges:

Elias P J

Citations:

[2007] UKEAT 0007 – 07 – 1112, [2008] ICR 505

Links:

Bailii

Statutes:

Equal Pay Act 1970 1

Cited by:

Cited – Blackburn and Another v West Midlands Police CA 6-Nov-2008
The claimants, female police officers, complained that male officers had received priority payments where they had received none. The defendant said that the payments were justified in achieving a proper aim, namely the encouragement of night . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.261967

DISABILITY DISCRIMINATION – Disability related discrimination
The Claimant was employed by the Respondent, a provider of services for adults and children with special needs, as a care worker on a temporary basis. She applied for and was granted a permanent position, but subject to medical clearance. Following receipt of a medical report, the Respondent withdrew the offer. Her claim of discrimination arising from disabilities (s.15 of the Equality Act 2010) was upheld by the Employment Tribunal. In particular, it held that the withdrawal of the offer was not a proportionate means of achieving the legitimate aim of compliance with the Respondent’s Duty under Regulation 32(3) of the Children’s Homes (England) Regulations 2015.
The Respondent challenged the decision on proportionality, in particular contending that the ET failed to ask itself whether the lesser steps which it had identified would be likely to have resulted in a different response from the Respondent’s decision maker; and that on the evidence, the job offer would still have been withdrawn.
The EAT dismissed the appeal, in particular holding that, in considering the issue of proportionality, the ET did not have to be satisfied that the identified and proportionate lesser measures would or might have been acceptable to the decision maker or otherwise caused him to take a different course. To do so would be at odds with the objective question which it had to determine; and would give primacy to the evidence and position of the decision maker.

Judges:

Soole J

Citations:

[2019] UKEAT 0288 – 18 – 1104

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.639326

RACE DISCRIMINATION – Direct
HARASSMENT – Conduct
A colleague of the Appellant, Ms S, posted an image of a golliwog on her private Facebook page with the caption, ‘Let’s see how far he can travel before Facebook takes him off’. The image was shared with Ms S’s list of Facebook friends, including another colleague, BW. BW showed the Facebook post to the Appellant. The Appellant complained of harassment by Ms S. Ms S apologised and received a final written warning. Thereafter, the Appellant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. The Appellant complained to the Tribunal of harassment, victimisation and discrimination.
The Employment Tribunal dismissed the complaint. Whilst it found that Ms S had shared an image that was capable of giving rise to offence on racial grounds, her act of posting the message on her Facebook page was not an act done in the course of her employment and was therefore not one for which the Respondent could be liable. The Appellant appealed.
Held (dismissing the appeal) that section 109(1) of the Equality Act renders an employer liable for the acts of an employee done ‘in the course of employment’. Whether or not an act is in the course of employment within the meaning of that section is a question of fact for the Tribunal to determine having regard to all the circumstances: Jones v Tower Boot Co Ltd [1997] IRLR 168 applied. The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work. It might not be easy to determine whether something was done at work if it is done online. In this case, the Tribunal did not err in law in concluding that Ms S’s act of posting the image on her Facebook page was not done in the course of employment; it was a private Facebook account, and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague, BW, who took the subsequent step of showing the image to the Claimant at work. The outcome of the complaint might have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Appellant was done in the workplace and might be said to have been done ‘in the course of employment’. However, that was not the complaint that the Tribunal had to consider.

Citations:

[2019] UKEAT 0174 – 18 – 2802

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.639323

AGE DISCRIMINATION
Following funding cuts imposed by central government the Ministry of Justice made changes, among other things, to the rate at which certain Probation Officers progressed up an incremental salary scale. The effect was that progression to the top of the scale would take many years longer than had previously been the case.
The Tribunal found that the policy was prima facie discriminatory in favouring employees over the age of 50 as against younger employees. That finding was not appealed.
However, the Tribunal went on to find that the policy was, in all the circumstances, justified. The EAT rejected the Claimant’s appeal against that finding, holding that the Tribunal was entitled to find, on the facts, that this was not a ‘cost alone’ case (see Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330 which held that cost alone could not amount to a legitimate aim capable of justifying discrimination). The EAT noted that following HM Land Registry and Benson and Ors [2012] IRLR 373 and Edie and Ors v HCL Insurance BPO Services Ltd [2015] OVR 713 it is legitimate for an organisation to seek to break even year on year and to make decisions about the allocation of its resources.
The present Tribunal had correctly identified the key questions before it and weighed the relevant factors in the balance. The resulting decision was one which it was entitled to make, and with which the EAT could not interfere.

Citations:

[2019] UKEAT 0149 – 18 – 2506

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.639216

EAT RACE DISCRIMINATION: Direct / Inferring discrimination
PRACTICE AND PROCEDURE: Appellate jurisdiction /reasons /Burns-Barke
Issues- what steps an Employment Tribunal should take before drawing inferences of racial discrimination and how it should regard explanations given by the employer for its action
Claim for discrimination on grounds of nationality and ethnic origin by Claimant against his erstwhile employers, the Respondent. It succeeded before the Employment Tribunal. The alleged discrimination related to the failure of the Respondent to appoint the Claimant to a post he applied for
The Respondent appealed.
Appeal allowed and remitted because the Employment Tribunal erred when it:-
1. Drew inference of racial discrimination from the respondent’s failure to comply with a Code of Practice without considering whether there was another reason unconnected with the claimant’s race or ethnic origin for its failure to comply with the Code. Alternatively no reason given for inference of racial discrimination from the respondent’s failure to comply with a Code of Practice;
2. Inferred that there was a prima facie case of racial discrimination without explaining why it did not regard as decisive or of substantial significance that the successful candidate obtained higher scores than the claimant;
3. Assumed that an ‘inadequate or unsatisfactory ‘ explanation for prima facie discriminatory conduct could entitle the Employment Tribunal to conclude that there was discrimination with out considering whether any explanation for the conduct which was not indicative of racial discrimination;
4. Concluded that there had been stereotyping of the claimant without considering the context in which the successful candidate referred to ‘nationalism’ and ‘multicultural issues’.

Citations:

[2009] UKEAT 0490 – 08 – 2704

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.342107

EAT DISABILITY DISCRIMINATION: Disability
The Employment Tribunal found as a fact that the Claimant was not disabled. That conclusion was challenged on various grounds including perversity. Appeal dismissed on the basis that there was adequate material before the Tribunal which permitted it to come to that conclusion.

Citations:

[2009] UKEAT 0288 – 08 – 3103

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Paterson v Commissioner of Police of the Metropolis EAT 23-Jul-2007
EAT PART TIME WORKERS
A police officer was found by the Tribunal to be significantly disadvantaged compared with his peers when carrying out examinations for promotion. Nonetheless, the Tribunal held that he . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.328007

EAT EQUAL PAY ACT: Material factor defence and justification
The claimants brought various equal pay claims naming refuse collectors as comparators. The claimants were in predominantly female jobs and the comparators in an almost exclusively male job. The council advanced three genuine material factor (GMF) defences. They lost on two and succeeded on the third. They succeeded on the basis that they were justified in limiting a pay protection scheme to those who actually suffered a reduction in income when a new job evaluation scheme was introduced.
The council appealed the two GMFs that it lost and the claimants cross appealed the successful GMF.
The EAT held that the Tribunal had been entitled to find that the council had failed to establish the two GMFs on which they failed. They allowed the cross appeal on the grounds that the Employment Tribunal had placed significant emphasis on the EAT decision in Middlesbrough City Council v Surtees [2007] IRLR 869 but that had been overturned by the Court of Appeal in Redcar and Cleveland Borough Council v Bainbridge [2008] IRLR 776.
The issue remitted to the same Tribunal to consider the protected pay GMF afresh.

Judges:

Elias P J

Citations:

[2009] UKEAT 0162 – 08 – 2702, [2009] IRLR 345

Links:

Bailii

Statutes:

Equal Pay Act 1970

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

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.317865

EAT Unfair dismissal – Procedural fairness/automatically unfair dismissal
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
Race discrimination – Direct / Burden of proof / Victimisation
It being common ground that the Employment Tribunal directed itself correctly on the law, its application to the facts was not perverse. The Employment Tribunal approached the burden of proof correctly, except for holding contrary to the new case of Oyarce that s.54A Race Relations Act 1976 applies to victimisation. However, the judgment was unarguably correct on King v GBC-C principles, as the Respondent had failed to give an acceptable explanation for its actions. The EAT refused permission to raise two new points on appeal SoS v Rance applied.

Citations:

[2007] UKEAT 0208 – 07 – 2410

Links:

Bailii

Statutes:

Race Relations Act 1976 54A

Citing:

Cited – RSPCA v Cruden EAT 1986
The dismissal of an employee of the RSPCA was unfair simply because of a delay with no good reason of some 7 months in initiating proceedings. This was even though the employee had suffered no prejudice as a result of the delay.
If a . .
Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
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: 12 July 2022; Ref: scu.261537

EAT Unfair Dismissal – Reasonableness of dismissal / Automatically unfair reasons
Disability Discrimination – Reasonable adjustments
Race discrimination – Victimisation
Ordinary unfair dismissal (conduct). Automatically unfair dismissal (s98A ERA): completion of disciplinary procedure. Reasonable adjustments: application of PCP. Victimisation.

Citations:

[2007] UKEAT 0427 – 06 – 1210

Links:

Bailii

Citing:

Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .

Cited by:

Appeal from – Selvarajan v Wilmot and others CA 23-Jul-2008
The appellant had employed the three claimants in his medical surgery, but they claimed automatic unfair dismissal when the practice closed on his suspension from practice and the statutory procedures were followed but not to the procedural . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 July 2022; Ref: scu.259828

EAT PRACTICE AND PROCEDURE: Bias / Costs
The Employment Tribunal Chairman did not err in striking out two of the Claimant’s claims and allowing others to remain as background evidence, with other claims to proceed in full. The EAT found that she was not biased. A second Employment Tribunal Chairman who found the conduct of the Claimant and her representative unreasonable struck out the remaining claims. No valid appeal was lodged. He did not err in principle, and was not biased, when he awarded a part of the costs of the proceedings against her. The EAT dismissed both appeals and awarded costs against her in respect of the unsuccessful allegations bias pursued despite two costs warnings.

Citations:

[2007] UKEAT 0616 – 06 – 1508

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: 12 July 2022; Ref: scu.259818

The council appealed against a finding of discrimination under the 1970 Act, saying it was impermissible to use as a comparator somebody found after a job evaluation study to be of a different, but lower grade, but with higher pay.
Held: The appeal failed. The Act implemented a European Directive and should be read purposively. Sections 1(2)(b) and 1(5) should be read together, adding after the first occurrence of ‘equal value’ to section 1(5) the words ‘or her job has been given a higher value’ and after the second ‘or her job would have been given a higher value,’

Citations:

[2007] EWCA Civ 929, Times 28-Nov-2007, [2008] ICR 238, [2007] IRLR 984

Links:

Bailii

Statutes:

Equal Pay Act 1970

Jurisdiction:

England and Wales

Citing:

See Also – Redcar and Cleveland Borough Council v Bainbridge and others EAT 16-Oct-2006
EAT Equal pay in the North East. Women whose jobs had been rated as equivalent with comparator men (and in some cases had been rated higher) were paid less because of the effect of bonuses and other extra . .
See Also – Redcar and Cleveland Borough Council v Bainbridge and others EAT 15-Nov-2006
. .
See Also – Bainbridge and others, Redcar and Cleveland Borough Council v Redcar and Cleveland Borough Council, Williams and others EAT 31-Jan-2007
EAT Practice and Procedure – Compromise. . .
See Also – Bainbridge and others v Redcar and Cleveland Borough Council EAT 23-Mar-2007
EAT Practice and Procedure – Compromise
Equal Pay Act – Work rated equivalent; Damages/Compensation
This case raises three issues, two of which are of particular significance in the field of equal . .

Cited by:

See Also – Redcar and Cleveland Borough Council v Bainbridge and others (‘Bainbridge 1’) CA 29-Jul-2008
Pay protection provisions are commonly adopted, and provided any differential in pay does not continue for too long, they may justify what would otherwise be unlawful indirect discrimination. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 12 July 2022; Ref: scu.259671

The Claimant brought complaints against the Respondent bank including direct sex discrimination, harassment (s.26 EqA) and maternity leave discrimination. The ET upheld the claims on the basis which included the conclusion that the decision-makers had acted on the basis of certain stereotypical assumptions about women and about women taking maternity leave.
The Respondent appealed the decisions on sex discrimination/harassment on the basis that it had been no part of the Claimant’s case that the decisions were based on stereotypical assumptions; nor had the Tribunal suggested to the Respondent or its witnesses that it had such matters in mind in its consideration of the inferences to be drawn about the reasons for the conduct of which complaint was made. The reference to stereotypical assumptions had appeared for the first time in the Judgment; and accordingly, the Respondent and its witnesses had had no opportunity to challenge the existence of the alleged stereotypical assumptions or their application to the conduct of the decision-makers; and that this constituted unfairness.
The Respondent challenged one of the two findings of maternity leave discrimination, on the basis that the Tribunal had wrongly substituted a ‘but for’ test of causation for the subjective test required by s.18(4) EqA.
The EAT dismissed the appeal on maternity leave discrimination, holding that on a fair reading of the Judgment the Tribunal had applied the correct test of causation.
The EAT upheld the appeal on sex discrimination/harassment, holding that the Respondent and its witnesses should have been given prior notice and an opportunity to respond to the suggestion that it had acted on the basis of stereotypical assumptions and the failure to do so was unfair: Hammington v Berker Sport Craft Ltd [1980] ICR 248 and like authorities applied. The claims were remitted to be heard before a freshly constituted Tribunal.

Citations:

[2019] UKEAT 0164 – 18 – 2806

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.639215

Notwithstanding a Tribunal’s colloquial use of the term ‘necessarily’ in the context of determining the date on which a Claimant fell to be assessed as disabled, in accordance with section 6(1) Equality Act 2010 (and in particular as to when it was likely that the substantial adverse effects of the Claimant’s impairment would last for 12 months or more) it had correctly applied the test as set out SCA Packaging Ltd v Boyle [2009] ICR 1056 HL, in which ‘likely’ was defined as something which could ‘could well happen’.

Citations:

[2018] UKEAT 0092 – 18 – 3008

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.630722

The Employment Tribunal found that the claimant, who suffered from essential hypertension but had advised his employer the respondent that he had no disability, was not, on the evidence led a disabled person and that the respondent did not know and could not reasonably have been expected to know of any disability.
On the claimant’s appeal, held :-
(1) That the claimant had failed to lead evidence of what particular day to day activities would be affected by his condition. It was not in dispute that working night shift could be a normal day to day activity (Chief Constable of Dumfries and Galloway Constabulary v Adams UKEAT/0046/08) but that did not assist the claimant in the absence of evidence of what he found difficult or couldn’t do as a result of his admitted impairment. The Tribunal had correctly concluded that he had failed to discharge the burden of proof on him to do so, and
(2) In any event, even had the claimant proved that he was disabled, the Tribunal’s conclusion on constructive knowledge was one that it was entitled to reach, having balanced the relevant factors for and against such knowledge and finding that such evidence as there was supporting constructive knowledge was insufficient to draw the necessary inference.
Appeal dismissed.

Citations:

[2018] UKEAT 0002 – 17 – 1707

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.625447

PRACTICE AND PROCEDURE – Imposition of deposit
RACE DISCRIMINATION
AGE DISCRIMINATION
VICTIMISATION DISCRIMINATION
HARASSMENT
In 2013 the Claimant brought claims against the Respondent employer including race and age discrimination, harassment and victimisation. In March 2014, the ET made an Unless Order for particulars of the claims, warning that this was the last chance to present a coherent case. Following receipt of those particulars, the Respondent applied under Rules 37 and 39 for the claims to be struck out as having no reasonable prospects of success, alternatively for Deposit Orders.
There was a history of delays and adjournments. The day before the hearing of the application the Claimant and her representative applied for an adjournment on the grounds of her ill-health. This was refused. The application proceeded in her absence and without representation on her behalf. In February 2015 the ET struck out all the claims, save the claim of direct race discrimination in respect of her dismissal for which it made a Deposit Order of pounds 250 within 21 days. As to Rule 39(2) and the ability to pay, the ET had evidence that the Claimant had been on state benefit for part of the previous year but no information as to her current financial position. The Claimant failed to pay and the claim was struck out.
The Claimant appealed against the refusal of the adjournment application/decision to proceed with the hearing in her absence, the Rule 37 strike out and the Deposit Order. As to the latter, she submitted there was no evidence to show ability to pay: cf. Rule 39(2). In any event the copy Order served on her did not contain the second page with its notice of the potential consequence that in default the claim would be struck out: cf. Rule 39(3).
At the Rule 3(10) Hearing, the EAT dismissed the ground of appeal in respect of the decision to proceed with the hearing but allowed the other grounds to proceed to a Full Hearing. The Judge ordered service of affidavits as to the disputed factual issue concerning the notice.
The EAT dismissed the appeal against the Rule 37 Strike Out Orders; but allowed the appeal in respect of the Deposit Order and subsequent strike out, holding that on the financial information available the only appropriate Order was a deposit of a nominal sum. It was therefore unnecessary to determine the ground of appeal under Rule 39(3), which would have required remission of the question of fact to the ET.

Citations:

[2018] UKEAT 0225 – 15 – 0607

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.625445

EAT DISABILITY DISCRIMINATION: Disability related discrimination
The Claimant who is a disabled man claimed that his former employer discriminated against him on grounds of disability and the claim succeeded in front of the Employment Tribunal. So in identifying the appropriate comparator, it applied the test in Clark v Novacold [1999] ICR 951 which was not followed in the later decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] 1 AC 1399, which was not an employment discrimination case. It was agreed by counsel that following the decisions of the Employment Appeal Tribunal in Child Support Agency v Truman [2009] IRLR 277 and in Stockton on Tees Borough Council v Aylott [2009] UKEAT0401/08/1103 that the case of Malcolm applied to employment discrimination cases and that this case had to be remitted to a different Employment Tribunal because the Employment Tribunal had selected the appropriate comparator on the wrong basis.

Citations:

[2009] UKEAT 0389 – 08 – 3103

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.328009

EAT Sex Discrimination – Direct / Comparison

Practice and Procedure – Perversity

The Appellant claimed that she had been the victim of sex discrimination in that two named male comparators were allocated more extra work hours than she. The rotas showed that that was so. The Tribunal rejected the claim in one short paragraph, finding that there was no evidence of preferential treatment.

Held that (1) the Tribunal’s reasoning was wholly insufficient

(2) the conclusion that there was no evidence of preferential treatment was perverse.

Appeal allowed; remission to a fresh Tribunal.

Citations:

[2008] UKEAT 0325 – 07 – 2306

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.270302

EAT Equal pay Act – Out of time
The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with their pension rights. Subsequently, NUPE transferred to Unison by way of a trade union amalgamation. The claimants brought their claims years after the transfer but whilst still employed by Unison. The issue arose whether they had brought them in time within the meaning of s2(4) of the Equal Pay Act. This requires them to bring their claims within six months of the employment terminating. Initially they claimed that their contracts transferred to Unison under TUPE and that the employment did not end until they ceased to be employed by Unison. However, that argument was doomed to fail after the decision of the House of Lords in Powerhouse Retail v Burroughs [2006] IRLR 381 which held that in such circumstances the relevant employment was employment with the transferor. They argued that Powerhouse was decided the way it was only because pension rights were not transferred under TUPE. So they alleged that their contracts had transferred in their entirety as a consequence of the transfer of property and engagements in the course of the amalgamation. On that premise, they submitted that the relevant employment, following the reasoning in Powerhouse, was that with the transferee, Unison.
The Employment Tribunal upheld their arguments but Unison’s appeal was successful. The claims were made out of time. Observations on the effect of the Powerhouse case.

Judges:

Elias P J

Citations:

[2007] UKEAT 0056 – 07 – 2607, [2008] ICR 114, [2007] IRLR 975, [2007] Pens LR 335

Links:

Bailii

Statutes:

Equal Pay Act 1970 2(4), Trade Union and Labour Relations (Consolidation) Act 1992 97(1) 97(2), Transfer of Undertakings (Protection of Employment) Regulations 1981

Citing:

Cited – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Cited – Godrich and Serwotka v Public and Commercial Services Union and Reamsbottom ChD 31-Jul-2002
The second defendant had become General Secretary of the first defendant after the amalgamation of two unions. The defendants agreed a compromise as to his term of office. The applicants sought declarations that they were now joint secretary.
Cited – Co-Operative Group (CWS) Ltd v Stansell Ltd and Another CA 9-May-2006
. .
Cited – Nokes v Doncaster Amalgamated Collieries Ltd HL 1948
A Contract of Service is not a form of property
The employee coal miner was prosecuted for absenting himself from work. He was found liable by the justices and appealed. The basis of the appeal was that he had formerly been employed by the Hickleton Mining Company Limited. That had become . .
Cited – Bedford and others v Furniture Timber and Allied Trades Union EAT 29-Nov-1994
Union members said they had been unlawfully disciplined by the transferor union and sought their remedy against the transferee, the GMB.
Held: There was a transfer of engagements and that the GMB were liable. . .
Cited – Associated Newspapers Ltd v Wilson; Associated British Ports v Palmer HL 31-Mar-1995
The Daily Mail had recognised the Union to which their journalists belonged. They wanted to end this arrangement, and offered a better rate of pay to non-members. The union said this was an unlawful action taken because of union membership. Similar . .
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 by:

Cited – Sodexo Ltd v Gutridge and others EAT 31-Jul-2008
EAT EQUAL PAY ACT
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.258506

EAT Victimisation
Burden of proof
Appeal – Perversity challenge on finding important for remedy.
Cross-Appeal – Did ET misdirect itself on burden of proof on victimisation claim.
As a matter of construction, the provisions of section 54A RRA did not apply to a claim of victimisation under section 2.

Judges:

The Honourable Mr Justice Wilkie

Citations:

UKEAT/0557/06/DA, [2007] UKEAT 0557 – 06 – 1306, [2007] ICR 1693

Links:

EATn, Bailii

Statutes:

Race Relations Act 1976 2 5A

Cited by:

Cited – Fosh v Cardiff University EAT 23-Jan-2008
The professor had sought time off to represent another lecturer claiming race discrimination against the University. The University said that her behaviour created a conflict of interest with the University. She continued and herself claimed . .
Appeal from – Oyarce v Cheshire County Council CA 2-May-2008
The court was asked as to whether the provisions for the reversal of the burden of proof in discrimination cases was limited to findings of discrimination or extended also to issues of victimisation, and as to whether section 5A had properly . .
Applied – Munu v Great Ormond Street Hospital NHS Trust and others EAT 5-Nov-2007
EAT Sex Discrimination – Victimisation / Inferring discrimination
Practice and Procedure
Application of s54A of the Race Relations Act 1976 to victimisation claims: Oyarce v Cheshire County Council . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 11 July 2022; Ref: scu.258500

EAT The appellant lodged claims under the Race Relations Act 1976 against the First Respondent. He contended they were in time. The ET held that they had been lodged a day out of time and refused to extend time on the just and equitable ground. The EAT held that the chairman was right to find that the claim was lodged out of time but that in the circumstances of the case on any reasonable exercise of discretion, time should have been extended. Accordingly, the EAT granted an extension and remitted the case to be heard on its merits.
The claim against the Second Respondent was three months out of time. The Tribunal refused to extend time. The EAT held that the approach of the chairman involved an error of law and remitted the issue to a different chairman to determine whether to extend time or not.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2006] UKEAT 0373 – 06 – 1810, UKEAT/0373/06

Links:

Bailii, EAT

Statutes:

Race Relations Act 1976

Citing:

Cited – Chohan v Derby Law Centre EAT 2-Mar-2004
EAT Employment Tribunal claim brought out of time because of Solicitor’s negligent advice. Application of British Coal Corporation -v- Keeble [1999] IRLR 337. . .

Cited by:

Cited – Novak v Phones 4U Ltd EAT 14-Sep-2012
EAT Race Discrimination : Continuing Act – The Claimant complained of entries made on Facebook by work colleagues, said to be acts of discrimination on the grounds of disability and nationality. He was found to . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.257994

The EAT upheld the decision of an Employment Tribunal that the claimant had not shown that her disability was likely to recur. However: ‘In considering whether during a particular period in the past, a substantial adverse effect was likely to recur a tribunal is of course entitled to look at the evidence of what occurred during that period. In particular, if it is said that an effect was likely to recur because certain circumstances would be likely to trigger it, a tribunal is entitled to consider whether those circumstances occurred during the period and whether the substantial adverse effect did recur. Such evidence is not necessarily conclusive. It is for the tribunal to assess’.

Judges:

His Hon Judge Richardson

Citations:

UKEAT/484/03, [2004] IRLR 540, [2004] UKEAT 0484 – 03 – 1802, [2004] ICR 909

Links:

EAT, Bailii

Statutes:

Disability Discrimination Act 1995

Cited by:

Cited – Richmond Adult Community College v McDougall CA 17-Jan-2008
The claimant had been offered and had accepted a job subject to satisfactory health clearance. When that was not received her offer was withdrawn. She had suffered a condition which would affect her daily activities, but had recovered from that . .
Considered – Sussex Partnership NHS Foundation Trust v Norris EAT 30-Oct-2012
EAT Disability Discrimination – Disability – The effect of an impairment may be direct or indirect. However, the majority of the Employment Tribunal erred in holding that the deduced effect of the Claimant’s . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 11 July 2022; Ref: scu.256719