EAT Disability Discrimination – Reasonable adjustments.
The Appellant was disabled within the meaning of the Disability Discrimination Act. The sick pay rules of her employer provided that anyone absent sick would receive full pay for 26 weeks in any 4 year period, and thereafter half pay for the next twenty six weeks, and thereafter the pension rate of pay. The Appellant had lengthy absences from work, most of which were related to her disability. She claimed that she ought to have been given full pay for her absences, alternatively for non-disability related absences, and that the failure to make such payments amounted to both disability related discrimination and involved a failure to make reasonable adjustments under sections 3A(1) and 3A(2) of the Act respectively. The Employment Tribunal found that although the effect of the sick pay rules was to subject her to a substantial disadvantage within the meaning of section 4A(1), the adjustment sought was not a reasonable one. They also found that there was no disability related discrimination, but even if there was, it was justified. The employee appealed against the three adverse findings against her and the employer cross appealed against the finding that the effect of the sick pay rules was to place her at a substantial disadvantage. The EAT found that the Employment Tribunal had erred in law in concluding that there was no disability related discrimination, but that they were entitled to find that it was justified. The cross appeal was dismissed, as was the appeal against the finding that the adjustment was not a reasonable one. Accordingly, the Employment Tribunal’s conclusion that there had been no breach of the Act stood.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2006] UKEAT 0109 – 06 – 0408, UKEAT/0109/06

Links:

Bailii, EATn

Cited by:

Cited – TRW Systems Ltd v Routledge EAT 8-Mar-2007
EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
In a 13-page judgment, the Tribunal recorded in an exemplary form its findings of fact, its summary of the law and the submissions of . .
Appeal from – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.257784

EAT DISABILITY DISCRIMINATION – DEDUCED EFFECT
ET concluded that Sch 1 para 6 of DDA (Deduced Effect) did not apply where applicant had pins and plate inserted for ankle fracture in 1984 and no continuing treatment. Remitted to same Tribunal to consider (on further medical evidence if necessary) whether the pins/plate amounted to continuing measures.

Judges:

The Honourable Mr Justice Burton (President)

Citations:

EATS/0081/04, [2005] UKEAT 0081 – 04 – 2504

Links:

Bailii, EAT

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.257449

EAT Disability Discrimination – Reasonable adjustments – Unfair Dismissal – Reasonableness of dismissal
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
Misdirection in law by ET as to employer’s branch of duty to make reasonable adjustments, leading to finding of unlawful disability discrimination and unfair dismissal. Appeal allowed.
Case remitted to same ET for reconsideration.

Judges:

Clark J

Citations:

[2007] UKEAT 0069 – 07 – 1307, UKEAT/0069/07/DA

Links:

Bailii, EATn

Cited by:

Cited – Leeds Teaching Hospital NHS Trust v Foster EAT 14-Jun-2011
EAT Disability Discrimination : Reasonable Adjustments. If there is a real prospect of an adjustment removing a disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.254593

EAT The claimant appealed dismissal of his claim under the 1995 Act. He was a telephone operator injured after a sudden shriek in his ear. They had found him not to be disabled within the 1995 Act.
Held: The appeal succeeded. The tribunal had carefully considered medical evidence provided by the defendant before deciding themselves on the condition. They had not delegated their decision to her, but had been overly influenced by the doctor’s opinion as to whether or not the impairments were substantial under the Act and in effect adopted her assessment instead of making their own of that issue. The tribunal had incorrectly discounted the medical treatment received by the claimant. The tribunal had also erred in finding that travelling on the underground and by airplane were not normal day to day activities.

Judges:

The Honourable Mr Justice Nelson

Citations:

EAT/1124/99, [2001] IRLR 23, [2001] Emp LR 440, [2001] ICR 156, [2000] UKEAT 1124 – 99 – 1910

Links:

EATn, Bailii

Statutes:

Disability Discrimination Act 1995 1(1)

Citing:

Cited – Hollister v National Farmers Union (NFU) CA 1979
The correct approach for the Industrial Tribunal looking at a company re-organisation is to make a finding as to the advantages to the employers of a proposed re-organisation and whether it was reasonable for them to implement it by terminating . .
Cited – Vicary v British Telecommunications Plc EAT 19-Feb-1998
A medical report in a disability discrimination claim should deal with the doctor’s diagnosis of the impairments, the doctor’s observation of the applicant carrying out day to day activities and the ease with which he was able to perform those . .
Cited – Goodwin v Patent Office EAT 3-Feb-1999
Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 11 July 2022; Ref: scu.255043

EAT Practice and Procedure – Chairman alone – Sex Discrimination – Direct / Victimisation – Employment Tribunal Chairman not entitled to issue a certificate of correction to add a new finding to the decision. – The Employment Tribunal was irrational in failing, in the light of its findings of fact on one issue, to find a prima facie case of unequal treatment on grounds of sex or victimisation in relation to that specific issue.

Judges:

Wilkie J

Citations:

[2007] UKEAT 0243 – 07 – 2106, UKEAT/0243/07/CEA

Links:

Bailii, EAT

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.254590

The claimant appealed refusal of her claim for disability discrimination and unfair dismissal.

Citations:

[2007] EWCA Civ 708

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Fletcher-Cooke v Hampton School EAT 15-Feb-2007
EAT Disability Discrimination – Compensation
Appellant claimed that the Employment Tribunal had applied the wrong test (balance of probabilities, rather than loss of chance) in assessing future losses in a . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.254533

EAT The Claimant alleged that she had suffered sexual harassment consisting of a single incident of being patted on the bottom by her employer and that she had, over a month later, resigned on account of that incident. Her employer denied that he had done so. There were inconsistencies in her evidence and a witness who could have given relevant evidence was not called. The majority of the Tribunal, without making reference to those inconsistencies or to the absence of that witness concluded that the event complained of had occurred. Further, whilst it was to be inferred that they had rejected the employer’s evidence, they did not explain how or why they had done so. On an appeal by the Respondent employer, the Employment Appeal Tribunal upheld the appeal, concluded that it would not be appropriate for it to substitute its own findings and remitted the case to a freshly constituted Employment Tribunal for a rehearing.

Judges:

Lady Smith

Citations:

[2007] UKEAT 0061 – 06 – 2905, UKEATS/0061/06/ZT

Links:

Bailii, EAT

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.253725

EAT SEX DISCRIMINATION
Direct
PRACTICE AND PROCEDURE
Amendment
A Fire Master employed by a Fire Board was included as second respondent, as an individual, in a claim by a former employee of that Board for sex discrimination. At a pre-hearing review, the Tribunal refused a motion at his instance to exclude him from the claim as an individual respondent. He appealed and renewed that motion on appeal. The appeal was refused on the basis that the claimant had set out an arguable case alleging relevant direct sex discrimination on his part.

Judges:

Lady Smith

Citations:

[2007] UKEAT 0054 – 06 – 3105, UKEATS/0054/06/MT

Links:

Bailii, EAT

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.253726

EAT Unfair dismissal – Reinstatement/re-engagement
Practice and Procedure – Adequacy of Reasons
Claimant was a radiographer who became unable to do clinical work as a result of illness and was made redundant – Tribunal held that she was unfairly dismissed because of lack of consultation about alternatives and that she had suffered disability discrimination because it would have been a reasonable adjustment for the Trust to retain her on non-clinical duties – At the remedy hearing over a year later it ordered reinstatement – Case remitted to fresh Tribunal because of inadequate reasons and because the Tribunal appeared to have relied on its earlier finding about reasonable adjustment as at the date of dismissal without considering the practicability of reinstatement at the current date and in the light of fresh evidence called – Observations on relevance of duty under s. 4A of Disability Discrimination Act 1995 to exercise of discretion to order reinstatement.

Judges:

Underhill J

Citations:

[2007] UKEAT 0085 – 07 – 2206, UKEAT/0085/07/LA

Links:

Bailii, EAT

Cited by:

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

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.253731

EAT Practice and Procedure – Bias, misconduct and procedural irregularity.
Race Discrimination – Comparison
At a CMD and a PHR, a Tribunal Chairman decided that the claims to be heard would be of indirect discrimination on the grounds of race. During the course of evidence the full Tribunal itself indicated that a claim of direct discrimination could be heard. Although the Tribunal was not as a matter of jurisdiction precluded from raising this matter, in the circumstances it was unfair for it to be dealt with immediately given that the Respondent was unrepresented. The Tribunal further erred in failing in the circumstances of this case to construct a hypothetical comparator. The finding that there was no indirect discrimination was not appealed by the Claimant’s. The case was remitted for rehearing on direct discrimination only, to a different Tribunal.

Judges:

His Honour Judge McMullen QC

Citations:

[2007] UKEAT 0441 – 06 – 2002, UKEAT0441/06

Links:

Bailii, EAT

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.252463

EAT Practice and Procedure – 2002 Act and Pre-action Requirements
Has the Claimant complied with Step 1 of the statutory grievance procedure where he presents his complaint at a meeting with his line manager who notes it down, it is accepted, accurately and contemporaneously? Employment Tribunal decided that he had. Appeal, given the particular facts found, dismissed.

Judges:

Cox J

Citations:

[2007] UKEAT 0204 – 07 – 0305, UKEAT/0204/07

Links:

Bailii, EAT

Statutes:

Sex Discrimination Act 1975, Race Relations Act 1976, Employment Act 2002

Jurisdiction:

England and Wales

Citing:

Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.252473

EAT Sex Discrimination – Indirect / Justification
A policy preventing police officers in a partnership from working together in a supervisor/subordinate role had an adverse impact on women since men outnumbered women by 3 to 1. But the policy was justified by the need to ensure actual and apparent correctness in working relationships.
The Employment Tribunal had incorrectly found the pool for comparison was the group of police officers who had an existing partnership since this focused entirely on the group disadvantaged by the policy (a group on the evidence made up of 6 of the 3802 police officers). This pool was not contended for by either party. The EAT ruled that the pool was the whole of the Respondent’s workforce, police officers and support staff alike, since the policy applied across the board. Thus constituted, it was likely that the male to female ratio was likely to be even. But even on the Claimant’s case that the pool consisted of all police officers, the Judgment was unarguably correct for the policy was justified.

Judges:

His Honour Judge McMullen QC

Citations:

[2007] UKEAT 0505 – 05 – 0203, UKEAT/0505/05

Links:

Bailii, EAT

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: 11 July 2022; Ref: scu.252464

EAT Practice and Procedure – 2002 Act and Pre-action Requirements
Unfair Dismissal – Constructive Dismissal
On 14 October 2004 the Claimant claimed constructive unfair dismissal arising out of four acts of the Respondent. No grievance pursuant to the 2004 Regulations had been presented. The Employment Tribunal allowed the case to proceed at a pre-hearing review under s95(1)(c) Employment Rights Act 1996 (ERA) in respect of only one of the four acts, i.e. the one which was the subject of a grievance presented before the regulations came into effect.
On appeal it was held that it was not possible to sever the four grounds on which the Claimant alleged he had been constructively dismissed and to proceed on only one. The Claimant’s case of constructive dismissal being based on four acts was not the same as the claim made in the grievance based upon only one and thus the appeal was allowed. In any event, proceeding on only one of the grounds made the case very weak and it ought to be struck out. The appeal against the Disability Discrimination Act 1995 was also allowed.

Judges:

McMullen QC

Citations:

[2007] UKEAT 0526 – 06 – 0105, UKEAT/0527/06, UKEAT/0526/06

Links:

Bailii, EAT

Citing:

See Also – Lambrou v Cyprus Airways Ltd EAT 8-Nov-2005
EAT Disability Discrimination and Practice and Procedure
The Tribunal erred in striking out the disability discrimination claim. On a fair reading of the pleadings and particular s as a whole, the disability . .
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .

Cited by:

Cited – Sarti (Sauchiehall St) Ltdv Polito EAT 17-Jun-2008
The parties disputed the jurisdiction of the Employment tribunal to hear a case where payment of statutory sick pay had been refused when the employer had heard that he was working. The employee now claimed constructive unfair dismissal.
Held: . .
Cited – Step In Time Ltd v Fox and Another EAT 3-Nov-2008
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Whether infringed
The employment judge held that the two claimants had complied with the statutory grievance procedures and that the Tribunal had . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.252471

EAT Sex Discrimination – Victimisation
A schoolteacher appealed from dismissal of her claims for sex (pregnancy) discrimination against school and her head teacher, in expressing anger at her being pregnant and its consequences for the school, and in allocating her to teach a different class on return from that she had taught before taking maternity leave. Her appeal was allowed where the Tribunal had applied the wrong test to determine ‘detriment’ by failing to consider that loss of a chance of influencing the choice of class to be taught, through a discussion process open to all other non-pregnant employees, was indeed a detriment, but otherwise rejected.
The judgment is the first appellate decison to consider what ‘the same job’ means in the context of maternity leave.

Citations:

[2007] UKEAT 0329 – 06 – 1005, [2007] IRLR 652, [2007] ICR 1451

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 July 2022; Ref: scu.251803

EAT The Appellant is a qualifying body, subject to section 14 of the Disability Discrimination Act. The Tribunal found that it had failed to make a reasonable adjustment in the arrangements it made for sitting an examination. In so doing the Tribunal misdirected itself on certain aspects of law. However, the EAT held that these directions were not material to their conclusion. Their findings were such that it was plain that they would have found a breach of the duty even had they directed themselves properly.
Observations on the burden of proof in reasonable adjustment cases.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2007] UKEAT 0028 – 07 – 1005, UKEAT/0028/07, [2007] IRLR 579

Links:

Bailii, EATn

Statutes:

Disability Discrimination Act 1995 14

Citing:

Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .

Cited by:

Cited – Thomas-Ashley v Drum Housing Association Ltd CA 17-Mar-2010
The tenant had been ordered to leave her flat. She had kept a dog in breach of her tenancy agreement. The landlord had terminated the assured shorthold tenancy by a section 21 notice. She said that they had failed to make reasonable adjustments to . .
Cited – Mcneill v Mcmaster (T/A Chipmaster) NIIT 31-Mar-2010
. .
Cited – Lancashire Care NHS Foundation Trust v Reilly EAT 27-Apr-2010
EAT DISABILITY DISCRIMINATION: Reasonable adjustments
This was an appeal by the Respondent employers against a finding that they had failed to make reasonable adjustments. After the case was opened in the . .
Cited – Chief Constable of South Yorkshire Police v Jelic EAT 29-Apr-2010
EAT DISABILITY DISCRIMINATION
Reasonable adjustments
This appeal concerns the extent of a Chief Constable’s duty of reasonable adjustments under the Disability Discrimination Act towards a serving . .
Cited – Shaw v Queen’s University Belfast NIIT 28-Feb-2008
. .
Cited – McClenaghan v Antrim Borough Council NIIT 21-Aug-2008
. .
Cited – Girvin v Carrickfergus Borough Council … NIIT 1-Sep-2008
. .
Cited – Mitchell v Seagate Technology Ireland NIIT 22-Sep-2008
. .
Cited – E A Gibson Shipbrokers Ltd v Staples EAT 17-Oct-2008
EAT DISABILITY DISCRIMINATION: Reasonable adjustments
Tribunal was entitled to conclude that a combination of adjustments would have allowed an employee suffering from disability to return to work. . .
Cited – Brannigan v Blinds Direct Ltd NIIT 16-Jan-2009
. .
Cited – Smith v Wrightbus Ltd NIIT 26-May-2009
. .
Cited – Johnston v Royal Group Of Hospitals and Dental Hospitals Health and Social Trust NIIT 19-Jun-2009
. .
Cited – Lawlor v Police Service Of Northern Ireland NIIT 10-Jul-2009
. .
Cited – Clarke v The Co-Operative Group Ltd NIIT 19-Aug-2009
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 11 July 2022; Ref: scu.251804

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 reopened on appeal. The exceptional circumstances included the fact that the issue went to jurisdiction, these were four test cases representing 120 similar concessions in mass litigation affecting 11,000 NHS employees; the mistake was administrative not tactical, the Respondents applied in each case for a review to the Employment Tribunal, as well as appealing. There had been no first instance full hearing of the Claimants’ cases, the matter being handled according to national protocols, and no further investigation into the facts was required in order to do justice. The concessions were withdrawn and the appeals were allowed.
The law on new points in the EAT is summarised. Guidance is given to Employment Tribunals in handling the stayed cases.

Judges:

HHJ McMullen QC

Citations:

[2007] UKEAT 0060 – 06 – 0405, [2007] IRLR 665

Links:

Bailii

Statutes:

Equal Pay Act 1970 2 2ZA

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 – Thacker, and Larthwell v Secretary of State for Education and Skills, Cambridge Regional College EAT 30-Mar-2005
EAT Equal Pay Act – Article 141 . .
Cited – Thacker and Larthwell v Secretary of State for Education and Skills Cambridge Regional College EAT 28-Nov-2005
EAT Equal Pay Act – Article 141. . .
Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
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 . .
Cited – Dr Thatcher v Middlesex University, Secretary of State for Education EAT 10-Jun-2005
EAT Equal Pay Act – Part-time worker’s pension. – The Employment Tribunal Chairman erred in concluding the claim was submitted out of time when a stable employment relationship had been established. The analysis . .

Cited by:

Cited – Swallow Security Services Ltd v Millicent EAT 19-Mar-2009
EAT UNFAIR DISMISSAL: Contributory fault
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to . .
Cited – Euro Hotels (Thornton Heath) Ltd v Alam EAT 20-Apr-2009
EAT PRACTICE AND PROCEDURE: Postponement or stay
PRACTICE AND PROCEDURE: Review
Employment Tribunal gave Judgment at a hearing in the absence of the Respondent. It held a review and refused to vary the . .
Cited – Winder v Aston University and Another EAT 1-Aug-2007
EAT Equal Pay Act – Part time pensions
In deciding two cases in accordance with Preston v Wolverhampton NHS Trust (No 3) [2004] ICR 993 EAT, the Employment Tribunal did not err in holding that the Claimant . .
Cited – Harris v NKL Automotive Ltd and Another EAT 3-Oct-2007
EAT Religion or Belief
Claimant brought a claim for direct and indirect discrimination on the grounds of his philosophical beliefs, and also victimisation discrimination. He was a Rastafarian and claimed . .
Cited – Miller v Community Links Trust Ltd EAT 29-Oct-2007
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
Time Limits – Reasonable practicability
The EAT refused to allow an application served today to amend the Notice of Appeal. Khuddados applied.
The Employment Tribunal . .
Cited – Birmingham City Council and Another v Samuels EAT 24-Oct-2007
EAT Unfair dismissal – Procedural fairness/automatically unfair dismissal
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
Race discrimination – Direct / Burden of proof / . .
Cited – Pepper v Lancashire County Council and others EAT 26-Nov-2007
EAT Equal Pay Act – Part time pensions
This is a part-time pensions case. The Chairman on the papers and on review failed to deal with the Claimant’s case that he had just cause for not entering the . .
Cited – Kingston Upon Hull City Council v Matuszowicz EAT 28-Jan-2008
EAT JURISDICTIONAL POINTS: Claim in time and effective date of termination
Having correctly held that three of the Claimant’s four DDA claims were out of time, parity of reasoning made the fourth out of time . .
Cited – Radakovits v Abbey National Plc EAT 4-Feb-2008
EAT Jurisdictional Points
Extension of time: reasonably practicable
Extension of time: just and equitable
The Employment Tribunal was correct to require satisfaction that it had jurisdiction.
Cited – Hyde-Walsh v Ashby (T/A Anderson Stockley Accredited Training) EAT 15-Feb-2008
EAT Practice and Procedure
EAT decided that an Appellant cannot raise a cause of action on an appeal which was not raised before the Employment Tribunal because the Appellant did not realise that such a . .
Cited – Ritchie v Shawcor Inc and Another EAT 6-Mar-2008
EAT Practice and Procedure: Preliminary issues
Claim for unfair dismissal and for a protective award for failure to consult re: TUPE transfer in 2005. Neither Respondent was a UK company. Respondents’ case . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – Slingsby v Griffith Smith Solicitors EAT 5-Aug-2008
EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal
PRACTICE AND PROCEDURE
Delay in ET judgment
The Employment Tribunal found in . .
Cited – Da Silva Junior v Composite Mouldings and Design Ltd EAT 18-Aug-2008
EAT JURISDICTIONAL POINTS: Continuity of employment
Company A dismissed the employee and went into creditors’ voluntary liquidation. Six weeks later, when the employee was absent due to a temporary . .
Cited – Hartlepool Borough Council and Another v Dolphin and others EAT 15-Sep-2008
eat EQUAL PAY ACT: Material factor defence and justification
An Employment Tribunal did not err when it found that bonus schemes created in the 1970s in order to improve productivity were a sham and could . .
Cited – UCATT v Amicus and Others EAT 18-Nov-2008
EAT TRANSFER OF UNDERTAKINGS: Consultation and other information
TUPE 2006. (1) Whether Tribunal had erred in refusing to allow UCATT to amend its claim to add an allegation of failure to inform in . .
Cited – UCATT v Amicus and others EAT 19-Nov-2008
EAT TRANSFER OF UNDERTAKINGS: Consultation and other information
TUPE 2006. (1) Whether Tribunal had erred in refusing to allow UCATT to amend its claim to add an allegation of failure to inform in . .
Cited – Chowles (T/A Granary Pine) v West EAT 8-Jan-2009
EAT PRACTICE AND PROCEDURE: Appearance/response, Service
A claim sent to Mr Anthony Charles with two errors in the address was not pursuant to Rule 2 ‘sent to the Respondent’ Mr Anthony Chowles. It is . .
Cited – Lucy and others v British Airways Plc EAT 13-Jan-2009
EAT UNLAWFUL DEDUCTION FROM WAGES
The 78 Claimants were cabin crew employed by BA at their Manchester base. In October 2006 BA closed that base; they did not dismiss the Claimants; but they did not roster . .
Cited – Chaplin v Howard Kennedy Solicitors EAT 20-Jan-2009
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Employee refusal to consent to disclosure of medical records for purpose of medical examination by OHS doctor. Whether dismissal fair. Employment Tribunal . .
Cited – Remploy Ltd v Shaw EAT 16-Feb-2009
EAT JURISDICTIONAL POINTS
Extension of time: reasonably practicable
2002 Act and pre-action requirements
An Employment Tribunal is entitled to hold that it is not reasonably practicable for a . .
Cited – Zimmer Ltd v Brezan EAT 3-Apr-2009
EAT 1. The employee put forward travel expenses claims for journeys for the purposes of his work but in his own car. On investigation the employers concluded that the details were false and the total claims . .
Cited – Bowers v William Hill Organisation Ltd EAT 10-Jul-2009
EAT DISABILITY DISCRIMINATION
On a pre-hearing concession by the Respondent that the Claimant was disabled, it was not relevant to consider whether the Respondent knew the condition was likely to last 12 . .
Cited – Wells v St Edwards RC Primary School EAT 12-Aug-2009
PRACTICE AND PROCEDURE
Review
Appellate jurisdiction /reasons /Burns-Barke
There was no explanation on appeal for the Claimant’s out of time application for a review of the Employment Tribunal’s dismissal of her case when she did not . .
Cited – North Cumbria University Hospitals NHS Trust v Fox and Others CA 30-Jun-2010
The employer had altered existing employment contracts. The claimants having commenced discrimination claims then sought to add to the existing proceedings comparators from different job groups. The tribunal had been asked whether, given that this . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 July 2022; Ref: scu.251667

The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy.
Held: A great deal depended upon the method of selection of the pool of workers, should it include only those workers affected by the point. The primary focus should be on the proportions of men and women who can comply with the requirement of the disputed rule. The ET should have taken the statistics for the entire workforce, to which the unfair dismissal and redundancy pay requirement of being under 65 applied. In this light there was no substantial difference in treatment.

Judges:

Lord Justice Mummery, Lord Justice Potter Lord Justice Scott Baker

Citations:

[2004] EWCA Civ 1186, Times 04-Nov-2004, [2005] ICR 119

Links:

Bailii

Statutes:

Employment Rights Act 1996 94(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
Cited – Harvest Town Circle Ltd v Rutherford EAT 10-Jul-2001
In a case alleging indirect sex discrimination in the differing rules denying entitlement to redundancy payments for men over 65, the tribunal should be ready to look at a wide range of statistics. The test is whether the rule imposed some condition . .
Cited – M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .

Cited by:

Appeal from – 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.

Employment, Discrimination

Updated: 10 July 2022; Ref: scu.200684

EAT VICTIMISATION
C, a legal secretary in a firm of solicitors, as a result of mental illness makes false allegations against partners of discriminatory conduct (contrary to SDA and DDA) – Unwilling to accept that allegations untrue – Medical advice of risk of recurrence – Rs decide to dismiss – Claim of victimisation – Rs accept that allegations made ‘in good faith’ within meaning of s. 4 (2) of SDA and s. 55 (4) of DDA
Claim dismissed by Tribunal, which holds that the true reason for the dismissal was not that the C had made allegations of discrimination but the continuing mental ill health demonstrated by their (unacknowledged) falsity and the consequent risk of further disruptive behaviour
Appeal dismissed – The distinction relied on by the Tribunal was valid – Chief Constable of West Yorkshire Police v. Khan distinguished – Further held that Tribunal right not to apply a ‘but for’ test: Amnesty International v. Ahmed and R (E) v. Governing Body of JFS followed – Discussion of terminology of ‘motivation’ in JFS.
Underhill P explained: ‘In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say ‘I am taking action against you not because you have complained of discrimination but because of the way in which you did it’. Indeed, it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint . . Of course, such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements. An employer who purports to object to ‘ordinary’ unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately advanced made in some cases does not mean that it is wrong in principle.’

Judges:

Underhill P J

Citations:

[2010] UKEAT 0086 – 10 – 0812, [2011] ICR 352

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Hewage v Grampian Health Board SC 25-Jul-2012
The claimant had been employed as a consultant orthodontist. She resigned claiming constructive dismissal and sex and race discrimination. The EAT reversed the findings on discrimination saying that they had not been sufficiently pleaded. The Court . .
Cited – NHS Manchester v Fecitt and Others CA 25-Oct-2011
The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated . .
Cited – Woodhouse v West North West Homes Leeds Ltd (Race Discrimination) EAT 5-Jun-2013
EAT RACE DISCRIMINATION – Victimisation
The judgment of this Tribunal in Martin v Devonshire Solicitors [2011] ICR 352 should not be used as a template into which to fit the factual aspects of a case in . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 10 July 2022; Ref: scu.427307

The EOC contended amongst other things that section 4A(1)(a) of the Sex Discrimination Act 1975 did not fulfil its intended purpose, which was to transpose into English law provisions contained in the Equal Treatment Directive 2002/73/EC.
Held: The use in section 4A(1)(a) of the expression ‘on ground of her sex’ introduced a requirement of cause and effect between the woman’s sex and the objectionable conduct: whereas no such element was present in the amended Directive’s definition of harassment, which used the expression ‘unwanted conduct related to the sex of a person’. It was not possible to correct this defect by a purposive construction of the statute.

Judges:

Burton J

Citations:

[2007] EWHC 483 (Admin), [2007] IRLR 327, [2007] 2 CMLR 49, [2007] ICR 1234, [2007] ACD 74

Links:

Bailii

Statutes:

Sex Discrimination Act 1975, Equal Treatment Directive 2002/73/EC

Jurisdiction:

England and Wales

Cited by:

Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 10 July 2022; Ref: scu.249965

Reasonable Adjustments
The Employment Tribunal erred in law in concluding that the Respondent had neither actual nor constructive knowledge of the Claimant’s disability prior to November 2012. On the Employment Tribunal’s findings:
(a) there was actual knowledge of PTSD with effect from 18 July 2012; and
(b) constructive knowledge from July 2012.
That being so, the duty to make reasonable adjustments arose in this case.
The Employment Tribunal erred in concluding that none of the three adjustments contended for by the Claimant were reasonable. On the Employment Tribunal’s own findings:
(a) it was reasonable for the Respondent to use the Haylett report as a prompt; and
(b) this could have been done in July by Mrs Elms rather than waiting until September.
Substituted findings were made in exercise of the Employment Appeal Tribunal’s powers under s.35 ETA 1996.

Citations:

[2018] UKEAT 0042 – 18 – 1411

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 10 July 2022; Ref: scu.631855

EAT RACE DISCRIMINATION – Direct discrimination
The Employment Tribunal in a race discrimination claim failed to identify the particular acts on which it based its finding of discrimination – Had it done so, it would have been clear that the only acts potentially covered by its finding had not been pleaded and/or were incapable of justifying an inference of discrimination.

Citations:

[2009] UKEAT 0487 – 08 – 1103

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.331197

Citations:

[2006] EWCA Civ 1442

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.249070

EAT Disability Discrimination – Compensation
Appellant claimed that the Employment Tribunal had applied the wrong test (balance of probabilities, rather than loss of chance) in assessing future losses in a disability discrimination case. It had also failed to make an award for loss of BUPA membership.
Held: the Employment Tribunal did not apply the wrong test and there was no evidence in relation to the BUPA claim. The cross-appeal relating to mitigation of loss, perversity and aggravated damages also failed.

Judges:

Reid QC J

Citations:

[2007] UKEAT 0366 – 06 – 1502

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Fletcher-Cooke v Hampton School CA 27-Jun-2007
The claimant appealed refusal of her claim for disability discrimination and unfair dismissal. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.248965

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 department. The EAT had found to be perverse the ET’s conclusion that her refusal could only have been unreasonable if the offer of the new post was necessary in order to accommodate her disability, and that the disability could have been accommodated by the adjustments to her existing work that it had identified, the offer of the new post was not necessary or reasonable, and Ms Hay had reasonably refused the offer. It was accordingly unfair to dismiss her on the basis of that refusal. The issue now was again whether the ET’s decision was perverse.
Held: The tribunal’s mistake about the need for the risk assessment was not so severe as to make the decision perverse. However their assessment had been perverse in not acknowledging the effect of the medical evidence. The appeal was dismissed.

Judges:

Buxton, Rix, Moses LJJ

Citations:

[2007] EWCA Civ 93, [2006] All ER (D) 322

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 5 6

Jurisdiction:

England and Wales

Citing:

Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
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 – 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 by:

Cited – London Borough of Camden v Price-Job EAT 18-Dec-2007
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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 July 2022; Ref: scu.248838

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 failure to make a reasonable adjustment, following the decision of the EAT in Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566. She appealed on the grounds that the Tribunal ought to have identified further acts of disability discrimination. The employers cross appealed on the grounds that the Tribunal erred in law in concluding that there had been an unfair dismissal; and that the Tribunal ought not to have applied the Mid-Staffordshire case, both because the failure to consult had never been identified as an issue in the case, and because in any event it was wrong and ought not to be followed. The EAT held that the appeal succeeded in part, it being unclear whether the Tribunal had made a finding in connection with one of the alleged acts of discrimination; and that the cross appeal succeeded with respect to the disability discrimination issue, for both of the reasons advanced; but that the cross appeal against the finding of unfair dismissal failed.
The single question under section 5 was whether the employer had complied with his obligations there set out. If he had failed to conduct a proper (not a ‘formal’) assessment then he could not use ignorance by reason of that failure to excuse lack of compliance; but there was no separate and distinct duty to perform that assessment.

Judges:

The Honourable Mr Justce Elias (President)

Citations:

[2006] IRLR 664, UKEAT/0136/06, [2006] UKEAT 0136 – 06 – 0806

Links:

EATn, Bailii

Statutes:

Disability Discrimination Act 1996 5

Citing:

Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .

Cited by:

Cited – 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 – London Borough of Camden v Price-Job EAT 18-Dec-2007
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 . .
Preferred – Rider v Leeds City Council EAT 27-Nov-2012
rider_leedsEAT2012
EAT DISABILITY DISCRIMINATION
The Claimant worked for the Respondent as a Nursery Officer at Armley Moor Children Centre. She raised grievances against colleagues and she was seconded to another post away . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 09 July 2022; Ref: scu.248854

Under English law and under Community law, the national court should construe a regulation adopted to give effect to a Directive as intended to carry out the obligations of the Directive and as not being inconsistent with it if it is reasonably capable of bearing such a meaning.
Lord Diplock said that: ‘it is a principle of construction of United Kingdom statutes . . that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.’

Judges:

Lord Diplock, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Scarman

Citations:

[1982] UKHL 2, [1982] 2 WLR 918, [1981] 2 CMLR, [1983] 2 AC 751, [1982] ICR 420

Links:

Bailii

Statutes:

EEC Treaty 177, Sex Discrimination Act 1975

Jurisdiction:

England and Wales

Citing:

See Also – Garland v British Rail Engineering Ltd HL 19-Jan-1981
There was a dispute between an employee of the company, a subsidiary of the British Railways Board, a body created by the Transport Act 1962 to manage the railways in the united kingdom, and her employer concerning discrimination alleged to be . .
At ECJ – Garland v British Rail Engineering Ltd ECJ 9-Feb-1982
garland_breECJ1982
The fact that an employer (although not bound to do so by contract) provides special travel facilities for former male employees to enjoy after their retirement constitutes discrimination within the meaning of article 119 against former female . .

Cited by:

Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.248666

EAT Contract of Employment – Definition of employee
Sex Discrimination
Whether specialist orthodontist consultant an employee – job advertisement for salaried part-time employment in a clinic – contract documentation produced to successful candidate suitable for an independent contractor with own organisation using sub-contractors – whether Tribunal restricted to contract documentation or entitled to take account of job advertisement and subsequent conduct of the parties.

Judges:

Richardson J

Citations:

[2007] UKEAT 0308 – 06 – 3101

Links:

Bailii

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.248451

EAT Equal Pay Act – Equal value – It is not an error of law for an Employment Tribunal to refuse to admit part of an employer’s expert report on the evaluation of two jobs if it or the part excluded does not comply with Rule 11. In any event the Employment Tribunal had a discretion which it exercised correctly.
GMF defence raises difficult points and should go to Full Hearing.

Judges:

His Honour Judge Mcmullen QC

Citations:

UKEAT/0508/05, [2005] UKEAT 0508 – 05 – 3011

Links:

Bailii, EAT

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.248294

EAT Disability Discrimination – Reasonable adjustments.

Judges:

The Honourable Mr Justice Burton (President)

Citations:

[2005] UKEAT 0322 – 05 – 0711, UKEAT/0322/05

Links:

Bailii, EAT

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.248296

Claim of unlawful discrimination by reason of sex orientation.

Judges:

Peter Clark J

Citations:

[2006] UKEAT 0364 – 06 – 1912

Links:

Bailii

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.247870

EAT Sex Discrimination – Transsexualism
Unfair Dismissal – Constructive dismissal
Gender reassignment. Employer’s lack of knowledge. Meaning of ‘treats’ (SDA s2A(1)(a).
Constructive dismissal – proper formulation of implied term of mutual trust and confidence; see Woods (EAT); cf. BCCI (per Lord Steyn).

Judges:

Peter Clarke J

Citations:

[2006] UKEAT 0240 – 06 – 1412, UKEAT/0240/06, [2007] IRLR 232, [2007] ICR 680

Links:

Bailii, EATn

Statutes:

Sex Discrimination Act 1975 2A, Sex Discrimination/Gender Regulations 1999

Citing:

Cited – Post Office v Roberts EAT 1980
When looking to see whether there had been a fundamental breach of an employer’s or employee’s obligations, the conduct of the parties has to be looked at as a whole and its cumulative impact assessed: ‘in each case, in our view, you have to look at . .

Cited by:

Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.247860

EAT This complex appeal raised issues in 10 jurisdictions. Primarily the Claimants, who won unfair dismissal and sex discrimination and race discrimination claims, contended that their dismissals were tainted by the discrimination and that the finding in their favour on redundancy was incorrect. It was held that the Employment Tribunal correctly separated the decision-making and instead of applying a ‘but for’ test of causation properly sought to ask the reason why they were dismissed.
The Claimants were exceptionally allowed to argue a new point, conceded below, when the issue of shift allowance was reopended by the Respondent, and a Judgment made in their favour on construction of the conditions and the representations made to them.
The Employment Tribunal was wrong to award costs to the Claimants whose hearing had been aborted by the unreasonable conduct of the Respondent’s director. While the conduct was to be regarded as that of a party, costs under the 2001 Rules were not available to pay for non-legal representation.
JudgeMcMullen QC said: ‘What happens when one of Britain’s least impressive managements, by its sole consistent attribute of procrastination, drives two long-service Asian women to become uncooperative and dismissive? The answer is systemic race and sex discrimination against them and dismissals unfair according to every tenet in the canon, rightly found by an Employment Tribunal and wisely not appealed. Sophisticated employment procedures applicable to the two cases, collectively consulted on and agreed over the years, have been left in wreckage by the mismanagement over 15 years of no less than 101 HR professionals and managers, some disingenuous and blind to discrimination. It reached its nadir when its HR director, steering this organisation of 8,000 people, single-handedly by his misjudgement caused the hearing to be aborted after eight days at enormous cost to the women and to the public purse, with the result that they had to give their evidence all over again, one year later, before a different Employment Tribunal and at a different hearing centre. ‘

Judges:

McMullen QC

Citations:

[2006] UKEAT 0026 – 06 – 1711, UKEAT/0250/06, UKEAT/0026/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Cited by:

Cited – 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: 09 July 2022; Ref: scu.247847

EAT Race Discrimination – Jurisdiction.
EAT Employment Tribunal held that the dismissal of a probationer pursuant to regulation 13 of the Police Regulations 2003 attracted absolute immunity and therefore precluded the claimant bringing a claim for race and/or religious discrimination arising out of the decision to dismiss dispense with his services. The EAT held that the Tribunal was in error. The doctrine was inapplicable to this decision because the procedure adopted was not sufficiently similar to that adopted in a court of law. Decisions of the House of Lords in Trapp v Mackie [1979] 1WLR 377 and of the Court of Appeal in Heath v Commissioner of Police for the Metropolis [2005] ICR 329 considered.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2006] UKEAT 0437 – 06 – 2211, UKEAT/0437/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.247844

EAT Disability Discrimination – Reasonable adjustments. – Unfair Dismissal – Reasonableness of dismissal
The Employment Tribunal wrongly did not apply the 4 stage process required to decide if a duty to make reasonable adjustments existed and was breached: Smith’s Sentinel Watford applied. The Judgement was set aside. But this did not affect the finding of unfair dismissal which was unarguably right.

Judges:

McMullen QC J

Citations:

[2006] UKEAT 0220 – 06 – 1809, UKEAT/0220/06

Links:

Bailii, EAT

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.247803

EAT Race discrimination – Direct – Injury to feelings
ET correctly on evidence found harassment on grounds of race and also discriminatory conduct. However, certain findings by the ET as to discriminatory conduct in the conduct of an investigation into the Claimant’s grievance were not justified by the evidence and on the evidence that conduct did not appear to have been discriminatory. By agreement compensation for injury to feelings reduced from andpound;1500 and andpound;1250.

Judges:

Serota QC J

Citations:

[2006] UKEAT 0182 – 06 – 1707, UKEAT/0182/06

Links:

Bailii, EAT

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.247787

EAT Practice and Procedure – Application/Claim
The Claimant, a doctor, put forward a complaint to the Tribunal that the MDU, his professional body, had been guilty of race discrimination in the manner in which they had provided or failed to provide services to him in connection with disciplinary proceedings against him. The Tribunal rejected his complaint on presentation on the basis that the MDU did not fall within s11(1) of the 1976 Act and similarly rejected his application for a review.
Held: In the light of decision of the Court of Appeal in Sadek v PMS [2005] the Tribunal had erred in law. Any factual differences between the MDU and the MPS had to be considered on evidence by the Tribunal. The claim should not have been rejected at the outset.

Judges:

Burke QC J

Citations:

[2006] UKEAT 0270 – 06 – 0607

Links:

Bailii

Statutes:

Race Relations Act 1976

Employment, Discrimination

Updated: 09 July 2022; Ref: scu.247788

EAT The ET dismissed as premature the Claimant”s application for disability discrimination because the application was made less than 28 days after the Claimant”s grievance had been raised in a letter dated 21st April 2005. In fact there was an earlier letter that constituted a written grievance that was before the ET but its significance was overlooked. In the circumstances the Claimant was not precluded from arguing on appeal that the earlier letter constituted such a written grievance for the purposes of S32 and paragraphs 6 or 9 of Schedule 2 of the Employment Act 2002.
2. The ET had failed to have regard to the guidance set out in Hendricks v Commissioner of Police [2003] IRLR 96 as to the meaning of ”an act extending over a period ” set out in paragraph 3, Schedule 1 of the Disability Discrimination Act 1995, and had taken too restrictive a view of the matter.
The decision in Hendricks v Commissioner of Police is to be preferred to that in Robertson v Bexley Community Centre in relation to the meaning of ”an act extending over a period”. Hendricks v Commissioner of Police was not cited in the latter case.
In cases where there is an issue as to whether an ET has jurisdiction to determine all or part of a claim because ”an act extending over a period” is said to be a series of acts some or all of which occurred outside the 3 month limitation period, the Claimant must show a good arguable case or a prima facie case that the matters complained of did constitute such an act.

Judges:

His Honour Judge Serota QC

Citations:

[2006] UKEAT 0251 – 06 – 2609, UKEAT/0251/06

Links:

Bailii, EAT

Statutes:

Employment Act 2002 32

Citing:

Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .

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: 07 July 2022; Ref: scu.245128

EAT Religious discrimination – application of Igen v Wong to 2 stage Burden of Proof. Meaning of ‘facts’ and Respondent’s explanation at Stage 1. What ET is to take into account at Stage 1 in determining whether a prima facie case is made out.

Judges:

His Honour Judge Peter Clark

Citations:

[2006] UKEAT 0682 – 05 – 3008, UKEAT/0682/06

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.244753

EAT The Claimant claimed that she was disabled within the meaning of the Disability Discrimination Act 1995. She claimed she was suffering from carpal tunnel syndrome, which was accepted. She also complained she was suffering from a mental impairment, i.e ‘stress’. Before the Employment Tribunal she failed to adduce any medical evidence beyond certain brief Occupational Health reports, despite being offered an adjournment to enable her to have the opportunity to so. The Chairman, who sat alone found on the evidence that she had not shown she had suffered substantial and long-term effects on her ability to carry out her normal day to activities. He was also not satisfied on the evidence that she suffered from a clinically recognised mental illness. The EAT held that the decision of the Chairman was one he was entitled to come to on the facts and evidence before him. In relation to mental illness a Claimant must do more than claim to be suffering from a generic condition such as ‘stress’ but must go further and produce some evidence, preferably medical evidence, as to a particular condition from which he or she may be said to suffer.

Judges:

Serota QC J

Citations:

[2006] UKEAT 0602 – 05 – 1809, UKEAT/0602/05

Links:

Bailii, EAT

Statutes:

Disability Discrimination Act 1995

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.245020

EAT The employee, a black woman of West Indian origin, was found to have been unfairly dismissed and to have suffered race discrimination. The former finding rested on the fact that the employers had failed to act reasonably in assisting the employee to find alternative employment when she was made redundant and had not given priority in appointment to her as a redundant employee. The latter was based on her rejection for two posts for which she was interviewed and for which she appeared well qualified. The employers appealed both findings. As to the unfair dismissal finding, it was said that the employers had acted reasonably. As to the race discrimination finding, it was alleged that there were innocent non-discriminatory explanations for failing to appoint her which the tribunal should have accepted, or at least the tribunal should have said why they rejected them. The EAT held that the tribunal was entitled to conclude that the employers had acted unreasonably; and that reading the decision fairly it was plain that the tribunal had found the explanations unconvincing and unreliable such that the tribunal was obliged to infer race discrimination. Appeal dismissed.

Judges:

Elias J P

Citations:

[2006] UKEAT 0014 – 06 – 2806

Links:

Bailii

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.244046

The Tribunal considered whether there was a need rigidly to approach the test for discrimination by application of the two stage test in Igen v Wong. Elias J said: ‘where the tribunal has effectively acted at least on the assumption that the burden may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever.’ The boundary between fact and explanation is not clear cut.

Judges:

The Honourable Mr Justice Elias (President)

Citations:

[2006] UKEAT 0128 – 06 – 2807, [2006] IRLR 748, UKEAT/0128/06, [2007] ICR 1519

Links:

Bailii, EATn

Jurisdiction:

England and Wales

Cited by:

Cited – Brown v London Borough of Croydon and Another CA 26-Jan-2007
The claimant appealed dismissals of his claim for race discrimination, harassment and victimisation. In a new job, other team members said they were uncomfortable alone with him, and his probationary period was extended because of his failure to fit . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
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 . .
See Also – I Laing v Manchester City Council EAT 16-Nov-2004
EAT Practice and Procedure – Case Management. . .
Cited – Gay v Sophos Plc EAT 16-Sep-2011
EAT AGE DISCRIMINATION
Senior employee aged 55 dismissed for redundancy following restructuring – Not considered for possible alternative roles – Younger colleagues, affected by same restructuring or other . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.244049

EAT Sex Discrimination – Inferring discrimination.

Judges:

His Hon Judge Prophet

Citations:

[2003] UKEAT 1331 – 01 – 1109, EAT/1331/01

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Johnson v Queen Elizabeth Hospital NHS Trust EAT 7-Aug-2002
. .
See Also – Johnson v Queen Elizabeth Hospital NHS Trust EAT 10-Apr-2003
. .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.191813

EAT The claimant alleged that she had been victimised contrary to the provisions of s.2(1) of the Race Relations Act 1976. The tribunal were satisfied that the claimant had carried out a protected act and that she had been treated less favourably than an appropriate comparator. The tribunal were of the view that the respondents acted unreasonably in disciplining the claimant but they were not satisfied that there was any direct evidence or evidence from which it could be inferred that that treatment was by reason of her having carried out a protected act. The Employment Appeal Tribunal were not persuaded that their conclusion was a perverse one nor that they should have considered whether the claimant had carried out a protected act under a subparagraph of s.2(1) of the 1976 Act that was not founded on.

Judges:

Lady Smith

Citations:

[2006] UKEAT 0004 – 06 – 0607, UKEATS/0004/06

Links:

Bailii, EAT

Statutes:

Race Relations Act 1976 2(1)

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.243446

EAT ET upheld Claimant’s complaints of direct race discrimination; victimisation; harassment and constructive unfair dismissal. Following Burns/Barke reference back and ET Response the findings of direct discrimination and victimisation were set aside and the remaining findings upheld.

Judges:

Peter Clark J

Citations:

[2006] UKEAT 0237 – 05 – 1407

Links:

Bailii

Employment, Discrimination

Updated: 07 July 2022; Ref: scu.243448

EAT The appellant was a student nurse. He was required to be chaperoned when carrying out intimate procedures on female patients whereas a female student nurse was not required to have a chaperone when carrying out intimate procedures on male patients. The respondent accepted that this was direct discrimination and therefore could not be justified as a matter of law, but submitted that the appellant had suffered no detriment. The employment tribunal agreed but the EAT held that this was an error of law. Compensation was limited to injury to feelings only, and at the behest of the appellant that was fixed by the EAT rather than being remitted to the employment tribunal. The amount was fixed at the lower end of the scale, the sum of andpound;750 being awarded.

Judges:

Mr Justice Elias (President)

Citations:

[2006] UKEAT 0085 – 06 – 2804, UKEAT/0085/06, [2006] IRLR 860

Links:

Bailii, EATn

Citing:

See Also – Moyhing v Homerton University Hospitals NHS Trust and others EAT 3-May-2005
EAT AIDING AND ABETTING; DISCRIMINATION BY OTHER BODIES
The parties took part in an Employment Tribunal hearing of a preliminary issue as to whether, in a case where the Appellant alleged a discriminatory . .

Cited by:

Cited – HM Land Registry v Grant EAT 15-Apr-2010
hmlr_grantEAT10
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction /Reasons /Burns-Barke
An Employment Tribunal accepted that 6 out of 12 . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.242588

EAT Race Discrimination: Inferring Discrimination and Victimisation
Direct discrimination alleged. Employment Tribunal finding that selection panel rejected Appellant for shortlist because he did not have the specialist qualifications required upheld.
Victimisation: unclear findings by Employment Tribunal. Case remitted for rehearing by fresh Employment Tribunal.

Judges:

The Honourable Mr Justice Bean

Citations:

[2006] UKEAT 0304 – 05 – 1503, UKEAT/0304/05

Links:

Bailii, EAT

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, Employment

Updated: 06 July 2022; Ref: scu.242585

The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior staff member’s emails. During the disciplinary hearing, he had been assisted by an interpreter for part of the hearing only.
Held: There is no rule of law that only a rehearing and not a review on a disciplinary appeal could cure a defect in fairness in the original hearing: ‘What matters is not whether the internal appeal was technically a rehearing or a review but whether the disciplinary process as a whole was fair.’

Judges:

Brooke LJ VP, Dyson LJ, Smith LJ

Citations:

[2006] EWCA Civ 702, [2006] IRLR 613, [2006] ICR 1602

Links:

Bailii

Statutes:

Employment Rights Act 1996, Disability Discrimination Act 1995

Jurisdiction:

England and Wales

Citing:

Appeal from – OCS Group Ltd v Taylor EAT 23-May-2005
EAT Unfair Dismissal / Disability Discrimination – 1. The ET did not err in law when it decided that the Claimant because of his inability to participate in a disciplinary hearing on account of his profound . .
Cited – Whitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
Cited – Adivihalli v Export Credits Guarantee Department EAT 27-Mar-1998
A second disciplinary hearing by way of review rather than a rehearing might nevertheless be sufficient to remedy the defects of an earlier hearing. . .
Cited – Leary v National Union of Vehicle Builders 1971
The court faced questions on a trades union’s decision as to the membership of the applicant.
Held: As a general rule, ‘a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.’ . .
Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
Cited – Sartor v P and O European Ferries (Felixstowe) Ltd CA 1992
When considering whether an employer had acted reasonably in a disciplinary hearing, all that section 57 required was (Purchas LJ) ‘that the employer should have a reason falling within the provisions and that, in reaching that reason, he acted . .
Cited – H J Heinz Co Ltd v Kenrick EAT 3-Dec-1999
EAT Disability Discrimination – Compensation. . .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Cited – Regina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
At the council’s independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination.
Cited – E I Du Pont De Nemours and Company v S T Dupont; Du Pont Trade Mark CA 10-Oct-2003
The court considered the circumstances under which a Hearing Officer’s decision could be reversed on appeal: ‘Those experienced in cases such as these, such as the Hearing Officer, would have known that the sort of evidence normally adduced on . .

Cited by:

Cited – S v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
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 – O’Hanlon v Revenue and Customs CA 30-Mar-2007
The claimant suffered depression, and complained that the respondent’s reduction in her pay after long periods of sickness was discriminatory. She appealed decisions that it was not. She said that a reasonable adjustment would have been to continue . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – First Hampshire and Dorset Ltd v Parhar EAT 10-May-2012
parharEAT2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Ill health capability dismissal. Section 98(4) Employment Rights Act 1996 reasonableness judged by Employment Tribunal only as at EDT; ET ought to have . .
Cited – Adeshina v St George’s University Hospitals Nhs Foundation Trust EAT 1-May-2015
adeshinaEAT201506
EAT Unfair Dismissal: Reasonableness of Dismissal – CONTRACT OF EMPLOYMENT – Wrongful dismissal
RACE DISCRIMINATION – Burden of proof
Unfair dismissal
(1) Whether the ET had erred in the . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.242282

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 people affected by the provisions, and provisions were on their face non-dicriminatory. Was indirect discrimination established? ‘article 141 does not . . . guarantee that a man over 65 will have the same (higher) level of pay as a woman under 65 doing equal work. Parliament has decided that a younger woman, who has worked for her employer for more than a year, should have rights which a man or woman over 65 does not have. The man over 65 can claim no more than to receive pay equal to the pay of a woman over 65 for equal work. In the usual jargon, the woman over 65 is the appropriate comparator. ‘ The House had to discuss two issues, the identification of the appropriate pool for comparisons, and the choice between the advantage led and the disadvantage led approaches. In this case the use of more than one pool had led to confusion. Advantage-led claculations were to be preferred: ‘I do not express the view that some element of disadvantage-led analysis may not be appropriate in some cases. But it must be recognised that there is a difficulty here: the more extreme the majority of the advantaged in both pools, the more difficult it is, with any intellectual consistency, to pay much attention to the result of a disadvantage-led approach. ‘

Judges:

Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond

Citations:

Times 08-May-2006, [2006] UKHL 19, [2006] IRLR 551, [2006] ICR 785, [2006] 2 WLR 772

Links:

Bailii

Statutes:

Employment Rights Act 1996 109 156, Burden of Proof Directive (97/80/EC)

Jurisdiction:

England and Wales

Citing:

Appeal from – Rutherford and Another v Secretary of State for Trade and Industry CA 3-Sep-2004
The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy.
Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Cited – Griggs v Duke Power Company 1971
(US) The court examined the arguments relating to indirect discrimination. . .
Cited – J P Jenkins v Kingsgate (Clothing Productions) Ltd ECJ 31-Mar-1981
ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 . .
Cited – Nikoloudi v Organismos Tilepikinonion Ellados AE, (Social Policy) ECJ 10-Mar-2005
Europa Social policy – Male and female workers – Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) – Directive 75/117/EEC – Equal pay – Directive . .
Cited – Ingrid Rinner-Kuehn v Fww Spezial-Gebaudereinigung Gmbh and Co. Kg ECJ 13-Jul-1989
The Court heard a complaint about a German statute providing that an employer need not pay sick pay to a part-time worker. In at least seven member states part-time workers were predominantly women (the percentages ranging from 89% in the Federal . .
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 – Perera v Civil Service Commission (No 2) EAT 1982
The tribunal considered the method of selection of the pool on a claim for indirect discrimination. In this case the claimant alleged that an age test applied on his application would effectively limit the proportion of coloured who would meet the . .
Cited – Perera v Civil Service Commission (No 2) CA 1983
Upheld on Appeal. . .
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 – Jones v University of Manchester CA 10-Mar-1993
A claim for sex discrimination based on an age requirement was wrongly based. The proportion of mature graduates was irrelevant in the appropriate pool. The Court cautioned tribunals to avoid placing artificial limitations on the scope of the pool . .
Cited – London Underground Limited v Edwards CA 21-May-1998
A new driver roster imposing shift working timetables discriminated against women since significantly less in proportion of women could meet the new arrangements – indirect discrimination . .
Cited – London Underground Limited v Edwards (2) CA 21-May-1998
New rosters for underground train drivers were indirectly discriminatory because all the men could comply with them but not all the women could do so: it was a ‘striking fact’ that not a single man was disadvantaged despite the overwhelming . .
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 . .
Cited – Andrews v British Columbia 1989
(Canada) McIntyre J defined discrimination: ‘discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group, which has the effect of imposing . .
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 . .

Cited by:

Cited – Eweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 July 2022; Ref: scu.241417

The employees commenced a series of sex discrimination claims against the appellant. Many had settled, and the council wrote directly to the remaining claimants. The claimants said this amounted to intimidation because the council had not gone through their legal representatives, and as such was victimisation.
Held: The council’s appeal succeeded. The tribunal had not found that the employer had acted other than reasonably, and had erred to concluding that there had been victimisation. Mummery LJ (dissenting): ‘The employment tribunal was entitled to conclude that the Applicants were subjected to treatment, which was less favourable and detrimental, and which was not suffered by the comparators in like circumstances. As the Applicants were still bringing their equal pay claims against the Council, they were vulnerable to pressures from the Council to abandon or settle their claims. The pressures could take the form of inducing fear of the consequences of successful claims, as asserted by the Council to them and to their colleagues in the letters. ‘

Judges:

Mummery LJ, Jonathan Parker LJ, Lloyd LJ

Citations:

[2005] EWCA Civ 977, Times 26-Aug-2005, [2006] ICR 90, [2005] IRLR 801

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 4

Jurisdiction:

England and Wales

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 – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Cornelius v University College of Swansea CA 1987
A college declined to act on an employee’s transfer request or to operate their grievance procedure while proceedings under the 1975 Act, brought by the employee against the college, were still awaiting determination. The college was trying to . .

Cited by:

Appeal from – St Helens Borough Council v Derbyshire and others HL 25-Apr-2007
The claimants were pursuing an action for equal pay. Several others settled their own actions, and the respondents then wrote direct to the claimants expressing their concern that the action ws being continued and its possible effects. The claimants . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.229152

The employee claimed that he had been discriminated against. He had stood as a candidate in local elections for the British National Party (BNP) party. His employers had dismissed him saying that his propagation of racially discriminatory polices was incompatible with his duties.
Held: The dismissal was not on racially discriminatory grounds, though considerations of race were involved. The employer’s appeal succeeded.
The claim of direct race discrimination was rejected: ‘Mr Redfearn was treated less favourably not on the ground that he was white, but on the ground of a particular non-racial characteristic shared by him with a tiny proportion of the white population, that is membership of and standing for election for a political party like the BNP. Serco was not adopting a policy which discriminated on the basis of a dividing line of colour or race. Serco would apply the same approach to a member of a similar political party, which confined its membership to black people. The dividing line of colour or race was not made by Serco, but by the BNP which defines its own composition by colour or race. Mr Redfearn cannot credibly make a claim of direct race discrimination by Serco against him on the ground that he is white by relying on the decision of his own chosen political party to limit its membership to white people. The BNP cannot make a non-racial criterion (party membership) a racial one by the terms of its constitution limiting membership to white people. Properly analysed Mr Redfearn’s complaint is of discrimination on political grounds, which falls outside the anti-discrimination laws.’
The allegation of indirect discrimination failed: ‘For indirect discrimination . . it is necessary to identify a ‘provision, criterion or practice’ which Serco has applied or would apply equally to persons not of the same race or colour. . . Mr Redfearn . . failed to present the tribunal with a case, which satisfied the requisite elements of a claim for indirect race discrimination and upon which the tribunal could properly make a finding of indirect race discrimination. . . The employment tribunal appears to have attempted itself a version of a ‘provision, criterion or practice’ in paragraph 5.6 of its decision (see paragraph 28 above). However, it is formulated too narrowly (membership of the BNP) to be meaningful. A provision of ‘membership of the BNP’ could not be applied to a person who was not of the same colour as Mr Redfearn, because only persons of the same colour as him (white) are eligible to be members of the BNP. A more general and meaningful provision along similar lines would be one applying to membership of a political organisation like the BNP, which existed to promote views hostile to members of a different colour than those that belonged to the organisation. If such a provision were applied, however, it would not put persons of the same race as Mr Redfearn ‘at a particular disadvantage’ when compared with other persons within section 1(1A) of the 1976 Act. All such political activists would be at the same disadvantage, whatever colour they were.’

Judges:

Mummery LJ, Dyson LJ, Sir Martin Nourse

Citations:

[2006] EWCA Civ 659, Times 27-Jun-2006, [2006] IRLR 623, [2006] ICR 1367

Links:

Bailii

Statutes:

Race Relations Act 1976

Jurisdiction:

England and Wales

Citing:

Appeal from – A C Redfearn v Serco Ltd T/A West Yorkshire Transport Service EAT 27-Jul-2005
The claimant said that he had been indirectly discriminated against on racial grounds. He was dismissed after being elected as a local councillor for the BNP. The employer considered that for Health and Safety reasons, his dismissal was necessary . .

Cited by:

Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Appeal from – Redfearn v The United Kingdom ECHR 16-Jan-2009
Statement of facts . .
Appeal from – Redfearn v The United Kingdom ECHR 6-Nov-2012
The applicant alleged that his rights had been infringed by his dismissal from his post as driver transporting children and adults with physical and/or mental disabilities. He had stood for election as a candidate for the British National Party, a . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 July 2022; Ref: scu.242184

The employees alleged sex discrimination. As domestics who were mostly women, they were not paid the bonuses which went to porters. In making the claim, they excluded another group, namely caterers who were also mostly female, but also received the bonuses.
Held: When setting up the comparator groups, the advantaged groups should not be artificially reduced by omitting groups which also took the advantage claimed to be denied.

Judges:

Lord Justice Keene Lord Justice Auld Sir Christopher Staughton

Citations:

Times 10-May-2006, [2006] EWCA Civ 523, [2006] IRLR 546, [2006] ICR 1267

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 . .
Appeal from – Cheshire and Wirral Partnership NHS Trust v S Abbott EAT 13-Sep-2005
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke. . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 06 July 2022; Ref: scu.242013

EAT (1) The Appellants dismissed the Respondent after a long period of post-accident sickness, including a phobic anxiety about returning to the Appellants’ workplace. The Employment Tribunal found that the Respondent had been unfairly dismissed and that there had been disability discrimination. They awarded andpound;15,000 for disability discrimination and a basic award; no compensatory award was sought.
(2) The Appellants’ appeal against the disability discrimination finding was not opposed; the Employment Tribunal had based it on an act of discrimination which had neither been pleaded nor relied upon before them. The consequential award was set aside.
(3) The Appellants’ appeal against the unfair dismissal finding was rejected; the Tribunal had been entitled to conclude on the facts that, despite the strength of the medical evidence, because the Appellant had offered to provide further rehabilitative treatment which was rejected on the basis that the Respondent had just started his own course of such treatment, it was unfair to dismiss before the outcome of such treatment was known.

Judges:

Burke QC HHJ

Citations:

[2006] UKEAT 0061 – 06 – 2504

Links:

Bailii

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.241484

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 for the Claimant who was an HIV+ care worker dismissed because of the risk of transmission to users of the Respondent’s health care facilities. Further, the Tribunal had erred in finding that the Claimant had been treated less favourably when, in the absence of his area manager, his line manager had attended a meeting with him and with his director. Such disclosure to her was not a breach of confidentiality.
The Tribunal had not erred in its approach to disability related discrimination and to the duty to make reasonable adjustments under s3A(1) and 3A(2) for the Respondent had failed to justify its admittedly less favourable treatment of the Claimant who, following disclosure of his HIV+ status, was suspended and dismissed.

Judges:

His Honour Judge Mcmullen QC

Citations:

[2006] UKEAT 0671 – 05 – 1004, UKEAT/0671/05, [2006] IRLR 850

Links:

Bailii, EAT

Statutes:

Disability Discrimination Act 1995 3A(5), Directive 2000/78/EC Establishing a general framework for equal treatment in employment and occupation

Citing:

Cited – Post Office v Jones CA 5-Jun-2001
The employee had become diabetic. Upon his coming to require insulin, the employer undertook a new risk assessment, and restricted his duties as a driver. He claimed disability discrimination. At the tribunal, both employer and employee brought . .
Cited – Williams v J Walter Thompson Group Ltd CA 17-Feb-2005
In giving their decision, the court reminded tribunals when preparing their judgments, to make sure the reasons were user friendly. Here time had been wasted with confusion about the Roman Numerals used to number the reasons. . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – H J Heinz Co Ltd v Kenrick EAT 3-Dec-1999
EAT Disability Discrimination – Compensation. . .
Cited – Barton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
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 . .
Cited – Smith v Churchills Stairlifts Plc CA 27-Oct-2005
. .

Cited by:

Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.241487

Citations:

[2006] EWCA Civ 517

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal From – Fletcher, Parkes, Wilkinson v NHS Pensions Agency/Student Grants Unit the Secretary of State for Health EAT 3-Jun-2005
EAT An appeal from the dismissal of their sex discrimination claim by trainee midwives in the NHS, from whom the facility of a bursary was withdrawn during authorised absence from their training for a specified . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.241567

EAT Disability Discrimination: Disability
The Chairman erred in rejecting the evidence of a clinical diagnosis of severe dyslexia for reasons which were not sustainable. Once this diagnosis is accepted, pursuant to Guidance C12 it is ‘obvious’ that the effect is substantial on day-to-day activities. The parties agreed that since the Chairman otherwise directed herself correctly, she reached the correct result.

Citations:

[2006] UKEAT 0131 – 06 – 0304, UKEAT/0131/06

Links:

Bailii, EAT

Cited by:

See Also – Bayley v Whitbread Hotel Co Ltd (T/A Marriott Worsley Park Hotel) and Another EAT 16-Aug-2007
EAT PRACTICE AND PROCEDURE
Striking-out
The Employment Tribunal struck out a claim for disability discrimination because the Claimant’s father (acting as his representative) had withheld potentially . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 06 July 2022; Ref: scu.241493