Citations:

[2017] NIFET 00071 – 15FET

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.657087

Citations:

[1997] EWCA Civ 1491

Jurisdiction:

England and Wales

Citing:

Appeal from – Tiyamiyu v London Borough of Hackney EAT 16-Mar-1995
Appeal from terms of discovery order. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.141887

SEXUAL ORIENTATION DISCRIMINATION
The Claimant is a primary school teacher. He was dismissed for being in a classroom alone with a male Year 5 pupil (referred to here as ‘LK’) during the lunchtime break and offering sweets to LK. The Claimant’s conduct was in breach of guidelines issued to him for similar conduct some years earlier.
The Claimant brought claims of unfair dismissal and discrimination on the grounds of sexual orientation and disability – the Claimant is gay and HIV-positive – as well as claims of victimisation and harassment. The claims of unfair dismissal and direct discrimination on the grounds of sexual orientation were upheld. The Respondents appealed against that decision on the basis that the Tribunal erred in law in its approach to the hypothetical comparator and/or that it reached a conclusion as to discrimination that was not supported by the facts.
Held: The Tribunal had erred in its approach to the hypothetical comparator. In particular, it had failed to ensure that the circumstances of the hypothetical comparator were not materially different from those of the Claimant. There was no proper factual foundation for the conclusion that the Claimant’s treatment was on the grounds of sexuality, the Tribunal’s decision being based on an incorrect factual premise and on factors relevant to individuals who were not the actual decision-makers.

Citations:

[2018] UKEAT 0211 – 18 – 1312

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.635150

RELIGION OR BELIEF DISCRIMINATION
Discrimination – Religion and Belief – Indirect Discrimination – Justification – Section 19(2)
Equality Act 2010
Bus drivers employed by the Respondent were required to work five out of seven days each week, including Fridays and Saturdays. This created difficulties for the Claimant who, as a Seventh Day Adventist, was required to respect the Sabbath by not working between sunset on a Friday to sunset on a Saturday. Accepting that the Respondent’s working arrangements imposed a provision, criterion or practice (‘PCP’) that placed the Claimant at a disadvantage, the question for the ET was whether the PCP was a proportionate means of achieving a legitimate aim. It was accepted that the Respondent had established legitimate aims of ensuring efficiency, fairness to all staff, the maintenance of a harmonious workforce, and recruitment and retention but the ET considered it had failed to demonstrate that the PCP was a proportionate of achieving these aims, in particular because the Respondent had failed to adduce sufficient evidence and had not been able to demonstrate that its aims could not be met by accommodating the working arrangements requested by the Claimant. The Respondent appealed.
Held: Allowing the appeal.
When carrying out the requisite assessment under section 19(2) of the Equality Act 2010, there was a distinction between justifying the application of the rule to a particular individual and justifying the rule in the particular circumstances of the business (Homer v Chief Constable of West Yorkshire Police [2012] ICR 704 SC, and Seldon v Clarkson Wright and Jakes [2012] IRLR 601, SC applied). In the present case, the ET’s focus had been on the application of the PCP to the Claimant; it had failed to carry out the requisite assessment of that PCP in the circumstances of the business (see Hardys and Hansons plc v Lax [2005] ICR 1565 CA). The matter would be remitted to the same ET for reconsideration of this question.

Citations:

[2018] UKEAT 0171 – 18 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.635145

UNFAIR DISMISSAL – Constructive dismissal

SEXUAL ORIENTATION DISCRIMINATION

The Claimant was a 42 year old primary school Head Teacher. He was openly gay. He met two 17 year old males on Grindr and the three of them had sex.

The Local Authority set up a Professional Abuse Strategy Meeting which concluded that no criminal offence had been committed and no child protection issue arose. The School nevertheless brought disciplinary proceedings. There were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the disciplinary hearing. The panel of School Governors decided to dismiss the Claimant. He appealed against the decision, which had the legal effect of keeping his contract alive. There were further procedural errors in relation to the appeal and, before the appeal hearing, the Claimant resigned claiming constructive dismissal.
He brought proceedings in the ET claiming unfair dismissal and sexual orientation discrimination.
The ET found that he had affirmed the contract by bringing his appeal but that the continuing procedural errors in connection with the appeal entitled him to resign and that his claim of unfair constructive dismissal therefore succeeded. On the discrimination claim the ET found that the way he had been treated overall gave rise to a reversal of the burden of proof and that, in relation to the investigating officer, that burden was not satisfied and he had been subjected to sexual orientation discrimination, but that adequate explanations were provided in relation to the other parties involved, including the Local Authority lawyer and the Governors of the School.
The School appealed against the finding that the procedural errors in relation to the appeal amounted to a breach of the term of trust and confidence. The Claimant responded by saying that, regardless of the merits of this argument, it was irrelevant because the ET had been wrong to find that the Claimant had affirmed the contract by bringing his internal appeal. The School’s appeal was dismissed by the EAT on this basis for two reasons: (a) the ET were wrong to find that bringing the appeal gave rise to affirmation; rather it was a case of an employee giving his employer an opportunity to remedy the breach(es) of the implied term which arose from the investigation and disciplinary hearing and (b) in any event the School had expressly stated at an earlier hearing that they were not taking the affirmation point.
The School also appealed against the finding of discrimination on the basis that the ET were wrong to find that the burden of proof had been reversed. The EAT found that there were sufficient facts from which an inference of discrimination could be drawn and that the reverse onus was justified. The ET had found that the investigating officer had not given an adequate alternative explanation for his conduct and the finding of discrimination by him was accordingly upheld.
The Claimant cross-appealed on discrimination in relation to the Local Authority lawyer and the School Governors, maintaining that the ET had failed to take account of relevant evidence, had reached perverse conclusions and/or had failed to give adequate reasons for finding that there were adequate explanations for their conduct to satisfy the reverse burden of proof. The cross-appeal was allowed only in relation to the Governors; the ET’s finding that they had ‘effectively abandoned their roles’ and allowed their decisions to be taken by Local Authority officers ‘by proxy’ was not consistent with other factual findings and in any event the ET should have asked itself why the Governors might have abandoned their roles and allowed their decisions to be taken ‘by proxy’. The question whether the Governors had discriminated against the Claimant was remitted to the same ET.

Citations:

[2019] UKEAT 0298 – 17 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.635156

PRACTICE AND PROCEDURE – Striking-out/dismissal
DISABILITY DISCRIMINATION – Disability related discrimination
This was an appeal against a decision of the Employment Judge to refuse an application to strike out a claim for direct discrimination, a failure to make reasonable adjustments, and harassment related to a disability, and unfair dismissal. The Claimant was a Senior Veterinary Inspector. There were issues of underperformance in early 2015 to February 2016. The Claimant was diagnosed with prostate cancer on 8 February 2016 and informed his employer on the 9 February 2016. On the 17 February 2016, the employer terminated his employment. The Claimant contended that the high PSA levels prior to the diagnoses affected the workings of the brain and led to the mental impairment that caused his underperformance. At a Preliminary Hearing to consider these issues, the Tribunal found that the evidence was insufficient to conclude that there was any connection between the raised PSA level and the mental impairment leading to underperformance and concluded that the disability claims had no reasonable prospect of success. The Tribunal declined, however, to strike out the three disability claims in relation to the period from 9 February 2016. He also declined to strike out the unfair dismissal claim taking account of the disability claim and potential evidential uncertainties.
The Tribunal’s decision not to strike out the disability claims was perverse in the sense that it was illogical. Having found that there was no factual connection or link between the underperformance and the prostate cancer, and having found that the claims had no reasonable prospect of success, it was illogical not to strike out the claim. The appeal on those issues would be allowed and an Order striking out the three disability claims would be substituted. In relation to the unfair dismissal, the Tribunal erred in so far as it took into account the disability claims (as those have been struck out). The appeal against the refusal to strike out that claim would be allowed for that reason but the matter would need to be remitted to the Employment Tribunal to determine whether the claim for unfair dismissal had no reasonable prospects of success.

Citations:

[2018] UKEAT 0154 – 18 – 2012)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.635149

Lord Justice Kerr said: ‘Firstly, as I have pointed out, it was the applicant in Enderby [1993] IRLR 591 who first used the expression ‘almost exclusively’ to refer to the female group. I consider that the Court of Justice was merely reflecting the factual situation which obtained in that case in so stating its conclusion. Secondly, and more importantly, the relevance of the number of females in the group is an indicator of it being traditionally a less well paid group on account of its being composed mainly of women. Logically a group comprising 75% females and 25% males has the capacity to provide such an indication. Whether it does in fact is a matter for the tribunal to decide.’

Judges:

Lord Justice Kerr

Citations:

[1997] IRLR 92

Jurisdiction:

England and Wales

Cited by:

Cited – South Tyneside Metropolitan Borough Council v Anderson and others EAT 26-Mar-2007
The council appealed a finding that there was no genuine material factor justifying a difference in pay, and in particular the availability of bonus schemes. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.253247

Citations:

[2003] NIFET 523 – 00

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.237374

EAT Sex Discrimination – Others

Judges:

The Honourable Lord Johnston

Citations:

[1999] UKEAT 13 – 99 – 2810, EAT/13/99

Links:

Bailii, EAT

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.205706

The claimant had complained that a decision of the respondent to cancel his nursing home registration was unlawful racial discrimination. He now appealed a decision to strike out his claim as vexatious and frivolous.
Held: It was not clear that the Employment Appeal Tribunal had power to dismiss an appeal and the case should go to the full EAT, and it was also arguable that to dismiss a claim as vexatious without consideration of evidence was wrong. The appeal should go forward.

Judges:

Altman J

Citations:

[1999] UKEAT 744 – 99 – 1510

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting Admn 18-Jul-1997
The applicant complained of having been struck off the register of nurses. He said that when he told the court that he wanted to appeal he was sent forms appropriate for a judicial review. He amended and submitted them. In correcting him, the court . .
See Also – Balamoody v United Kingdom Central Council; Balamoody v Manchester City Magistrates’ Court Admn 10-Jun-1998
The applicant had been convicted of offences relating to the management of his nursing home, and had been struck off the Register of Nurses.
Held: It was no defence to the criminal charges that a member of staff had failed in her duties. The . .
See Also – Balamoody v Manchester Health Authority EAT 2-Mar-1999
The claimant appealed against orders striking out his complaint of unlawful racial discrimination. He had owned a nursing home regulated by the respondent authority. A senior white employee had broken regulations regarding safekeeping of drugs, but . .

Cited by:

Leave given – Balamoody v UkCC for Nursing Midwifery and Home Visitors EAT 5-Dec-2000
The claimant’s claim of unlawful race discrimination had been dismissed as an abuse of process by the EAT. The Tribunal now considered whether the EAT had power to make such a decision.
Held: The 1993 Regulations were more generous to . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 14 June 2022; Ref: scu.205672