Vallianatos And Others v Greece: ECHR 7 Nov 2013

Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life and amounted to unjustified discrimination between different-sex and same-sex couples, to the detriment of the latter.
Held: The introduction of registered partnerships only for different sex couples, to exist alongside marriage which was also only open to different sex couples, constituted a breach of article 14 read with article 8 of the Convention

Dean Spielmann, P
29381/09, [2013] ECHR 1110, 32684/09, 36 BHRC 149, (2014) 59 EHRR 12
Bailii
European Convention on Human Rights 8 14
Human Rights
Citing:
Legal SummaryVallianatos And Others v Greece (LS) ECHR 7-Nov-2013
ECHR (Grand Chamber) Article 14
Discrimination
Exclusion of same-sex couples from ‘civil unions’: violation
Facts – The first application was lodged by two Greek nationals, and the second by six . .

Cited by:
CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
CitedSteinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Discrimination

Updated: 25 November 2021; Ref: scu.517642

Dansk Jurist-Og Okonomforbund v Indenrigs-Og Sundhedsministeriet: ECJ 26 Sep 2013

ECJ Equal treatment in employment and occupation – Prohibition of discrimination on grounds of age – Directive 2000/78/EC – Article 6(1) and (2) – Refusal to grant availability pay to civil servants who have reached the age of 65 and are entitled to a pension

C-546/11, [2013] EUECJ C-546/11, [2014] 1 CMLR 41, [2013] WLR(D) 360, [2014] ICR 1, [2013] Eq LR 1099, [2014] IRLR 37
Bailii, WLRD
European
Cited by:
CitedMirga v Secretary of State for Work and Pensions, Samin v Westminster City Council SC 27-Jan-2016
The claimants, a Polish national and an Austrian national, appealed against decisions of the Court of Appeal upholding decisions that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 20 November 2021; Ref: scu.515578

Raabe, Regina (on The Application of) v Secretary of State for The Home Department: Admn 20 Jun 2013

The claimant challenged his removal from a panel advising on the misuse of drugs on the basis that he had authored a paper setting out his approval of heterosexual relationships only.

Stadlen J
[2013] EWHC 1736 (Admin)
Bailii
England and Wales

Health Professions, Discrimination

Updated: 14 November 2021; Ref: scu.510948

Akwiwu and Another v Onu: EAT 1 May 2013

EAT Race Discrimination : Direct
Indirect
Post Employment
UNLAWFUL DEDUCTION FROM WAGES
NATIONAL MINIMUM WAGE
WORKING TIME REGULATIONS
The Claimant was a Nigerian woman who had been employed as a domestic servant for Nigerian employers, having obtained a migrant domestic workers’ visa to enable her to do so. She succeeded on her claim for direct race discrimination, on the basis that the burden of proof shifted and no sufficient explanation was offered by her employers, following Mehmet v Aduma. Held that was an error: the case was wrongly decided, and was no precedent for the circumstances here. The burden of proof did not shift without something more than a difference of race and disparity of treatment. The fact of needing a migrant worker visa was a background circumstance, not a cause of the mistreatment: this was not a case such as James v Eastleigh, or JFS, where an inevitably discriminatory criterion had been applied.
Indirect discrimination could not be established on the basis of the PCP contended for below; harassment failed for the same reasons as did the claim of direct discrimination. Victimisation arising out of events some months after the employment ended was alleged. A defence that the Equality Act could not be interpreted so as to confer jurisdiction on a Tribunal to hear a complaint of victimisation arising after the relationship of employer/employee had ended was rejected. Jessemey was not followed. The Tribunal’s dismissal of the claim on the basis that a threat issued in response to the claimant taking proceedings (which included claims under the Equality Act, but also other claims) had expressly to refer to the Equality Act or identify such a claim specifically, was reversed.
The employers also appealed on the basis that claims for payment of the Minimum Wage and in respect of the Working Time Directive were excluded because the claimant was treated as a family member. This was rejected, given the findings of fact.
Permission to appeal in this case and the linked appeal of Taiwo was granted.

Langstaff P J
[2013] UKEAT 0283 – 12 – 0105, [2013] Eq LR 577, [2013] IRLR 523, [2013] ICR 1039
Bailii
Equality Act 2010 13(1)
England and Wales
Citing:
AppliedRowstock Ltd v Jessemey EAT 5-Mar-2013
EAT UNFAIR DISMISSAL – Polkey deduction
AGE DISCRIMINATION – Dismissal
VICTIMISATION – Post-employment
FACTS
The employee was dismissed on grounds of retirement, having reached an age over . .

Cited by:
CitedDeer v University of Oxford CA 6-Feb-2015
The claimant had previously succeeded in a claim of sex discrimination against the University, her former employer. She now appealed against rejection of her claims alleging later victimisation.
Held: Two appeals succeed, and those matters . .
At EATOnu v Akwiwu and Another CA 13-Mar-2014
Two claimants, Nigerian women, came illegally to work as domestics. They suffered severe abuse by their employers. Whilst each received substantial awards, they appealed now from rejection of their claims for discrimination based upon the advantage . .
At EATTaiwo and Another v Olaigbe and Others SC 22-Jun-2016
The claimants had been brought here illegally to act as servants for the defendants. They were taken advantage of and abused. They made several claims, but now appealed against rejection of their claims for discrimination. The court was asked . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 November 2021; Ref: scu.495209

James v Eastleigh Borough Council: CA 1985

The plaintiff was used to going swimming. He was 60. He complained that whereas his wife, of the same age was admitted free, he had had to pay .75p. He claimed sex discrimination.
Held: Though his claim failed, Sir Nicolas Browne-Wilkinson V-C said: ‘it is not permissible for a defendant in such a case to seek to define the section of the public to which it offers services in terms which are themselves discriminatory in terms of gender. If this were not so it would be lawful, for example, to provide free travel for men but not for women on the ground that the facility of free travel is only being provided for a section of the public comprising men. Whatever else may be meant by a ‘section of the public,’ in my judgment it cannot mean a class defined by reference to sex or, under the Race Relations Act 1976, by reference to race.’ The council’s less favourable treatment of a man than a woman was not ‘on the ground of his sex’ and that there had accordingly been no direct discrimination contrary to section l(l)(a). The condition which the local authority applied to persons resorting to their swimming pool that in order to qualify for free admission they should be of pensionable age was, as the court held, a condition applied equally to men and women.

Sir Nicolas Browne-Wilkinson V.-C., Parker and Nourse LJJ
[1990] QB 61
Sex Discrimination Act 1975 29
England and Wales
Cited by:
Appeal fromJames v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Leading Case

Updated: 11 November 2021; Ref: scu.264030

Lavida And Others v Greece: ECHR 30 May 2013

The case concerned the education of Roma children who were restricted to attending a primary school in which the only pupils were other Roma children.
Held: Violation of Article 14 (prohibition of discrimination) in conjunction with Article 2 of Protocol No. 1 (right to education)
The Court found that the continuing nature of this situation and the State’s refusal to take anti-segregation measures implied discrimination and a breach of the right to education.

7973/10 – Chamber Judgment (French Text), [2013] ECHR 488
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Children, Discrimination, Education

Leading Case

Updated: 11 November 2021; Ref: scu.510736

Carson and Others v The United Kingdom: ECHR 16 Mar 2010

(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had earned pensions by working in Britain, but had emigrated to South Africa, Australia or Canada on retirement. They were all British nationals, though one remained an Australian national. Each claimed discrimination in that their pensions were not linked to United Kingdom inflation, in contrast to the position of pensioners who had remained resident within the United Kingdom. They claimed that the rule violated article 14 taken in conjunction with article 1 of Protocol 1 to the Convention. The Grand Chamber concluded ‘that place of residence constitutes an aspect of personal status for the purposes of article 14’ but, in the event, it proceeded to reject the applications.
‘In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’
and: ‘as with all complaints of alleged discrimination in a welfare or pensions system, it is concerned with the compatibility with article 14 of the system, not with the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation. Much is made in the applicants’ submissions and in those of the third-party intervener of the extreme financial hardship which may result from the policy . . However, the court is not in a position to make an assessment of the effects, if any, on the many thousands in the same position as the applicants and nor should it try to do so. Any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need . . the court’s role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation.’

[2010] ECHR 338, 42184/05, (2010) 51 EHRR 13, 29 BHRC 22
Bailii
European Convention on Human Rights 14
Human Rights
Citing:
See AlsoCarson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .
See AlsoCarson and Others v United Kingdom ECHR 2-Sep-2009
Press Release . .
See AlsoCarson v United Kingdom ECHR 2-Sep-2009
Press Release – Grand Chamber Hearing broadcast . .

Cited by:
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
CitedHumphreys v Revenue and Customs SC 16-May-2012
Separated parents shared the care of their child. The father complained that all the Child Tax Credit was given to the mother.
Held: The appeal failed. Although the rule does happen to be indirectly discriminatory against fathers, the . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedTigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
CitedA and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
CitedCrowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination

Leading Case

Updated: 11 November 2021; Ref: scu.420210

Capper Pass Ltd v Lawton: EAT 19 Oct 1976

Once a tribunal in a discrimination claim has found that there is broadly similar work, the tribunal must then consider whether there are differences amounting to practical importance. Phillips J P said: ‘trivial differences or differences not likely in the real world to be reflected in the terms and conditions of employment, ought to be disregarded. In other words, once it is determined that work is of a broadly similar nature it should be regarded as being ‘like work’ unless the differences are plainly of a kind which the industrial tribunal in its experience would expect to find reflected in the terms and conditions of employment. This last point requires to be emphasised . . The only differences which will prevent work which is of a broadly similar nature from being ‘like work’ are differences which in practice will be reflected in the terms and conditions of employment.’

Phillips J P
[1976] UKEAT 346 – 76 – 1076, [1977] 2 WLR 26, [1977] QB 852, [1976] IRLR 366, (1976) 11 ITR 316, [1977] 2 All ER 11
Bailii
England and Wales

Employment, Discrimination

Leading Case

Updated: 10 November 2021; Ref: scu.392854

Kokkinakis v Greece: ECHR 25 May 1993

The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the circumstances of this case: ‘Bearing witness in words and deeds is bound up with the existence of religious convictions’ and ‘As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest [one’s] religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions . . The fundamental nature of the rights guaranteed in Article 9 para 1 . is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11 . . which cover all the rights mentioned in the first paragraphs of those Articles, that of Article 9 refers only to ‘freedom to manifest one’s religion or belief’. In so doing, it recognises that in democratic societies, in which several religions co-exist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.’ There should be no punishment without th eterms of the crime being set down.

Independent 16-Jun-1993, Times 11-Jun-1993, 14307/88, [1993] 17 EHRR 397, [1993] ECHR 20
Worldlii, Bailii
European Convention on Human Rights 9
Human Rights
Cited by:
CitedBegum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
CitedSB, Regina (on the Application of) v Denbigh High School CA 2-Mar-2005
The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a . .
CitedRegina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
CitedCopsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
CitedRegina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
CitedConnolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
CitedThe New Testament Church of God v Reverend Stewart CA 19-Oct-2007
The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .
CitedMcFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
CitedBull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
CitedSingh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
CitedRT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
CitedEweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
CitedHammond v Director of Public Prosecutions Admn 13-Jan-2004
The defendant, who had since died, had been convicted of a public order offence in that standing in a street he had displayed a range of placards opposing homosexuality. He appealed saying that the finding was an unwarranted infringement of his . .
CitedOtto-Preminger-Institut v Austria ECHR 20-Sep-1994
Balance of Religious Tolerance and Freedom
The Institut operated a cinema. It announced a showing of a film ‘Das Liebenconzil’. Proceedings were brought against it, on complaint by the Roman Catholic Church, in which it was accused of ‘disparaging religious doctrine’. The film was seized . .
CitedLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Human Rights, Ecclesiastical

Leading Case

Updated: 10 November 2021; Ref: scu.165254

Walker v Innospec Ltd and Others: SC 12 Jul 2017

The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was precisely the same as that which would have been paid to a heterosexual man. There was no reason for the company to anticipate that it would not become liable to pay a survivor’s pension to his lawful spouse. The date when that pension will come due, provided Mr Walker and his partner remain married and his partner does not predecease Mr Walker, is the time at which denial of a pension would amount to discrimination on the ground of sexual orientation.
‘it is vital to keep the two concepts distinct. ‘No retroactivity’ and ‘future effects’ are principles of law which apply to all EU legislation, unless a contrary intention can be found. The Barber exception is an example of a technique used by the CJEU to limit the generally retroactive application of its judgments, which it will only exercise in the most exceptional circumstances and where the impact would be truly ‘catastrophic’. The court limits the temporal application of its judgments in cases where reliance has been placed on a different understanding of the law and legitimate expectations may be upset, but only in the most special circumstances. Therefore, how the court exceptionally applies a temporal limitation to one of its rulings has no inevitable bearing on the temporal application of legislation as a matter of principle.’
‘Mr Walker’s husband, provided he does not predecease him, and that they remain married at the time of Mr Walker’s death, is entitled under the Framework Directive to a spouse’s pension calculated on the basis of all the years of Mr Walker’s service with Innospec. On that account, paragraph 18 of Schedule 9 is incompatible with the Framework Directive. In particular, paragraph 18(1)(b) which authorises a restriction of payment of benefits based on periods of service before 5 December 2005 cannot be reconciled with what I consider to be the plain effect of the Directive.’

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath, Lord Hughes JJSC
[2017] UKSC 47, [2017] IRLR 928, [2017] ICR 1077, [2017] WLR(D) 477, UKSC 2016/0090
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170308am Video, SC 20170308pm Video, SC 20170317am Video, SC 20170317pm Video
Civil Partnership Act 2004, Council Directive 2000/78/EC
England and Wales
Citing:
CitedBull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
CitedDefrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
CitedAndersson and Wakeras-Andersson v Svenska Staten ECJ 15-Jun-1999
(External relations) Article 234 EC (ex-Article 177) – EEA Agreement – Jurisdiction of the Court of Justice – Accession to the European Union – Directive 80/987/EEC – Liability of a State
Advocate General Jacobs said: ‘Retroactive effect . .
CitedBilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
CitedBarber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
CitedVroege v Nciv Instituut Voor Volkshuisvesting Bv and Stichting Pensioenfonds Nciv ECJ 28-Sep-1994
1. Social policy – Male and female workers – Equal pay – Pay – Concept – Right to join a private occupational pension scheme – Included – Exclusion of married women from membership – Not permissible – Exclusion of part-time workers – Part-time staff . .
Appeal fromO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
CitedInnospec Ltd and Others v Walker EAT 18-Feb-2014
EAT Sex Discrimination : Sexual Orientation discrimination / transexualism : The recipient of an occupational pension since 2003, under the terms of a pension scheme which provided survivor’s benefits to spouses . .
CitedChester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
CitedLand Nordrhein-Westfalen v Pokrzeptowicz-Meyer ECJ 29-Jan-2002
External relations – Europe Agreement between the Communities and Poland – Interpretation of the first indent of Article 37(1) – Prohibition of discrimination based on nationality as regards conditions of employment or dismissal for Polish workers . .
CitedMaruko v Versorgungsanstalt der deutschen Buhnen ECJ 6-Sep-2007
ECJ Pension paid by a compulsory occupational pension – Refusal survival due to the absence of marriage to same-sex partners Directive 2000/78 / EC Scope Exclusion of social security benefits Concept of pay – . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedParris v Trinity College Dublin and Others ECJ 24-Nov-2016
No retrospection for pensions of civil partnership
ECJ (Judgment) Reference for a preliminary ruling – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2 – Prohibition of discrimination on grounds of sexual orientation and age – . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 10 November 2021; Ref: scu.589262

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 allow for her disability, and that the dog was critical to her health, she suffering from Bipolar Mood Disorder. She had been housed as homeless after release from a mental hospital.
Held: The fact that the association only became aware of the disability issue after serving the notice made no difference, They had a continuing duty to review their decision. Even so, the appellant failed to establish that the ‘no animals’ term discriminated against her on the grounds of her disability and that if it did there was nothing the respondents could reasonably have done about it. The ‘no animals’ provision was in the appellant’s tenancy agreement and the head lease for a purpose. The tenant’s argument meant that the appellant’s Bipolar disorder effectively trumps her contractual agreement with the respondents and the respondents’ agreement with the head lessor as well as the interests of the other occupiers of Itchen Court.

Sir Scott Baker, Thomas LJ
[2010] EWCA Civ 265, [2010] L and TR 17, [2010] 2 P and CR 17
Bailii
Housing Act 1988 21, Disability Discrimination Act 1995 24A
England and Wales
Citing:
CitedProject Management Institute v Latif EAT 10-May-2007
EAT The Appellant is a qualifying body, subject to section 14 of the Disability Discrimination Act. The Tribunal found that it had failed to make a reasonable adjustment in the arrangements it made for sitting an . .
CitedLondon Borough of Lewisham v Malcolm HL 25-Jun-2008
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Discrimination

Updated: 10 November 2021; Ref: scu.403318

Grant v South West Trains Ltd: ECJ 17 Feb 1998

A company’s ban on the provision of travel perks to same sex partners of employees did not constitute breach of European sex discrimination law. An employer’s policy was not necessarily to be incorporated into the contract of employment. The court said that since the rule applied equally to male and female employees it was not discriminatory on grounds of ‘sex’ narrowly understood. The Court then considered whether ‘persons who have a stable relationship with a partner of the same sex are in the same situation as those who are married or have a stable relationship outside marriage with a partner of the opposite sex’. The European Parliament, although deploring all forms of discrimination based on sexual orientation, had not yet introduced measures to support that view; and that the laws of the member states only gave limited protection to such a relationship. So far as the European Commission on Human Rights was concerned, national provisions which, for the purpose of protecting the family, accord more favourable treatment to married persons and persons of the opposite sex living together as man and wife than to persons of the same sex in a stable relationship are not contrary to article 14 of the Convention which prohibits, inter alia, discrimination on the ground of sex. Stable relationships between two persons of the same sex are not regarded as equivalent to marriages and stable relationships outside marriage between persons of opposite sex. Consequently, an employer is not required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex.

Times 23-Feb-1998, Gazette 24-Jun-1998, [1998] IRLR 188, C-249/96, [1998] ICR 449, [1998] 3 BHRC 578, [1998] EUECJ C-249/96
Bailii
Council Directive 75/117/EEC, EC Treaty 119
Citing:
CitedS v United Kingdom ECHR 1986
The applicant was not entitled in domestic law to succeed to a tenancy on the death of her partner. The aim of the legislation is question was to protect the family, a goal similar to the protection of the right to respect for family life guaranteed . .

Cited by:
CitedMacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
CitedRegina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
CitedFitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
CitedPearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Leading Case

Updated: 10 November 2021; Ref: scu.161917

Azmi v Kirklees Metropolitan Borough Council: EAT 30 Mar 2007

The claimant alleged discrimination. As a teaching assistant, she had been refused permission to wear a veil when assisting a male teacher.
Held: Direct discrimination had not been shown. The respondent had shown that any comparator would have also been required to remove a veil since it obscured her face and mouth and was a barrier to effective learning. The requirement not to wear clothing which interfered unduly with an employee’s ability to communicate was neutral within article 2. No indirect discrimination had been shown.

Wilkie J
[2007] UKEAT 0009 – 07 – 3003, Times 17-Apr-2007, [2007] IRLR 484, [2007] ELR 339, [2007] ICR 1154
Bailii
European Convention on Human Rights 2, European Union Council Directive 2000/78EC, Employment Equality (Religion or Belief) Regulations 2003
Citing:
CitedBilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
CitedLommers v Minister van Landbouw, Natuurbeheer en Visserij ECJ 19-Mar-2002
Europa Social policy – Equal treatment of men and women – Derogations – Measures to promote equality of opportunity between men and women – Subsidised nursery places made available by a Ministry to its staff – . .
CitedHardys and Hansons Plc v Lax CA 7-Jul-2005
The issue of justification of discrimination is rarely a simple matter. No margin of appreciation was to be allowed to an employer. It is for the tribunal to make its own judgment as to whether the practice complained of by the employee was . .
CitedShamoon 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 . .
CitedMangold v Helm ECJ 22-Nov-2005
ECJ Grand Chamber – Directive 1999/70/EC – Clauses 2, 5 and 8 of the Framework Agreement on fixed-term work – Directive 2000/78/EC – Article 6 – Equal treatment as regards employment and occupation – Age . .
CitedSecretary of State for Defence v Elias CA 10-Oct-2006
The claimant said that a scheme drawn by the defendant for compensating British civilians interned by the Japanese during the second world war was indirectly discriminatory on racial grounds by requiring a national origin link with the UK. She had . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Human Rights

Leading Case

Updated: 09 November 2021; Ref: scu.251294

Parris v Trinity College Dublin and Others: ECJ 24 Nov 2016

No retrospection for pensions of civil partnership

ECJ (Judgment) Reference for a preliminary ruling – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2 – Prohibition of discrimination on grounds of sexual orientation and age – National pension scheme – Payment of a survivor’s benefit to the civil partner – Condition – Partnership contracted before the 60th birthday of the member of the scheme – Civil partnership – Not possible in the Member State concerned before 2010 – Existing stable relationship – Article 6(2) – Justification of differences of treatment on grounds of age
Kokott AG said: ‘it is settled case law that a new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations. It is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application.
Those principles also apply to the temporal application of Directive 2000/78. A restriction of the temporal scope of that Directive, in derogation from the aforementioned general principles, would have required an express stipulation to that effect by the EU legislature. No such special provision has been made, however.
Consequently, the Court has already declared Directive 2000/78 to be applicable to cases concerning occupational and survivor’s pension schemes the entitlements under which had arisen – much as they did here – long before the entry into force of that Directive and any contributions or reference periods in respect of which also predated the entry into force of that Directive. Unlike in Barber, for example, concerning article 119 of the EEC Treaty (now article 157 TFEU), the Court expressly did not apply a temporal restriction to the effects of its case law relating to occupational pension schemes under Directive 2000/78. I would add that there was, moreover, no longer any need for such a temporal restriction, since it had become sufficiently apparent to all the interested parties since the judgment in Barber that occupational pensions fall within the EU-law concept of pay and are subject to any prohibitions on discrimination.
It is true that the Court has held that the prohibition on discrimination contained in Directive 2000/78 cannot give rise to claims for payments in respect of periods in the past that predate the time limit for transposing that Directive. However, the recognition of the right to a future survivor’s pension, at issue in the present case, is unaffected by that principle because such recognition is concerned only with future pension scheme payments, even though the calculation of those payments is based on periods of service completed or contributions made in the past.’

Kokott AG
ECLI:EU:C:2016:897, [2016] EUECJ C-443/15, [2016] WLR(D) 622
Bailii, WLRD
Directive 2000/78/EC
European
Cited by:
CitedWalker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 09 November 2021; Ref: scu.571881

Levez v T H Jennings (Harlow Pools) Ltd: ECJ 1 Dec 1998

Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
Advocate General Leger said: ‘an action brought under the Equal Pay Act and an action brought under Article [141] of the Treaty are not merely similar, as the United Kingdom Government maintains: their scope is identical, that is to say, they amount to one and the same form of action.’
ECJ Social policy – Men and women – Equal pay – Article 119 of the EC Treaty – Directive 75/117/EEC – Remedies for breach of the prohibition on discrimination – Pay arrears – Domestic legislation placing a two-year limit on awards for the period prior to the institution of proceedings – Similar domestic actions.

Advocate General Leger
Times 10-Dec-1998, C-326/96, [1999] All ER (EC) 1, [1998] EUECJ C-326/96, [1999] CEC 3, [1998] ECR I-7835, [1999] 2 CMLR 363, [1999] ICR 521, [1999] IRLR 36
Bailii
European
Citing:
Reference fromLevez v T H Jennings (Harlow Pools) Ltd EAT 6-Nov-1996
. .
See AlsoLevez v T H Jennings (Harlow Pools) Ltd EAT 11-Oct-1996
A party sought to be joined to the case order to appeal it to the Curt of Appeal, and in turn to the European Court of Justice to challenge implementation of a European directive.
Held: Leave to join refused, but leave allowed to appeal . .

Cited by:
CitedPreston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
At ECJLevez etc v T H Jennings (Harlow Pools) Ltd (No 2) EAT 1-Oct-1999
The restriction on the awards of compensation for sex discrimination to payments in respect of a period of two years prior to the claim was unlawful. Claims of other natures were not so limited, and this could not be supported, since it was in . .
CitedAlabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
CitedSlack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
CitedUnison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .
CitedTotel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.161962

Owusu v London Fire and Civil Defence Authority: EAT 1 Mar 1995

The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing discrimination: ‘the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts . . in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr Owusu from regrading or opportunities to act up.
The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu.
It would be a matter of evidence for the tribunal as to whether such a practice . . in fact exists. It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice.’

Mummery J
[1995] UKEAT 334 – 93 – 0103, [1995] IRLR 574
Bailii
England and Wales
Citing:
CitedMeek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .

Cited by:
See AlsoLondon Fire Civil Defence Authority v Owusu EAT 8-Oct-1997
. .
CitedCast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
CitedBritish Medical Association v Chaudhary CA 15-May-2003
The claimant had sought registration as a specialist medical practitioner by the respondent. His complaint that the crtiria used to reject his claim were discriminatory had been rejected by the employment tribunal and EAT on the basis that they had . .
CitedLyfar v Brighton and Sussex University Hospitals Trust CA 14-Nov-2006
The claimant appealed against rejection of her claim for race discrimination as having been made out of time. . .
CitedMawhirt v British Telecommunications Plc FENI 26-Mar-2007
. .
CitedSpencer v HM Prison Service Agency EAT 3-Dec-2003
EAT Practice and Procedure – Preliminary issues . .
CitedMA v Merck Sharpe and Dohme Ltd EAT 14-Apr-2008
EAT Race Discrimination – Continuing Act
Practice and Procedure – Striking-out/dismissal
Allegations of racial discrimination occurring over lengthy period of time. Meaning of ‘act extending over a . .
CitedFullerton v Interights International Centre for The Legal Protection of Human Rights EAT 19-Feb-2010
EAT JURISDICTIONAL POINTS:
2002 Act and Pre-Action Requirements
Claim in Time and Effective Date of Termination
Extension of Time: Reasonably Practicable
The Tribunal at a pre-hearing review . .
CitedFearon v Chief Constable of Derbyshire EAT 16-Jan-2004
EAT ‘This case concerns the correct test to be applied when an allegation of victimisation is made under the Race Relations Act; and the correct approach to handling a series of allegations of race discrimination . .
CitedP Pathak R Chaudhary v Secretary of State for Health and others the Specialist Training Authority Appeal Panel and others EAT 8-Jan-2004
EAT Race Discrimination – Indirect . .
CitedGrant v Department of Finance and Personnel FENI 13-Nov-2007
. .
CitedMA v Merck Sharp and Dohme Ltd CA 16-Dec-2008
. .
CitedArmstrong v Chief Constable Of the Police Service for Northern Ireland NIIT 3-Aug-2009
Claims for direct and indirect sex discrimination dismissed. . .
CitedRobertson v Bexley Community Centre (T/A Leisure Link) EAT 4-Jul-2002
EAT Race Discrimination – Direct . .
CitedHenry v London Borough of Newham EAT 13-May-2003
EAT Race Discrimination – Indirect. . .
CitedPreston Borough Council, Geoffrey Driver v S Harrison Geoffrey Driver S Harrison, Preston Borough Council EAT 11-Mar-2003
EAT Sex Discrimination – Victimisation . .
CitedMurali v British Medical Association EAT 8-Sep-2003
EAT Race Discrimination – Indirect . .
CitedDime v Brent, Kensington, Chelsea and Westminster Mental Health NHS Trust EAT 6-Nov-2002
. .
CitedRobertson v Bexley Community Centre CA 11-Mar-2003
The claimant brought his claim in discrimination, but it was out of time. The employer appealed against a decision to extend the time for him to file his complaint.
Held: A tribunal has a very wide discretion in the area of whether to extend . .
CitedSinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
CitedJ Kells v Pilkington Plc EAT 2-May-2002
EAT Equal Pay Act . .
CitedRuby v Kings Lynn and Wisbech Hospitals NHS Trust EAT 6-Jun-2001
. .
CitedChaudhary v The Senate of the Royal College of Surgeons Of Great Britain and Ireland and Others, NHS Executive Headquarters, Department of Health, NHS Executive North West, The Postgraduate Dean North West Deanery etc EAT 19-Jul-2001
EAT Race Discrimination – Direct . .
CitedThe Commissioner of Police of the Metropolis v Hendricks EAT 5-Nov-2001
EAT Jurisdiction – (no sub-topic). . .
CitedG R Pommell v Birmingham City Council and Another EAT 17-Jan-2002
. .
CitedHendricks v The Commissioner of Police of the Metropolis CA 27-Nov-2002
The appellant appealed a finding of the Employment Appeal Tribunal against her. She had complained of sex and race discrimination. She alleged that the Tribunal had concentrated on the issues of policy within the respondent police force.
Held: . .
CitedCommissioners of Inland Revenue and Cleave CB v Morgan EAT 6-Feb-2002
EAT Race Discrimination – Direct . .
CitedSommerville-Cotton v Barclays Capital Services Ltd EAT 25-Jan-2002
EAT Sex Discrimination – Direct . .
CitedWilliam Jack v Pinkerton Security Services Ltd EAT 7-Dec-2000
EAT Race Discrimination – Direct . .
CitedJack v Pinkerton Security Services Ltd CA 3-May-2001
Application for leave to appeal – refused. . .
CitedJack v Pinkerton Security Services Ltd EAT 16-Apr-2002
. .
CitedMOD (Service Children’s Education) v KW EAT 9-Oct-2000
. .
CitedLee v Lancashire County Council EAT 1-Mar-2000
. .
CitedC Pharoah v H M Prison Service EAT 20-Jun-2000
EAT Procedural Issues – Employment Tribunal . .
CitedArube v Devon Probation Service EAT 7-Nov-2000
. .
CitedP Lee v Lancashire County Council EAT 30-Apr-2001
EAT Disability Discrimination – Disability . .
CitedFarooqi v South Warwickshire NHS Trust EAT 1-Dec-1999
. .
CitedTyagi v BBC World Service EAT 3-Apr-2000
. .
CitedFarooqi v South Warwickshire NHS Trust EAT 5-Apr-2000
. .
CitedDr Grace Awaekpo v St Mary’s NHS Trust and others CA 10-Aug-1999
. .
CitedCourt v Gloucester Royal NHS Trust and Another EAT 15-Jun-1999
. .
CitedAyobiojo v London Borough of Lewisham EAT 25-Jul-1995
. .
CitedCast v Croydon College EAT 9-May-1996
. .
CitedAkhter v Family Services Unit EAT 20-May-1996
. .
CitedDonovan v New Islington and Hackney Housing Association EAT 10-Mar-1997
. .
CitedMungal v Twickenham and Roehampton Healthcare NHS Trust EAT 11-Apr-1997
. .
CitedGreat Mills (Central) Ltd v Ahmed EAT 16-Apr-1997
. .
CitedManning v British Telecommunications Plc and others EAT 25-Apr-1997
. .
CitedSouth Wales Police v Walters and others EAT 14-Nov-1997
. .
CitedMensah v Whittington Hospital NHS Trust and others EAT 19-Nov-1997
. .
CitedSheffield City Council v Wilson and Another EAT 11-Dec-1997
. .
CitedEwane v Department for Education and Employment EAT 19-Dec-1997
. .
CitedAyobiojo v Nalgo-Unison Trade Union EAT 16-Jan-1998
. .
CitedSouth Wales Police v Walters and others EAT 27-Feb-1998
. .
CitedCourt v Gloucestershire Royal NHS Trust EAT 20-Jul-1998
. .
CitedKhan v Nynex Cablecomms Ltd EAT 26-Oct-1998
. .
CitedHenry v Foreign and Commonwealth Office EAT 1-Dec-1998
. .
CitedWeigel and Another v Brown EAT 10-Dec-1998
. .
CitedWilson v Sheffield City Council EAT 15-Nov-2000
. .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.209014

Regina v Secretary of State for Defence ex parte Perkins: Admn 16 Jul 1998

The ECJ ruling that discrimination against same sex couples did not constitute sex discrimination under the Equal Pay Directive was also effective to decide that the Armed Forces rules against employment of homosexuals was not discrimination.

Times 16-Jul-1998, Gazette 03-Sep-1998, [1998] EWHC Admin 746
Bailii
Council Directive 75/117/EEC (Equal Treatment) Council Directive 76/297/EEC Equal Treatment
England and Wales

Discrimination, Armed Forces

Updated: 09 November 2021; Ref: scu.87700

Birmingham City Council v Abdulla and Others: SC 24 Oct 2012

Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed against the refusal to strike out the claims on the basis that they could more conveniently have been heard by the tribunals.
Held: The appeal failed (Wilson, Hale, Rogers LL majority, Sumption and Carnwath LL dissenting). The fact that the six months limit in the Tribunal had never allowed an extension by discretion, was enough to imply a recognition of the alternative jurisdiction available to claimants. Save for any other element of abuse, it could never be said that a case could be more conveniently disposed of where that disposal would be an inevitable dismissal without consideration of the merits or justice of the case.
Lord Sumption (dissenting) said that a decision in favour of the claimants would frustrate the underlying purposes of the 1970 Act. The availability of the limitation defence was of particular significance for employers. The notion of ‘convenience’ under section 2(3) was much wider than the mere efficient distribution of business. The fact that a claim in the tribunal would be out of time was highly relevant, but not conclusive.

Lady Hale, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath
[2012] UKSC 47, [2013] IRLR 38, [2012] ICR 1419, [2012] Eq LR 1147, [2012] WLR(D) 294
Bailii, Bailii Summary
Employment Rights (Dispute Resolution) Act 1998 1(2)(a), Equal Pay Act 1970 2(3)
England and Wales
Citing:
At first instanceAbdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
Appeal fromBirmingham City Council v Abdulla and Others CA 29-Nov-2011
The Council appealed against an order dismissing its application for the claimants’ claims under equal pay legislation to be struck out for want of jurisdiction. The claims had been brought in the High Court rather than te hEmployment Tribunal, thus . .
CitedSpiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
CitedAshby and Others v Birmingham City Council QBD 3-Mar-2011
The claimants appealed against the strike out of their claims for damages for breach of contract on imposing changes in employment contract and conditions. The County Court had accepted the Council’s arguments on the construction and application of . .
CitedLitster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
CitedDelaney v Staples HL 15-Apr-1992
The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The . .
CitedLevez etc v T H Jennings (Harlow Pools) Ltd (No 2) EAT 1-Oct-1999
The restriction on the awards of compensation for sex discrimination to payments in respect of a period of two years prior to the claim was unlawful. Claims of other natures were not so limited, and this could not be supported, since it was in . .
CitedPreston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
CitedPreston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
CitedRadakovits v Abbey National Plc CA 17-Nov-2009
The Tribunal had considered the question of jurisdiction as a preliminary issue. It heard evidence, and considered that there was no jurisdiction. This was despite the fact that, at an earlier stage, the employer had said that it would not contest . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Limitation

Updated: 09 November 2021; Ref: scu.465179

Orsus And Others v Croatia: ECHR 16 Mar 2010

(Grand Chamber) Fifteen Croatians of Roma origin complained that they were victims of racial discrimination in that they were segregated into Roma-only classes and consequently suffered educational, psychological and emotional damage.
Held: The Court observed that only Roma children had been placed in the special classes in the schools concerned. The Government attributed the separation to the pupils’ lack of proficiency in Croatian; however, the tests determining their placement in such classes did not focus specifically on language skills, the educational programme subsequently followed did not target language problems and the children’s progress was not clearly monitored. The placement of the applicants in Roma-only classes was therefore unjustified, in violation of Article 2 of Protocol No. 1 and Article 14. Whilst Croatia had a margin of appreciation, the State must have sufficient regard to the special needs of Roma children as members of a disadvantaged group. Croatia had violated their rights under Article 14 taken together with A2P1 and that it was not necessary to examine the complaint under A2P1 standing alone.

Jean-Paul Costa, P
[2010] ECHR 337, 15766/03, [2010] ELR 445, 28 BHRC 558, (2011) 52 EHRR 7
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoOrsus And Others v Croatia ECHR 17-Jul-2008
. .

Cited by:
CitedA v Essex County Council SC 14-Jul-2010
The claimant, a severely disabled child sought damages, saying that for well over a year, the local authority had made no provision for his education.
Held: His appeal against the striking out of his action failed. The correct approach had . .
CitedO’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Education, Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.421521

Bull and Bull v Hall and Preddy: CA 10 Feb 2012

The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they were practising Christians and viewed the guest house as their home, and that the Regulations amounted to a direct discrimination against them. They had operated a policy that only married couples could share a double bedded room.
Held: The appeal failed: ‘to the extent to which under the Regulations the restriction imposed by the Appellants upon the Respondents constitutes direct discrimination, and to the extent to which the Regulations limit the manifestation of the Appellants’ religious beliefs, the limitations are necessary in a democratic society for the protection of the rights and freedoms of others. The Appellants simply seek a further exception from the requirements in the Regulations, which already provide exceptions, in the case, for example, of certain landlords and of those who permit others to share their homes. The Secretary of State has drawn what she considers the appropriate balance between the competing claims of hoteliers and (amongst others) homosexuals. Her decision has been approved by affirmative resolution. This court would be loath to interfere with her conclusions.’
‘in a pluralist society it is inevitable that from time to time, as here, views, beliefs and rights of some are not compatible with those of others. As I have made plain, I do not consider that the Appellants face any difficulty in manifesting their religious beliefs, they are merely prohibited from so doing in the commercial context they have chosen.’

Sir Andrew Morritt QC Ch. Hooper, Rafferty LJJ
[2012] EWCA Civ 83, [2012] 1 WLR 2514, [2012] WLR(D) 30, [2012] Eq LR 338, [2012] HRLR 11, [2012] 2 All ER 1017
Bailii, WLRD
Equality Act (Sexual Orientation) Regulations 2007 4(1), Equality Act 2006 81, European Convention on Human Rights 8, Human Rights Act 1998 13
England and Wales
Citing:
CitedShamoon 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 . .
CitedRegina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
CitedRegina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
CitedThe Christian Institute and Others, Re Application for Judicial Review QBNI 11-Sep-2007
The Claimants opposed the Regulations which prohibited discrimination or harassment on grounds of sexual orientation on the grounds inter alia that they offended orthodox Christian beliefs and violated rights under the ECHR.
Held: The . .
Appeal FromHall and Another v Bull and Another Misc 4-Jan-2011
(Bristol County Court) The claimants, homosexual partners in a civil partnership, sought damages after being refused a stay at the bed and breakfast hotel operated by the defendants, who said that this was their home, and that they were committed . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedMcFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .
CitedKokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
CitedOntario Human Rights Commission v Brockie 2002
(Ontario) A Christian printer complained that he was required to offer services to an homosexual group. The court considered that argument that it was a human rights breach to ask a person to promote what they believe to be a sin, namely sexual . .
CitedJames v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
CitedE, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
CitedLadele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedCountryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
CitedMaruko v Versorgungsanstalt der deutschen Buhnen ECJ 1-Apr-2008
ECJ Grand Chamber – Equal treatment in employment and occupation – Directive 2000/78/EC – Survivors’ benefits under a compulsory occupational pensions scheme Concept of ‘pay’ – Refusal because the persons . .

Cited by:
Appeal fromBull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Human Rights

Leading Case

Updated: 09 November 2021; Ref: scu.451144

Richmond Pharmacology v Dhaliwal: EAT 12 Feb 2009

EAT HARASSMENT: Purpose
Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being ‘married off in India’ had the effect of violating her dignity and constituted harassment within the meaning of s. 3A of the Race Relations Act 1976.
Observations on the approach to be taken by Tribunals in considering claims of harassment under the 1976 Act and the equivalent provisions of cognate legislation.
Underhill P J considered the wording ‘having regard to . . the perception of that other person’ and the danger of confusion and of Tribunals applying a ‘subjective’ test by the back door: ‘We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, [his] dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a ‘subjective’ element; but overall the criterion is objective, because what the Tribunal is required to consider is whether, if the Claimant has experienced those feelings or perceptions, it was reasonable for [him] to do so. Thus if, for example, the Tribunal believes that the Claimant was unreasonably prone to take offence, then even if [he] did genuinely feel [his] dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a Claimant to have felt [his] dignity to have been violated is quintessentially a matter for the factual assessment of the Tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct, was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.’

Underhill P J
[2009] UKEAT 0458 – 08 – 1202, [2009] ICR 724, [2009] IRLR 336
Bailii
Race Relations Act 1976 3A
England and Wales
Cited by:
CitedHM 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 . .
AppliedThomas Sanderson Blinds Ltd v English EAT 21-Feb-2011
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
PRACTICE AND PROCEDURE – Review
Harassment on grounds of sexual orientation. The Tribunal directed itself correctly in looking at the Claimant’s own . .
CitedGrant v HM Land Registry CA 1-Jul-2011
The appellant had succeeded in his claim for sex discrimination arising from his orientation, but the EAT had reversed the decision. He now appealed against the EAT decision. Although he had revealed his sexuality in one post, he had chosen to delay . .
CitedHeafield v Times Newspaper Ltd EAT 17-Jan-2013
EAT Religion or Belief Discrimination – The Appellant, a sub-editor, who was a Roman Catholic, was offended by an editor referring to ‘the fucking Pope’ when chasing a delayed article and brought a claim for . .
CitedQuality Solicitors Cmht v Tunstall EAT 28-Jul-2014
EAT Harassment – Conduct – Single instance race harassment claim – one overheard remark, ‘She is Polish and very nice’ or ‘She is Polish but very nice’. The Employment Tribunal erred in law in (1) failing to . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.304523

Pickstone v Freemans Plc: HL 30 Jun 1988

The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim failed.
Held: The claim was not disbarred in this way. A reference to proceedings in Parliament was used to establish the intention behind the Act. Where regulations had been made in order to give effect to a Community obligation, there was an obligation to apply a purposive construction so as to give effect to the legislative intention and implement the Community obligation. The greater flexibility available to the court in applying a purposive construction to legislation designed to give effect to the United Kingdom’s Treaty obligations to the Community enables the court, where necessary, to supply by implication words appropriate to comply with those obligations. The explanatory note attached to a statutory instrument, although it was not of course part of the instrument, could be used to identify the mischief which it was attempting to remedy.

Lord Oliver of Aylmerton
[1989] AC 66, [1988] 2 All ER 803, [1988] 3 WLR 265, [1988] UKHL 2, [1988] 3 CMLR 221, [1988] ICR 697, [1988] IRLR 357
Hamlyn, Bailii
Equal Pay Act 1970 1(2), EEC Treaty 119, EC Council Directive 75/117
England and Wales
Citing:
CitedAinsworth v Glass Tubes Components Ltd EAT 1977
In an equal pay claim, it is for the applicant to choose the man with whom she wishes to compare herself. . .
CitedGarland 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 . .
CitedGarland 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 . .
CitedCommission of the European Communities v United Kingdom of Great Britain and Northern Ireland ECJ 6-Jul-1982
The general scheme and content of Directive 75/117, whose essential purpose is to implement the principle of equal pay for men and women, indicate that it is the responsibility of the member states to guarantee the right to receive equal pay for . .
CitedDuke v GEC Reliance Systems Limited HL 2-Jan-1988
The court was asked about the differential in retirement ages between men and women in private sector employment, and whether it constituted sex discrimination.
Held: Section 2(4) of the 1972 Act did not allow a British Court to distort the . .
MentionedBulmer (HP) Ltd v Bollinger SA CA 1974
The plaintiff complained that the respondent had described its drink ‘Babycham’ as a champagne perry, which it said was a misuse of the appellation ‘champagne’.
Held: The court considered the effect of European legislation on the law of . .
CitedMary Murphy and others v An Bord Telecom Eireann ECJ 4-Feb-1988
Article 119 of the EEC Treaty, which is directly applicable in the sense that the workers concerned may rely on it in legal proceedings and in the sense that national courts or tribunals must take it into account as a constituent part of community . .
Citedvon Colson and Kamann v Land Nordrhein-Westfalen ECJ 10-Apr-1984
sabineECJ1984
LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German . .
CitedCommission of the European Communities v Kingdom of Belgium ECJ 6-May-1980
Europa It is essential that each member state should implement directives in a way which fully meets the requirements of clarity and certainty in legal situations which directives seek for the benefit of traders . .
CitedHayward v Cammell Laird Shipbuilders Ltd (No. 2) CA 1987
. .
CitedHayward v Cammell Laird Shipbuilders Ltd (No. 2) HL 1988
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with . .
MentionedJ P Jenkins v Kingsgate (Clothing Productions) Ltd EAT 19-Jun-1981
The claimant worked part time. She said that she should have been paid at the same rate as her male full time equivalents, the failure being incompatible with her rights under Article 119.
Held: The scope of Article 119 EEC covers not only . .
CitedHayward v Cammell Laird Shipbuilders Ltd (No. 2) HL 1988
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with . .
MentionedJ 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 . .
CitedMacarthys Ltd v Smith ECJ 27-Mar-1980
The first paragraph of article 119 of the EEC Treaty applies directly, and without the need for more detailed implementing measures on the part of the community or the member states, to all forms of direct and overt discrimination which may be . .
CitedJohnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
CitedO’Brien v Sim-Chem Ltd HL 2-Jan-1980
The Respondent had carried out a job evaluation exercise in co-operation with the trade unions. The plaintiff and comparators had been rated as equivalent in the course of this exercise but the employer had failed to implement the scheme because of . .
CitedRegina v Maurice Donald Henn and John Frederick Ernest Darby ECJ 14-Dec-1979
Europa Article 30 of the EEC treaty applies also to prohibitions on imports inasmuch as they are the most extreme form of restriction. The expression used in article 30 must therefore be understood as being the . .
CitedHenn and Darby v Director of Public Prosecutions HL 1980
The House referred to the ECJ questions concerning the impact of Article 30 of the Treaty of Rome upon a prohibition against the importation of pornographic articles.
Lord Diplock said: ‘The European Court, in contrast to English courts, . .
CitedSusan Jane Worringham and Margaret Humphreys v Lloyds Bank Limited ECJ 11-Mar-1981
Europa A contribution to a retirement benefits scheme which is paid by an employer on behalf of employees by means of an addition to the gross salary and which therefore helps to determine the amount of that . .
CitedGisela Rummler v Dato-Druck ECJ 1-Jul-1986
In general Directive 75/117 on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women does not prohibit the use, in a job classification system as referred to in the second . .

Cited by:
AppliedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
AppliedLitster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
CitedM Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
CitedRegina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedRegina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
CitedAutologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
CitedParkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.182419

McDougall v Richmond Adult Community College: EAT 13 Jul 2007

EAT Disability discrimination – Disability
Compulsory admission of a patient under the Mental Health Act is not automatically a disability under the DDA 1995. In the circumstances of this case the severity of the Claimant’s condition did mean she had an impairment with a substantial adverse effect on day-to-day activities.
In determining whether or not a condition is likely to recur for the purposes of the assessment of disability under the DDA 1995, it is relevant to consider not only those matters extant at the date the tort was committed, but those occurring up to the date of the hearing. Bwllfa and Merthyr v Pontypridd Waterworks Company [1903] AC 426 HL and Golden Strait Corporation v Nipong Yusen 2007 UKHL 12 applied. On the issue of whether the Claimant’s mental impairment would be likely to recur at the date of her rejection for a job in 2005, it was relevant to consider that it had in fact recurred when she was recommitted under the Mental Health Act and that such was a mental impairment within the meaning of the Act.

McMullen QC HHJ
[2007] UKEAT 0589 – 06 – 1307, UKEAT/0589/06/DM, [2007] ICR 1567, [2007] IRLR 771
Bailii, EAT
England and Wales
Citing:
CitedBwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
CitedGolden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

Cited by:
CitedVaughan v London Borough of Lewisham and Others (Practice and Procedure : Costs) EAT 6-Jun-2013
EAT Practice and Procedure : Costs – Tribunal orders that Appellant should pay Respondents one-third of their costs (estimated prior to assessment at andpound;260,000) on the basis that the claim was misconceived . .
At EATRichmond Adult Community College v McDougall CA 17-Jan-2008
The claimant had been offered and had accepted a job subject to satisfactory health clearance. When that was not received her offer was withdrawn. She had suffered a condition which would affect her daily activities, but had recovered from that . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.254591

The Christian Institute and Others, Re Application for Judicial Review: QBNI 11 Sep 2007

The Claimants opposed the Regulations which prohibited discrimination or harassment on grounds of sexual orientation on the grounds inter alia that they offended orthodox Christian beliefs and violated rights under the ECHR.
Held: The outlawing of harassment in the case of sexual orientation may well involve interference with the freedom to manifest a religious belief. On the facts, the teaching or maintaining that homosexuality was sinful, was engaged and overlapped with the right to free expression under art.10. An assessment of the balance of interests required close consideration of issues such as the actions of the parties, the measures in question, the value of the policy promoted and the right diminished. Individual issues when raised should be decided by the County Court on a case-by-case basis.
Weatherup J said: ‘In general the applicants contend that the Regulations have the effect that the protection afforded to sexual orientation in accordance with the right to respect for private life under Article 8 and Article 14 of the Convention outweighs the protection afforded to the manifestation of religious belief under Article 9 and 14 of the European Convention so that there is a lack of fair balance between the respective rights.
On the other hand the respondent contends that this Court should not undertake an examination of the Regulations in the abstract as civil liability . . will be fact specific and should be determined on a case by case basis . . in the County Court.’ Interference with the Applicants’ rights and justification for it and the balance of interests in play required the close multi-factorial consideration for which the Respondent argued.’

Weatherup J
[2007] NIQB 66, [2008] IRLR 36
Bailii
Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, European Convention on Human Rights 8 9 14
Northern Ireland
Cited by:
CitedHall and Another v Bull and Another Misc 4-Jan-2011
(Bristol County Court) The claimants, homosexual partners in a civil partnership, sought damages after being refused a stay at the bed and breakfast hotel operated by the defendants, who said that this was their home, and that they were committed . .
CitedBull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Discrimination

Updated: 02 November 2021; Ref: scu.261743

F and C Asset Management Plc and others v Switalski: EAT 9 Dec 2008

EAT PRACTICE AND PROCEDURE: Review
UNFAIR DISMISSAL: Constructive dismissal
SEX DISCRIMINATION: Direct
Two appeals in respect of two matters heard together by the Employment Tribunal:
(i) Review Appeal: the Tribunal applied the wrong legal tests and/or erred in law and/or was perverse in dismissing the Appellant’s application for Review by reference to fresh evidence and/or the interests of justice. Application for Review granted and Review of the First and Second Cases remitted to a different Tribunal.
(ii) Fourth Case Appeal: Tribunal had no evidential basis and/or gave no adequate reasons for its conclusion that there was a last straw and/or erred in law in concluding that there was unaffirmed repudiatory breach and/or victimisation and erred in law and/or was perverse and/or gave no adequate reasons in respect of findings of sex discrimination or harassment. Save for certain of the sex discrimination and harassment claims which were dismissed, balance of the claims remitted for rehearing by a different tribunal.

Burton J
[2008] UKEAT 0423 – 08 – 0912
Bailii
England and Wales
Citing:
CitedGAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
See AlsoF and C Asset Management Plc and others v Switalski EAT 23-May-2008
EAT Sex Discrimination – Comparison – Burden of proof
Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
Direct sex discrimination – less favourable treatment – comparative exercise – . .
See AlsoF and C Asset Management Plc and others v Switalski CA 20-Oct-2008
. .
CitedFlint v Eastern Electricity Board EAT 1975
The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 02 November 2021; Ref: scu.278813

Brown, Regina (on the Application of) v Secretary of State for Work and Pensions: Admn 18 Dec 2008

Having ‘due regard’ is not Obligation to do

The claimant sought to challenge the decision to close her local post office on the basis that being retired and disabled and without a car in a rural area, the office was essential and the decision unsupportable. In particular she challenged the removal of post offices from the list of authorities with duties to make provision for the disabled.
Held: Section 49A requires the relevant public body to have ‘due regard’ to the specified matters. This does not impose a duty to achieve results. It does require the public body to take into account any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider.
Aikens LJ after reviewing the authorities considered the fulfilment of the duties of the decision maker: ‘i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.’

Aikens LJ
[2008] EWHC 3158 (Admin), [2009] PTSR 1506
Bailii
Disability Discrimination Act 1995 49A
England and Wales
Cited by:
CitedGill, Regina (on The Application of) v Secretary of State for Justice Admn 26-Feb-2010
Failure to provide programme discriminated
The claimant prisoner who had a learning disability said that he had been unable to complete the offending behaviour programmes because of his disability, that he had been kept in prison for much longer than he should have been as a consequence, and . .
CitedHotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .
CitedHurley and Moore, Regina (on The Application of) v Secretary of State for Business Innovation and Skills Admn 17-Feb-2012
The applicants, intending university students, challenged the decision to raise to andpound;9,000 per annum, the fees which might be charged by qualifying universities.
Elias LJ said: ‘Contrary to a submission advanced by Ms Mountfield, I do . .
CitedJewish Rights Watch (T/A Jewish Human Rights Watch), Regina (on The Application of) v Leicester City Council Admn 28-Jun-2016
The claimant challenged the legaity of resolutions passed by three local authorities which were critical of the State of Israel. They said that the resolultions infringed the Public Sector Equality Duty under section 149 of the 2010 Act, and also . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Administrative

Leading Case

Updated: 02 November 2021; Ref: scu.278963

Moroni v Collo: ECJ 14 Dec 1993

ECJ (Judgment) 1. Retirement pensions paid by an occupational scheme based on an agreement between the employer and the representatives of its employees, supplementary to the statutory social security scheme and not receiving any public funding, constitute pay for the purposes of Article 119 of the Treaty with the result that they are subject to the prohibition of discrimination based on sex laid down by that provision. It does not matter in this regard that the scheme was established in accordance with national legislation and this requires the pension for which the scheme provides to be paid at the same time as the employee begins to draw the statutory pension.
Consequently, it is contrary to Article 119 of the Treaty if under a supplementary occupational pension scheme a male employee is entitled to claim a company pension only at a higher age than a female employee in the same situation owing to the setting of different retirement ages for men and women.
2. Article 119 applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that article, without national or Community measures being required to define them with greater precision in order to permit their application.
Since with the aid of the constitutive elements of the pay in question and of the criteria laid down in Article 119 discrimination may be directly identified as arising from the setting of different retirement ages for men and women in the matter of company pensions, the worker discriminated against may, notwithstanding the provisions of Directive 86/378, assert his rights to payment of the company pension at the same age as his female counterpart and any reduction in the event of early departure from the service of the undertaking must be calculated on the basis of that age.
However, by virtue of the judgment of 17 May 1990 in Case C-262/88 Barber, the direct effect of Article 119 of the Treaty may be relied on in order to claim equal treatment in the matter of occupational pensions only in relation to benefits payable in respect of periods of service subsequent to the date of that judgment, subject to the exception in favour of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law.

C-110/91, [1993] EUECJ C-110/91, [1994] PLR 211, [1993] ECR 6591, [1994] IRLR 130, [1993] ECR I-6591, [1995] ICR 137
Bailii

European, Discrimination

Leading Case

Updated: 02 November 2021; Ref: scu.160691

Bougnaoui and Association de defense des droits de l’homme (ADDH) v Micropole SA: ECJ 14 Mar 2017

Ban on Faith display OK if general

ECJ (Principles, Objectives and Tasks of The Treaties Principles, Objectives and Tasks of The Treaties Social Policy – Judgment) Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment – Discrimination based on religion or belief – Genuine and determining occupational requirement – Meaning – Customer’s wish not to have services provided by a worker wearing an Islamic headscarf

K. Lenaerts, P
ECLI:EU:C:2017:204, [2017] EUECJ C-188/15, [2017] WLR(D) 176
Bailii, WLRD
European

Human Rights, Employment, Discrimination

Updated: 02 November 2021; Ref: scu.580696

Grant v HM Land Registry: CA 1 Jul 2011

The appellant had succeeded in his claim for sex discrimination arising from his orientation, but the EAT had reversed the decision. He now appealed against the EAT decision. Although he had revealed his sexuality in one post, he had chosen to delay this when moved to a different office, but it had nevertheless been revealed.
Held: The appeal failed. It is important to keep separate the privacy issue and the question of discrimination. Discrimination law cannot be used as a surrogate to enforce rights of privacy, and Article 8 rights were not engaged. The fact of the claimant’s sexual orientation might have been revealed innocently and properly in very many ways, and ‘there can be no detriment because having made his sexual orientation generally public, any grievance the claimant has about the information being disseminated to others is unreasonable and unjustified.’
Elias LJ said of the phrase ‘an intimidating, hostile, degrading, humiliating or offensive environment’ that ‘Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.’

Mummery, Elias, Patten LJJ
[2011] EWCA Civ 769, [2011] IRLR 748, [2011] ICR 1390
Bailii
Employment Equality (Sexual Orientation) Regulations 2003 3, European Convention on Human Rights 8
England and Wales
Citing:
CitedMeek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
CitedRegina 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.
CitedRichmond Pharmacology v Dhaliwal EAT 12-Feb-2009
EAT HARASSMENT: Purpose
Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being ‘married off in India’ had the . .
CitedShamoon 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 . .
Appeal fromHM 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 . .

Cited by:
CitedHeafield v Times Newspaper Ltd EAT 17-Jan-2013
EAT Religion or Belief Discrimination – The Appellant, a sub-editor, who was a Roman Catholic, was offended by an editor referring to ‘the fucking Pope’ when chasing a delayed article and brought a claim for . .
CitedQuality Solicitors Cmht v Tunstall EAT 28-Jul-2014
EAT Harassment – Conduct – Single instance race harassment claim – one overheard remark, ‘She is Polish and very nice’ or ‘She is Polish but very nice’. The Employment Tribunal erred in law in (1) failing to . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.441395

Robertson v Bexley Community Centre: CA 11 Mar 2003

The claimant brought his claim in discrimination, but it was out of time. The employer appealed against a decision to extend the time for him to file his complaint.
Held: A tribunal has a very wide discretion in the area of whether to extend time for a complaint of race or sex discrimination to be laid, and is entitled to consider anything that it considers relevant. The court of appeal can only interfere with the exercise of a discretion if it is plainly wrong and there has been some error of law or principle. In this case the court re-instated the employment tribunal’s decision.
Auld LJ set out the principles to be applied when considering the exercise of its discretion to extend time: ‘The Tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision. If authority is needed for that proposition, it is to be found in Daniel’ and ‘It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal’s refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the Tribunal below plainly wrong in this respect.’

Auld LJ, Chadwick LJ and Newman J
[2003] IRLR 434, [2003] EWCA Civ 576
Bailii
England and Wales
Citing:
See AlsoRobertson v Bexley Community Centre (T/A Leisure Link) EAT 9-Jul-2001
Preliminary hearing – claim for race discrimination. . .
Appeal fromRobertson v Bexley Community Centre (T/A Leisure Link) EAT 4-Jul-2002
EAT Race Discrimination – Direct . .
CitedDaniel v Homerton Hospital Trust CA 9-Jul-1999
The court considered an appeal against the tribunal’s exercise of a discretion. Gibson LJ said: ‘The discretion of the tribunal under section 68(6) is a wide one. This court will not interfere with the exercise of discretion unless we can see that . .
CitedOwusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .

Cited by:
CitedThe Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
CitedDepartment of Constitutional Affairs v Jones CA 18-Jul-2007
The employer appealed an order extending the time for the claimant to claim disability discrimination. The claimant had been suspended pending disciplinary proceedings, but became subject to severe depression, and his doctors said he was unfit to . .
CitedO’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
CitedChief Constable of Lincolnshire Police v Caston CA 8-Dec-2009
The appellant challenged the extension of time given to the claimant to begin his claim for disability discrimination.
Held: The appeal failed: ‘the discretion under the Statute is at large. It falls to be exercised ‘in all the circumstances . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.185543

Gregory v The United Kingdom: ECHR 25 Feb 1997

gregory_ukECHR1997

A judge’s direction to the jury to disregard any question of racial bias was sufficient to ensure a fair trial for the defendant. In discussing the protection of the secrecy of jury deliberations: ‘The court acknowledges that the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard.’
and ‘according to the constant case law of the Convention organs, the existence of impartiality must be determined according to a subjective test, namely, on the basis of a personal conviction of a particular judge in a given case – personal impartiality being assumed until there is proof to the contrary.
In addition, an objective test must be applied. It must be ascertained whether sufficient guarantees exist to exclude any legitimate doubt in this respect. Even appearances may be important: what is at stake is the confidence which the court must inspire in the accused in criminal proceedings and what is decisive is whether the applicant’s fear as to lack of impartiality can be regarded as objectively justifiable.’
Hudoc The Court recognised that it was possible for a risk of prejudice on the part of a jury to be effectively neutralised by an appropriate direction from the judge. The legal principles applied in England corresponded closely to its own case law on the objective requirements of impartiality.

Times 27-Feb-1997, 22299/93, (1997) 25 EHRR 577, [1997] ECHR 9
Worldlii, Bailii
European Convention on Human Rights Art 6.1
Cited by:
DistinguishedRegina v Qureshi CACD 23-Jul-2001
The appellant had been convicted of arson. A few days after the conviction, one juror reported concern about the behaviour of the jury.
Held: Authority was clear, that the court could not enter into an investigation of what had happened with . .
DistinguishedRegina v Smith (Lance Percival) CACD 19-Feb-2003
The defendant argued that the judge should have ensured that some members of the jury were black. He was a black man being tried by an all white jury, with a white victim and white witnesses.
Held: The judge had no part to play in the . .
CitedRegina v Connor and another; Regina v Mirza HL 22-Jan-2004
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
CitedIn Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
CitedAttorney General v Scotcher HL 19-May-2005
Following a trial, a juror wrote to the defendant’s mother to say that other jury members had not considered the case in a proper manner. He had been given written advice that he was not free to discuss a case with anyone. He appealed his conviction . .
CitedRegina v Khan and Hanif CACD 14-Mar-2008
Each defendant appealed against his conviction saying that the presence on the jury of certain people involved in the law gave the appearance of bias.
Held: The court should be made aware if any potential juror either is or has been a police . .
CitedHM Attorney General v Seckerson and Times Newspapers Ltd Admn 13-May-2009
The first defendant had been foreman of a jury in a criminal trial. He was accused of disclosing details of the jury’s votes and their considerations with concerns about the expert witnesses to the second defendant. The parties disputed the extent . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Discrimination, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.165487

HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same: SC 7 Jul 2010

The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by adapting their behaviour on return. In both countries practising homosexuality would risk imprisonment and in Iran, execution.
Held: The appeals succeeded.
A gay man was entitled to live freely and openly in accordance with his sexual identity and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so. The Convention recognised groups subject to persecution according to their sexual orientation. Though simple acts of discrimination or disapproval might not give rise to protection under the Convetion, more serious acts such death torture or imprisonment could amount to perscution, and if that risk existed it was not enough that the claimants might avoid it by takig avoiding action. A fundamental purpose of the Convention was to counteract discrimination, and it could not be contemplated that a return should be ordered requiring as a condition of its effectiveness that the claimants hide their natures. The Court rejected the ‘reasonable tolerability’ test adopted by the Court of Appeal, and gave guidance to lower courts accordingly.
Lord Hope said: ‘The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.’

Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lord Collins, Sir John Dyson SCJ
UKSC 2009/0054, [2010] UKSC 31, [2010] WLR (D) 174, [2010] 3 WLR 386, [2011] 1 AC 596
Bailii Summary, SC Summary, SC, Bailii, WLRD
Convention relating to the Status of Refugees
England and Wales
Citing:
See AlsoJ v Secretary of State for the Home Department CA 26-Jul-2006
(Iran) ‘Does it amount to persecution according to these broad tests if the clandestine character of the homosexual activity which there has been in the past and will be on return in the future is itself the product of fear engendered by . .
Appeal FromHJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Same CA 10-Mar-2009
Each applicant had had his appeal for asylum rejected. They had said that they were practising homosexuals, and that they would face persecution if returned home.
Held: The appeals failed. In each case the social norms of the country of origin . .
CitedRegina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .
CitedSecretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
CitedHorvath v Secretary of State for the Home Department HL 7-Jul-2000
When considering the fear of prosecution in an applicant for asylum, the degree of persecution expected from individuals outside the government was to be assessed in the context also of the attitude of the government of the country to such . .
CitedSepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
CitedAppellant S395/2002 v Minister for Immigration and Multicultural Affairs 9-Dec-2003
(High Court of Australia) McHugh and Kirby JJ said: ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. . .
CitedJanuzi v Secretary of State for the Home Department and others HL 15-Feb-2006
The claimants sought to challenge the refusals of asylum in each case based upon the possibility of internal relocation. They said that such internal relocation would place them in areas where they could not be expected to live without undue . .

Cited by:
CitedMedical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
AppliedRT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
CitedRT (Zimbabwe) and Others v Secretary of State for The Home Department CA 18-Nov-2010
The apellants had sought asylum from Zimbabwe. They appealed against rejection of their claims, saying that it was wrong to require them to return to a place where hey would have to dissemble as to their political beliefs.
Held: The appeals . .
CitedBrown (Jamaica), Regina (on The Applications of) v Secretary of State for The Home Department SC 4-Mar-2015
B, an homosexual immigrant for Jamaica, resisted his return, saying that he would be prosecuted. The Secretary of State now appealed against a finding that his inclusion of Jamaica within the statutory list of safe countries for return was not . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Discrimination

Updated: 02 November 2021; Ref: scu.420385

Brewster, Re Application for Judicial Review (Northern Ireland): SC 8 Feb 2017

Survivor of unmarried partner entitled to pension

The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not done this.
Held: Her appeal was dismissed. The state was to secure for her equal enjoyment of article 14 rights without discrimination for status without some objective justification for any denial of the associate right. This required more than just a proactive role, and the state was to respect a Convention right. The justification required an objective assessment and a court could not substitute its own view, and more so where the decision-maker was the legislature, that would normally be respected unless demonstrably unfounded. If the assessment was not directly by the legislature, a court might be less reluctant to interfere, and even more so when the claimed justification had not been present when the decision was made.
The weight given to the claimant’s self-chosen status rather than from an immutable characteristic, would depend on the context and the particular case

Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Reed, Lord Dyson
[2017] UKSC 8, [2017] WLR(D) 88, [2017] 1 WLR 519, [2017] ICR 434, [2017] 2 All ER 1001, [2017] IRLR 366, UKSC 2014/0180
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video
Local Government Pension Scheme (Benefits, Membership
and Contributions) Regulations 2009
, European Convention on Human Rights 14
Northern Ireland
Citing:
At First InstanceBrewster, Re Judicial Review QBNI 9-Nov-2012
The applicant challenged the decision of the respondent Northern Ireland Local Government Officers’ Superannuation Committee (‘NILGOSC’) made on 1 July 2011, by which it declined to pay a survivor’s pension to the applicant following the death of . .
Appeal fromBrewster v Northern Ireland Local Government Officers’ Superannuation Committee CANI 1-Oct-2013
Appeal by the Committee and the Department of the Environment for Northern Ireland from a decision allowing the respondent’s application for judicial review of a decision by the Superannuation Committee not to pay a survivor’s pension to the . .
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedKopecky v Slovakia ECHR 28-Sep-2004
(Grand Chamber) The court said of the practice of the Convention institutions under A1 P1: ‘An applicant can allege a violation of article 1 of Protocol 1 only in so far as the impugned decisions related to his ‘possessions’ within the meaning of . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedSwift v Secretary of State for Justice CA 18-Mar-2013
The claimant appealed against refusal of a declaration that the 1976 Act infringed her human rights. She had been cohabiting for six months, when her partner was killed in an accident at work for which a third party was liable. Because she had not . .
CitedStec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
CitedTigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
CitedHumphreys v Revenue and Customs SC 16-May-2012
Separated parents shared the care of their child. The father complained that all the Child Tax Credit was given to the mother.
Held: The appeal failed. Although the rule does happen to be indirectly discriminatory against fathers, the . .
CitedBelfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Family, Discrimination, Human Rights

Updated: 01 November 2021; Ref: scu.573900

James v Eastleigh Borough Council: HL 14 Jun 1990

Result Decides Dscrimination not Motive

The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and women by treating women more favourably on the ground of their sex; the test to be applied was objective, and if, applying it, the answer would have been that the plaintiff would have received the same treatment but for his sex there was direct discrimination. A benign motive was irrelevant.
The policy was discriminatory. ‘The fallacy, with all respect, which underlies and vitiates [the Court of Appeal’s reasoning] was a failure to recognise that the statutory pensionable age, being fixed at 60 for women and 65 for men, is itself a criterion which directly discriminates against men and women in that it treats women more favourably than men ‘on the ground of their sex’. The expression ‘pensionable age’ is no more than a convenient shorthand expression which refers to the age of 60 in a woman and the age of 65 in a man. In considering whether there has been discrimination against a man ‘on the ground of his sex’ it cannot possibly make any difference whether the alleged discriminator uses the shorthand expression or spells out its full meaning.’ Discrimination contrary to the Sex Discrimination Act 1975 did not require an intention to discriminate on the grounds of sex and was not excused by a motive of conferring a benefit.
There are some actions which are inherently discriminatory. The criterion applied for entry to the swimming pool was such a criterion, and it was unnecessary to enquire as to ‘the reason why’ an alleged discriminator has acted as he or she did. (Lord Griffiths dissenting)

Lord Bridge, Lord Goff of Chieveley
[1990] 3 WLR 55, [1990] 2 AC 751, [1990] 2 All ER 607, [1990] ICR 554, [1990] UKHL 6, [1990] IRLR 288
Bailii
Sex Discrimination Act 1975, Social Security Act 1975
England and Wales
Citing:
Appeal fromJames v Eastleigh Borough Council CA 1985
The plaintiff was used to going swimming. He was 60. He complained that whereas his wife, of the same age was admitted free, he had had to pay .75p. He claimed sex discrimination.
Held: Though his claim failed, Sir Nicolas Browne-Wilkinson V-C . .
CitedRegina 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.
CitedRegina v Commission for Racial Equality (ex parte Westminster City Council) QBD 1984
The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the . .
CitedRegina v Moloney HL 21-Mar-1984
The defendant appealed against his conviction for murder.
Held: The appeal was allowed and a conviction for manslaughter substituted.
Lord Bridge of Harwich discussed the case of Hyam: ‘But looking on their facts at the decided cases . .

Cited by:
CitedEuropean Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
CitedMacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
CitedAshton v The Chief Constable of West Mercia Constabulary EAT 27-Jul-2000
Where a dismissal was properly related to poor work performance, the fact that such a deterioration in performance was associated with a gender reassignment process being undergone by the employee, did not make the dismissal sex discrimination. To . .
CitedAhsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
CitedA 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 . .
CitedMohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was . .
CitedLondon Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
CitedAmnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
CitedE, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
CitedE, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
CitedFecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
CitedConteh v Parking Partners Ltd EAT 17-Dec-2010
EAT HARASSMENT – Conduct
Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of . .
CitedStewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
CitedBull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
CitedBull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
CitedPatmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .
CitedEssop and Others v Home Office (UK Border Agency) SC 5-Apr-2017
The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but . .
CitedColl, Regina (on The Application of) v Secretary of State for Justice SC 24-May-2017
The appellant female prisoner asserted that the much smaller number of probation and bail hostels provided for women prisoners when released on licence was discriminatory in leaving greater numbers of women far removed from their families.
Discrimination, Benefits

Leading Case

Updated: 01 November 2021; Ref: scu.182467

E v The Governing Body of JFS and Another: Admn 3 Jul 2008

The court considered the impact of secular discrimination policy on admissions policies of religious schools.
Held: A school admissions policy which gave priority to children of their designated faith did not discriminate unlawfully either directly or indirectly on racial grounds.

Munby J
[2008] EWHC 1535 (Admin), Times 18-Jul-2008, [2008] ACD 87, [2008] ELR 445
Bailii
Race Relations Act 1976
England and Wales
Cited by:
Principle judgementE v The Governing Body of JFS and Another Admn 16-Jul-2008
Application for leave to appeal. . .
Appeal fromE, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
At First InstanceE, Regina (On the Application of) v Governing Body Of JFS and Another CA 10-Jul-2009
. .
At First InstanceE, Regina (On the Application of) v Governing Body of JFS and Another SC 14-Oct-2009
The claimant had successfully challenged the policy of the school as racially discriminatory. He now sought an ancillary order that the respondents should not be allowed to request their costs from the defendant’s appeal whatever the outcome, the . .
See alsoE, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .

Lists of cited by and citing cases may be incomplete.

Education, Discrimination

Updated: 01 November 2021; Ref: scu.270619

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 had asked first whether there had been less favourable treatment, and then asked why there had been the treatment. This procedure will not always work, and it had not worked here. The first issue could not always be resolved without also investigating the second. Had the tribunal done that it would have seen that the cases of the proposed comparators were not in fact comparable, and that therefore no discrimination was shown. The chief inspector had suffered a ‘detriment’ when the right to carry out appraisals was removed from her, but not this had not been for a discriminatory reason.
Lord Hope of Craighead said: ‘one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to ‘detriment”

Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Hutton Lord Scott of Foscote Lord Rodger of Earlsferry
[2003] UKHL 11, Times 04-Mar-2003, [2003] ICR 337, Gazette 10-Jul-2003, [2003] IRLR 285, [2003] 2 All ER 26, [2003] NI 174
House of Lords, Bailii
Sex Discrimination (Northern Ireland) Order 1976 (1976 No 1042 NI)
England and Wales
Citing:
Appeal fromShamoon v Chief Constable of the Royal Ulster Constabulary CANI 3-May-2001
Emplaw In sex and race discrimination cases an employee must generally be able to show that he or she has been treated less favourably than a person of the opposite sex who is in comparable circumstances. If . .
CitedChief 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 . .
CitedRegina v Immigration Appeal Tribunal, Ex parte Kassam CA 1980
Discrimination was alleged against the immigration authorities.
Held: In dealing with people coming in under the immigration rules, the immigration authorities were not providing ‘services’ within the meaning of the Act. The words the . .
CitedBain v Bowles CA 1991
The Lady magazine had no defence to a complaint by a man whose advertisement for a housekeeper in Tuscany they had refused to accept. Following past complaints of sexual harassment, the magazine’s policy was to accept such advertisements only where . .
CitedCoker and Osamor v The Lord Chancellor and the Lord Chancellor’s Department CA 22-Nov-2001
The Lord Chancellor’s action in appointing to a special adviser’s post someone he already knew and trusted, without first advertising the post openly, was not an act of sex or race discrimination. Had they applied, they would not have been appointed . .
CitedBarclays Bank Plc v Kapur and Others (No 2) CA 1995
An unjustified sense of grievance cannot amount to a detriment in discrimination law. . .
CitedKing v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
CitedChief Constable of the RUC v A CANI 2000
The court set down tests for what was ‘less favourable treatment’ under the Act. The court had to regard as relevant those circumstances on which a reasonable person would place some weight in determining how to treat another. . .
CitedMinistry of Defence v Jeremiah CA 1980
The court considered the meaning of ‘detriment’ in discrimination law. Brightman LJ said: ‘I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment.’
Lord Justice . .
See AlsoShamoon v Chief Constable of the Royal Ulster Constabulary CANI 28-Jun-2001
. .

Cited by:
CitedMacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
CitedThe Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
CitedCouncil of the City of Manchester v Romano, Samariz CA 1-Jul-2004
The authority sought to evict their tenant on the ground that he was behaving in a way which was a nuisance to neighbours. The tenant was disabled, and claimed discrimination.
Held: In secure tenancies, the authority had to consider the . .
CitedMadden v Preferred Technical Group CHA Limited, Guest CA 27-Aug-2004
The claimant had made a complaint of race discrimination. The complaint was dismissed. Some time later the company dismissed him, and he again lodged a complaint. The tribunal found him unfairly dismissed, but again not discriminated against.
AppliedSpicer v Government of Spain EAT 10-Oct-2003
EAT Race Discrimination – Indirect . .
CitedSpicer v Government of Spain CA 29-Jul-2004
The claimant worked at a school in London operated by the respondent, and he was paid by them. Spanish teachers received relocation allowances, and he complained that this was discriminatory. The respondent had failed to comply with the order made . .
CitedCoutts and Co Plc Royal Bank of Scotland v Paul Cure Peter Fraser EAT 6-Aug-2004
The applicants complained of less favourable treatment as fixed term workers in that they had not been paid a non-contractual bonus. The employer said the claim was out of time, and appealed a finding against it.
Held: Time ran from the date . .
CitedCarson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
CitedSt Helens Metroploitan Borough Council v Derbyshire and others CA 29-Jul-2005
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 . .
CitedThe Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
CitedLaw Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
CitedBrown 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 . .
CitedAzmi v Kirklees Metropolitan Borough Council EAT 30-Mar-2007
The claimant alleged discrimination. As a teaching assistant, she had been refused permission to wear a veil when assisting a male teacher.
Held: Direct discrimination had not been shown. The respondent had shown that any comparator would have . .
CitedAtabo v Kings College London and others Newman, Methven, Law CA 19-Apr-2007
The claimant sought leave to appeal dismissal of her claim for discrimination, saying that the EAT had missapplied the test in Madarassy and associated cases on the burden of proof.
Held: ‘the applicant did not make out a prima facie case of . .
CitedSt 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 . .
CitedWatkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
CitedRe E (A Child); E v Chief Constable of the Royal Ulster Constabulary and Another (Northern Ireland Human Rights Commission and others intervening) HL 12-Nov-2008
(Northern Ireland) Children had been taken to school in the face of vehement protests from Loyalists. The parents complained that the police had failed to protect them properly, since the behaviour was so bad as to amount to inhuman or degrading . .
CitedStockton 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 . .
CitedKettle Produce Ltd v Ward EAT 8-Nov-2006
EAT Sex discrimination – Comparison
When a male manager entered the women’s toilets and shouted at a woman on her break, the correct question which should be asked is this: would the Respondent, in the form . .
CitedTapere v South London and Maudsley NHS Trust EAT 19-Aug-2009
EAT CONTRACT OF EMPLOYMENT
Construction of term
The Employment Tribunal erred in construing the terms and conditions of employment as permitting the employer to transfer the employee to another . .
CitedAmnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
CitedLondon Borough of Tower Hamlets v Wooster EAT 10-Sep-2009
EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – Polkey deduction
Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and . .
CitedOrr v Milton Keynes Council EAT 5-Nov-2009
EAT UNFAIR DISMISSAL:
Reasonableness of dismissal
RACE DISCRIMINATION:
Direct
Where discrimination and unfair dismissal allegations overlap and the Employment Tribunal hears and disbelieves . .
CitedHM 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 . .
CitedSimpson v Endsleigh Insurance Services Ltd and Others EAT 27-Aug-2010
EAT SEX DISCRIMINATION
Burden of proof
Pregnancy and discrimination
UNFAIR DISMISSAL – Automatically unfair reasons
Regulation 10(3)(a) and Regulation 10(3)(b) of the Maternity and Parental . .
CitedGrant v HM Land Registry CA 1-Jul-2011
The appellant had succeeded in his claim for sex discrimination arising from his orientation, but the EAT had reversed the decision. He now appealed against the EAT decision. Although he had revealed his sexuality in one post, he had chosen to delay . .
CitedStewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
CitedSecretary of State for Justice v Slee EAT 19-Jul-2007
EAT Unfair Dismissal – Constructive dismissal
Maternity Rights and Parental Leave – Sex discrimination
The Claimant was employed as a Magistrates’ Clerk and she brought successful claims to the . .
CitedBivonas Llp and Others v Bennett EAT 31-Jan-2012
bivonas_EAT2012
EAT Sexual Orientation Discrimination or Transexualism – The Employment Tribunal correctly applied the law relating to detriment in a case of sexual orientation discrimination; see Shamoon v Chief Constable of . .
CitedBull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
CitedHewage 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 . .
CitedWard v The Secretary of State for Work and Pensions (Disability Discrimination : Disability Related Discrimination) EAT 17-May-2013
EAT Disability related discrimination
Direct disability discrimination
Claim for disability discrimination and unfair dismissal. Employment Tribunal upheld one claim of a failure to make reasonable . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Northern Ireland, Employment

Leading Case

Updated: 01 November 2021; Ref: scu.179613

Regina v Army Board of Defence Council, ex parte Anderson: QBD 1991

army_anderson1991

Members of the Armed Forces who alleged discrimination did not have access to Industrial Tribunals. The only recourse was to make a service complaint which would then be considered by the Army Board. Anderson complained of race discrimination. His service complaint had been dismissed and in his application for judicial review he challenged the procedure which the Panel had adopted including not holding an oral hearing.
Held:
Taylor LJ said: ‘The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing: see Local Government Board v. Arlidge [1915] A.C. 120, 132-133; Reg. v. Race Relations Board, Ex parte Selvarajan [1975] 1 W.L.R. 1686, 1694B-D and Reg. v. Immigration Appeal Tribunal, Ex parte Jones (Ross) [1988] 1 W.L.R. 477, 481B-G. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence. This does not mean that whenever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined.’

Taylor LJ, Morland J
[1992] QB 169, [1991] 3 All ER 375, [1991] 3 WLR 42
Citing:
CitedLocal Government Board v Arlidge HL 1914
A right of appeal against the exercise of a statutory authority requires no general right to an oral hearing before an administrative decision maker, and a hearing on the papers may be perfectly fair for legal purposes.
Lord Shaw said: ‘The . .
CitedRegina v Race Relations Board, Ex parte Selvarajan CA 1975
Lord Denning MR said: ‘In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . In all these cases it has been held that the investigating body is under a duty to act . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Discrimination, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.539816

Daouidi v Bootes Plus Sl: ECJ 1 Dec 2016

Discriminatory Temporary Suspension of Worker

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1 to 3 – Prohibition of all discrimination based on a disability – Whether a ‘disability’ exists – Concept of ‘long-term physical, mental, intellectual or sensory impairments’ – Charter of Fundamental Rights of the European Union – Articles 3, 15, 21, 30, 31, 34 and 35 – Dismissal of a worker who is temporarily unable to work, within the definition of national law, for an indeterminate period of time

L. Bay Larsen, P
ECLI:EU:C:2016:917, [2016] EUECJ C-395/15, [2016] WLR(D) 638
Bailii, WLRD
Directive 2000/78/EC, Charter of Fundamental Rights of the European Union
European

Discrimination

Updated: 01 November 2021; Ref: scu.572318

Coote v Granada Hospitality Ltd: ECJ 22 Sep 1998

coote_granadaECJ1998

The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after employment has been terminated by employers against who claim for sex discrimination had been successful. Victimisation included failure to provide proper reference to former employee. The provision of references for employees by an employer is covered by the prohibition of any discrimination on grounds of sex laid down by Council Directive (76/207/EEC). In that connection, it is irrelevant whether the references were in fact refused during the period of employment or after its termination or whether the employer decided on the refusal before or after the termination of the period of employment. (2) Directive (76/207/EEC) does not, however, require member states to introduce into their national legal systems such measures as are necessary to enable employees to bring legal proceedings against former employers who have refused to provide references for them, where that refusal constitutes retaliation for legal proceedings brought by the employee against the employer with a view to enforcing compliance with the requirement of equal treatment for men and women.
‘The principle of effective judicial control laid down in article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.’

GC Rodriguez Iglesias, P
Times 01-Oct-1998, Gazette 10-Dec-1998, C-185/97, [1998] IRLR 656, [1999] ICR 100, [1998] ECR I-5199, [1998] EUECJ C-185/97
Bailii
Council Directive 76/207/EEC Equal Treatment of workers
Citing:
Appeal fromCoote v Granada Hospitality Ltd EAT 19-May-1999
The refusal of an employer to provide a reference to an employee who had left and claimed sex discrimination against the company could of itself and also found a claim for sex discrimination as victimisation. European regulations required the court . .

Cited by:
CitedRhys-Harper v Relaxion Group plc CA 3-May-2001
A sex discrimination claim involving a claim by an employee for damages for sexual harassment, had to be made during the period of employment. An employer’s failure to deal properly with an allegation of sexual harassment could itself be a detriment . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedFadipe v Reed Nursing Personnel CA 19-Feb-2001
Failure to give proper reference for former employee. . .
CitedFadipe v Reed Nursing Personell CA 4-Dec-2001
Failure to give proper reference. ECJ judgment giving right to make complaint only if cause was result of complaint over health and safety matters.
Held: The appeal failed. The section did not protect former workers: ‘section 44 does not, on . .
CitedSt 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 . .
CitedOyarce 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 . .
CitedUnison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .
At ECJCoote v Granada Hospitality Ltd EAT 19-May-1999
The refusal of an employer to provide a reference to an employee who had left and claimed sex discrimination against the company could of itself and also found a claim for sex discrimination as victimisation. European regulations required the court . .
CitedJessemey v Rowstock Ltd and Another CA 26-Feb-2014
The court was asked whether a claim as to acts of victimisation could be sustained in connection with actions alleged after termination of employment.
Held: The appeal succeeded. The Act operated to proscribe such actions. However, this is one . .
CitedDeer v University of Oxford CA 6-Feb-2015
The claimant had previously succeeded in a claim of sex discrimination against the University, her former employer. She now appealed against rejection of her claims alleging later victimisation.
Held: Two appeals succeed, and those matters . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Leading Case

Updated: 01 November 2021; Ref: scu.162124

Tameside Hospital NHS Foundation Trust v Mylott: EAT 11 Mar 2011

EAT UNFAIR DISMISSAL – S. 98A (2) Employment Rights Act
DISABILITY DISCRIMINATION – Disability related discrimination
DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Compensation
Claimant goes off sick following incident of alleged offensive behaviour by manager – Existing mental health difficulties exacerbated – Employers fail, despite recommendation from occupational health department, to carry out independent review of Claimant’s treatment – Other procedural failures – Failures held by Tribunal to constitute breaches of duty under section 4A of Disability Discrimination Act 1995 and to render dismissal unfair and an act of disability-related discrimination – At subsequent remedy hearing Claimant awarded andpound;4,410 for unfair dismissal and andpound;22,000 for disability discrimination, comprising andpound;16,000 for injury to feelings and andpound;6,000 by way of ‘aggravated damages’, with no award for loss of earnings.
On appeal against liability decision, employers contend that differences in the procedure followed would not have affected the outcome; and that accordingly (a) the dismissal was not unfair, pursuant to section 98A (2) of Employment Rights Act 1996; and (b) section 4A did not require the adoption of different procedures – As to disability-related discrimination, London Borough of Lewisham v Malcolm [2008] IRLR 700 relied on.
On remedy, Claimant appeals against refusal to award compensation for loss of earnings – Employers appeal against quantum of award for injury to feelings and against award of aggravated damages.
HELD:
LIABILITY
(1) Tribunal entitled to find that if proper procedures had been followed Claimant would probably not have been dismissed and that the adoption of such procedures was (save in the respect specified at (2) below) required by section 4A
(2) Tribunal not entitled to find that section 4A gave rise to a duty on the employer of a disabled employee to take steps to facilitate an application for ill-health retirement
(3) Appeal allowed as regards disability-related discrimination: Malcolm followed
REMEDY
(4) Tribunal entitled not to award compensation for loss of earnings where Claimant had not adduced expert evidence about the effect of employers’ breaches on his mental health
(5) Award for injury to feelings open to Tribunal on the evidence
(6) Facts found did not justify award of aggravated damages

Underhill P J
[2010] UKEAT 0399 – 10 – 1304
Bailii
Employment Rights Act 1996 98A(2)
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.430555

Chapman and Another v Simon: CA 1994

The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary fact. ‘More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion.’ and ‘the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If the act of which complaint is made is found not to be proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act . . If [the Tribunal] finds that the complaint is well founded, the remedies which it can give the complainant under s.56(1) of the 1976 Act are specifically directed to the act to which the complaint relates.’

Balcombe LJ, Peter Gibson LJ, Stuart-Smith LJ
[1993] EWCA Civ 37, [1994] IRLR 124
Bailii
England and Wales
Citing:
CitedKing v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Appeal fromChapman and Another v Simon EAT 13-Jul-1992
. .

Cited by:
CitedLondon Borough of Greenwich Simon Trotter v Jacinth Browne EAT 24-Apr-2002
EAT Race Discrimination – Victimisation
The defendants appealed a finding of direct race discrimination and victimisation. She had previously succeeded in a discrimination claim. Subsequently, disciplinary . .
CitedQureshi v Victoria University of Manchester EAT 21-Jun-1996
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. The questions on a complaint of race discrimination are: (a) Did the act complained of actually occur? (b) If the act . .
CitedThe Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
CitedLondon Borough of Hammersmith and Fulham, G Alltimes v L Ezeonyim EAT 7-Jun-2000
EAT The claimant had succeeded in his claim for race discrimination. The employer appealed, saying the tribunal had misunderstood its harassment procedure so as to be wrong in law. The claimant complained of a . .
CitedLaw Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
CitedStockton 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 . .
CitedClark 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 . .
CitedDunelm (Soft Furnishings) Ltd v Baker and Another EAT 30-Oct-2012
EAT Practice and Procedure : Amendment
Bias, misconduct and procedural irregularity
In the claim for unfair dismissal and wrongful dismissal, parties proceeded on common basis that dismissal was on 17 . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Leading Case

Updated: 01 November 2021; Ref: scu.182985

Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust: CA 23 Jun 2016

The Appellant claimed to have suffered indirect sex discrimination in connection with a work placement which she was offered as part of her studies to become a nurse, and she brought proceedings in the Employment Tribunal. The issue raised by this appeal is whether the ET had jurisdiction to entertain her claim or whether, as it and the Employment Appeal Tribunal both held, she should have proceeded in the County Court. That depends on whether the claim falls under Part 5 of the Equality Act 2010, which is concerned with discrimination at work, or under Part 6, which is concerned with discrimination in education. The issue is of some general importance because it is a standard part of very many educational courses with a vocational element .
Held: The employment tribunal did have jurisdiction.
Underhill LJ said: ‘I summarise what I believe to be the effect of sections 55 and 56, construed so as to give effect to the relevant Directives. The starting-point in any case is to identify the nature of the student’s complaint – that is, whether it is about discriminatory access to a work placement or about discrimination occurring during the placement.
(1) If the claim is about access – either that the university has failed to provide a placement at all or that it has done so in a discriminatory way – it can only be brought under section 91, and thus in the County Court. The primary claim will inevitably be against the university, because it is the university that has the responsibility for the provision of access, and it is hard therefore to see any role for sections 109 and 110; but if the provider has induced or aided that contravention it will be secondarily liable under section 111 or 112 and the student can proceed against it (in the County Court) as well as, or instead of, the university.
(2) If the claim is about discrimination by the provider in the course of the work placement, the provider will typically have done the act complained of as a principal and will thus be primarily liable for that discrimination under section 55, with the forum for any proceedings being the Employment Tribunal. There may be untypical cases where the act was done by the provider as the agent of the university. In those cases both the university and the provider will be liable, by virtue of sections 109 (2) and 110 (1) respectively, but the liability will still arise under section 55, so that the ET will still be the correct forum whether the claimant chooses to proceed against only one of them or against both. The university may of course also in a particular case be liable, depending on the facts, under sections 111 or 112 as having induced or assisted the discrimination. Any such claim will, again, have to be brought in the ET: see sections 114 (1) (e) and 120 (1) (b).

Patten, Lewison, Underhill LJJ
[2016] EWCA Civ 607, [2016] IRLR 878, [2016] WLR(D) 336, [2016] ICR 903
Bailii, WLRD
England and Wales
Citing:
Appeal fromBlackwood v Birmingham and Solihull Mental Health NHS Foundation Trust EAT 22-Sep-2014
EAT Sex Discrimination: Indirect – Discrimination by other bodies
Indirect Sex Discrimination – Employment service-providers (section 55 Equality Act 2010) – Students: admission and treatment etc (section . .

Cited by:
CitedNwabueze v University of Law Ltd and Others CA 13-Nov-2020
No ET Jurisdiction for Non-employment claim
The claimant appealed against rejection of her claim for discrimination which she had brought in the Employment Tribunal rather than the County Court.
Held: The appeal failed: ‘if a body is a governing body of a university this displaces its . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Education

Updated: 01 November 2021; Ref: scu.565952

E, Regina (On the Application of) v The Governing Body of JFS and Another: CA 25 Jun 2009

E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested that the policy ‘elides the grounds of an act with its motive, whereas what the legislation is concerned with is not its motive but its causation. A religious motive will not excuse discrimination on racial grounds.’
Held: The policy was discriminatory. ‘So long as a maintained faith school is undersubscribed, it cannot use religious criteria to allocate places. But once it is oversubscribed, it can lawfully restrict entry to children whom, or whose parents, it regards as sharing the school’s faith. This is not by reason of an affirmative enactment, but because such schools are exempted from the prohibition of discrimination on grounds of religion or belief contained in Part 2 of the Equality Act 2006.’ The decision between Jewish and non-Jewish children could be made on religious but not racial grounds. The test applied judge the student according to whether she was regarded as jewish by the orthodox jewish faith. That was a racial characterisation, and not an assessment of the applicant’s religion: ‘M was refused admission to JFS because his mother, and therefore he, was not regarded as Jewish. The school has been perfectly open in giving this as the ground of non-admission. There are of course theological reasons why M is not regarded as Jewish, but they are not the ground of non-admission: they are the motive for adopting it.’

Applying Mandla, ‘(a) that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion, and (b) that to discriminate against a person on the ground that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds. The motive for the discrimination, whether benign or malign, theological or supremacist, makes it no less and no more unlawful. Nor does the factuality of the ground. If for theological reasons a fully subscribed Christian faith school refused to admit a child on the ground that, albeit practising Christians, the child’s family were of Jewish origin, it is hard to see what answer there could be to a claim for race discrimination.’

Sedley LJ, Smith LJ, Rimer LJ
[2009] EWCA Civ 626, Times 08-Jul-2009, [2009] PTSR 1442, [2009] ELR 407, [2009] ACD 69, [2009] 4 All ER 375
Bailii
Race Relations Act 1976, Equality Act 2006 50(1)(a)
England and Wales
Citing:
Appeal fromE v The Governing Body of JFS and Another Admn 3-Jul-2008
The court considered the impact of secular discrimination policy on admissions policies of religious schools.
Held: A school admissions policy which gave priority to children of their designated faith did not discriminate unlawfully either . .
Leave to appealE v The Governing Body of JFS and Another Admn 16-Jul-2008
Application for leave to appeal. . .
CitedZarczynska v Levy 1979
A white barmaid was dismissed for refusing to turn away black customers. She claimed in race discrimination.
Held: Treating people less favourably not because of their race but because of the race of others is also discrimination on grounds of . .
CitedEnglish 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 . .
CitedJames v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
CitedChief 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 . .
CitedSwiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
CitedSeide v Gillette Industries Ltd 1980
The claimant had been moved to a different department to escape anti-Semitic harassment. He fell out (for non-racial reasons) with his colleagues in his new department and was disciplined.
Held: The fact that but for the earlier harassment he . .
CitedMandla (Sewa Singh) v Dowell Lee HL 24-Mar-1982
A private school had refused to admit the claimant, a sikh, because he would be unable to wear the school uniform. He claimed racial discrimination. The school denied that being a Sikh was a membership of a racial or ethnic group.
Held: Sikhs . .

Cited by:
Main CA JudgementE, Regina (On the Application of) v Governing Body Of JFS and Another CA 10-Jul-2009
. .
At CAE, Regina (On the Application of) v Governing Body of JFS and Another SC 14-Oct-2009
The claimant had successfully challenged the policy of the school as racially discriminatory. He now sought an ancillary order that the respondents should not be allowed to request their costs from the defendant’s appeal whatever the outcome, the . .
See alsoE, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .

Lists of cited by and citing cases may be incomplete.

Education, Discrimination

Updated: 01 November 2021; Ref: scu.347197

Keane v Investigo and Others: EAT 11 Dec 2009

EAT AGE DISCRIMINATION
PRACTICE AND PROCEDURE: Costs
The Claimant, an experienced accountant aged 50, applied for a large number of jobs advertised online as suitable for newly qualified accountants, and when not offered an interview alleged age discrimination – The Tribunal dismissed her claims on the basis (inter alia) that she had no interest in the vacancies and was making the applications only in order to be able to claim compensation and that she had accordingly suffered no detriment – On the same basis it ordered her to pay the Respondent’s costs.
Held that the Tribunal was fully entitled on the evidence before it to reach the conclusion that it did. An applicant for a job who has no interest in accepting it if offered has no claim for discrimination if the application is unsuccessful. Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 considered.

Underhill J P
[2009] UKEAT 0389 – 09 – 1112
Bailii
England and Wales

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.396728

Showboat Entertainment Centre v Owens: EAT 28 Oct 1983

The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal ‘on racial grounds’, notwithstanding that the dismissed employee was white.
Held: The employer’s appeal failed. The Appeal Tribunal considered the meaning of the phrase ‘on racial grounds.’ Browne-Wilkinson P: ‘Therefore the only question is whether Mr Owens was treated less favourably ‘on racial grounds’. Certainly the main thrust of the legislation is to give protection to those discriminated against on the grounds of their own racial characteristics. But the words ‘on racial grounds’ are perfectly capable in their ordinary sense of covering any reason for an action based on race, whether it be the race of the person affected by the action or of others.’ and ‘We can, therefore see nothing in the wording of the Act which makes it clear that the words ‘on racial grounds’ cover only the race of the complainant.’

Browne-Wilkinson P
[1984] IRLR 7, [1983] UKEAT 29 – 83 – 2810, [1984] ICR 65
Bailii
Race Relations Act 1976
England and Wales
Citing:
CitedRace Relations Board v Applin CA 1973
. .
CitedZarcynska v Levy EAT 1978
. .

Cited by:
ApprovedWeathersfield Ltd (T/a Van and Truck Rentals) v Sargent CA 10-Dec-1998
The employer, a vehicle hire operator, explained to the Claimant employee following her appointment as a receptionist their policy that if she received an enquiry from any coloured or Asians, judging by their voices, she was to tell them that there . .
CitedA 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 . .
CitedEnglish 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 . .
CitedLisboa v Realpubs Ltd and Others EAT 11-Jan-2011
lisboa_realpubsEAT11
EAT SEXUAL ORIENTATION DISCRIMINATION
Whether Respondent’s policy of encouraging a wider clientele at a formerly gay pub involved less favourable treatment of gay customers causing the Claimant to resign in . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 31 October 2021; Ref: scu.229840

Leeds Teaching Hospitals NHS Trust v Dearing and Another: EAT 17 Aug 2017

Failure to explore Victimisation

EAT VICTIMISATION DISCRIMINATION
Victimisation – section 27 Equality Act 2010
The Claimants were switchboard operators who had earlier pursued ET proceedings complaining of race discrimination in which they had made various criticisms of their managers. Although the ET had dismissed those claims, it was not suggested they were pursued in bad faith and the earlier ET proceedings were accepted to constitute a protected act. Subsequently, on seeking to return to their roles (the Claimants had each been on long-term sick leave), the Claimants were told they would be redeployed into alternative positions, the relevant manager accepting the positions of the two lower level managers criticised in the ET proceedings and failing to explore the possibility of mediation. The Claimants lodged a grievance and the two lower level managers were asked to provide statements in response, the content of those statements being informed by the managers’ view of the allegations made against them in the earlier ET proceedings. Throughout the discussions concerning redeployment and the grievance process, the Claimants had understood that a fellow worker had been dismissed, which – given that their difficulties with that other worker had formed part of the basis for the first ET proceedings – made it easier for them to return. In fact the worker in question had successfully appealed her dismissal and had been reinstated into a different role, albeit she had not actually returned to the workplace at the time when the Claimants finally learned of her reinstatement. The Claimants complained that these three issues – (i) the redeployment decision; (ii) the content of the managers’ statements in the grievance process; and (iii) the failure to inform them of the other worker’s reinstatement – amounted to acts of victimisation. The ET agreed. The Respondent appealed.
Held: allowing the appeal in part, on the first and third issues.
(i) The ET’s reasoning failed to demonstrate that it had specifically made a finding as to the motivation (conscious or subconscious) for the managers’ decision that the Claimants should be redeployed. Although the ET had made a number of permissible findings adverse to the Respondent’s case, which might well have justified it drawing the inference that the real reason was the protected act, it had not actually stated that this was what it had found. The operative part of the ET’s reasoning was at paragraph 5.29 but that suggested it had fallen into the error of approaching the reasoning on a composite basis (contrary to Reynolds v CLFIS (UK) Ltd [2015] ICR 1010 CA). Reading the ET’s reasoning as a whole, its findings still did not demonstrate that it had gone beyond stating that the protected act was a significant part of the causative context; it does not expressly find it was the decision taker’s reason why.
(ii) On the grievance statements issue, the answer to the appeal was that the ET had found that the lower level managers had engaged in acts of victimisation in the content of their statements: they said what they said because of the protected act. As the Respondent had accepted vicarious liability in this regard, it could not escape that liability by relying on the fact that the Claimants had not complained about the managers’ earlier protestations: the fact the Claimants failed to bring a claim in respect of an earlier similar detriment did not mean they could not do so in respect of a repetition of that detriment in a different form at a later stage.
(iii) As for the failure to provide information about the reinstatement of the co-worker, the ET had failed to adequately explain its conclusion on detriment, in particular as to whether it had distinguished between two possibilities: (1) that the detriment arose from the possibility of coming across the other worker (in which case, the ET would have needed to deal with the factual issue that the worker had not actually returned to the workplace); and (2) that it in fact arose from the loss of trust and confidence once the Claimants learned of the failure to tell them of the reinstatement (in which case the ET needed to address the timing when the detriment actually arose, in particular in the light of its finding as to when the victimisation ceased in this regard). The ET had further failed to adequately set out its reasoning on the ‘reason why’ question. Whilst it might have permissibly determined the issue on the application of the shifting burden of proof, it had not explained which primary findings of fact had led it to conclude the burden had shifted.
The matter would be remitted to the same ET for reconsideration of the two points on which the appeal had been allowed.

Eady QC HHJ
[2017] UKEAT 0344 – 16 – 1708
Bailii
Equality Act 2010 27
England and Wales

Employment, Discrimination

Updated: 31 October 2021; Ref: scu.595006

Clark v Novacold Ltd: EAT 11 Jun 1998

The EAT heard arguments as to whether its decision to remit the case to the Industrial Tribunal was correct.
Held: The matter should be stayed pending the hearing of the matter at the Court of Appeal.
Morison P J
[1998] UKEAT 1284 – 97 – 1707
Bailii
Disability Discrimination Act 1995 1
England and Wales
Citing:
CitedClark v Novacold Ltd EAT 22-May-1998
The employee appealed against the dismissal of his claim for disability discrimination.
Held: The appeal succeeded. A comparator for the treatment of a disabled person who was away from work sick, was the treatment of a non-disabled person who . .

Cited by:
Stay of RemissionClark 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.79192

S Coleman v Attridge Law, Steve Law: ECJ 31 Jan 2008

ECJ (Opinion) The claimant accepted voluntary redundancy, but then alleged disability discrimination and constructive dismissal. She claimed to have been subjected to unfair treatment because she had a disabled son, whose primary carer she was. She relied on the protection afforded by the Framework Directive against discrimination ‘on grounds of disability’ as informing the construction of the material provisions contained in the Disability Discrimination Act 1995.
Held: Upholding this approach on a reference by the ET for a preliminary ruling, the Court of Justice stated: ‘ [I]t does not follow from those provisions of Directive 2000/78 that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the Directive. On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability. . . . Although, in a situation such as that in the present case, the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which, according to Ms Coleman, is the ground for the less favourable treatment which she claims to have suffered. As is apparent from paragraph 38 of this judgment, Directive 2000/78, which seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, applies not to a particular category of person but by reference to the grounds mentioned in Article 1.’
The claimant said that her employers had discriminated against her by refusing her time to care for her disabled son.
Held: ‘directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are also other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they, too, affect the persons belonging to suspect classifications. ‘
C-303/06, [2008] EUECJ C-303/06, [2008] IRLR 722, [2008] ICR 1128
Bailii
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Disability Discrimination Act 1995
European
Citing:
Reference fromAttridge Law (A Firm of Solicitors) v Coleman and Law EAT 20-Dec-2006
The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could . .

Cited by:
OpinionColeman v Attridge Law, Law ECJ 17-Jul-2008
ECJ Grand Chamber – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment . .
CitedEnglish 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 . .
OpinionS. Coleman v Attridge Law, Steve Law ECJ 17-Jul-2008
ECJ Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment related to . .
ECJ OpinionEBR Attridge Law Llp and Another v Coleman EAT 30-Oct-2009
EAT DISABILITY DISCRIMINATION – ‘Associative’ discrimination
The Disability Discrimination Act 1995 can be interpreted so as to apply to ‘associative’ discrimination as required by the decision of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.264047

MA and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions: SC 9 Nov 2016

The appellants claimed housing benefit. They appealed against rejection of their claims that the imposition of limits to the maximum sums payable, ‘the bedroom tax’, was unlawful on equality grounds. The claimants either had disabilities, or lived with dependent family with disabilities, or live in what are known as ‘sanctuary scheme’ homes (accommodation specially adapted to provide protection for women at severe risk of domestic violence). They were all tenants of registered social landlords and they all receive or received HB.
Held: The appeal of Carmichael the appeal succeeded, but the other benefits claimants failed. The standard test in cases involving questions of economic and social policy was whether the discrimination was ‘manifestly without reasonable foundation’. How to deal with the impact of Reg B13 on individuals with disabilities was just such a question of economic and social policy; the housing benefit cap scheme was integral to the structure of the welfare benefit scheme. The Court of Appeal was therefore correct to apply this test
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Hughes, Lord Toulson
[2016] UKSC 58, [2016] WLR(D) 582, UKSC 2014/0129, [2016] PTSR 1422, (2017) 20 CCL Rep 103, [2016] 1 WLR 4550, [2017] 1 All ER 869, [2016] HRLR 24
Summary
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summ Video, SC290216 am, SC290216 pm, SC010316 am, SC010316 pm, SC020316 am, SC020316 pm
Housing Benefit Regulations 2006, European Convention on Human Rights 8 14, Equality Act 2010 149
England and Wales
Citing:
Appeal fromRutherford and Others, Regina (on The Application of) v Secretary of State for Work and Pensions CA 27-Jan-2016
Challenge to lawfulness of regulations applying a discount to payments of housing benefits when there was deemed to be a spare bedroom.
Held: The appeal succeeded in part. . .
At first instanceMA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others QBD 30-Jul-2013
Ten disabled claimants challenged the changes to the 2006 Regulations introduced by the 2012 Regulations. The changes restricted the ability to claim Housing Benefit for bedrooms deemed extra. The claimants said that in their different ways each had . .
Appeal fromMA and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions CA 21-Feb-2014
The claimants were in recipet of housing benefit. They claimed that the new benefits cap (‘bedroom tax’) discriminated against them when additional space was need for the care of family members with disabilities . .
CitedBurnip v Birmingham City Council and Another CA 15-May-2012
The court considered an allegation of discrimination in the application of housing benefit for a disabled person.
Held: The claimants had established a prima facie case of discrimination under Article 14 of the ECHR, and that the Secretary of . .
CitedBracking and Others v Secretary of State for Work and Pensions CA 6-Nov-2013
Application for permission to appeal against refusal of leave to bring judicial review of decision by the respondent to close the Independent Living Fund.
Held: McCombe LJ summarised the application of section 149 of the 2010 Act: ‘1 . . . .
CitedJS and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others QBD 5-Nov-2013
The claimants challenged the benefits cap introduced under the 2012 Act, saying that it was discriminatory, affecting more women than men. Mr Eadie QC submitted on behalf of the Secretary of State that, as ‘an international instrument with no . .

Cited by:
CitedMcLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.570982

Lee v McArthur and Others: CANI 24 Oct 2016

The appellant bakers had accepted (through an assistant) an order from the claimant for a cake emblazoned with a pro gay marriage slogan. The appellants, being committed Christians, returned the payment for the cake and refused to complete the order. They now appealed against a finding that they had unlawfully discriminated against the claimant.
Held: The appeal failed.
Morgan LCJ, Weatherup LJ and Weir LJ
[2016] NICA 39
Bailii
Equality Act (Sexual Orientation) Regulations (NI) 2006, Fair Employment and Treatment (NI) Order 1998
Northern Ireland
Cited by:
Appeal fromLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
(Northern Ireland) The bakers held strong traditional Christian beliefs as to the nature of marriage. A staff member accepted an order for a cake emblazoned with a pro gay statement. The owners rejected the order and returned the fee. They now . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.570523

Vallianatos And Others v Greece (LS): ECHR 7 Nov 2013

ECHR (Grand Chamber) Article 14
Discrimination
Exclusion of same-sex couples from ‘civil unions’: violation
Facts – The first application was lodged by two Greek nationals, and the second by six Greek nationals and an association whose aims include providing psychological and moral support to gays and lesbians. On 26 November 2008 Law no. 3719/2008, entitled ‘Reforms concerning the family, children and society’, entered into force. It introduced an official form of partnership for unmarried couples called a ‘civil union’, which was restricted to different-sex couples, thereby excluding same-sex couples from its scope.
Law – Article 14 in conjunction with Article 8
(a) Applicability – The applicants had formulated their complaint under Article 14 taken in conjunction with Article 8, and the Government did not dispute the applicability of those provisions. The Court found it appropriate to follow that approach. Furthermore, the applicants’ relationships fell within the notion of ‘private life’ and that of ‘family life’, just as would the relationships of different-sex couples in the same situation. Article 14 taken in conjunction with Article 8 was therefore applicable.
(b) Merits – The applicants were in a comparable situation to different-sex couples with regard to their need for legal recognition and protection of their relationships. However, section 1 of Law no. 3719/2008 expressly reserved the possibility of entering into a civil union to two individuals of different sex. Accordingly, by tacitly excluding same-sex couples from its scope, the Law in question introduced a difference in treatment based on the sexual orientation of the persons concerned.
The Government relied on two sets of arguments to justify the legislature’s choice not to include same-sex couples in the scope of the Law. Firstly, they contended that if the civil unions introduced by the Law were applied to the applicants, this would result for them in rights and obligations – in terms of their property status, the financial relations within each couple and their inheritance rights – for which they could already provide a legal framework under ordinary law, that is to say, on a contractual basis. Secondly, the Law in question was designed to achieve several objectives, including strengthening the legal status of children born outside marriage and making it easier for parents to raise their children without being obliged to marry. That aspect, they argued, distinguished different-sex couples from same-sex couples, since the latter could not have biological children together. The Court considered it legitimate from the standpoint of Article 8 of the Convention for the legislature to enact legislation to regulate the situation of children born outside marriage and indirectly strengthen the institution of marriage within Greek society, by promoting the notion that the decision to marry would be taken purely on the basis of a mutual commitment entered into by two individuals, independently of outside constraints or of the prospect of having children. The protection of the family in the traditional sense was, in principle, a weighty and legitimate reason which might justify a difference in treatment. It remained to be ascertained whether the principle of proportionality had been respected in the present case.
The legislation in question was designed first and foremost to afford legal recognition to a form of partnership other than marriage. In any event, even assuming that the legislature’s intention had been to enhance the legal protection of children born outside marriage and indirectly to strengthen the institution of marriage, the fact remained that by enacting Law no. 3719/2008 it had introduced a form of civil partnership which excluded same-sex couples while allowing different-sex couples, whether or not they had children, to regulate numerous aspects of their relationship.
The Government’s arguments focused on the situation of different-sex couples with children, without justifying the difference in treatment arising out of the legislation in question between same-sex and different-sex couples who were not parents. The legislature could have included some provisions dealing specifically with children born outside marriage, while at the same time extending to same-sex couples the general possibility of entering into a civil union. Lastly, under Greek law, different-sex couples – unlike same-sex couples – could have their relationship legally recognised even before the enactment of Law no. 3719/2008, whether fully on the basis of the institution of marriage or in a more limited form under the provisions of the Civil Code dealing with de facto partnerships. Consequently, same-sex couples would have a particular interest in entering into a civil union since it would afford them, unlike different-sex couples, the sole basis in Greek law on which to have their relationship legally recognised.
Lastly, although there was no consensus among the legal systems of the Council of Europe member States, a trend was currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships. Of the nineteen States which authorised some form of registered partnership other than marriage, Lithuania and Greece were the only ones to reserve it exclusively to different-sex couples. The fact that, at the end of a gradual evolution, a country found itself in an isolated position with regard to one aspect of its legislation did not necessarily imply that that aspect conflicted with the Convention. Nevertheless, in view of the foregoing considerations, the Court found that the Government had not offered convincing and weighty reasons capable of justifying the exclusion of same-sex couples from the scope of Law no. 3719/2008.
Conclusion: violation (sixteen votes to one).
Article 41: EUR 5,000 to each of the applicants, apart from the applicant association in application no. 32684/09, in respect of non-pecuniary damage.
29381/09 32684/09 – Legal Summary, [2014] ECHR 116
Bailii
European Convention on Human Rights 14
Human Rights
Cited by:
CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Legal SummaryVallianatos And Others v Greece ECHR 7-Nov-2013
Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life . .
CitedMcLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.521934

Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary): SC 27 Jun 2018

The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The appeal failed. Section 3(1) was a potential violation of the claimants’ Article 8 and 14 Rights. A clear obligation existed
‘. . the approach of the ECtHR to the question of what margin of appreciation member states should be accorded is not mirrored by the exercise which a national court is required to carry out in deciding whether an interference with a Convention right is justified . . a national court must confront the interference with a Convention right and decide whether the justification claimed for it has been made out. It cannot avoid that obligation by reference to a margin of appreciation to be allowed the government or Parliament, (at least not in the sense that the expression has been used by ECtHR)’
Lady Hale, President

Lord Kerr

Lord Wilson

Lord Reed

Lady Black
[2018] UKSC 32, 45 BHRC 169, [2018] 4 All ER 1, [2020] AC 1, [2018] 2 FCR 691, [2018] 3 WLR 415, [2018] WLR(D) 403, [2018] 2 FLR 906, UKSC 2017/0060
Bailii, SC Summary, WLRD, SC, SC Summary, SC Video Summary, SC 2018 May 15 am Video, SC2018 May 15 pm Video
Civil Partnership Act 2004, Marriage (Same Sex Couples) Act 2013, European Convention on Human Rights 8
England and Wales
Citing:
At AdmnSteinfeld and Another v The Secretary of State for Education Admn 29-Jan-2016
The claimant heterosexual couple wanted to enter into a civil partnership rather than to marry.
Held: The request for judicial review failed. On the authorities, the bar did not fall within the scope or ambit of Article 8. The appellants could . .
At CASteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
CitedSalgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
CitedPetrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
CitedSalgueiro da Silva Mouta v Portugal ECHR 1-Dec-1998
A homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and also with his right to respect for his private life since he was required in respect of his . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedSchalk and Kopf v Austria ECHR 24-Jun-2010
The applicants alleged discrimination in that as a same sex couple they were not allowed to marry.
Held: There was no violation.
The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex . .
CitedVallianatos And Others v Greece ECHR 7-Nov-2013
Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life . .
CitedKarner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
CitedA v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
CitedEB v France ECHR 22-Jan-2008
The claimant, a homosexual woman, complained that her homosexuality had meant her disqualification from adopting a child.
Held: There is no right to foster, but the provision was an unlawful discrimination. The denial of adoption to a woman in . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedAL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
CitedQuila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
CitedBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
CitedTigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .

Cited by:
CitedElan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .
CitedMcLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.618853

Mclaughlin, Re Judicial Review: CANI 13 Dec 2016

Widowed parent’s allowance. The Court of Appeal unanimously held that the legislation was not incompatible with article 14, read either with article 8 or with A1P1
Morgan LCJ, Gillen LJ and Weatherup LJ
[2016] NICA 53
Bailii
European Convention on Human Rights 8 A1P1 8, Social Security Contributions and Benefits (NI) Act 1992 36A 39A
Northern Ireland
Citing:
Appeal fromMclaughlin’s Application QBNI 9-Feb-2016
The claimant appealed from refusal of payment of Bereavement Benefit and Widowed Parent’s Allowance on the grounds that she had neither married nor been civil partner of her deceased partner. She applied for judicial review of that decision on the . .

Cited by:
CitedMcLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.605161

Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2): HL 8 Feb 2001

Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably higher proportion of part-time workers were women.
Held: The restriction on claims under the Act for membership of a pension scheme to a period of two years was incompatible with Community law, since it would deprive many of any substantial opportunity to claim. The effect was disproportionate in its effect on women. The limitation period requiring a claim to be made within six months was not incompatible in the same way or at all.
Lord Slynn explained the meaning of the ECJ judgment: ‘A stable employment relationship
The employees concerned in these appeals were variously employed, some under consecutive, but separate, contracts of service with breaks in between (e.g. teachers on a termly or academic year contract); some were regularly employed over a long period on this basis, others were not regularly employed but were employed from time to time and in that category some had what has been called an ‘umbrella’ contract. Where there is an ‘umbrella’ contract there is an ongoing contractual relationship but in the other cases there are separate contracts of employment. The Employment Appeal Tribunal . . and the Court of Appeal . . held that s 2(4) was dealing with specific contracts so that as a matter of interpretation a claim could only be brought in respect of employment in existence within the six months preceding the reference of the claim to the industrial tribunal. Your Lordships . . agreed with that interpretation but the question inevitably arose as to whether or not such interpretation meant that s 2(4) was incompatible with art 119. The Court of Justice, whilst accepting that time limits could be imposed in the interests of legal certainty, considered: ‘Whilst it is true that legal certainty also requires that it be possible to fix precisely the starting point of a limitation period, the fact nevertheless remains that, in the case of successive short-term contracts of the kind referred to in the third question, setting the starting point of the limitation period at the end of each contract renders the exercise of the right conferred by article 119 of the Treaty excessively difficult.
Where, however, there is a stable relationship resulting from a succession of short-term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies, it is possible to fix a precise starting point for the limitation period.
There is no reason why that starting point should not be fixed as the date on which the sequence of such contracts has been interrupted through the absence of one or more of the features that characterise a stable employment relationship of that kind, either because the periodicity of such contracts has been broken or because the new contract does not relate to the same employment as that to which the same pension scheme applies.’
Accordingly, it is clear that where there are intermittent contracts of service without a stable employment relationship, the period of six months runs from the end of each contract of service, but where such contracts are concluded at regular intervals in respect of the same employment regularly in a stable employment relationship, the period runs from the end of the last contract forming part of that relationship.’
Lord Slynn of Hadley Lord Goff of Chieveley Lord Nolan Lord Hope of Craighead Lord Clyde
Gazette 08-Mar-2001, Times 09-Feb-2001, [2001] UKHL 5, [2001] 2 WLR 448, [2001] ICR 217, [2001] Emp LR 256, [2001] 3 All ER 947, [2001] 2 AC 455, [2001] IRLR 237, [2001] Pens LR 39, [2001] OPLR 1, [2001] 1 CMLR 46
House of Lords, Bailii
Sex Discrimination Act 1975 Sch 1 Part 1, Occupational Pension Schemes (Equal Access to Membership) Regulations 1976 (1976 No 142) 12, ECTreaty (OJ 1992 C 224, p 6) Art 119, Equal Pay Act 1970 2(4) 2(5)
England and Wales
Citing:
CitedRewe-Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Judgment) ECJ 16-Dec-1976
‘the right of individuals to rely on the directly effective provisions of the Treaty before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty’ . .
See AlsoFletcher and others and Preston and others v Midland Bank Plc and Wolverhampton Healthcare NHS Trust Secretary of State for Health and others EAT 24-Jun-1996
EAT Equal Pay Act – Addendum to principal judgment. Part timers’ claims for membership of pension schemes only made out of time.
EAT Equal Pay Act – (no sub-topic). . .
Returned from ECJPreston and Others v Wolverhampton Healthcare NHS Trust and Others; Fletcher and Others v Midland Bank plc ECJ 16-May-2000
ECJ Social policy – Men and women – Equal pay – Membership of an occupational pension scheme – Part-time workers – Exclusion – National procedural rules – Principle of effectiveness – Principle of equivalence. . .
See AlsoPreston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
See AlsoPreston and others v Wolverhampton Healthcare Trust Secretary of State for Health CA 13-Feb-1997
. .

Cited by:
At HLPreston and others v Wolverhampton Healthcare NHS Trust and others EAT 3-Nov-2003
EAT Judge McMullen QC adopted a limited view of the scope of the new principle of stable employment set out at the ECJ and HL. He thought it was intended ‘to rescue employees who do not have a permanent job’; and . .
See AlsoPreston and others v Wolverhampton Healthcare NHS Trust and Others (No 3) CA 7-Oct-2004
The claimants had had their employments transferred to another body under TUPE. They complained that their pension rights had been discriminatory. The employer appealed a finding that their claim had not been out of time.
Held: The effect of . .
See AlsoPowerhouse 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 . .
At HLBainbridge and others v Redcar and Cleveland Borough Council EAT 23-Mar-2007
EAT Practice and Procedure – Compromise
Equal Pay Act – Work rated equivalent; Damages/Compensation
This case raises three issues, two of which are of particular significance in the field of equal . .
CitedNorth Cumbria University Hospitals NHS Trust v Fox and Others CA 30-Jun-2010
ncumbria_foxA10
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 . .
CitedAbdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
CitedBirmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
CitedTotel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.85027

Sinclair Roche and Temperley and others v Heard and Another: EAT 22 Jul 2004

EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if ordering written submissions, allow sufficient time for them to be prepared and in particular to be considered and assimilated by the other party and the Tribunal before oral submissions.
(ii) Findings of direct and indirect discrimination set aside and remitted. Respondent must be entitled to give, and have considered, justification and/or non-discriminatory explanations for an adequately established prima facie case of unfavourable treatment or discrimination (Anya, Wolff and Bahl applied).
(iii) Remitted to same Tribunal – principles for the taking of such course set out.
(iv) Issues of knowingly aiding and of indemnity / contribution between partners for acts of discrimination considered and remitted.
The Honourable Mr Justice Burton
[2004] UKEAT 0738 – 03 – 2207, UKEAT/0738/03, [2004] IRLR 763
Bailii, EATn
England and Wales
Citing:
CitedOwusu v London Fire and Civil Defence Authority EAT 1-Mar-1995
The employee complained of his employer’s repeated failure to regrade him, and alleged discrimination. The employer said his claim was out of time.
Held: Mummery J made the distinction between single acts of discrimination, and continuing . .

Cited by:
See AlsoSinclair Roche and Temperley (A Firm) v Heard, Fellows EAT 12-Apr-2005
EAT Practice and Procedure
Employment Tribunal Chairman, after a Case Management and Directions Hearing to delineate issues and set timetable for May hearing, delayed for three months before delivering . .
See AlsoSinclair Roche and Temperley (A Firm ) v Heard, Fellows EAT 21-Nov-2005
EAT Practice and Procedure: Disclosure, Costs and Disposal of Appeal
Appeal against interlocutory orders by ET Chairman debarring reliance on some disclosed documents and ordering costs against the . .
CitedLondon 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 . .
CitedPrakash v Wolverhampton City Council EAT 1-Sep-2006
EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He . .
CitedTapere v South London and Maudsley NHS Trust EAT 19-Aug-2009
EAT CONTRACT OF EMPLOYMENT
Construction of term
The Employment Tribunal erred in construing the terms and conditions of employment as permitting the employer to transfer the employee to another . .
AppliedMuschett v Parkwood Healthcare EAT 16-Mar-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal did not approach the question of constructive unfair dismissal in a last straw case by reference to the steps in Omilaju. To take an . .
CitedHM 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 . .
CitedCumbria 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 . .
CitedSlee v Secretary of State for Justice (1) Admn 19-Nov-2007
The claimant sought compensation under the Regulations as a result of her dismissal on the re-organisation of the Magistrates Court at Wimbledon from her position as court clerk. The EAT had allowed her claim for unfair dismissal. Her position on . .
CitedNambalat v Taher and Another EAT 8-Dec-2011
nambalatEAT2011
EAT National Minimum Wage Act 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the . .
CitedClarence High School and Another v Boardman CA 15-Mar-2013
The claimant school teacher had been dismissed, after a finding that she had assaulted a pupil. She denied the assualt.
Held: The School’s appeal against the decision of the EAT to re-instate the claim of unfair dismissal succeeded. The EAT . .
CitedHarron v Dorset Police EAT 12-Jan-2016
EAT DISABILITY DISCRIMINATION
RELIGION OR BELIEF DISCRIMINATION
The Claimant had a belief (which the Employment Tribunal thought genuine) that public service was improperly wasteful of money. He . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.199856

Firstgroup Plc v Paulley: SC 18 Jan 2017

The claimant wheelchair user alleged discrimination by the bus company. The space reserved for wheelchair users on a bus had been wrongly occupied by a passenger who refused to vacate the space. The claimant said that the bus driver should have obliged that passenger to move, rather than just requesting it.
Held: The appeal was allowed, but to a limited extent. An absolute rule that a non-wheelchair user must vacate the space would be unreasonable: in many circumstances it could be unreasonable to expect a non-wheelchair user to vacate a space, let alone, to get off the bus, even where the space is needed by a wheelchair user. However the company policy that a user should be only asked to vacate the space was not sufficient, and in appropriate circumstances, the user could be asked to relocate within the bus.
Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Sumption, Lord Reed, Lord Toulson
[2017] UKSC 4, [2017] WLR(D) 22, [2017] RTR 19, [2017] 1 WLR 423, [2017] 2 All ER 1, [2017] IRLR 258, UKSC 2015/0025
Bailii, WLRD, SC, SC Summary, SC Summary video
Equality Act 2010 20(3) 21 29, Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations 1990
England and Wales
Citing:
Appeal fromFirstgroup Plc v Paulley CA 8-Dec-2014
The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .
CitedArchibald v Fife Council HL 1-Jul-2004
The claimant was employed as a street sweeper. She suffered injury to her health making it difficult to do her work. She was dismissed, and claimed that being disabled, the employer had not made reasonable adjustments to find alternative work for . .
CitedRoads v Central Trains Ltd CA 5-Nov-2004
The court considered the meaning of the ‘duty to provide a reasonable alternative method’.
Held: The policy of the 1995 Act was to provide access to a service as close as it was reasonable possible to get to the standard offered to the public . .
CitedAkerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .
CitedLancaster v TBWA Manchester EAT 17-Feb-2011
EAT UNFAIR DISMISSAL – Compensation
DISABILITY DISCRIMINATION – Reasonable adjustments
AGE DISCRIMINATION
The Appellant, a senior art director at a marketing and advertising agency, was aged 50 . .
CitedSecretary of State for Work and Pensions v MM and Another CA 4-Dec-2013
The Secretary of State appealed against a ruling made against him as to the processes used for deciding whether a claimant was entitled to employment and support allowance.
Held: It was not within the power of the Upper Tribunal to order the . .
CitedLeeds 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, . .

Cited by:
CitedRowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. The parties agreed that the steps taken for later broadcasts had satisfied the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.573343

VC, Regina (on The Application of) v The Secretary of State for The Home Department: CA 2 Feb 2018

‘There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department’s policy governing the detention under the Immigration Act 1971 (‘the 1971 Act’) of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 (‘the Equality Act’) of the procedures under which mentally ill detainees can make representations on matters relating to their detention.’
Arden, Lewison, Beatson LJJ
[2018] EWCA Civ 57
Bailii
Equality Act 2010
England and Wales
Cited by:
CitedRowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.604162

Secretary of State for Justice v Windle and Arada: CA 12 May 2016

Jackson, Underhill, Lindblom LJJ
[2016] EWCA Civ 459, [2016] WLR(D) 256, [2016] ICR 721
Bailii, WLRD
England and Wales
Cited by:
CitedPimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.563431

Lesar v Telekom Austria AG: ECJ 16 Jun 2016

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Article 2(1) and Article 2(2)(a) – Article 6(2) – Age discrimination – Determination of pension rights of former civil servants – Periods of apprenticeship and of work – Failure to take into account such periods completed before the age of 18
ECLI:EU:C:2016:451, C-159/15, [2016] EUECJ C-159/15
Bailii
Directive 2000/78/EC
European

Updated: 14 July 2021; Ref: scu.565616

Elan-Cane, Regina (on The Application of) v Secretary of State for The Home Department and Another: Admn 22 Jun 2018

Challenge to the lawfulness of the current policy of Her Majesty’s Passport Office to require those who apply for the issue of a passport to declare whether their gender is either male or female, and that a passport will only be issued bearing an ‘M’ (male) or ‘F’ (female) indicator in the sex field, rather than an ‘X’, indicating an unspecified sex.
Held: The Appellant’s non-gender identity did fall within the scope of the right to respect for private life protected by Article 8 ECHR, and the Appellant’s Article 8 right was therefore engaged. However, the Government’s continuing policy did not amount to an unlawful breach of that right and there was therefore no positive obligation on the Government to provide an ‘X’ marker on passports.
A literal reading of the language might lead the reader to conclude that the Appellant ‘is not concerned with gender identification at all’, but the judge rejected that notion, saying: ‘my understanding of what is intended to be conveyed by the use of this phrase is that the claimant is seeking to identify outside the binary concept of gender, rather than entirely rejecting the concept of gender altogether. Furthermore, not only does the current NHS definition of gender dysphoria recognise situations outside the accepted concept of transgenderism, (and the claimant’s hysterectomy was undertaken by the NHS), but it is clear from Kate O’Neil’s evidence that the GEO recognises that an individual’s gender identity includes, ‘. . male, female, both, neither or fluid.’
That being the case, in my judgment, the claimant’s identification is one relating to gender and I consider that it is one encompassed within the expression ‘gender identification’ in Van Kuck.’
‘Although at one time the terms ‘sex’ and ‘gender’ were used interchangeably (and confusingly still are on occasions), due to an increased understanding of the importance of psychological factors (albeit these may be due to differences in the brain’s anatomy), sex is now more properly understood to refer to an individual’s physical characteristics, including chromosomal, gonadal and genital features, whereas gender is used to refer to the individual’s self-perception.’
Jeremy Baker J
[2018] EWHC 1530 (Admin), [2018] WLR(D) 397, [2018] 4 All ER 519, [2018] 1 WLR 5119
Bailii, WLRD
European Convention on Human Rights 8
England and Wales
Cited by:
Appeal fromElan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .
CitedFDJ, Regina (on The Application of) v Secretary of State for Justice Admn 2-Jul-2021
The Claimant challenged the lawfulness of the Defendant’s policies relating to the care and management within the prison estate of persons who identify as the opposite gender from that which was assigned to them at birth. In particular, she . .

These lists may be incomplete.
Updated: 04 July 2021; Ref: scu.618996

Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc: CA 6 Nov 1995

A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations. ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’ Profound cultural changes do take time, but ‘A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z.’
Sir Thomas Bingham MR
Times 06-Nov-1995, [1996] QB 517
England and Wales
Citing:
Appeal fromRegina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
CitedAssociated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Appeal fromSmith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
CitedBennett v Officers A and B and Commissioner of Police for the Metropolis CA 2-Nov-2004
Police Officers had been involved in a shooting in which a man died. They were granted anonymity before the coroner’s court, on evidence suggesting they might be at risk. The family of the deceased appealed.
Held: The coroner misdirected . .
CitedA and Others, Regina (on the Application of) v Lord Saville of Newdigate and others CA 28-Jul-1999
Former soldiers who had been involved in the events in Londonderry in 1972, and were to be called to give evidence before a tribunal of inquiry, still had cause to fear from their names being given, and so were entitled to anonymity when giving such . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedSecretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.87689

O’Connor v Bar Standards Board: SC 6 Dec 2017

The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time having begun on the initial ruling against her.
Held: The appeal succeeded. The Appellant’s challenge was to the disciplinary proceedings against her, not to an alleged state of affairs in which BME lawyers were more likely to be the subject of such proceedings. Therefore, the bringing and pursuit of the disciplinary proceedings must be the focus of the investigation in terms of section 7(5)(a) of the 1998 Act. That section must not be read narrowly and must be allowed to provide an affective and workable remedy, particularly where what was complained of was a course of conduct. Here, there had been a single and continuing action. It had not been Parliament’s intention to have limitation calculated individually from each element of the process. The period ran from when the process ceased, not from when it began, and in this case it was from the time when the Visitors eventually allowed her appeal.
Lady Hale, President, Lord Kerr, Lord Wilson, Lady Black, Lord Lloyd-Jones
[2017] UKSC 78, [2018] 2 All ER 779, [2017] WLR(D) 813, [2017] 1 WLR 4833, [2018] HRLR 2, UKSC 2016/0174
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Videos Summary, SC 2017 Oct 04 am Video, SC 2017 Oct 04 pm Video
European Convention on Human Rights 14
England and Wales
Citing:
At QBDO’Connor v Bar Standards Board QBD 18-Dec-2014
Appeal against an order of Deputy Master Eyre by which he struck out the appellant’s statements of case and dismissed the action with judgment for the defendant with costs. The claimant said that the procedures adopted by the Board in disciplinary . .
Appeal fromO’Connor v Bar Standards Board CA 25-Jul-2016
The appellant said that the Board had infringed her human rights in its approach to disciplinary proceedings brought against her. She had been cleared and now sought a remedy. The Board successfully argued that her claims were out of time.
CitedDH v Czech Repiublic ECHR 13-Nov-2007
(Grand Chamber) The applicants complained that their children had been moved to special schools which did not reflect their needs from ordinary schools without them being consulted.
Held: The Court noted that, at the relevant time, the . .
CitedRehman v The Bar Standards Board Admn 29-Jul-2016
The barrister appealed against two findingd of the Disciplinary Tribunal of the Council of the Inns of Court. . .
CitedLincoln v Daniels CA 1961
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council . .
CitedIn re S (A Barrister) 1970
(Inns of Court) The regulation of barristers has been delegated by the judges to the Inns of Court. Five judges sitting as Visitors of the Inns of Court stated that ‘the judges as visitors have always had supervisory powers and their decision, upon . .
CitedDelcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
CitedSampanis and Others v Greece ECHR 8-Aug-2011
Resolution as to execution of judgment . .
CitedOrsus And Others v Croatia ECHR 16-Mar-2010
(Grand Chamber) Fifteen Croatians of Roma origin complained that they were victims of racial discrimination in that they were segregated into Roma-only classes and consequently suffered educational, psychological and emotional damage.
Held: . .
CitedEckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
CitedRegina v Visitors to the Inns of Court ex parte Calder CA 1993
Two barristers had been struck off for disciplinary offences. Their appeals were heard by three High Court judges sitting as Visitors, who dismissed the appeals. The barristers now sought judicial review of that decision.
Held: Justices . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.599756

Frette v France: ECHR 26 Feb 2002

A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article 14 in conjunction with article 8, on margin of appreciation grounds. The claimant succeeded on a separate complaint of a breach of article 6. There was the legitimate aim of protecting the interests of children at a time when child psychiatrists and psychologists were divided in their opinions of the effects of being adopted by homosexual parents. Article 14 ‘ . . complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions.’
36515/97, [2002] ECHR 156, (2002) 38 EHRR 438, [2003] 2 FLR 9, [2002] ECHR 156
Bailii, Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoFrette v France ECHR 2002
There are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment, including sexual orientation: ‘. . the Contracting States enjoy a margin of appreciation in assessing . .

Cited by:
CitedSecretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
CitedWilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
CitedWilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedGaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.212864

Frette v France: ECHR 2002

There are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment, including sexual orientation: ‘. . the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States.’
(2003) 2 FLR 9, (2002) 38 EHRR 438
European Convention on Human Rights
Human Rights
Cited by:
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedA v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
See AlsoFrette v France ECHR 26-Feb-2002
A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.198489

Leverton v Clwyd County Council: HL 1989

The claimant, employed as a nursery nurse by the respondent in an infant school sought to compare herself with clerical staff employed by the respondent, but not in schools.
Held: The employee’s appeal succeeded. The majority of the Employment Tribunal, the Employment Appeal Tribunal, and the majority of the Court of Appeal were wrong to apply a narrower test as to whether the terms of the claimant and the comparator were broadly similar. It was sufficient to establish common terms and conditions to show that the claimant and her comparators were employed on terms and conditions derived from the same collective agreement.
Lord Bridge of Harwich
[1989] ICR 33, [1989] IRLR 28
England and Wales
Cited by:
CitedBritish Coal Corporation v Smith and Others HL 23-May-1996
The phrase ‘common terms of employment’ means broadly comparable terms. There is no need for them to be identical, and the phrase should be construed liberally, though there can be no general commonality where there is no commonality in terms and . .
CitedWhite v Burton’s Foods Ltd EAT 6-Jul-2010
EAT EQUAL PAY ACT – Like work
The Claimant had been employed by the Respondent since 1984 before becoming Production Planning Manager at the Respondent’s Blackpool site. She brought a claim under the Equal . .

These lists may be incomplete.
Updated: 05 May 2021; Ref: scu.420384

Ladd v London Borough of Bromley: CA 4 Oct 2012

The claimant had succeeded in her claim of disability discrimination against the Council in their failure to issue a blue badge for her car parking.
Held: The LA’s appeal suceeded: ‘There can sometimes be a fine dividing line between a commendable desire to vindicate individual legal rights as against a powerful public body on the one hand and intransigent obduracy on the other hand. I say nothing critical at all about the threat to issue judicial review proceedings. But once that threat had resulted in an agreed visit to Mrs Ladd’s home for assessment and the issue of a Blue Badge it seems to me that this claim,when started, falls into the second category. In the result this litigation will not only have been of no profit to Mrs Ladd. It will also have given rise to significant costs both in time and in money to the London Borough of Bromley, which financial costs in part at least will have to be visited upon the luckless local taxpayers.’
[2012] EWCA Civ 1586
Bailii
England and Wales

Updated: 28 April 2021; Ref: scu.470101

Hejduskova (Formerly Searle) v Raskin: CA 28 Nov 1997

The claimant sought leave to appeal against the strike out of his claim against the respondent solicitor alleging disability discrimination. The solicitor had acted against him for his wife, and, becoming concerned as to his mental health had challenged his capacity to continue proceedings, and invited the involvement of the Official Solicitor. The judge had found that the claimant had not established that he was disabled, and that the reference to the OS had been proper.
Held: ‘whether a person is disabled within the Act is different from the question whether he is sufficiently disabled so as to be unfit to conduct the proceedings and to need a guardian ad litem.’ However even assuming that the claimant was disabled within the Act, nothing done by the defendant fell within the range of provision of services. Leave to appeal was refused.
[1997] EWCA Civ 2856
England and Wales

Updated: 26 April 2021; Ref: scu.143255

Nagarajan v London Regional Transport; Swiggs and London Regional Transport v Nagarajan: CA 7 Nov 1997

On a true construction of section 2(1), a person alleged to have been victimised had to establish that the alleged discriminator, in treating him less favourably than another, had a motive which was consciously connected with the race relations legislation.
[1997] EWCA Civ 2671, [1998] IRLR 73
Race Relations Act 1976 2(1)
England and Wales
Citing:
Reversed on sSwiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .

Cited by:
ReversedSwiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
CitedClark 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 . .

These lists may be incomplete.
Updated: 24 April 2021; Ref: scu.143070

Post Office v Adekeye: CA 13 Nov 1996

Race discrimination which took place after a dismissal was not unlawful within the section, since that first required the context of employment, and after the dismissal, the applicant was no longer in that employment. The natural meaning of the phrase ’employed by him’ in section 4 (2) was confined to persons employed at the time of the act complained of; and there was no other provision covering cases where the employment had terminated. The court dismissed the appeal.
Pill, Mantell and Buxton LJJ
Times 03-Dec-1996, Gazette 13-Dec-1996, [1997] ICR 110, [1996] EWCA Civ 943
Race Relations Act 1976 4(2)
England and Wales
Citing:
Appeal fromPost Office v Adekeye EAT 23-Feb-1995
An Industrial Tribunal may not look at a claim of race discrimination which had taken place in the context of a disciplinary appeal following a dismissal. The act of discrimination had not been in the course of the employment. . .

Cited by:
AppliedRhys-Harper v Relaxion Group plc CA 3-May-2001
A sex discrimination claim involving a claim by an employee for damages for sexual harassment, had to be made during the period of employment. An employer’s failure to deal properly with an allegation of sexual harassment could itself be a detriment . .
Appealed toPost Office v Adekeye EAT 23-Feb-1995
An Industrial Tribunal may not look at a claim of race discrimination which had taken place in the context of a disciplinary appeal following a dismissal. The act of discrimination had not been in the course of the employment. . .
DisapprovedRelaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
CitedD C D’Souza v London Borough of Lambeth CA 2001
The court dismissed the claimant’s claim for damages for racial discrimination for acts occurring after the termination of his employment by the respondents.
Held: Applying Adekeye, the claim was dismissed, but the court saw ‘some force’ in . .
CitedG P Jones, N Kirker, D Angel and C Bond v 3M Healthcare Ltd, Ambitions Personnel (Nottinghamshire) Ltd, British Sugar Plc, New Possibilities NHS Trust and Hackney EAT 11-Dec-2001
EAT Disability Discrimination – Disability
Nicholas Kirker was employed by British Sugar plc as a shift chemist until dismissed. He has very poor eyesight and is registered as fully blind. He claimed he had . .
CitedJessemey v Rowstock Ltd and Another CA 26-Feb-2014
The court was asked whether a claim as to acts of victimisation could be sustained in connection with actions alleged after termination of employment.
Held: The appeal succeeded. The Act operated to proscribe such actions. However, this is one . .

These lists may be incomplete.
Updated: 15 April 2021; Ref: scu.84811

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 and indicated that it should comprise all those persons, male and female, who satisfied, or would satisfy, all the relevant criteria apart from the PCP in question. Identifying the numbers of men and women who could comply with the PCP was insufficient. The correct analysis required the tribunal to look further at the relative proportions of men and women who could comply, in relation to the total numbers of men and women to whom the PCP was or would be applied.
Ralph Gibson LJ said: ‘We have been told that section 1(1) has not before been considered by this court with reference to the concept of the pool. The language of the section has been set out above. In order to compare the proportion of women who can comply with the requirement with the proportion of men who can comply with it, it is necessary to determine the relevant total. In my judgment, the relevant total is the number of men and women referred to in the subsection, i.e., those men and women to whom the person – in this case, the employer – applies or would apply the requirement. In this case, that means all men and women graduates with the relevant experience. I do not accept that the relevant total is all men and women: the employer would have no occasion to apply the requirement to any men or women other than those who are able to comply with the requirements of the advertisement other than the requirement in question . . Further, I do not accept that the relevant total is merely of those men and women who can comply with the requirement. The section refers not to the number of men and the number of women who can comply with the requirement but to the proportion of men and of women. That shows, in my judgment, that those men and those women who can comply with the requirement are to be considered as a proportion of another number, and that that number must be the relevant total of men and women to whom the requirement is or would be applied.’
Ralph Gibson LJ
Gazette 10-Mar-1993, [1993] ICR 474, [1993] IRLR 21
Sex Discrimination Act 1975 1(1)(b)(I)
England and Wales
Cited by:
CitedSecretary 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 . .
CitedLondon Underground Ltd v Edwards EAT 14-Feb-1995
The Tribunal considered the difficulties arising where one party was not represented, but where the case gave rise to difficult questions of law. In this case the claimant alleged sex discrimination in the context of rostering arrangements making . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.82616

Barclays Bank Plc v Kapur and Others: CA 15 Aug 1994

Whether there has been discrimination is independent and irrespective of the discriminator’s motives.
Ind Summary 15-Aug-1994
England and Wales
Citing:
Appeal fromBarclays Bank Plc v Kapur and others EAT 3-Dec-1992
. .

Cited by:
See alsoBarclays Bank Plc v Kapur and Others (No 2) CA 1995
An unjustified sense of grievance cannot amount to a detriment in discrimination law. . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.78207

Regina v Saunders: CACD 8 Dec 1999

Having been convicted of assault occasioning actual bodily harm which assault was racially aggravated, the defendant was sentenced to 42 months imprisonment. On appeal against sentence, the court said the presence of racially aggravating features should add up to two years to the sentence which would otherwise be passed. Nevertheless the court should still take into account the various facets of that aggravating element as present in this case.
Times 28-Jan-2000, Gazette 08-Dec-1999
Offences against the Person Act 1861 47
England and Wales

Updated: 08 April 2021; Ref: scu.85474

Waters v Commissioner of Police for Metropolis: CA 3 Jul 1997

[1997] EWCA Civ 2012
England and Wales
Citing:
Appeal fromWaters v Commissioner of Police of Metropolis EAT 17-Nov-1994
. .

Cited by:
Appeal fromWaters v Commissioner of Police for the Metropolis HL 27-Jul-2000
A policewoman, having made a complaint of serious sexual assault against a fellow officer complained again that the Commissioner had failed to protect her against retaliatory assaults. Her claim was struck out, but restored on appeal.
Held: . .

These lists may be incomplete.
Updated: 02 April 2021; Ref: scu.142409

Chapti and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others: Admn 16 Dec 2011

Challenge to the amendments to paragraph 281 of the Immigration Rules requiring the foreign spouses and partners of British citizens or persons settled in the UK applying for what I shall refer to as ‘spouse visas’, that is for leave to enter the UK with a view to settlement, to produce a test certificate of knowledge of the English language to a prescribed standard.
Held: t Beatson J concluded that the fact that it might be possible to argue that the operation of the Rule was a disproportionate infringement of an individual’s article 8 rights did not render the Rule itself disproportionate.
Beatson J
[2011] EWHC 3370 (Admin), [2012] 2 All ER 653
Bailii
European Convention on Human Rights 8 12
England and Wales
Cited by:
Appeal FromBibi and Another, Regina (on The Application of) v Secretary of State for The Home Department CA 12-Apr-2013
The applicant appealed against refusal of her challenge to the regulations requiring certain standards of spoken English in foreign spouses seeking to come here to be with their settled or British Citizen spouse.
Held: The imposition of the . .
At first instanceAli and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .

These lists may be incomplete.
Updated: 21 March 2021; Ref: scu.450067

C, Regina (on The Application of) v Secretary of State for Work and Pensions: SC 1 Nov 2017

This case is about how the Department for Work and Pensions (the DWP), in administering our complex welfare benefits system, treats people with a reassigned gender, and specifically whether certain policies conflict (1) with the Gender Recognition Act 2004; (2) with the Human Rights Act 1998; or (3) with the Equality Act 2010. The claimant was distressed that the respondent’s computer system gave access to her historical gender despite the issue of a gender recognition certificate under the 2004 Act.
Held: The Retention and SRC policies are not inconsistent with, or prohibited by, any provision of the Gender Recognition Act 2004.
The courts below were entitled to reach the conclusion that the CIS Retention policy was a proportionate means of achieving its legitimate aims and I share their view. In reaching this conclusion, I in no way seek to minimise the importance to the appellant and others in her situation of the intrusion into her privacy which is entailed by the policy. For her, and for others, it must be good news that the Department has taken their concerns seriously, and that they will be differently catered for when Universal Credit is rolled out throughout the country.
Retaining details of earlier identities was not directly discriminatory because the respondent retained such information about all claimants.
‘ the concerns which the appellant has raised before and during these proceedings are very real and important to her, and no doubt to other transgender customers of the DWP. The proceedings have already brought about some change in DWP policy and no doubt the DWP will continue to consider how the service it offers to transgender customers could be improved. The introduction of Universal Credit is an opportunity to do this. But for all the reasons given earlier the Retention and SCR policies are not unlawful under either the Human Rights Act 1998 or the Equality Act 2010 and this appeal must be dismissed.’
Baroness Hale of Richmond PSC, Lord Kerr of Tonaghmore, Lord Wilson, Lord Carnwath, Lord Hughes JJSC
[2017] UKSC 72
Bailii, WLRD
Equality Act 2010 19, Gender Recognition Act 2004 9 22, Human Rights Act 1998
England and Wales
Citing:
At First InstanceC, Regina (on The Application of) v Secretary of State for Work and Pensions and Another Admn 18-Jul-2014
The court was asked as to the extent to which the State should retain personal information about citizens, and whether its policies or practices for doing so comply with the human rights of those citizens. It arose in the instant case in a . .
Appeal fromC, Regina (on The Application of) v Secretary of State for Work and Pensions CA 9-Feb-2016
The Court was asked whether, in the context of awarding Jobseeker’s Allowance, the State has unjustifiably interfered with the right of transgender persons to have information about their gender reassignment kept private.
Held: The appeal . .
CitedGoodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
CitedBellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
CitedJ v C and E (a Child) (Void Marriage: Status of Children) CA 15-May-2006
The parties had lived together as a married couple. They had had a child together by artificial insemination. It was then revealed that Mr J was a woman. The parties split up, and Mr J applied for an order for contact with the child.
Held: The . .
CitedIdentoba And Others v Georgia ECHR 12-May-2015
The Strasbourg court found a breach of article 3 where the authorities had failed to protect LGBTI demonstrators from attack by homophobic counter-demonstrators. . .
CitedThlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. . .

These lists may be incomplete.
Updated: 20 March 2021; Ref: scu.598453

Cockburn, Regina (on The Application of) v Secretary of State for Health: Admn 29 Jul 2011

The claimant sought judicial review of the decision setting the level of pension payable to him as widower of a deceased general practitioner. He said that the amount payable would have been greater if he had been a women surviving a husband practitioner, since the regulations discounted his wife’s service before 1988.
Supperstone J
[2011] EWHC 2095 (Admin)
Bailii
National Health Service Pension Scheme Regulations 1995, European Convention on Human Rights 14
England and Wales

Updated: 15 March 2021; Ref: scu.442438

O’Neill v Governors of St Thomas More RC School and Another: EAT 24 May 1996

The claimant had been dismissed as a teacher by the respondent Roman Catholic school after she became pregnant by a priest. She had been found to have been unfairly dismissed, but the tribunal had rejected her claim of discrimination for pregnancy.
Mummery J P
[1996] IRLR 372, [1997] ICR 33, [1996] UKEAT 1180 – 94 – 2405
Bailii
Citing:
See AlsoO’Neill v Governors of St Thomas More RC School EAT 12-Oct-1995
The claimant had lodged an appeal against a rejection of her claim of sex discrimination, and against the amount of damages awarded on the success of her claim of unfair dismissal. After rejection of her request for a review, her counsel had lodged . .
CitedHabermann-Beltermann v Arbeiterwohlfahrt ECJ 5-May-1994
ECJ Article 2(1) and (3), read in conjunction with Articles 3(1) and 5(1) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to . .
CitedWebb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
CitedNagarajan v Agnew EAT 21-Jul-1993
Mr Nagarajan, of Indian birth, had brought several complaints to the Tribunal based on race. A settlement was reached on or about 1st November 1989 in full and final settlement of all his claims arising out of his employment with London Underground . .
CitedWebb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
CitedDekker v Stichting Vormingscentrum Voor Jong Volwassenen ECJ 8-Nov-1990
An employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards . .

These lists may be incomplete.
Updated: 14 March 2021; Ref: scu.442202

SG v St Gregory’s Catholic Science College: Admn 17 Jun 2010

The claimant challenged the school’s policy on hairstyles for boys.
Held: There had been no unlawful sex discrimination.
Collins J
[2011] EWHC 1452 (Admin), [2011] ELR 446, [2011] ACD 91
Bailii
England and Wales
Cited by:
CitedChief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .

These lists may be incomplete.
Updated: 12 March 2021; Ref: scu.440858

Beedles v Guinness Northern Counties Ltd: CA 19 Apr 2011

The tenant of a pub argued that the landlord brewery had an obligation to make alterations to the pub so as to allow him properly to enjoy it notwithstanding his disability. He suffered epilepsy and could no longer safely decorate it himself. He sought to require the landlord to do so.
Maurice Kay, Carnwath, Moses LJJ
[2011] EWCA Civ 442
Bailii
Disability Discrimination Act 1995 24C
England and Wales

Updated: 07 March 2021; Ref: scu.432832