The applicant was given notice on 3rd February 1983 terminating his employment on 28th February 1983. The question arose on appeal whether the date of the notice or the date when he left employment was the relevant date.
Held: With a discriminatory dismissal, time does not run until the notice of dismissal has expired and the employment ceased: ‘ The act complained of here is the dismissal of the applicant and the short point is: for the purposes of the Race Relations Act 1976, did that dismissal occur on 3 February, when notice was given, or 28 February, when the employment was terminated? We have been referred, in this context, to Dedman v. British Building and Engineering Appliances Ltd. [1974] I.C.R. 53, which dealt with the effective date of termination of a contract, and we find that decision and, indeed, definitions which occur in the Employment Protection (Consolidation) Act 1978 of no help to us in this case, because Dedman’s case is dealing with a different section, and the definitions in the Act of 1978 cover matters on which the Race Relations Act 1976 is silent. It appears to us that we have to approach the construction of the Act of 1976 by considering what was the mischief that Parliament was intending to cover by providing that it was unlawful to discriminate against an employee by dismissing him.
Putting it quite shortly, it seems to us that the mischief which Parliament was intending to cover by those provisions was that of a person finding himself out of a job because of racial or other discriminatory grounds. If that be right (and it appears to us that it is), then the act complained of is the termination of employment and accordingly the effective date for considering when time starts to run is the date when the man finds himself out of job rather than the date when he is given notice.’
Balcombe LJ said: ‘That is sufficient to dispose of this appeal but, in case it goes elsewhere and in order to give proper respect to the able arguments which were presented to us by both counsel in this case, it is right that we should deal with the two other grounds of appeal. The second ground of appeal was that section 68(7)(b) of the Act of 1976 provides that any act extending over a period should be treated as done at the end of that period. Mr Cofie, for the applicant, argues that the act of dismissal extended over the period between the giving of notice and the date when the notice expired. Accordingly, under that subsection, it should be treated as having occurred at the end of the period.
We accept Mr Jeremy’s submissions on that ground of appeal both that it is inconsistent with the earlier argument which we have accepted – although that does not of itself render the earlier argument the less effective – but secondly this was not an act done over a period. It was an act of dismissal. Either that act took place when the notice was given or, as we have held, when the employment terminated. So we reject that ground of appeal.’

Judges:

Balcombe LJ

Citations:

[1984] ICR 348

Statutes:

Race Relations Act 1976 68(1)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 16 May 2022; Ref: scu.616315

Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not impaired. ‘The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. ‘ and ‘the tribunal must consider whether the adverse effect is substantial. This is a word which is potentially ambiguous. ‘Substantial’ might mean ‘very large’ or it might mean ‘more than minor or trivial’. Reference to the Guide shows that the word has been used in the latter sense’ and ‘The Tribunal will wish to examine how the applicant’s abilities had actually been effected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant’s abilities to carry out normal day to day activities is clearly more than trivial.’

Judges:

Morison P

Citations:

Times 03-Feb-1999, [1999] IRLR 4, [1999] ICR 302

Statutes:

Disability Discrimination Act 1995 1

Jurisdiction:

England and Wales

Citing:

See also – Goodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .

Cited by:

Cited – Rugamel v Sony Music Entertainment UK Ltd; McNicol v Balfour Beatty Rail Maintenance Ltd EAT 28-Aug-2001
Both cases questioned the extent, as a disability, of functional or psychological ‘overlay’, where there may be no medical condition underlying the symptoms which the employee claims to be present. Neither claimant had asserted any psychological . .
See also – Goodwin v Patent Office EAT 21-Oct-1998
An ability to carry out normal domestic day to day tasks did not mean that a physical impairment was not substantial. The word ‘substantial’ is potentially ambiguous. In that it might mean ‘very large’ or ‘more than minor or trivial’. The code of . .
Cited – 1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .
Cited – Murphy v Sheffield Hallam University EAT 11-Jan-2000
The claimant challenged refusal of his claim of discrimination. He was profoundly deaf. He applied for work, and indicated his disability, but no provision was made for a signer to appear at the interview. The interview was re-arranged, but he . .
Cited – Council 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 . .
Cited – A McKenzie v East Sussex County Council EAT 13-Dec-1999
EAT Disability Discrimination – Disability
The parties sought to settle the appeal by consent. The Tribunal was obliged to consider the merits before making an order. In this case the order requested was . .
Cited – London 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 . .
Cited – Abadeh v British Telecommunications Plc EAT 19-Oct-2000
EAT The claimant appealed dismissal of his claim under the 1995 Act. He was a telephone operator injured after a sudden shriek in his ear. They had found him not to be disabled within the 1995 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 15 May 2022; Ref: scu.80924

‘In my judgment the Employment Appeal Tribunal were correct to hold that there was an error of law in the decision of the Employment Tribunal as identified by the Employment Appeal Tribunal. In a situation in which it is expressly found that there was no deliberate or conscious racial discrimination, it is necessary, before drawing the inference sought to be drawn, to set out the facts relied on and the process by which the inference is drawn. In some cases that process of reasoning need only be brief; in other cases more detailed reasoning will be required. The Employment Appeal Tribunal approached the matter in this way: ‘… we do suggest that the less obvious the primary facts are as pointers or the more inconclusive or ambivalent the explanations given for the events in issue are as pointers, the more the need for the Employment Tribunal to explain why it is that from such primary facts and upon such explanations the inference that they have drawn has been drawn. The more equivocal the primary facts, the more the Employment Tribunal needs to explain why they have concluded as they have.’ and ‘As we have mentioned the tribunal repeatedly said that there had been no intention to discriminate. That, of course, is not in itself an answer but it is likely to lead to a position in which the reasons for the inference of racial discrimination need to be fully explained.’

Judges:

Pill LJ

Citations:

[2001] EWCA Civ 2056

Jurisdiction:

England and Wales

Cited by:

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

Employment, Discrimination

Updated: 12 May 2022; Ref: scu.185542

EAT Working Time Regulations

Judges:

His Hon Judge Birtles QC

Citations:

EAT/968/02

Jurisdiction:

England and Wales

Citing:

See also – Matthews and others v Kent and Medway Towns Fire Authority and others EAT 7-Aug-2003
. .

Cited by:

See also – Matthews and others v Kent and Medway Towns Fire Authority and others EAT 7-Aug-2003
. .
At EAT (1) – Matthews and others v Kent and Medway Towns and Fire Authority and others HL 1-Mar-2006
Retained or part-time firefighters sought parity of working conditions with full time firefighters.
Held: The retained firefighters’ appeal succeeded (Lords Carswell and Mance dissenting). The test was whether the part-time and full time . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 April 2022; Ref: scu.185938

The industrial tribunal had refused the applicant an extension of time.
Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary hearing as a result of her representative’s shortcomings. It would not be in the interests of justice for there to be a review on such grounds. Even though the ‘interests of justice’ ground for review is in very wide terms, it must be cautiously exercised. Failings of a representative will not generally constitute a ground for review because that would risk encouraging disappointed applicants to seek to re-argue cases by blaming their representatives.
Resort to this ground of review should be limited to cases of: ‘a ‘procedural mishap’ or ‘procedural shortcoming,’ or ‘procedural occurrence’ of a kind which constitutes a denial to a party of a fair and proper opportunity to present a case.’ and ‘Failings of a party’s representatives, professional or otherwise, will not generally constitute a ground for review. That is a dangerous path to follow. It involves the risk of encouraging a disappointed applicant to seek to reargue his case by blaming his representative for the failure of his claim. That may involve the tribunal in inappropriate investigations into the competence of the representative who is not present at or represented at the review. If there is a justified complaint against the representative, that may be the subject of other proceedings and procedure. It is thus our view that the industrial tribunal erred in law in granting a review under rule 10(1)(e) of the Rules of Procedure of 1985.’

Judges:

Mummery P

Citations:

Times 27-Jan-1994, [1994] IRLR 318, [1994] ICR 384

Statutes:

Race Relations Act 1968 68(1), Industrial Tribunals (Rules of Procedure) Regulations 1985

Jurisdiction:

England and Wales

Citing:

Cited – Flint 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 . .
Cited – Trimble v Supertravel Ltd EAT 1982
The Industrial Tribunal had held that the appellant’s dismissal was unfair but then decided that she had failed to mitigate her loss. At the conclusion of the hearing, the Tribunal announced its decision and stated that she was to get no . .

Cited by:

Cited – Stanley Cole (Wainfleet) Ltd v Sheridan CA 25-Jul-2003
The employment tribunal, in delivering its judgment had cited a decision which was not among those referred to by the parties, but it did not give an opportunity to them to comment on it before delivering its decision.
Held: Such an ommission . .
Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Cited – Council of The City of Newcastle Upon Tyne v Marsden (Rev 1) EAT 23-Jan-2010
EAT PRACTICE AND PROCEDURE – Review
Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 29 April 2022; Ref: scu.185968

An employer dismissing an employee for sickness absences, and who was unaware that the sickness had come to be a disability, did not discriminate under the Act. The reason for the dismissal was to be looked for in the mind of the employer.

Citations:

Gazette 08-Jul-1998, Gazette 10-Jun-1998, Times 12-Mar-1998, [1998] IRLR 233

Statutes:

Disability Discrimination Act 1995 4(2) 5(1)(a)

Jurisdiction:

England and Wales

Citing:

See Also – O’Neill v Symm and Company Ltd EAT 16-Oct-1997
. .

Cited by:

See Also – O’Neill v Symm and Company Ltd EAT 16-Oct-1997
. .
Cited – Gbokoyi v Bennett’s Eco-Inverter (Environmental Services) Ltd EAT 18-Jan-2002
The claimant appealed against dismissal of her unfair dismissal and of her maternity related discrimination claim.
Held: The appeal succeeded: ‘it does not appear that the tribunal gave any separate consideration to whether the pregnancy was . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 28 April 2022; Ref: scu.84463

This appeal raises a short point of law concerning the temporal scope of a pay comparison in proceedings based on equal pay for work of equal value brought under the Equal Pay Act 1970.

The Claimants sought arrears of pay dating back to 2002, comparing themselves with two comparators in post from that time and found to be doing work of equal value to the women. With effect from 6 April 2006 Mr Coleman was promoted to a different role; and with effect from 1 May 2011 Mr Peever’s role was assimilated onto a Single Status Scheme at a lower rate of pay. There were other male highways operatives who remained employed and were available as comparators for equal pay purposes. The Respondent argued that the Claimants could not compare themselves with Mr Coleman for the purposes of calculating their arrears claims from 6 April 2006 onwards, or Mr Peever from 1 May 2011. The ET rejected those contentions; and the Claimants’ losses were assessed by reference to Mr Coleman’s pay from 6 April 2006, frozen as at 5 April 2006; and Mr Peever’s pay at a level frozen prior to assimilation.
The Respondent appealed. It accepted that where a comparator is in post during the whole period of comparison then the sex equality clause operates with respect to that individual, but argued the position is different if he leaves during the comparison period, and other potential comparators remain because he is no longer an individual who ‘is employed’ on work of equal value (see s.1(2)(c) Equal Pay Act 1970). The reasoning in Sorbie v Trust House Forte Hotels Ltd [1977] ICR 55 and Sodexo Ltd v Gutridge [2009] ICR 70 (EAT) could be distinguished. A statutory modification occurred by reason of the continued employment of actual but different male highways operatives who were available as comparators.
The appeal failed and was dismissed:
(i) There is no temporal limitation or other provision in the Equal Pay Act that restricts the continued implication of the equalised term in any way.
(ii) Once the necessary conditions are satisfied a presumption that there is an equality clause to be read into the contract arises and the less favourable term of the woman’s contract is treated as modified so as not to be less favourable. In other words, the implied contractual right to pay at the higher rate referable to Mr Coleman and/or Mr Peever crystallised in 2002 and has and will continue until the women’s contracts are validly varied or terminated.
(iii) No operative variation occurred (bringing an end to the equality clause modification based on these comparators’ earnings) because a different (albeit potentially valid) comparator continued in post while the chosen comparator did not. On Mr Coleman’s promotion, the necessary conditions for the automatic operation of an implied equality clause in the Claimants’ contracts based on the other male highway operatives cannot have been satisfied because no term in the Claimants’ contracts was less favourable than the terms of the other male highways operatives’ contracts. It was the other way around: the Claimants already had statutorily implied contractual rights to higher pay by 2006 when Mr Coleman was promoted.
(iv) The argument is unsupported by authority. It is inconsistent with Sorbie and Sodexo: once contractual rights to equal pay crystallise, those rights continue until lawfully varied or terminated. The focus is on lawful changes to the women’s contracts and not on the fortuitous continued presence or otherwise of the chosen comparator in the same role.

Citations:

[2018] UKEAT 0222 – 17 – 0706

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 April 2022; Ref: scu.618922

DISABILITY DISCRIMINATION – Section 15
Discrimination due to unfavourable treatment because of something arising in consequence of disability – proportionate means of achieving a legitimate aim – section 15 Equality Act 2010
The Claimant was a doctor employed by the four partners of a small GP’s practice. Having been signed off work on long-term sickness absence after suffering a heart attack, he was a disabled person for the purposes of the Equality Act 2010 (‘the EqA’) by reason of his on-going heart condition. Medical advice supported the Claimant’s contention that he could return to work on a phased, part-time basis; the Respondents, however, decided he should be dismissed. On the Claimant’s complaints of unfair dismissal and disability discrimination under section 15 EqA, the ET found his dismissal was procedurally unfair because the Respondents – who could have employed him in a part-time capacity – had not obtained an up-dated medical report about his fitness to return or discussed the possibility of part-time working. As for his disability discrimination claim, while the Claimant’s dismissal was unfavourable treatment, it had been a proportionate means of achieving a legitimate aim. The Claimant appealed against the rejection of his section 15 EqA claim.
Held: allowing the appeal
The ET’s reasoning on the question of proportionality did not include any consideration of the possibility of part-time working as an alternative and less discriminatory means of achieving the Respondents’ legitimate aim (of providing the best possible patient care). The ET had only considered the issue of part-time working in respect of the Claimant’s unfair dismissal claim, when the ET recorded that the Respondents had accepted this had been a possibility. This had thus been a relevant factor that the ET had failed to take into account when determining the Claimant’s complaint under section 15 EqA; that rendered its decision on that claim unsafe.

Citations:

[2018] UKEAT 0029 – 18 – 0205

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 April 2022; Ref: scu.618919

DISABILITY DISCRIMINATION – Justification
DISABILITY DISCRIMINATION – Burden of proof
The Respondent employer appealed against a decision of the Employment Tribunal (‘ET’) that the Respondent has discriminated against the Claimant on grounds of her disability, contrary to section 15 of the Equality Act 2010.
The Employment Appeal Tribunal (‘EAT’) dismissed the appeal. The EAT held that the ET had been entitled to decide that the Respondent had not justified giving the Claimant a written warning for her sickness absences. It dismissed arguments that the ET had focussed too much on process in its reasoning about justification, and held that the ET’s reasons for its decision were adequate.

Citations:

[2018] UKEAT 0230 – 17 – 2302

Links:

Bailii

Statutes:

Equality Act 2010 15

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 April 2022; Ref: scu.618911

EAT SEX DISCRIMINATION – Pregnancy and discrimination

SEX DISCRIMINATION – Burden of proof
Pregnancy discrimination – section 18 Equality Act 2010
Burden of proof – section 136 Equality Act 2010
The Claimant had notified the Respondent of her pregnancy shortly before a management restructure was announced that put her position at risk of redundancy. The manager responsible for the restructure had failed to notify HR of the Claimant’s pregnancy or to take other required steps, such as the carrying out of a risk assessment but this, the ET concluded, was simply due to her lack of experience in this regard; more generally, the ET was satisfied the restructure was for entirely proper reasons, unrelated to the Claimant’s pregnancy. The Claimant applied for one of the alternative positions in the new structure but was unsuccessful; this selection process, the ET accepted, had been fair but was based on performance on the day and the Claimant had the poorest score. There were two other (lower grade) supervisor positions, which the Claimant also applied for but then left on pregnancy-related sick leave and was unable to attend for further interview. The Respondent decided to use the scores for the previous selection process, which meant the Claimant failed as she had the lowest score; having not succeeded in obtaining one of the remaining positions, the Claimant was selected for redundancy and duly dismissed.
On the Claimant’s claims of automatic unfair dismissal and pregnancy discrimination, the ET concluded that her pregnancy had not been the principal reason for her dismissal and thus she had not been automatically dismissed for the purposes of section 99 Employment Rights Act 1996, but (applying the different test under section 18 Equality Act 2010) she had suffered unfavourable treatment because of her pregnancy as this had materially influenced the decision to use a method of selection for the supervisor positions, which had been an effective cause of her dismissal. The Respondent appealed against the ET’s decision on the section 18 claim.
Held: allowing the appeal.
The ET’s finding that the burden of proof had shifted for the purposes of section 136(2) Equality Act 2010 was inadequately explained, such that the Respondent could not understand why it had lost on this point, the ET seemingly referring to matters it had already discounted as justifying any inference of discrimination. As for the ET’s approach to the Respondent’s explanation (assuming, in the alternative, that the ET had permissibly concluded the burden had shifted), its findings as to what would have been fair were insufficient to justify the conclusion reached and its approach elided context and reason. Further, to the extent the ET had identified matters that might have suggested a motivation (whether conscious or subconscious) other than that relied on by the Respondent, there was no obvious correlation with the Claimant’s pregnancy (a desire to retain the existing supervisors in post, for example, would still suggest a reason unrelated to the Claimant’s pregnancy even if not a reason the Respondent had been prepared to admit).

Citations:

[2018] UKEAT 0120 – 17 – 0304

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 April 2022; Ref: scu.618917

Admissibility of Evidence
PRACTICE AND PROCEDURE – Review
CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Reasonableness of dismissal
RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Inferring discrimination
RACE DISCRIMINATION – Burden of proof
The Tribunal did not err in determining that the dismissal of a Black African Consultant for a first offence was not unfair. The Respondent’s reliance upon a pattern of conduct giving rise to concerns about patient safety as a sufficient reason to dismiss was within the range of reasonable responses notwithstanding the fact that there was no single act that could be said to amount to gross misconduct.
However, the Tribunal did err in concluding that the dismissal was not wrongful as it had failed to make the necessary findings of fact for itself to establish that the Claimant’s conduct amounted to a repudiatory breach.
There was no error in concluding that the Claimant had not been discriminated against. The Tribunal’s approach to the evidentiary matters relied upon as giving rise to an inference of discrimination was not ‘fragmentary’ as is apparent from a fair reading of the whole judgment.
The decision not to reconsider its judgment in the light of new evidence from the GMC that no action should be taken against the Claimant was not perverse. The Tribunal was required to consider different matters from those which concerned the GMC and the latter’s conclusions were unlikely to have had a material influence on the outcome.

Citations:

[2018] UKEAT 0218 – 17 – 1805

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 22 April 2022; Ref: scu.616892

Harassment – Purpose – Religion or Belief Discrimination – Where the same facts are relied upon for a claim of direct discrimination on grounds of religious belief or race and a claim of harassment for conduct related to those protected characteristics, an Employment Tribunal does not err in determining the harassment claim if they rely on their findings of fact on the direct discrimination claim provided they apply the correct ‘related to’ test required by Equality Act 2010 section 26. No evidence from the alleged perpetrator as to why he uttered offending words is required although an adverse inference may be drawn from his not giving evidence. Findings of fact on the context in which the words were spoken is relevant. Richmond Pharmacology v Dhaliwal [2009] ICR 724 considered. The Employment Tribunal did not err in the test for harassment which they applied. Although a different Employment Tribunal may have come to a different conclusion, they did not err in law. Appeal dismissed.

Citations:

[2018] UKEAT 0176 – 17 – 1005

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 22 April 2022; Ref: scu.616890

EAT Race Discrimination – Inferring Discrimination – JURISDICTIONAL POINTS – Extension of time: just and equitable
UNFAIR DISMISSAL – Reasonableness of dismissal
The Claimant was employed by the Trust as a consultant surgeon. He was the only black African consultant employed by the Trust.
After concerns were raised about his practice, he was restricted to non-clinical duties in September 2013 and the Royal College of Surgeons was invited to conduct a review of his practice; the reviewers reported in April 2014, making various adverse findings about his practice and a series of recommendations. After some delays, the Trust’s Medical Director took the view that a capability panel should be appointed; after further delays, a hearing took place in March 2015 and on 7 May 2015 the panel dismissed the Claimant for capability reasons.
Meanwhile in May/June and October 2014 the Claimant had raised grievances alleging that he was being discriminated against in relation to the capability concerns because of his race. The Trust considered that these grievances were brought as a way of delaying or derailing the capability procedure and said that they were ‘out of time’ and failed to deal with them under the Trust’s formal grievance procedure, although they were considered and rejected by the ‘case investigator’ appointed under the capability procedure.

The Claimant appealed against the dismissal but the Trust failed to arrange a hearing to take place within 25 days of the appeal as required by the capability procedure and the Claimant said he would not participate in the appeal.

The ET:

(1) found that the Claimant was discriminated against because of his race in relation to the failure to deal with his grievances under the formal grievance procedure;
(2) extended his time for bringing a claim for discrimination based on (1) under section 123(1)(b) of the Equality Act on the basis that it was ‘just and equitable’ to do so;
(3) found that the Claimant was unfairly dismissed because:
(a) in its conduct in the period from September 2013 to the panel’s decision (in particular its restriction of the Claimant to non-clinical duties in September 2013) the Trust had acted as no reasonable employer would have acted;
(b) that conduct was sufficient to taint the decision to dismiss and render it unfair;
(c) (although the panel had reached the view that the Claimant’s capability was impaired on reasonable grounds and there was no criticism of its procedure) the panel had given insufficient consideration to possible remediation or redeployment of the Claimant;
(d) the Trust’s failure to comply with the procedural timetable for the hearing of an appeal involved acting as no reasonable employer would have acted and denied the Claimant the opportunity to appeal against the dismissal decision.
The EAT allowed the Trust’s appeals against the findings of discrimination and unfair dismissal.

(1) The inference that the failure to deal with the grievances in accordance with the grievance procedure was race discrimination was based solely on the fact that the reason given at the time, i.e. that they were ‘out of time’, was not a sustainable reason; but the ET found that the Trust considered that the grievances were presented as an attempt by the Claimant to delay or derail the capability proceedings: this provided a complete explanation for the Trust’s conduct unrelated to the Claimant’s race and the inference of race discrimination was unsupportable and the claim should have been dismissed.
(2) It followed that the decision to extend the time for bringing the claim for race discrimination was no longer a relevant issue. On the point which was argued (namely whether it was ever open to the ET to extend time when the Claimant had presented no evidence as to why he had failed to present a claim in time) the apparent conflict in the EAT jurisprudence had now been resolved by the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, which makes it clear that, if a Claimant gives no evidence on that issue, the ET is not obliged to infer that there was no acceptable reason for the delay and that, even if there is no acceptable reason for the delay, that does not necessarily mean that time should not be extended.
(3) The finding of unfair dismissal involved errors of law in that
(a) the conclusion that the Trust’s conduct between September 2013 and the panel’s decision was sufficient to render the dismissal unfair without reference to the reasonableness of the decision or the circumstances applying when it was made focussed on the wrong question and involved an error of approach (see: McAdie v Royal Bank of Scotland [2007] EWCA Civ 806);
(b) when considering the decision to dismiss itself the ET did not focus properly on its reasonableness because they failed to engage with the reasons set out in the dismissal letter for rejecting the various possible alternatives to dismissal;
(c) the conclusion that the Trust’s failure to comply with the timetable for the hearing of the Claimant’s appeal was unfair and deprived the Claimant of the opportunity to appeal was perverse.

Judges:

Shanks HHJ

Citations:

[2018] UKEAT 0164 – 17 – 2604

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 13 April 2022; Ref: scu.609162

DISABILITY DISCRIMINATION – Direct disability discrimination
Perceived Discrimination
The Employment Tribunal did not err in law in finding that the Respondent (1) perceived the Claimant to be disabled and (2) treated her less favourably because of the protected characteristic of disability.

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0260 – 16 – 1912, [2018] WLR(D) 75, [2018] ICR 812, [2018] IRLR 193

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Chief Constable of Norfolk v Coffey CA 21-Jun-2019
The claimant had a minor hearing impairment. It was not of itself sufficient to amount to a disability in law, but the appellant took her off front line duties because of it. The CC now appealed a finding that it had breached the 2010 Act, saying . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 13 April 2022; Ref: scu.601925

Citations:

[1988] ICR 885

Jurisdiction:

England and Wales

Cited by:

Cited – Amnesty International v Ahmed EAT 13-Aug-2009
amnesty_ahmedEAT2009
EAT RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 12 April 2022; Ref: scu.374667

A voluntary bonus paid by an employer to its staff at Christmas was ‘pay’ within Art 14 of the EC Treaty, where it was paid to encourage or reward for loyalty and work. Such a payment was not a ‘payment’ within the rules governing measures to encourage health and safety of pregnant and breast feeding workers.

Citations:

Times 16-Nov-1999

Statutes:

ECTreaty Art 14, Council Directive 92/85/EEC

Discrimination, Employment

Updated: 09 April 2022; Ref: scu.83041

The withdrawal of a job offer to a man with cerebral palsy was not disability discrimination, where it was because of the difficulty of making the arrangements necessary to put the applicant in a position to do the work as opposed to pure work related issues.

Citations:

Times 22-Oct-1998, Gazette 11-Nov-1998

Statutes:

Disability Discrimination Act 1995 6

Employment, Discrimination

Updated: 09 April 2022; Ref: scu.82734

Citations:

[2018] EWCA Civ 640, [2018] WLR(D) 197

Links:

Bailii, WLRD

Statutes:

Equality Act 2010 123

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 07 April 2022; Ref: scu.608337

EAT MATERNITY RIGHTS AND PARENTAL LEAVE – Unfair dismissal
SEX DISCRIMINATION – Pregnancy and discrimination
SEX DISCRIMINATION – Burden of proof
Automatic unfair dismissal by reason of pregnancy – section 99 Employment Rights Act 1996 and regulation 20 Maternity and Parental Leave etc Regulations 1999
Pregnancy discrimination – section 18 Equality Act 2010
Burden of proof – section 136(2) Equality Act 2010
The Claimant had worked for the Respondent for a short period of time and was still within her probationary period when it was decided that she would be dismissed due to her ’emotional volatility’ and ‘failure to fit in with the Respondent’s work ethic’. The ET accepted that this decision was made on 3 August 2016, before the Respondent was aware that the Claimant was pregnant. On 4 August 2016, when arranging a meeting with the Claimant to tell her of this decision, the Respondent learned of the Claimant’s pregnancy. The meeting went ahead on 5 August 2016, when the Claimant was informed of the decision reached two days earlier and provided with a letter confirming the reasons for it. The ET found, however, that delaying the communication of the Claimant’s dismissal meant the Respondent had the opportunity to review its decision in the light of its knowledge of the Claimant’s pregnancy, which ‘clearly had a bearing on the behaviour that the Respondent considered was the last straw’. The ET found the Claimant had therefore ‘proved facts sufficient to reverse the burden of proof’ and the Respondent had failed to show that the dismissal was in no sense whatsoever related to the Claimant’s pregnancy; it upheld the Claimant’s complaints of pregnancy discrimination and automatic unfair dismissal by reason of pregnancy. The Respondent appealed.

Held: allowing the appeal
The ET had failed to apply the correct legal test in this case; it had effectively found the Respondent liable by omission – the ET apparently considering that the Respondent ought to have re-visited its decision to dismiss the Claimant (taken on 3 August, without any knowledge of her pregnancy) once it learned she was pregnant. The ET took the view that once the Claimant had told the Respondent she was pregnant ‘It must have been obvious . . that the Claimant’s attendance at hospital and her emotional state were pregnancy related’. That was not the correct legal test; the ET had been required to determine whether the Claimant’s pregnancy itself had been the reason or principal reason for her dismissal or whether the decision to dismiss had been because of her pregnancy. The ET had also erred in concluding that the answer to this question was provided by the shifting burden of proof. It had made no finding of fact, further to its finding as to the decision taken on 3 August, such as would establish a prima facie case and shift the burden to the Respondent. Moreover, the ET had failed to consider any explanation provided by the Respondent; had it engaged with the Respondent’s case, it would further have been apparent to the ET this was directed to the claim as put by the Claimant, which was not the case being considered by the ET itself.

Judges:

Eady QC HHJ

Citations:

[2018] UKEAT 0197 – 17 – 0301

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605704

EAT Disability Discrimination – Reasonable Adjustments – The Claimant was training to be a Consultant Anaesthetist until she developed a latex allergy in October 2013; that condition was a disability for the purposes of Equality Act 2010. After meetings and enquiries, the First Appellant (the NHS body responsible for training) informed her in November 2014 that she would not be able to continue with her training because of the condition and she resigned from her employment with the Second Appellant in March 2015 and claimed that both Appellants had failed in their duty to make ‘reasonable adjustments’ to enable her to continue to work and train.
The ET upheld this claim on the basis (in effect) that it ought to have been possible somehow to continue her training within the NHS and that the Appellants had not done enough to investigate matters.
In so doing the ET had treated the NHS as a single entity and failed to have proper regard to the specific legal functions and powers of the two Appellants; as a consequence the ET had (a) imposed liability on both of them indiscriminately without any separate consideration of their respective positions, (b) decided that it would have been a reasonable adjustment on the part of both of them to provide training and work in a latex free hospital when the First Appellant had no control over any hospital and the Second Appellant had no control over those of other Trusts and no control over where the First Appellant required the Claimant to carry out her training, and (c) apparently decided that they should both make adjustments in relation to exams or other speciality training requirements when neither of them had control over these matters.
This was an error of law and the decision could not stand.

Judges:

Shanks HHJ

Citations:

[2018] UKEAT 0068 – 17 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605705

Judges:

Bean, Leggatt LJJ

Citations:

[2018] EWCA Civ 346

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605691

EQUAL PAY ACT – Indirect discrimination

Citations:

[2018] UKEAT 0183 – 17 – 2702

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605649

VICTIMISATION DISCRIMINATION – Interim relief
VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Dismissal
JURISDICTIONAL POINTS – Fraud and illegality
Interim relief application – whistleblowing claim – complaint of automatic unfair dismissal under section 103A Employment Rights Act 1996 – protected disclosures – public interest – illegality

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0283 – 17 – 2212

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605325