EAT UNFAIR DISMISSAL ; Reason for
POLKEY DEDUCTION
EQUALITY ACT 2010 CLAIMS – SECTION 20 REASONABLE ADJUSTMENTS SECTION 13 DIRECT DISABILITY DISCRIMINATION AND SECTION 15 DISCRIMINATION ARISING FROM DISABILITY
The claimant was employed for almost 37 years by the respondents, his parents, who were partners in a joinery and funeral director enterprise. He was dismissed at a time when a sale of the business was contemplated and competing claims to purchase it had been made by the claimant and by his son who was also an employee. At the time of dismissal the claimant had been absent from work for a period of almost three years following a serious accident. The Tribunal found that the claimant was unfairly dismissed but only in respect of the respondents’ complete failure to undertake any proper procedure before dismissal.
The Tribunals’ findings and conclusions on the reason for the dismissal being the breakdown in the relationship between the claimant and his son, the Polkey deduction and the Equality Act claims were all those it was entitled to make on the evidence led. The arguments on appeal had illustrated that a different view of the evidence could have been taken but no material errors of law or approach had been identified.
Appeal dismissed.

Judges:

Wise H

Citations:

[2017] UKEAT 0013 – 16 – 1207

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605322

Judges:

GILLEN LJ, WEATHERUP LJ and WEIR LJ

Citations:

[2016] NICA 47

Links:

Bailii

Jurisdiction:

Northern Ireland

Employment, Discrimination

Updated: 05 April 2022; Ref: scu.605152

EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Inferring discrimination
RACE DISCRIMINATION – Burden of proof
The Tribunal erred in concluding that the Second Respondent, the individual who informed the Claimant of his dismissal, did not say ‘You’re not right for me’ without properly explaining its reasons for so finding. The Tribunal found all of the relevant witnesses on this disputed issue to be credible and that the burden of proof had shifted to the Respondent. However, it could not, without a proper and full explanation, be said (as the Tribunal did) that the account of that matter given by the Second Respondent, on this potentially important issue of fact, was consistent; on the contrary, there were inconsistencies within the evidence which the Tribunal was required to address when setting out its reasoned conclusion on this issue. Once it has undertaken the task of determining an important issue of disputed fact and then explaining its reasons for that decision, it should then carefully consider its decision on the allegation of discrimination having regard to the burden of proof.

Citations:

[2017] UKEAT 0147 – 17 – 1130

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 April 2022; Ref: scu.603717

UNFAIR DISMISSAL – Reasonableness of dismissal
RACE DISCRIMINATION – Direct
The Employment Tribunal was entitled to conclude, on the facts as found by it, that the Claimant was not prejudiced in a hearing which resulted in her dismissal on grounds of capability arising from ill health by not having been provided with notes prepared in connection with a report (such report having been provided to her) in connection with grievances made by her.
The Employment Tribunal was also entitled to find that no safe conclusions could be drawn from statistical evidence which purported to show delay in the Respondent’s handling of grievances made by employees of different racial or ethnic groups.

Citations:

[2017] UKEAT 0025 – 17 – 2809

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 April 2022; Ref: scu.603713

Citations:

[2017] EWCA Civ 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 03 April 2022; Ref: scu.602608

RACE DISCRIMINATION – Direct
PRACTICE AND PROCEDURE – Striking-out/dismissal
The basis of the Claimant’s claim of race discrimination, properly understood, was that the attitude of a manager who had described her, an Afro-Caribbean, as a coconut or Bounty Bar, caused her to treat the Claimant differently from an employee who behaved stereotypically consistently with their race or ethnic origin. The Employment Judge erred in not considering that it was arguable that an Employment Tribunal should consider how a hypothetical white comparator would be treated in the circumstances and that on the basis of allegations in the ET1 it could not be said that the claim of race discrimination should be struck out as having no reasonable prospect of success. Anyanwu v South Bank Students’ Union [2001] IRLR 305 considered.
The victimisation claim was rightly struck out as having no reasonable prospect of success.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0127 – 17 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 April 2022; Ref: scu.601928

Citations:

[2017] UKEAT 0113 – 17 – 0711

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 April 2022; Ref: scu.601920

EAT Sex Discrimination – Direct : Practice and Procedure

Citations:

[2017] UKEAT 0314 – 16 – 2410

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 02 April 2022; Ref: scu.601901

Citations:

[2017] EWCA Civ 1913

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 01 April 2022; Ref: scu.599648

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge erred in striking out claims of direct race discrimination by conducting more than a mini-trial into the main issue in the case, the reason for the acts of which complaint was made. The Claimant gave evidence and was extensively cross-examined in a two-day hearing. The Employment Judge failed to apply the principles in Ezsias v North Glamorgan NHS Trust [2007] IRLR 603. Observations on the dangers of conducting a strike out hearing at which findings on the credibility of the Claimant are made which are central to the main issue in the claim. Qdos Consulting Ltd v Swanson UKEAT/0495/11 and Chandhok v Tirkey [2015] IRLR 195 considered.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0039 – 17 – 2707

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595001

RACE DISCRIMINATION – Direct
VICTIMISATION DISCRIMINATION
RACE DISCRIMINATION – Detriment
JURISDICTIONAL POINTS – Claim in time and effective date of termination
The ET rejected claims of direct discrimination (race) in circumstances where it had found the alleged discriminator to have subjected the Claimant to harassment related to his race, and victimised him for having complained about it. It did so in respect of two allegations by concluding that although the acts complained of had occurred, the employer and its Head of Alternative Investments had not done them for any reason of race. The logic was that the employer had engaged two employees of the same race on similar work, and therefore could not have been motivated by race. This was a misdirection. Further, the ET had not identified that the treatment was less favourable than that which had or would have been given to another not of the Claimant’s race, nor had it identified a comparator for the purposes of any such comparison, nor had it found what the reason was for the treatment (it purported to find what it had not been, but had done so on a false basis), nor did it seek to see whether the burden of proof may have passed to the Respondents to provide such an explanation given the context of the claims and the other findings in respect of the behaviour of the alleged discriminator, to which other conduct it had made no reference when reaching its conclusion that there was no direct discrimination. Appeal in respect of the dismissal of two allegations of direct discrimination allowed.
An appeal against findings that there had been no victimisation by paying the Claimant a bonus ‘only’ of a certain amount was rejected: the ET had been entitled to determine that there had been no detriment, even if, had it done so, its additional reason that there would still have been no finding of victimisation could not have been supported. A cross-appeal seeking to reargue the question whether a finding that the employer had conducted a disciplinary hearing in respect of the employee’s conduct was in revenge for his having complained that the Respondents’ conduct was discriminatory, was dismissed as raising in truth no point of law, but one in respect of the ET concluding that time should be extended on the just and equitable footing for the late bringing of a claim was allowed: the ET should have identified why it was the Claimant was late, and did not appear to have done so, nor clearly evaluate his actual reasons for being late (whatever they were).
The issues in question on the successful appeals to be reheard before the same ET, on the same evidence as adduced previously, though leaving it open to either party to ask the ET if it would consider further evidence, and for the ET to permit them to do so should it consider that appropriate.

Judges:

Langstaff J

Citations:

[2017] UKEAT 0147 – 16 – 2007

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595000

EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Burden of proof

Judges:

David Richardson HHJ

Citations:

[2017] UKEAT 0075 – 17 – 1408

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 30 March 2022; Ref: scu.595007

Citations:

[2017] ScotCS CSIH – 56

Links:

Bailii

Jurisdiction:

Scotland

Employment, Discrimination

Updated: 29 March 2022; Ref: scu.593090

(Religion or Belief Discrimination) The Employment Tribunal did not err in dismissing claims that the application of the Respondent’s Disciplinary and Equality of Treatment Policies, the first and second Provisions, Criteria or Practices, to the Claimant, a Pentecostal Christian, for quoting in a service in a prison holding a large number of sex offenders a passage from the Bible condemning certain sexual behaviour and speaking of repentance did not constitute indirect religious discrimination. The ET did not err in considering whether the first and second PCPs led to ‘any group disadvantage’. Mba v Merton London Borough Council [2014] 1 WLR 1501 per Elias LJ paragraphs 33 and 35 applied. In any event the ET were not satisfied either that the Claimant as a Christian was disadvantaged by the two PCPs or that other Christians whether ‘singly or as a group’ were disadvantaged. Eweida v United Kingdom [2013] IRLR 231 considered.
Further the ET did not err in holding that any restriction on the expression of the Claimant’s religious belief by the application of the Disciplinary and Equalities Policies was a proportionate means of achieving the legitimate aim of maintaining order and safety in the prison.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0304 – 16 – 0108

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592680

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.

Judges:

Underhill P J

Citations:

[2009] UKEAT 0389 – 09 – 1112

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592683

EAT Race Discrimination – Direct – Burden of proof
The Employment Appeal Tribunal (‘the EAT’) allowed an appeal from the Employment Tribunal (‘the ET’). The Claimant claimed that the Respondent discriminated against him because of his race in rejecting job applications which he made.
The EAT held that the ET had misdirected themselves about the effect of section 136 of the Equality Act 2010 by treating it as imposing an initial burden of proof on the Claimant; but that even if the ET had not misdirected themselves in that way, errors in their approach to the evidence made their decision unsafe.
The claim was remitted to a different ET.

Judges:

Laing DBE J

Citations:

[2017] UKEAT 0203 – 16 – 1008

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 28 March 2022; Ref: scu.592679

VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Protected disclosure
VICTIMISATION DISCRIMINATION – Detriment
VICTIMISATION DISCRIMINATION – Dismissal
UNFAIR DISMISSAL – Compensation
UNFAIR DISMISSAL – Contributory fault
UNFAIR DISMISSAL – Polkey deduction
1. Wide-ranging grounds of appeal and cross-appeal were raised in relation to judgments in the Claimant’s favour to the effect that he was subjected to detriments for whistleblowing and ultimately dismissed for that reason.
2. The appeals were dismissed save in respect of a point (conceded subject to the cross-appeal) concerned with the liability of the Second Respondent. The liability or otherwise of the Third Respondent is remitted for reconsideration.
3. A number of points raised by way of cross-appeal concerning remedy were successful and sums reflecting these points are to be substituted in the award of compensation made.

Judges:

Simpler DBE P J

Citations:

[2017] UKEAT 0058 – 17 – 1907

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.590532

ECJ (Social Policy – Equal Treatment In Employment and Occupation – Agea : Judgment) Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Article 2(1) – Article 2(2)(a) – Article 6(1) – Age discrimination – On-call employment contract which may be concluded with persons under 25 years of age – Automatic termination of the employment contract when the worker reaches 25 years of age

Citations:

ECLI:EU:C:2017:566, [2017] EUECJ C-143/16

Links:

Bailii

Jurisdiction:

European

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.590456

The appellant challenged the finding of discrimination

Judges:

Gloster VPCA, Underhill LJJ, Sir Patrick Elias

Citations:

[2017] EWCA Civ 425

Links:

Bailii

Statutes:

Equality Act 2010 13(1)

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 27 March 2022; Ref: scu.588200

EAT Victimisation Discrimination : Protected Disclosure – Detriment – UNFAIR DISMISSAL – Constructive dismissal – UNFAIR DISMISSAL – Automatically unfair reasons – The findings of fact and a fair reading of their Decision fully supported the conclusion of the Employment Tribunal that the decision that disciplinary charges against the Claimant were established and that the dismissal of his appeal had nothing whatsoever to do with any protected disclosure. Appeal from dismissal of claims under Employment Rights Act 1996 sections 48 and 103A dismissed.

Judges:

Slade DBE J

Citations:

[2017] UKEAT 0009 – 17 – 0405

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 26 March 2022; Ref: scu.583965

EAT Victimisation Discrimination : Detriment – – Other forms of victimisation
The Appellant had brought a successful race discrimination claim against her employer, the First Respondent, in 2007. In 2011 she raised a grievance against two colleagues. The Second Respondent (the First Respondent’s Human Resources Director) decided to intervene in the grievance in part because she had brought the previous claim, which was a protected act under section 27 Equality Act 2010. He approached the two colleagues without informing the Appellant and persuaded them to send her letters of apology which he had drafted and which were designed to look spontaneous. That was in breach of procedure and when she discovered what had happened the Appellant brought a grievance against the Second Respondent saying his actions were humiliating and insulting.
The Employment Tribunal found (on a remission from the Employment Appeal Tribunal) that although the Second Respondent’s decision to intervene was because of the protected act, the way in which he had intervened was not. The Employment Tribunal’s reasons for reaching that conclusion were not very clear and appeared inconsistent with express findings (at paragraph 38 in the Reasons) that the Second Respondent wished to avoid the matter escalating in part because of the earlier successful claim and that his actions were part of a plan designed to get the Appellant to decide to take her grievance no further.
The victimisation claim was remitted again to a fresh Employment Tribunal.

Judges:

Shanks J

Citations:

[2017] UKEAT 0263 – 16 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582063

EAT Unfair Dismissal: Constructive Dismissal – RACE DISCRIMINATION – Direct
UNLAWFUL DEDUCTION FROM WAGES
Constructive dismissal – section 95(1)(c) Employment Rights Act 1996 – whether breach of the implied term – Malik and Anor v BCCI SA [1997] ICR 606 HL
Race discrimination – sections 13(1), 23 and 136(2) Equality Act 2010 – direct discrimination – less favourable treatment – burden of proof
Paternity pay – section 171ZC Social Security Contributions and Benefits Act 1992 – Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002
The Claimant (an Indian national) had sought a lateral transfer as a Manager from one of the Respondent’s stores to a new store it was due to open in Romford. There had, however, been four other applicants for the Romford position, including three external candidates, and the Respondent had applied a selection process, albeit (as the ET allowed) one that had been created for promotions rather than transfers. The Claimant performed badly and was unsuccessful. One of the external candidates, a British national, achieved the highest score and was offered the position. Shortly after this, the Claimant’s Assistant, who was also a British national, was offered a Relief Manager position at another store, without being subject to the same kind of assessment process used for the Claimant. The Claimant submitted a grievance about these matters, but this was rejected, and the Claimant resigned from his employment and brought ET proceedings, complaining that the rejection of his grievance had amounted to a fundamental breach of his contract, specifically it had destroyed the relationship of trust and confidence, thus entitling him to resign and claim constructive dismissal. He also relied on these matters as acts of race discrimination because of his Indian nationality. The Claimant further complained of an unauthorised deduction of wages in the failure to pay him paternity pay for the leave taken after the birth of his son.
The ET rejected the claims. Although agreeing that the process used by the Respondent should not have applied to lateral transfers, the Respondent had reasonable and proper cause for its conduct given that it had to apply some kind of selection process and had thus been entitled to refuse the Claimant’s grievance. Further rejecting certain allegations made by the Claimant, the ET did not consider the burden had shifted for the purpose of the complaint of race discrimination; the Claimant’s comparators were in different circumstances, and a difference in protected characteristic was insufficient to shift the burden. In any event, even if the burden had shifted, the ET accepted the Respondent’s non-discriminatory explanation for why it had treated the Claimant as it had; specifically, it had permissibly applied the selection process when having to choose the best of the five candidates for the new Manager position. As for paternity pay, the Claimant had failed to provide the requisite notification in writing at the relevant time and had, in any event, brought his claim out of time.
On the Claimant’s appeal
Held: dismissing the appeal
The ET had accepted the Claimant’s argument that the assessment used for the Romford Store Manager selection exercise had been created for promotions and not lateral transfers and it was further prepared to accept that his trust and confidence in his employer may have been destroyed by the decision not to offer him this position (and whilst his actual complaint before the ET relied on the rejection of his grievance, this was really a reiteration of the earlier decision not to offer him the Romford post). The question for the ET was – applying Malik unvarnished, as the Claimant submitted – whether the Respondent had conducted itself in the way that it had without reasonable and proper cause (Malik and Anor v BCCI SA [1997] ICR 606 HL). This was not – as the Claimant contended – the wrongful importation of the range of reasonable responses test; the ET was properly applying Malik, recognising that an employee’s loss of trust and confidence in their employer was not the only question: the ET also had to be satisfied this had happened as a result of conduct on the part of the employer that was without reasonable and proper cause, a question to be answered objectively, not by applying a range of reasonable responses test. The ET had not lost sight of this and had reached a permissible conclusion on the basis of its findings of fact.
Similarly, in respect of the race discrimination claim, the ET had been entitled to find the burden of proof had not shifted, not least as it rejected allegations made by the Claimant that might otherwise have corroborated his case and had found the circumstances of his comparators were materially different to his. In any event, the ET considered the Respondent’s explanation – on the basis that the burden had shifted – and found the conduct complained of was for reasons (see above) other than the protected characteristic (the Claimant’s nationality).
As for the paternity pay claim, this appeal was doomed to fail as the ET had found the claim had been brought out of time and no appeal against that finding had been permitted to proceed. In any event, the appeal focused on the wrong Regulations (those concerned with the entitlement to leave, not pay); the ET had been entitled to find the Claimant had failed to comply with the written notification requirements laid down by the paternity Pay Regulations.

Judges:

Eady QC HHJ

Citations:

[2017] UKEAT 0272 – 16 – 0303

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582064

EAT Disability Discrimination: Disability Related Discrimination – DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Justification
UNFAIR DISMISSAL – Reasonableness of dismissal
The Tribunal had fallen into error and given inadequate reasons when deciding that the Claimant had been fairly dismissed and had not been unlawfully discriminated against on the ground of his disability. However, a perversity challenge to the Tribunal’s findings of fact was not plainly made out and it was not clear whether the errors and shortcomings in the reasoning were fatal to the validity of the decision. It was appropriate to stay the appeal and remit the matter back to the Tribunal under the Burns/Barke procedure, for the purpose of obtaining further and better reasons, before determining the remaining grounds of the appeal.

Judges:

Kerr J

Citations:

[2017] UKEAT 0309 – 16 – 2804

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582072

EAT Sex Discrimination: Direct – Pregnancy and discrimination
In respect of a single finding of unfavourable treatment because of absence on maternity leave under section 18(4) Equality Act 2010, the Employment Tribunal did not apply the correct legal test, wrongly treating the case as a ‘criterion’ type case rather than a ‘reasons why’ type case: Taiwo and Anor v Olaigbe and Ors [2016] UKSC 31 applied. This approach is appropriate in a direct discrimination claim under section 18 just as under section 13 Equality Act 2010. The fact that indirect discrimination cannot be pursued on the basis of pregnancy or maternity leave under section 19 does not alter the position either.

Judges:

Simler DBE P J

Citations:

[2017] UKEAT 0267 – 16 – 1403

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582062

EAT Race Discrimination – direct;
Race Discrimination – inferring discrimination;
Race Discrimination – burden of proof
The Respondent’s appeal argued that the Employment Tribunal had drawn inferences that were not open to it on the primary facts and that it erred in concluding that a prima facie case of discrimination had been made out to reverse the burden of proof. The appeal succeeded in relation to a small number of findings only in respect of which the Claimant did not establish a prima facie case or the primary facts did not support the inferences drawn.

Judges:

Simler DBE J

Citations:

[2017] UKEAT 0214 – 16 – 2203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 24 March 2022; Ref: scu.582057

EAT (Disability Discrimination : Disability Related Discrimination : Reasonable Adjustments) The Claimant was working for the Respondent as a temporary agency worker. He went off sick with a disability-related illness. The Respondent withdrew a conditional offer of employment on the basis of his attendance record.
He claimed the withdrawal of the offer was disability discrimination on the basis of section 15 (discrimination arising from disability) and section 21 (failure to make a reasonable adjustment by discounting disability-related absences).
The Employment Tribunal decided that the offer was withdrawn not only because of his attendance record but also because of his failure to keep the Respondent informed during his absence which was such that trust and confidence had broken down and that this meant his claims failed because (a) the suggested reasonable adjustment would have made no difference and (b) withdrawing the offer was justified in order to have effective service which was not possible given the break down in trust and confidence.
Those facts and the Employment Tribunal’s conclusions from them had not been properly pleaded or raised by the Respondent before or during the hearing and the Employment Tribunal had therefore erred in law in deciding the case on this basis.

Citations:

[2017] UKEAT 0270 – 16 – 0203

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 February 2022; Ref: scu.577879

(Practice and Procedure: Review) – New evidence on appeal – Disability related discrimination
The Employment Appeal Tribunal (‘the EAT’) dismissed an appeal against a Decision of the Employment Tribunal (‘the ET’) refusing to reconsider an earlier Decision (‘Decision 1’). The EAT held that the application for a review did not explain what was said to be wrong with Decision 1, and that the ET was not obliged to carry out a general re-investigation of Decision 1 in order to see whether it could detect any error in Decision 1. The ET refused to reconsider Decision 1 on the grounds that there was no reasonable prospect that Decision 1 would be revised or revoked and that the application for a review was out of time, and no reasons had been given for the delay. The EAT did need to, and did not, decide whether or not the ET was entitled to refuse to reconsider Decision 1 on the grounds that the application was out of time. On the face of it, there was no flaw in the ET’s approach. However there had been various procedural mishaps. The EAT would have required those to have been investigated before it could reach a final view on this issue.

Citations:

[2016] UKEAT 0231 – 15 – 2411

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 February 2022; Ref: scu.577865

EAT DISABILITY DISCRIMINATION – Reasonable adjustments
RACE DISCRIMINATION – Direct
The Employment Tribunal’s finding of failure to make a reasonable adjustment upheld. The employer’s appeal dismissed. The Claimant’s cross-appeal against the Employment Tribunal’s finding that she had failed to adduce any evidence such as to pass stage one of the Igen test in relation to a complaint of racial discrimination upheld. That issue was remitted to the same Employment Tribunal for reconsideration.

Citations:

[2017] UKEAT 0202 – 16 – 1901

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 January 2022; Ref: scu.574086

EAT Practice and Procedure: Striking-Out/Dismissal – SEX DISCRIMINATION – Indirect
Striking out – indirect sex discrimination claim – identification of PCP – objective justification
The ET had struck out the Claimant’s claim of indirect sex discrimination in circumstances in which it had been agreed that there were no disputes of fact and the ET had all the evidential material before it to carry out its task.
On the Claimant’s appeal.
Held: dismissing the appeal. The ET had proceeded on the basis of the case pursued by the Claimant, as clarified at an earlier case management discussion and without the Claimant having taken issue with the identification of the PCP. The PCP had legitimately been identified as the application of Standard Operating Procedure 8, relating to the recruitment of police officers and civilian staff, where the applicant had previous criminal convictions. Allowing this placed men at a disadvantage as compared to women (being more likely to have previous criminal convictions), the ET nevertheless found the Respondent was bound to make good its defence of justification such as to mean the Claimant’s claim had no reasonable prospect of success. The ET had been entitled to proceed on the agreed basis that there was no dispute of fact, there was no need to call oral evidence and all the relevant material was available at the Preliminary Hearing. In those circumstances, it could not be said that the ET had erred in law.

Judges:

Eady QC HHJ

Citations:

[2016] UKEAT 0184 – 16 – 0811

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 29 January 2022; Ref: scu.573476

EAT Unfair Dismissal : Mitigation of Loss – DISCRIMINATION: JURISDICTIONAL POINTS: Extension of time: just and equitable
In a case where the claimant had succeeded in a claim of constructive unfair dismissal, the Employment Tribunal erred in its approach to mitigation of loss. The judgment contained no acknowledgment of where the onus of proof lay. The exercise of examining a claimant’s actions against a requirement that it was for the respondent to prove that she acted unreasonably had not been carried out. In any event, the Tribunal’s conclusion that the claimant had effectively chosen not to work once pregnant again appeared to be based on suspicion or conjecture rather than on facts proved by the respondent. The Tribunal had not approached the matter in the way required by the principles enunciated in Wilding v British Telecommunications Plc [2002] ICR 1079 and Cooper Contracting Ltd v Lindsey UKEAT/0184/15.
The Tribunal had erred further in its approach to the claimant’s pregnancy related discrimination claim. On the facts found she had been passed over for promotion as a result of her pregnancy and maternity leave, there being good evidence that she was someone who would otherwise have been considered for the post. She had delayed in making claim under section 18 of the Equality Act 2010 during a period when the respondent had offered her an alternative post following her return to work. In considering whether it was just and equitable to extend time in relation to that claim, the Tribunal had failed to address the question of prejudice at all. Further, no account was taken that, in not allowing the claim to proceed out of time the claimant had lost not simply a speculative claim but an arguably good claim on its merits.
The appeal was allowed and both issues of mitigation of loss and the pregnancy discrimination claim referred to a freshly constituted tribunal for determination. A cross appeal in relation to quantum was dismissed.

Judges:

Lady Wise

Citations:

[2016] UKEAT 0016 – 14 – 0911

Links:

Bailii

Jurisdiction:

Scotland

Employment, Discrimination

Updated: 29 January 2022; Ref: scu.573472

EAT Sex Discrimination; Victimisation

Contract of Employment; Damages for breach of contract

Definition of ‘protected acts’ on which Claimant could rely determined by earlier appeal – Chairman’s formulation of wrongful dismissal issues amended in part.

[2007] UKEAT 0008 – 07 – 2803
Bailii
England and Wales

Employment, Discrimination

Updated: 27 January 2022; Ref: scu.251582

The claimants sought to use employees at Asda’ depots as comparators. The defendants applied to have the comparators struck out.
Held: The comparators could be used.

[2016] EW Misc B27 (ET)
Bailii
England and Wales

Discrimination, Employment

Updated: 25 January 2022; Ref: scu.571018

EAT Victimisation Discrimination: Detriment
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Protected disclosure – detriments – burden of proof – section 48 Employment Rights Act 1996 – adequacy of Employment Tribunal reasons
On the Claimant’s complaint of detriment due to having made protected disclosures, the ET accepted that she had been subjected to detriment in the failure to pay her for (un-worked) on-call hours and in the Respondent’s failure to afford her any process or hearing under its disciplinary or dismissal procedures. The ET did not find, however, that either detriment had been on the ground of the Claimant’s protected disclosures. The Claimant appealed.
Held: allowing the appeal
On the failure to pay the on-call sums, the ET had found this was an unauthorised deduction from the Claimant’s wages as she was contractually entitled to the payments in question but did not consider this was on the ground of the Claimant’s protected disclosure because the non-payment had been on the basis of erroneous HR advice. The ET stated, however, that it could not understand the basis of the HR advice. That gave rise to the question whether it might have been materially influenced by the Claimant’s protected disclosures. On the reasons provided, there was not a complete answer to that question and it was unclear whether the ET had failed to adopt the correct approach when looking at the Respondent’s explanation or whether it had failed to provide adequate reasons. In either event, the conclusion was rendered unsafe.
As for the failure to afford the Claimant any process, the ET was faced with a case where the decision had already been made and the Claimant – who had less than two years’ service – had no contractual right (as a locum Consultant) to a disciplinary process. That said, the ET’s finding that the decision not to go through any process was simply due to the Claimant’s lack of requisite service failed to explain the evidential basis for its conclusion; there was no explanation as to how the ET had found that the Respondent had met the burden upon it in this regard. The reasoning provided was inadequate to the ET’s task.
The appeal would therefore be upheld.
On disposal, contrary to the Claimant’s arguments, the upholding of these grounds of appeal did not then undermine the decision rejecting her claim of automatic unfair dismissal, not least as different decision makers were involved. The appropriate course was to remit the case to the same ET for reconsideration of these two detriments in the light of the EAT’s Judgment.

Eady QH HHJ
[2016] UKEAT 0090 – 16 – 1006
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570970

EAT Disability Discrimination : Disability – PRACTICE AND PROCEDURE – Review – PRACTICE AND PROCEDURE – New evidence on appeal
Initial finding that the Appellant was not disabled confirmed by the Employment Judge at the Reconsideration Hearing after admitting fresh evidence (GP surgery notes not produced to the Appellant before the initial Employment Tribunal hearing). Appeal against the Reconsideration Decision dismissed; GP certificates that the Appellant was unfit for work are not determinative of the substantial effect question. Decision not perverse.
Application to admit (further) fresh evidence on appeal refused. That material could have been adduced below. Ladd v Marshall test applied.

Peter Calrk HHJ
[2016] UKEAT 0119 – 16 – 2109
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570977

EAT Race Discrimination: Indirect – JURISDICTIONAL POINTS – Extension of time: just and equitable
Indirect race discrimination – claim in time – continuing act – section 123(3) Equality Act 2010 – just and equitable extension of time
The Respondent had operated an indirectly discriminatory policy of under-paying those with ’employability issues’ – effectively where it considered immigration issues might arise given an employee’s visa status. The ET had found this put those sharing the Claimant’s protected characteristic (he was an Indian national) at a disadvantage and also put him at a disadvantage. The Respondent did not challenge those findings but submitted that the Claimant was no longer disadvantaged by the policy after June 2013, when his pay was increased to the correct level after he had been granted a longer-term visa; the Claimant’s ET claim, lodged in September 2014 was therefore out of time. The ET disagreed, finding the Respondent had adjusted its policy when it told the Claimant – in January 2012 – that, once his ’employability’ was resolved, the earlier shortfall in pay would be made good. Its failure to make good on that promise meant there was a continuing act of indirect discrimination until the termination of the Claimant’s employment. The claim was therefore brought in time, alternatively it would have been just and equitable to extend time. The Respondent appealed.
Held: dismissing the appeal
The ET’s Reasons – as amplified under the Burns/Barke procedure – made clear that it had found that there was a continuing discriminatory policy. The Respondent’s policy, as amended in January 2012, continued to mean that the Claimant suffered from the underpayment in his salary because the Respondent failed to make good the short-fall and that was because of the initial (indirectly discriminatory) ’employability issues’. That thus remained the discriminatory application of the Respondent’s policy, of which the Claimant had complained. As it continued until the termination of the Claimant’s employment, his claim was presented in time.
In the alternative, the ET’s finding in this regard was relevant to its consideration as to what was just and equitable in terms of any extension of time. It had found that the Respondent had strung the Claimant along such that he had reasonably believed that it would make good the past short-fall in his pay but it had continued to fail to do so. This was a permissible finding on the ET’s part and a permissible exercise of its judicial discretion.

Eady QC HHJ
[2016] UKEAT 0275 – 15 – 3010
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570980

EAT Victimisation Discrimination – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Whether the Employment Tribunal failed to recognise that in a complaint of victimisation the employer may act with mixed motives, protected act and ‘innocent’ motivation. Answer: no. The Employment Tribunal clearly found that the sole reason for disciplinary proceedings brought against the Claimant was her perceived wilful unmanageability

Peter Clark HHJ
[2016] UKEAT 0074 – 16 – 2809
Bailii
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570976

The claimant appealed against rejection of his claims for unfair dismissal and otherwise. The union appealed against a finding in favour of the claim for discrimination (and otherwise) on account of his religion or belief, namely ‘left wing democratic socialism’. At the EAT all claims were dismissed.

Underhill, Briggs LJJ
[2016] EWCA Civ 1049
Bailii
Equality Act 2010 13(1)
England and Wales
Citing:
Appeal from – General Municipal and Boilermakers Union v Henderson EAT 13-Mar-2015
EAT Unfair Dismissal – RELIGION OR BELIEF DISCRIMINATION – HARASSMENT
1. The Employment Tribunal found that the Claimant was fairly dismissed for gross misconduct but also found that he had suffered . .
Cited – Warby v Wunda Group Plc EAT 27-Jan-2012
EAT HARASSMENT
SEX DISCRIMINATION
Direct
Pregnancy and discrimination
In the course of a heated discussion between the Claimant and her manager about pay, each accused the other of lying. . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570869

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke
SEX DISCRIMINATION – Indirect
The Claimant – a teacher, employed to work with children who had special educational needs and needed stability and continuity – requested to work on a reduced basis after her maternity leave (a four- rather than five-day week). The Respondents refused. On the Claimant’s claim of indirect sex discrimination, it was accepted that the PCP of working a full, five-day, week placed her and others sharing her protected characteristic at a disadvantage. It was also accepted that the Respondents had demonstrated a legitimate aim, the need for stability and continuity for the children the Claimant was employed to teach. What was in issue was whether the PCP was a proportionate means of achieving that legitimate aim. That was a matter for assessment by the ET; the test was an objective one, not limited to assessing the reasonableness of the Respondent’s response at the time but engaged in a broader exercise of assessment and scrutiny of the means adopted with a view to achieving a legitimate aim, balanced against the discriminatory impact demonstrated. In explaining its conclusion, whilst the ET was entitled to expect its reasoning to be read as a whole, the parties were entitled to see how the ET had arrived at the conclusion it did. Specifically, having acknowledged that a difficult balancing exercise arose in this case, the ET’s reasoning needed to demonstrate acknowledgement of, and engagement with, the balance required as between the need identified by the Respondents and the discriminatory impact.
Having recorded the issue before it and summarised the (largely undisputed) factual background, the ET had identified the specific questions arising from an application of the law to the facts in this case. Having observed that the points were not easy to resolve, the ET then gave a one-line answer, stating its conclusion that the PCP had been proportionate.
On the Claimant’s appeal, held: allowing the appeal
From the limited reasoning provided, it was impossible to see the ET’s engagement with the issues before it, specifically the balance required between the Respondents’ aim and the disparate impact. In some instances the answer might be obvious but the ET had acknowledged that was not the case here; yet it was impossible, from the reasons given, to see it had carried out the required assessment let alone had done so with the appropriate degree of scrutiny.
In the circumstances, the decision could not stand. Consideration was given to the possibility of a Burns/Barke Order but it was apparent that the Employment Judge had since retired and this was not an appropriate course, not least as the hearing had been in June 2014.
The appeal would be allowed and the matter remitted to be considered afresh by a new ET.

Eady QC HHJ
[2016] UKEAT 0305 – 15 – 0804
Bailii
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570377

EAT Disability Discrimination: Disability Related Discrimination – Justification
The Claimant, a serving police officer who had a disability by virtue of a serious motor cycle accident, was made subject to the ‘Unsatisfactory Performance Procedure’ laid down in the Police (Performance) Regulations 2012. He complained to the Employment Tribunal that a series of steps taken at the first and second stages of that procedure amounted to discrimination arising from disability. The Employment Tribunal unanimously held that the steps amounted to unfavourable treatment because of something arising from the Claimant’s disability. The majority held that it was the procedure, rather than its application to the Claimant, which had to be justified; and found for the Respondent on this question.
Appeal allowed. The procedure laid down in the Regulations and the policies which the Respondent developed to apply it allowed for individual assessment in each case at each stage. The steps held by the Employment Tribunal to amount to unfavourable treatment were not mandated by the procedure or by any policy of the Respondent. Section 15(1)(b) of the Equality Act 2010 required the Employment Tribunal to consider whether the treatment was justified; and in such a case as this it was not sufficient to ask whether the underlying procedure was justified. Seldon v Clarkson Wright and Jakes [2012] ICR 716 SC and Crime Reduction Initiatives v Lawrence UKEAT/0319/13 considered.

David Richardson HHJ
[2016] UKEAT 0112 – 16 – 3009
Bailii
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570392

EAT Jurisdictional Points : Worker, Employee or Neither
HARASSMENT
SEX DISCRIMINATION – Direct
TRADE UNION RIGHTS
The appeal concerned sexual harassment by elected officers of the Respondent trade union against a paid (employed) officer.
1. The ET held that the elected officers were employees of the Respondent under the extended definition in section 83(2) of the Equality Act 2010. Appeal allowed on this ground. The elected officers were not employees under the extended definition. Allonby v Accrington and Rossendale College [2004] IRLR 224, Jivraj v Hashwani [2011] IRLR 827 and Halawi v WDFG UK Ltd [2015] IRLR 50 considered and applied
2. The ET held that the Respondent was responsible for the harassment of the elected officers by virtue of section 109(2). Appeal dismissed on this ground. Kemeh v Ministry of Defence [2014] IRLR 377 and Heatons Transport v Transport and General Workers’ Union [1972] ICR 308 considered and applied.
3. The ET held that the paid officers themselves harassed the Claimant by failing to take action against the elected officers to prevent harassment and by deciding to transfer her elsewhere. Appeal allowed on this ground, but matter remitted to ET for reconsideration. The ET had applied the wrong legal test; the question was whether the conduct of the elected officer in question was ‘related to sex’; it was not ‘related to sex’ merely because it was concerned with earlier harassment by the elected officers which was related to sex. Conteh v Parking Partners Ltd [2011] ICR 341, Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] ICR 1234 and Sheffield City Council v Norouzi [2011] IRLR 897 considered.
4. The ET held that, if it had not found that the paid officers harassed the Claimant, it would have found that they had discriminated against her because of sex – direct discrimination. The finding in this respect would also be remitted. The ET was required to focus on the mental processes of each paid officer and ask whether that officer’s conduct was because of sex. CFLIS (UK) Ltd v Reynolds [2015] IRLR 562 applied.
5. Section 64(2)(f) of the Trade Union and Labour Relations (Consolidation) Act 1992 is not concerned with decisions relating to the employment of a paid officer employee of the Respondent (who may or may not be a member of the Respondent union).

David Richardson HHJ
[2016] UKEAT 0300 – 15 – 2709
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570396

Age Discrimination – Direct Age Discrimination – section 13 Equality Act 2010 – burden of proof
The Claimant was a solicitor who had not been offered a new partnership under a restructuring exercise carried out by the Respondent firm, in which he had been a limited equity partner (‘LEP’). He complained this was because of his age (being aged over 45) and also made various other complaints about his earlier treatment by the Respondent in terms of an earlier decision that his poor performance meant he should leave the partnership (this decision being reversed after the Claimant had objected) and in respect of the subsequent performance process applied to him, the target set and the feedback the Respondent had given.
The ET rejected the Claimant’s complaints about this earlier treatment. As for the Respondent’s decisions as to which of the former LEPs should be offered the new partnerships, although the ET accepted that the statistics relied on by the Claimant showed that ‘the prospect of obtaining equity membership diminishes with the age of the candidate’, it did not consider that the statistical picture did sufficient to shift the burden of proof to the Respondent. It accepted the Respondent’s evidence that it had applied a multi-factorial approach to the question of selecting new partners and tested the Respondent’s case in respect of each of the LEPs relied on by the Claimant as actual (statutory) and hypothetical comparators. Having done so, the ET accepted that decisions were made on an individual basis. It did not accept that any of the other LEPs could serve as statutory comparators (there were material differences in circumstances). Asking itself why the Claimant had not been offered one of the new partnerships, the ET was satisfied that this was unrelated to his age but was due to concerns as to his performance and a lack of confidence that he would be able to take the business forward. The Claimant appealed.
Held: dismissing the appeal.
The ET had been entitled to conclude that the statistical picture alone did not shift the burden of proof to the Respondent. It had then considered whether the Claimant had made out a prima facie case in terms of the comparisons he relied on but concluded that there were material differences between his case and those of the other LEPs. It had not thereby erred in its approach to the burden of proof but had reached a permissible conclusion that the Claimant had not shown facts from which an ET could conclude that there had been unlawful discrimination. Equally, in reaching that conclusion, the ET had not erred in its approach to the question of comparison: it had understood that it was having to assess the question of less favourable treatment – a comparative exercise – but did not consider that the actual comparisons relied on by the Claimant were apt. Allowing for the possibility of a hypothetical comparator, the ET had referred back to its findings as to why the Respondent had taken the decisions it had in respect of the Claimant and the other LEPs. Having tested the Respondent’s explanation, the ET was entitled to conclude that the Respondent had made good an explanation for its decisions that was wholly unrelated to age.

Eady QC HHJ
[2016] UKEAT 0290 – 15 – 2807
Bailii
England and Wales

Employment, Discrimination

Updated: 20 January 2022; Ref: scu.567892

EAT Jurisdictional Points: Worker, Employee or Neither – Extension of time: just and equitable – The Claimant brought claims under the Equality Act 2010 of indirect disability discrimination and failure to make reasonable adjustments based on the employers’ insistence that he work full-time until 24 April 2012 when they allowed him to work part-time. He did not start his claims until 17 December 2012. The Employment Tribunal found the claims were well founded but had to consider the jurisdictional issues raised by section 123 Equality Act.
The Employment Tribunal concluded that time began to run on the date of his (fair) dismissal on 21 September 2012 on the basis that there was a ‘continuing state of affairs’ because the ‘part-time regime’ was not permanent. There was no finding in the Reasons about any request for a permanent ‘part-time regime’ or as to the effect of the part-time regime not being permanent and the conclusion that time began to run on 21 September 2012 was contrary to the Employment Tribunal’s express findings that the discrimination and failure to make reasonable adjustments applied until 24 April 2012.
On the question of a just and equitable extension of time, the Employment Tribunal said it would have extended time on the basis of the extreme stress under which the Claimant was labouring after receipt of a letter on 14 May 2012 (notifying him of the investigatory process that ultimately led to his dismissal). The Employment Tribunal did not have regard in its Reasons to the cause of this extreme stress or its effect on the Claimant’s ability to bring proceedings and the Reasons were therefore inadequate.
In the circumstances both issues arising under section 123 Equality Act were remitted to the Employment Tribunal.

Shanks HHJ
[2016] UKEAT 0094 – 15 – 0802
Bailii
Equality Act 2010
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.562540

EAT Disability Discrimination: Disability – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Claimant sought to criticise the Employment Tribunal for not adopting a ‘purposive’ or ‘inquisitorial’ approach to the question of disability, where it found that the Claimant had not proved her case. In particular it was argued that the Employment Tribunal ought to have had regard to some documents in the bundle, potentially supportive of her case, to which it was not referred during the hearing. Held – the Employment Tribunal was not bound to be ‘purposive’ or ‘inquisitorial’ and did not err in law by failing to find and rely on the documents in question. Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 and Muschett v HM Prison Service [2010] IRLR 451 applied.

Richardson HHJ
[2015] UKEAT 0001 – 15 – 1704
Bailii
England and Wales

Employment, Discrimination

Updated: 01 January 2022; Ref: scu.549015

Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason
Reasonableness of dismissal
A school teacher brought unsuccessful Tribunal claims of race discrimination and underpayment of salary against his school, in the course of which he made serious allegations. The school later investigated the allegations and found them unsubstantiated. It brought disciplinary proceedings on the basis that the allegations were (inter alia) vexatious, malicious and/or frivolous. The disciplinary charges were found to have been made out. The teacher was dismissed. His dismissal was upheld by an appeal panel.
The Employment Tribunal dismissed a claim for unfair dismissal on the basis that: a potentially fair reason for dismissal (conduct) had been made out; a fair and reasonable investigatory procedure had been adopted; and the sanction of dismissal had been within the range of reasonable responses.
Two points were pursued on appeal: (1) the Tribunal had failed to consider whether the school had reasonably believed that the allegations had been made in bad faith; and (2) the Tribunal had failed to address a contention that there had been unfair treatment because another teacher who had made similarly unfounded allegations had been treated differently.
HELD:
(1) The Tribunal had correctly found that the disciplinary charges had expressly included reference to the allegations having been ‘malicious, vexatious or frivolous’ and ‘in bad faith’. The evidence the school provided had satisfied the Tribunal that it had genuinely believed, on sound grounds, that the charges were made out. It had made no error.
(2) The Tribunal had not addressed the comparator point because it not had not been raised/pursued before it. If it had been, it was doomed to fail because the circumstances of the two cases were wholly different.

Luba QC Rec
[2015] UKEAT 0308 – 14 – 0806
Bailii
England and Wales

Employment, Discrimination

Updated: 30 December 2021; Ref: scu.547613

Appeal from the order of the EAT dismissing the appeal of Mrs Chenembo from the order of the Employment Tribunal which dismissed her complaints of unlawful disability discrimination and unfair dismissal brought against her former employer, the London Borough of Lambeth.

Arden, McCombe, Sales LJJ
[2014] EWCA Civ 1576
Bailii
England and Wales

Employment, Discrimination

Updated: 24 December 2021; Ref: scu.539823

EAT Race Discrimination – Burden of proof (1) ET erred when, in considering whether C had made out a prima facie case of race discrimination, it paid attention at that stage to evidence and explanations of the . . R. Sinclair Roche and Temperley [2004] IRLR 763 EAT applied.
(2) Inferences may be drawn under RRA 1976 Section 65 from material given by a respondent in response to a statutory questionnaire, or otherwise, including a Response and additional information.

His Honour Judge Mcmullen QC
UKEAT/0385/04, [2005] UKEAT 0385 – 04 – 0702
Bailii, EAT
England and Wales
Citing:
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 20 December 2021; Ref: scu.223157

Rimer, Aikens LJJ, Sir Stanley Burnton
[2014] EWCA Civ 978
Bailii
England and Wales

Employment, Discrimination

Updated: 17 December 2021; Ref: scu.535250

EAT UNFAIR DISMISSAL
Grounds of appeal that (a) Environment Agency v Rowan [2008] IRLR 20 not followed (b) a subjective test applied and (c) misdirection on constructive knowledge in a disability discrimination test failed on the facts.
Appeal dismissed.

Birtles J
[2014] UKEAT 0286 – 13 – 2802
Bailii
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522141

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:
Applied – Rowstock 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:
Cited – Deer 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 EAT – Onu 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 EAT – Taiwo 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

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

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:
Cited – Meek 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 Also – London Fire Civil Defence Authority v Owusu EAT 8-Oct-1997
. .
Cited – Cast 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 . .
Cited – British 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 . .
Cited – Lyfar 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. . .
Cited – Mawhirt v British Telecommunications Plc FENI 26-Mar-2007
. .
Cited – Spencer v HM Prison Service Agency EAT 3-Dec-2003
EAT Practice and Procedure – Preliminary issues . .
Cited – MA 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 . .
Cited – Fullerton 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 . .
Cited – Fearon 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 . .
Cited – P 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 . .
Cited – Grant v Department of Finance and Personnel FENI 13-Nov-2007
. .
Cited – MA v Merck Sharp and Dohme Ltd CA 16-Dec-2008
. .
Cited – Armstrong v Chief Constable Of the Police Service for Northern Ireland NIIT 3-Aug-2009
Claims for direct and indirect sex discrimination dismissed. . .
Cited – Robertson v Bexley Community Centre (T/A Leisure Link) EAT 4-Jul-2002
EAT Race Discrimination – Direct . .
Cited – Henry v London Borough of Newham EAT 13-May-2003
EAT Race Discrimination – Indirect. . .
Cited – Preston Borough Council, Geoffrey Driver v S Harrison Geoffrey Driver S Harrison, Preston Borough Council EAT 11-Mar-2003
EAT Sex Discrimination – Victimisation . .
Cited – Murali v British Medical Association EAT 8-Sep-2003
EAT Race Discrimination – Indirect . .
Cited – Dime v Brent, Kensington, Chelsea and Westminster Mental Health NHS Trust EAT 6-Nov-2002
. .
Cited – 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 . .
Cited – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
Cited – J Kells v Pilkington Plc EAT 2-May-2002
EAT Equal Pay Act . .
Cited – Ruby v Kings Lynn and Wisbech Hospitals NHS Trust EAT 6-Jun-2001
. .
Cited – Chaudhary 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 . .
Cited – The Commissioner of Police of the Metropolis v Hendricks EAT 5-Nov-2001
EAT Jurisdiction – (no sub-topic). . .
Cited – G R Pommell v Birmingham City Council and Another EAT 17-Jan-2002
. .
Cited – Hendricks 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: . .
Cited – Commissioners of Inland Revenue and Cleave CB v Morgan EAT 6-Feb-2002
EAT Race Discrimination – Direct . .
Cited – Sommerville-Cotton v Barclays Capital Services Ltd EAT 25-Jan-2002
EAT Sex Discrimination – Direct . .
Cited – William Jack v Pinkerton Security Services Ltd EAT 7-Dec-2000
EAT Race Discrimination – Direct . .
Cited – Jack v Pinkerton Security Services Ltd CA 3-May-2001
Application for leave to appeal – refused. . .
Cited – Jack v Pinkerton Security Services Ltd EAT 16-Apr-2002
. .
Cited – MOD (Service Children’s Education) v KW EAT 9-Oct-2000
. .
Cited – Lee v Lancashire County Council EAT 1-Mar-2000
. .
Cited – C Pharoah v H M Prison Service EAT 20-Jun-2000
EAT Procedural Issues – Employment Tribunal . .
Cited – Arube v Devon Probation Service EAT 7-Nov-2000
. .
Cited – P Lee v Lancashire County Council EAT 30-Apr-2001
EAT Disability Discrimination – Disability . .
Cited – Farooqi v South Warwickshire NHS Trust EAT 1-Dec-1999
. .
Cited – Tyagi v BBC World Service EAT 3-Apr-2000
. .
Cited – Farooqi v South Warwickshire NHS Trust EAT 5-Apr-2000
. .
Cited – Dr Grace Awaekpo v St Mary’s NHS Trust and others CA 10-Aug-1999
. .
Cited – Court v Gloucester Royal NHS Trust and Another EAT 15-Jun-1999
. .
Cited – Ayobiojo v London Borough of Lewisham EAT 25-Jul-1995
. .
Cited – Cast v Croydon College EAT 9-May-1996
. .
Cited – Akhter v Family Services Unit EAT 20-May-1996
. .
Cited – Donovan v New Islington and Hackney Housing Association EAT 10-Mar-1997
. .
Cited – Mungal v Twickenham and Roehampton Healthcare NHS Trust EAT 11-Apr-1997
. .
Cited – Great Mills (Central) Ltd v Ahmed EAT 16-Apr-1997
. .
Cited – Manning v British Telecommunications Plc and others EAT 25-Apr-1997
. .
Cited – South Wales Police v Walters and others EAT 14-Nov-1997
. .
Cited – Mensah v Whittington Hospital NHS Trust and others EAT 19-Nov-1997
. .
Cited – Sheffield City Council v Wilson and Another EAT 11-Dec-1997
. .
Cited – Ewane v Department for Education and Employment EAT 19-Dec-1997
. .
Cited – Ayobiojo v Nalgo-Unison Trade Union EAT 16-Jan-1998
. .
Cited – South Wales Police v Walters and others EAT 27-Feb-1998
. .
Cited – Court v Gloucestershire Royal NHS Trust EAT 20-Jul-1998
. .
Cited – Khan v Nynex Cablecomms Ltd EAT 26-Oct-1998
. .
Cited – Henry v Foreign and Commonwealth Office EAT 1-Dec-1998
. .
Cited – Weigel and Another v Brown EAT 10-Dec-1998
. .
Cited – Wilson 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