Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that, when evaluating if an impairment should be classed as ‘long-term’, and therefore a disability, organisations should determine the likelihood of it recurring at the time of the potentially discriminatory act. The Equality Act 2010 protects all employees from discrimination on the grounds of a disability. For the purposes of the legislation, an employee will be disabled if they have a mental or physical impairment and that impairment has a…

Judgement published:
Equality

The employment tribunal (ET) has held that a doctor’s ‘conscientious objection’ to refer to transgender patients in their chosen gender was ‘incompatible with human dignity’. Under the Equality Act 2010, employees are able to bring claims if they are subjected to forms of discrimination because of a ‘philosophical belief’.  In the case of Grainger v Nicolson, the Employment Appeal Tribunal (EAT) provided guidance on what could constitute as a ‘philosophical belief’. Amongst other criteria,…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that whilst the act of massaging an employee’s shoulders amounted to unwanted conduct, it was not harassment. Under section 26 of the Equality Act 2010, sexual harassment occurs when an individual, A, engages in unwanted conduct with a person, B, that is of a sexual nature or related to their gender and has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. When…

Equality

The Employment Appeal Tribunal (EAT) has ruled that, when determining injury to feelings compensation in discrimination cases, it is not only one-off acts that fall into the lower band.  In the case Vento v Chief Constable of West Yorkshire Police, guidelines were given on how an employment tribunal (ET) should determine the amount of money to be awarded for injury to feelings in successful discrimination claims. As a result, the Court of Appeal in Vento set out three bands to be used when…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has held that organisations can potentially avoid liability for acts of discrimination committed by employees if it is clearly established that the act complained of took place outside of work. Under section 109 of the Equality Act 2010, organisations are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ and it does not matter whether that act is done with the organisation’s knowledge or approval. In…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has found that direct discrimination claims resting on the discriminator’s protected characteristic will not succeed at tribunals.   Direct religion or belief discrimination takes place where an employer treats an employee less favourably than they would treat others because of their religion or belief (or lack of). Indirect discrimination occurs when an organisation applies a provision, criterion or practice (PCP) that places a person with a protected…

Equality

The Employment Appeal Tribunal (EAT) has ruled that organisations should focus on the particular disadvantage suffered by an employee when making reasonable adjustments. Facts In this case, an employee suffered from ulcerative colitis, a condition which could manifest itself in a sudden, unpredictable need for a bowel movement and could be aggravated by stress. In 2012, an occupational health (OH) report stated that the employee would benefit from a dedicated parking space in order to avoid…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that an organisation did not have constructive knowledge of a disability as the employee would have likely continued to conceal her impairment despite any further enquiries into her health. Section 15 of the Equality Act 2010 outlines that is unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, the disability, such as the need to take a period of disability-related absence. It is, however,…

Judgement published:
Equality

  The Employment Appeal Tribunal (EAT) has ruled that a director’s removal, after giving high-profile interviews on his religious opinion, was not religious discrimination. Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion. Article 10 outlines that everyone has the right to freedom of expression. The Equality Act 2010 protects against discrimination on the grounds of religion. The Act also…

Judgement published:
Equality

  The Employment Appeal Tribunal (EAT) has ruled that the side effects from the treatment of a visual impairment did not need to be considered when assessing the employee’s disability. The Equality Act 2010 outlines that an individual will be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Generally, an impairment will still be treated as having an adverse effect if measures…

Judgement published:
Equality

The Employment Appeal Tribunal (EAT) has ruled that a disability disclosed during an appeal hearing gave the employer actual or constructive knowledge of a disability.   Section 15 of the Equality Act 2010 outlines that an organisation discriminates against a disabled employee if they treat them unfavourably because of something arising in consequence of their disability, and they cannot show that the treatment is a proportionate means of achieving a legitimate aim. The section goes on to…

Equality

Employment Appeal Tribunal – May 2019 The Employment Appeal Tribunal (EAT) has ruled that a one-off act of discrimination does not limit tribunals to making an award in the lower Vento band for injury to feelings compensation. In the case Vento v Chief Constable of West Yorkshire Police, guidelines were given on how an employment tribunal (ET) should determine the amount of money to be awarded for injury to feelings in successful discrimination claims. As a result, the Court of Appeal in…

Equality

Court of Appeal – March 2019 The Court of Appeal has ruled that a disabled employee was not discriminated against when his international job posting was blocked after a medical assessment deemed him ‘high risk’. Direct disability discrimination occurs where a person is treated less favourably ‘because of’ their disability compared with others who do not share the protected characteristic but are otherwise in circumstances that are not materially different. Indirect disability discrimination…

Judgement published:
Family friendly and flexible working rights , Equality

Court of Appeal – May 2019 In a conjoined appeal with Ali v Capita Customer Management, the Court considered whether enhancing maternity pay policies, but not shared parental leave policies, was sex discriminatory. Section 66 of the Equality Act 2010 operates to automatically insert a sex equality clause in contracts of employment which have the effect of inserting corresponding terms into a contract where their terms are less favourable than the terms in place for an employee of the…

Judgement published:
Family friendly and flexible working rights , Equality

In a straight-forward decision, the Court of Appeal confirmed that it is not direct sex discrimination to offer enhanced maternity pay but only statutory shared parental pay. Whilst this decision may bring relief to many organisations who offer these types of family friendly leave and can continue to do so lawfully, there are cultural calls for family friendly pay to be equalised to ensure all working parents are not required to make child caring decisions based on financial incentives or…

Equality

Employment Appeal Tribunal – January 2019 The Employment Appeal Tribunal (EAT) has ruled that a person who was otherwise a suitable comparator in a direct discrimination claim was not rendered unsuitable merely because a different decision maker was involved. Section 23 of the Equality Act 2010 instructs that an employee who claims race discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially…

Equality

Employment Appeal Tribunal – March 2019 The Employment Appeal Tribunal (EAT) has ruled in this case that there was no causal connection between an employee’s mistaken belief and her disability in order to prove discrimination arising from a disability, although this may not always be the case. Facts This case concerned a warehouse worker who was classed as disabled for the purposes of the Equality Act 2010 due to osteoarthritis. The employee believed that her condition was worsened in damp…

Judgement published:
Equality

Employment Appeal Tribunal – March 2019 The Employment Appeal Tribunal (EAT) has outlined that the ‘reason why’ an organisation committed an act must be considered when establishing a claim for pregnancy discrimination. Facts In this case the employee, along with several colleagues, was aware she could be at risk of redundancy. An email was sent to them that confirmed they were being put on an ‘At Risk Register’ and instructed them to fill out a redeployment document. As the employee was…

Equality

Court of Appeal – January 2019 This case confirmed that the initial burden of proof in discrimination claims lies with the claimant to present evidence of any alleged wrongdoings. Facts The claimant in this case worked as a postman. He made over 20 unsuccessful applications for IT-related jobs with his employer and claimed his rejections were because he was of Nigerian descent. He also alleged that a number of the employer’s other actions towards him – refusing to allow him to finish his…

Equality

Employment tribunal – December 2018 The employment tribunal (ET) has ruled that the dismissal of an 88-year-old employee was unfair and ‘tainted by discrimination’. This case concerned an employee who had operated as a medical secretary under a consultant since 2005. Her duties involved the maintenance of a list of patients waiting for breast cancer and non-urgent surgery and to inform the consultant if their time on it was approaching 52 weeks. In 2015, training was arranged to assist the…

Pay and benefits, Equality

Court of Appeal upholds decision that retail workers can compare pay terms to distribution workers due to common terms applying at the establishments. Facts Around 30,000 predominately female retail employees have submitted equal pay claims against the organisation, alleging there are not receiving equal pay in comparison to the pay terms afforded to predominantly male distribution employees. As set out within s79(4)(c) of the Equality Act 2010, claimants can rely on comparators where “…

Equality , Discipline and grievance

The Employment Appeal Tribunal (EAT) has ruled that a failure to consider how a disability can be the operative cause of an employee’s misconduct amounted to unfair dismissal. This case concerned a lorry driver who suffered from type 2 diabetes. After a period of driving he returned to the organisations’ premises, parked near a loading bay to the store and felt an extreme need to urinate. Not believing he would make it to the building’s facilities in time, he urinated in the yard. The…

Equality

Employment tribunal – September 2018 The employment tribunal (ET) has ruled that an organisation’s failure to assist in the implementation of reasonable adjustments amounted to a breach of their duty In this case the employee, whose role as a clerical assistant involved a significant amount of keyboard and mouse work, was classed as disabled due to carpal tunnel syndrome and repetitive strain injury. Following the recommendation of an Occupational Health report the employee started to…

Equality

Supreme Court – December 2018 The Supreme Court has agreed with the earlier decisions of the Court of Appeal (CA) and the Employment Appeal Tribunal (EAT) that an ill-health retirement pension scheme did not amount to unfavourable treatment despite it being potentially more advantageous to other employees.  This case concerned an employee who suffered from several psychological problems including Tourette’s Syndrome. Due to the progress of his illness, he had reduced his hours and salary to…

Equality

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has confirmed that a tendency to steal is not a disability for the purposes of bringing disability discrimination claims. Facts In this case the employee, who worked as an Anti-Social Behaviour Officer for Durham Council, left a Boots store without paying for some items in a bag he was carrying. Although he was arrested and later cautioned for this event following a signed admission statement, he did not…

Equality

Employment Appeal Tribunal – August 2018 The Employment Appeal Tribunal (EAT) has ruled that office cultures are important when considering potentially harassing comments. Facts In this case, the employee suffered from type 1 diabetes, which he believed had led to him being overweight. He also had close ties to the travelling community, although this was not common knowledge within the respondent’s organisation. Following his dismissal for poor performance, the employee brought a…

Equality

The Employment Appeal Tribunal (EAT) has examined when a disability meets the statutory requirement of having a ‘long-term’ adverse effect. The Equality Act 2010 outlines that a person has a disability if the impairment has a ‘substantial’ and ‘long-term’ adverse effect on their ability to carry out normal day-to-day activities. For a condition to be classed as ‘long-term’, it needs to have been ongoing for at least 12 months or be ‘likely’ to last at least 12 months. Facts In this…

Equality

Employment tribunal – January 2018 The employment tribunal (ET) has ruled that it is not enough to have a race discrimination policy – organisations need to make sure they are putting it into practice.   Facts A contact centre for Her Majesty's Revenue and Customs ('HMRC') maintained a zero tolerance policy against race discrimination whilst using cleaning staff through an outside contractor, G4S. A written agreement stated that all G4S staff required the centre’s approval to work…

Equality

Employment Appeal Tribunal – July 2018 The Employment Appeal Tribunal (EAT) has ruled that establishing a causal connection for discrimination arising in consequence of a disability can involve several links  Facts In this case, the employee, who originally worked as a Professor in Edinburgh University’s School of Engineering, was absent from work due to work-related stress and depression. Discussions were held regarding her return to work, where the employee asked to move to a…

Equality

Court of Appeal – October 2018 The Court of Appeal have overturned the High Court’s decision that an employer was not vicariously liable for an assault carried out by the organisation’s Managing Director at an impromptu drinking session after the company Christmas party. Employers are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ under the Equality Act 2010 where there is a sufficiently close connection between the act and the…