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…

Equality

Employment Appeal Tribunal – June 2018 The EAT has ruled that an employer's warning for absence levels was discrimination arising from a disability which could not be objectively justified Facts Ms O’Connor, who had worked for the company in a customer support role since 2005, was considered disabled under the Equality Act 2010. The company had made reasonable adjustments to accommodate her condition and despite her regularly exceeding the acceptable levels of absence as laid down in…

Equality

Employment Appeal Tribunal – May 2018 The EAT has ruled that it was not religious harassment for an employee to ask a Muslim colleague if they were a supporter of Islamic State (IS) because the context of these remarks was not related to the individual’s religion. Facts The incident behind this case relates to an altercation between the claimant Mr Bakkali, a Muslim man of Moroccan origin, and his colleague Mr Cotter in 2015. During a conversation between the two men in early October,…

Equality

Court of Appeal – May 2018 The Court of Appeal has ruled that it was disability discrimination to dismiss an employee for gross misconduct because his conduct was a consequence of his disability Facts This case relates to an incident in 2013 where Mr Grosset, an English teacher at the Joseph Rowntree school in York, showed an 18+ rated horror movie to a class of 15 year olds without gaining the appropriate consent. The employee, who suffered from cystic fibrosis, acknowledged that his…

Equality

Employment Appeal Tribunal – May 2018 Note - this decision has been appealed to the Court of Appeal who will hear the case in May 2019. Was the payment of statutory shared parental pay to men and enhanced maternity pay to women an act of indirect discrimination? Facts The claimant in this case took a period of shared parental leave following the birth of his child lasting from 1 June 2015 - 6 September 2015. The employer paid the claimant the statutory rate of shared parental pay…

Family friendly and flexible working rights , Equality

Employment Appeal Tribunal – April 2018 Note - this decision has been appealed to the Court of Appeal who will hear the case in May 2019. The EAT has confirmed there is no sex discrimination when an employer offers an enhanced pay rate during maternity leave, whilst only providing fathers with statutory pay under shared parental leave policies. Statutory shared parental pay is paid at the rate set by the government each April, currently £145.18 for 2018/19, although some employers may…

Recruitment and selection, Equality

Court of Appeal – March 2018 Was it unlawful discrimination to refuse to grant a licence to a priest because his same sex marriage was contrary to Church of England doctrine? The Marriage (Same Sex Couples) Act 2013 introduced lawful same sex marriages. The Canons of the Church of England set out that marriage is the union of one man with one woman. Following the introduction of the legislation, a statement of Pastoral Guidance was distributed which confirmed the Canon remained part of…

Equality

Court of Appeal – February 2018 Can an ‘expectation’ to work longer hours amount to a provision, criterion or practice under the Equality Act 2010? Employers have a duty under the Equality Act 2010 to make reasonable adjustments for disabled job applicants, employees and former employees. The duty can arise where a disabled person is placed at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) operating in the employer’s workplace. Facts Carreras worked as an…

Equality

Employment Appeal Tribunal – March 2018 Does the condition of “cancer” in the Equality Act 2010 include “pre-cancerous” and “in situ cancer” diagnoses? Under Schedule 1 paragraph 6 of the Equality Act 2010, individuals are automatically deemed to fall within the statutory definition of ‘disabled’ where they are diagnosed with cancer, HIV and multiple sclerosis. Facts Lofty began working as a café assistant in September 2001 before transferring to the new organisation in 2015. Following…

Equality

Court of Appeal – February 2018 How far is an employer required to go to have constructive knowledge of an employee’s disability? The duty on employers to make reasonable adjustments is triggered when an employer knows, or could reasonably be expected to know, that the employee has a disability. The reasonable expectation is known as “constructive knowledge” and the following case looks at this issue under the Disability Discrimination Act 1995. Facts A Court Officer with previous…

Equality , Business principles

European Court of Human Rights – January 2018 Were employees’ rights to privacy breached by covert surveillance set up to monitor suspected thefts? Under Article 8 of the European Convention of Human Rights, individuals have a right to respect for their private and family life that extends to the workplace. The right is a qualified right so employers can place restrictions on privacy rights to achieve a legitimate objective, so long as their methods are proportionate and necessary. Facts…

Equality

Employment Appeal Tribunal – November 2017 Dismissal because of marital difficulties could engage the protected characteristic of marriage and civil partnership. Facts Reverend Gould was employed as a minister within the North London church from 1 September 1995 until his summary dismissal on 1 August 2016. During his ministry, the congregation grew and the church prospered. Rev. Gould married in 1997 but there were difficulties in his marriage. These difficulties were raised by the…

Equality

Was a refusal to recruit because a health condition may deteriorate in the future an act of perceived disability discrimination? Facts Coffey was employed as a police constable within the Norfolk Constabulary from 1993-1997. In 2009, she joined the Wiltshire Constabulary as a staff member and then applied to become a police constable in 2011. A medical was carried out and it was found that Coffey was suffering from hearing loss with tinnitus. Under the Medical Standards outlined in the…

Equality

Court of Appeal – October 2017   School’s policy of pupil segregation was discriminatory under Equality Act 2010 despite pupils of both sexes being treated equally. Applied to the workplace, this ruling means that equal, but separate, treatment can still be discriminatory. Facts Al-Hijrah school is a faith school which accepts children of both sexes. However, from Year 5 onwards, the children are split into single sex classes for religious reasons held by the school in accordance with…

Judgement published:
Equality

European Court of Human Rights Grand Chamber – September 2017 The Grand Chamber of the European Court of Human Rights has reversed a previous decision from January 2016 that email monitoring undertaken by an employer did not breach an employee’s human rights. The judges determined the employer failed to strike a fair balance between the employee’s right to privacy and the employer’s right to ensure their business is running effectively.   Barbulescu, a Romanian national, lodged his case…

Equality

Employment Appeal Tribunal – August 2017 This case overturns popular misconceptions about ‘shifting the burden of proof’ in discrimination cases.   Note: This decision was appealed and overturned by the Court of Appeal. The later decision can be read here.   The EAT emphasised that it is a tribunal’s responsibility, not the claimant’s, to decide on the facts of a case whether there may have been a breach of discrimination law, or to reject a claim because there was no basis for it The…