Pitcher v Chancellor, Masters and Scholars of the University of Oxford

EA-2019-000638-RN, EA-2020-000128-RN

Guest blog by Ben Mitchell 11 KBW

In 1933 Erwin Schrödinger took up an academic post at the University of Oxford. This was two years before he created his eponymous thought-experiment, “Schrödinger’s Cat”. He was 48 years old. Too young, if he were teleported to today, to hit Oxford’s current Employer Justified Retirement Age (“EJRA”) of 67. However, had he had cause to consider the EJRA or, more precisely, the EAT’s substantial judgment addressing whether it constitutes age discrimination in Pitcher v University of Oxford, we may now have been able to consider the sequel thought experiment: Schrödinger’s Age Discrimination. Continue reading

R (Rowley) v Minister for the Cabinet Office

[2021] EWHC 2108

In this case the High Court (Fordham J) ruled that the respondent had discriminated against the claimant, who was profoundly deaf, by failing to provide of British sign language (“BSL”) interpreters for Government live briefings to the public about the Covid-19 pandemic on 21 September 2020 and 12 October 2020. The claimant challenged the failures on those occasions and also sought to challenge the respondent’s continuing refusal to use ‘on-platform’ as distinct from ‘in-screen’ BSL interpreters for briefings. The claimant sought to establish failures of the PSED imposed by s149 of the Equality Act 2010 in respect of the  defendant’s ongoing approach to briefings, as well as failures of the duty to make reasonable adjustments imposed by ss20 and 29(7)(a) of the Act. The PSED claim failed as did the reasonable adjustment challenge to ongoing (‘in-screen’ BSL) briefings. The decision includes a comprehensive discussion of the leading authorities on disability discrimination in the context of services/public authorities. Continue reading

Royal Mail Group Ltd v Efobi

[2021] UKSC 33, [2021] 1 WLR 3863

In this important case the Supreme Court ruled on the approach to s136 of the Equality Act 2010 which sets out the burden of proof in discrimination and harassment claims. The sole judgment was delivered by Lord Leggatt with whom Lords Hodge, Briggs and Hamble and Lady Arden agreed.

The main question for the Court was whether the change in wording of the burden of proof provision from the pre-Equality Act 2010 (but post EU-inspired amendments to the legislative provisions transferring the burden of proof) reference to “the complainant [having proved] facts from which the tribunal could …conclude in the absence of an adequate explanation that the respondent” had discriminated to there being “facts from which the court could decide, in the absence of any other explanation, that a person” had discriminated (s136) had made any substantive difference to the test. The Court ruled that it did not. In addition, the Court was asked to consider whether the tribunal had been required to draw adverse inferences from the respondent’s failure to provide witness evidence from any of those responsible for the rejections of the claimant’s various applications. Again the Court ruled that it had not been so required. Continue reading

Martin v City and County of Swansea

UKEAT/0253/20/AT

The decision of the EAT in this case provides a useful reminder of the proper approach to the PCP in reasonable adjustment claims. EAT (judge James Tayler, sitting alone) ruled that an employment tribunal had erred in law in rejecting the claimant’s attempt to rely on, as a PCP, a Management of Absence Policy which included discretion which would have permitted, amongst other steps, the claimant’s redeployment to an alternative role. The Tribunal had ruled that the application of the policy to the claimant did not constitute the application of a PCP that placed her at a substantial disadvantage in comparison with non-disabled persons. Continue reading

Turani & Anor v Secretary of State for the Home Department

[2021] EWCA Civ 348; Underhill VP, Simler and Warby LJJ

The Court considered an appeal from a High Court decision which had rejected indirect race discrimination and PSED challenges to the application of the Defendant’s ex gratia scheme to support and assist third-country national refugees outside the UK who have fled the conflict in Syria. The case is important, if somewhat disheartening to equality lawyers, for its conclusions on the (limited) extra-territorial effect of the Equality Act 2010. It is worth emphasising that the Court of Appeal’s approval of the High Court’s conclusions on justification were subject to the proviso that the limited evidence on which the High Court was prepared to find in the Defendant’s favour was the result of the way in which the claim had developed post-issue; as Underhill LJ, concurring with Simler LJ leading judgment, stated at §110: “the story is indeed a good illustration of the perils of “rolling judicial review”. Continue reading

R (Blundell & Ors) v SSWP; R (Day) v SSWP

[2021] EWHC 608 (Admin), Kerr J

The Claimants unsuccessfully challenged the Defendant’s policy of making deductions at a fixed rate from universal credit (UC) to pay off criminal fines. So far as relevant here, the claim alleged breach of the PSED (s149 Equality Act 2010) and unlawful indirect disability discrimination. The latter claim failed on the evidence, Kerr J pointing out that it would more suitably have been brought in the county court. The Judge did accept that the Defendant had breached the PSED but ruled against the claimants on the basis that compliance with the PSED would very likely have made no difference and that, therefore, s31A of the Senior Courts Act 1981 defeated the claim. Continue reading

R (Salvato) v Secretary of State for Work and Pensions

[2021] EWHC 102 (Admin), Chamberlain J

The High Court ruled that the requirement that the childcare element (CCE) of Universal Credit (UC) could be paid to applicants only after they had actually paid for childcare, rather than becoming liable so to do (“the proof of payment rule”), was unlawful because it discriminated indirectly against women contrary to Article 14 ECHR read with Article 8 and/or A1P1 Further, having scrutinised the justification for the Secretary of State’s approach through the prism of Article 14, he went on to find that it was also irrational as a matter of common law. The decision engages intelligently with the sometimes tricky question of appropriate comparator pools, and shines useful light on the potential for common law rationality to accommodate discrimination-based claims even were direct reliance on Article 14 to become unavailable.

Continue reading

Alemi v Mitchell & Anor

UKEAT/0042/20/AT (V), Judge James Tayler

This case raises an interesting question as to the extent of vicarious liability for acts of discrimination. While the decision is focused on the definition of employment under the Equality Act 2010, it shines light on the limitations on vicarious liability for harassment/ discrimination. Continue reading