Administrative Court: Heather Williams J,  EWHC 3389 (Admin), 15 December 2021
This was a challenge to a decision to close legacy public service pension schemes, including police schemes, and to move all active members to reformed pension schemes. The High Court ruled that the decision was unlawful by reason of failures in the consultation process. In addition, and of more relevance to this blog, she ruled that the decision had been taken in breach of the PSED (s149 Equality Act 2010) because the decision was reached prior to the decision-maker having been provided with a draft of the relevant equality impact assessment or a summary of indirect sex discrimination and other equality-related concerns raised by consultees. As Williams J put it at §171: “the PSED is placed on the Minister personally and what matters is what he or she took into account and knew, not what his officials read or summarised or discussed. As I have indicated when setting out the legal principles, the duty must be fulfilled at a time when a particular policy is under consideration, rather than after it has been adopted. Accordingly, there was a breach of the PSED in this regard”.
Claimant: Andrew Sharland QC and Stephen Kosmin, instructed by Mariel Irvine Solicitors
Defendant and Interested Party: Catherine Callaghan QC , Raymond Hill and Imogen Proud, instructed by Government Legal Department
EAT: Jason Coppel QC, UKEAT/0260/20/AT, 9 December 2021
This is an interesting case in which the EAT rejected an appeal from a finding that the claimant had not been discriminated against because of something arising in consequence of her disability (s15 EqA), or denied reasonable adjustments (s20(3) EqA) when an offer of a secondment in Montenegro was withdrawn on health grounds. The claimant had been the victim of a crime shortly before having been offered the secondment and had had to attend A&E twice thereafter with significant health issues as a result, but refused to make full disclosure of her health condition. A tribunal dismissed her claim on the basis that the adjustments she sought would leave her at risk and that it was reasonable for the employer to withdraw the secondment offer. The situation was complicated by the claimant’s refusal to make full disclosure to her employer’s OH advisers of her medical history. Continue reading
Queen’s Bench Division (Planning Court): Kerr J,  EWHC 3294 (Admin), 7 December 2021
This was an unsuccessful challenge under Articles 8 and 14 and s149 EqA (the PSED) to experimental traffic orders (ETOs) made by the respondent which took effect from 9 November 2020. The applicants complained that they are severely prejudiced by increased car journey times to and from their school. The challenge was brought under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984 rather than by way of judicial review, and so did not require permission, but Kerr J pointed out at §4 that the same principles applied. He expressed sympathy for the applicants who he accepted had been disadvantaged by the ETOs but upheld them as proportionate measures in pursuit of legitimate aims of reducing congestion, improving air quality, road safety and accessibility, encouraging active travel to school and social distancing (applying R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 [and see earlier blog]. He rejected the PSED claim on the basis that, taken in the round, the respondent had taken sufficient steps to comply with the duty of due regard.
EAT: HHJ Tayler, EA-2020–000070-DA, EA-2021–000256-DA,  IRLR 17, 7 October 2021
The Claimant brought claims of direct sex and disability discrimination after she received a formal warning in respect of sickness absence which she attributed to menopausal symptoms. She also complained that when she had told her team manager that she was suffering from hot flushes he had told her that he also got hot in the office; that her appeal against the written warning had been exclusively male and that she had been refused a female doctor for an occupational health assessment. A tribunal struck out her claims, ruling that her menopausal symptoms did not amount to a disability and that the sex discrimination claim had no reasonable prospect of success. The EAT (Judge James Tayler) allowed the appeals, ruling that the symptoms of which the claimant complained (hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches) amounted on the evidence to physical impairments that were long standing (having lasted in excess of a year at the time of the hearing) and that the tribunal had erred in finding without explanation that they did not substantially affect on her ability to carry out day to day activities in view of the uncontested evidence thather symptoms resulted in her forgetting to attend events, meetings and appointments, losing items, forgetting to lock and put the handbrake on her car and to lock her house on leaving it, leaving household appliances switched on, experiencing dizziness, incontinence and joint pain and spending lengthy periods in bed due to fatigue/exhaustion. The EAT, which also ruled that the tribunal had erred in failing to consider her allegations of sex discrimination, remitted the case for determination of the question of disability.
Claimant: David E Grant and Patrick Tomison, instructed by Advocate
Respondent: Victoria Brown, instructed by the council
 EWCA Civ 1439,  STC 2199
Court of Appeal: Sir Julian Flaux C, Henderson and Nicola Davies LJJ,  EWCA Civ 1439,  STC 2199, 6 October 2021
The Court of Appeal considered a challenge brought by Arron Banks in respect of a finding of the Revenue and Customs Commissioners that donations of almost £1 million made by him to the UK Independence Party (“UKIP”) were ineligible to be exempted from the inheritance tax liability attaching to his estate by reason of being gifts to political parties because UKIP at the material time failed to meet the threshold established in the Inheritance Tax Act 1984 (s24) of having at least two members in the House of Commons or one member plus at least 150,000 votes in the relevant election.” The claimant sought to rely on Article 14 of the ECHR read with Article 1 of the First Protocol to the ECHR, Article 10 and/or or Article 11 (freedom of assembly) of the ECHR and/or on Articles 10 and/or 11. The Upper Tribunal had overturned a decision by the First-tier Tribunal that Mr Banks had been discriminated against on grounds of his political opinion contrary to Article 14 (though no remedy had be granted to him as it was not possible to construe s24 of the 1984 Act in a Convention-compliant manner and it was not open to the tribunal to make a declaration of incompatibility under s4 HRA). The appellant appealed on the grounds, inter alia, that the Upper Tribunal erred in law in failing to hold that s24 directly or indirectly discriminated against him on the grounds of his political opinion in breach of Article 14 taken with A1P1, also that it erred in dismissing his claim that he was discriminated against on the grounds of being a supporter of a party which did not have any MPs following the 2010 General Election, alternatively that he was a victim of discrimination against UKIP on the grounds that it had no MPs following the 2010 General Election. He also claimed that the UT had erred in concluding that any discrimination (which it had not accepted had occurred) was justified. The Court (Henderson LJ with whom the Chancellor and Davies LJ agreed) dismissed his appeal. Continue reading
Court of Appeal: Peter Jackson, Asplin and Nicola Davies LJJ,  EWCA Civ 1390,  IRLR 993, 24 September 2021
This was an appeal from the decision reported previously in this blog. The claimant was an independent fostering agency which sought to recruit (exclusively) evangelical Christian foster carers whose conduct was consistent with “traditional Biblical Christian” standards of behaviour, which did not include same-sex sex. The High Court rejected its challenge to an Ofsted report which found that its policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the EqA 2010 and the HRA 1998, ruling that the policy discriminated unlawfully on grounds of sexual orientation and was not saved by s193 EqA (see further below) or, because it provided services on behalf of a public authority, by para 2 of Sch 23. It required that Cornerstone alter the policy. Cornerstone was granted permission to appeal the High Court’s ruling on direct and indirect sexual orientation discrimination under the EqA and on the application of s193 EqA, though not on on the application of para 2 of Sch 23. It was also permitted to appeal the High Court’s findings that that Cornerstone had breached prospective foster carers’ Convention rights, and that Ofsted had not breached Cornerstone’s Convention rights.
The appeal was dismissed on all grounds. (Peter Jackson LJ, with whom Asplin and Nicola Davies LJJ agreed, ruled that Cornerstone’s recruitment policy involved direct sexual orientation discrimination and was disproportionate to the aims pursued, this with the effect that the statutory defence did not apply, the discrimination by Cornerstone breached foster carers’ rights under Article 14 and 8 and Ofsted had not breached cornerstone’s rights under Article 9 ECHR. Continue reading
EAT: Choudhury P, UKEAT/0220/19/LA,  IRLR 729, 22 June 2021
The EAT allowed an appeal against a tribunal’s rejection of an indirect sex discrimination claim from the claimant, a community nurse who was dismissed because she was unable to comply with a forced move to flexible working, including at weekends, because of her caring responsibilities for her three children, two of whom are disabled. The appeal, brought on multiple grounds, and succeeded on the basis that the tribunal had erred in limiting the pool for comparison to the team in which the Claimant worked, whereas it should logically have considered all community nurses across the Trust. Further, and of particular interest, Choudhury P ruled that the tribunal had erred in deciding that there was no evidence of the group disadvantage necessary for an indirect discrimination claim because it had failed to take judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. Continue reading
EAT: Choudhury P, Mr C Edwards and Mrs MV McArthur) UKEAT/0105/20/JOJ,  IRLR 706, 10 June 2021
The EAT allowed the claimant’s appeal against a finding of the employment tribunal (Employment Judge Tayler) that the claimant’s “gender critical” views fell outwith the protection afforded by the EqA to “belief”. The EAT ruled that the tribunal had misapplied the test in Grainger plc v Nicholson (2009) the fifth element of which (which concerned whether a belief was worthy of respect in a democratic society) imposed a very low threshold which served to exclude from protection only those beliefs which would excluded from the protection of Articles 9 and/or 10 ECHR by Article 17 thereof. Continue reading
EAT (HHJ Tayler), UKEAT/0197/20,  IRLR 880, 9 April 2021
This is a case in which the EAT ruled that a tribunal had erred in deciding that the claimant, who had a diagnosis of Asperger’s Syndrome, was not disabled for the purposes of the EqA. It is an important reminder of the relatively modest threshold imposed by the statutory requirement that an impairment be “substantial”, as well as of the correct approach to the identification of disability for the purpose of the Equality Act 2010. Continue reading
Supreme Court: Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lady Arden and Lord Leggatt JJSC,  UKSC 10,  ICR 786, 26 March 2021
This is the latest in a series of cases in which the UK’s highest court has had to consider whether a group of women employees are entitled to compare themselves with a group of male employees working for the same employer but employed in a different establishment. Continue reading