Warburton v Chief Constable of Northamptonshire Police

EAT; Griffiths J, [2022] EAT 42, 14 March 2022

The EAT ruled that a tribunal had applied the wrong approach to victimisation when it dismissed the claimant’s complaint against the respondent. Continue reading

Ali v Heathrow Express Operating Company Ltd & Anor

EAT, Judge Auerbach, Mr D Bleiman and Miss S Wilson CBE, [2022] EAT 54, 7 April 2022

This decision is a reminder that, where unwanted conduct related to a protected characteristic is not intended to offend, intimidate, etc, an objective test applies to the question whether conduct amounts to harassment. Continue reading

Judd v Cabinet Office

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her disability (s15 EqA), or denied reasonable adjustments (s20(3) EqA) when an offer of a secondment in Montenegro was withdrawn on health grounds.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

Rooney v Leicester City Council

EAT: HHJ Tayler, EA-2020–000070-DA, EA-2021–000256-DA, [2022] 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

Dobson v North Cumbria Integrated Care NHS Foundation Trust & Anor

EAT: Choudhury P, UKEAT/0220/19/LA, [2021] 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

Forstater v CGD Europe & Ors

EAT: Choudhury P, Mr C Edwards and Mrs MV McArthur) UKEAT/0105/20/JOJ, [2021] 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

Elliott v Dorset County Council

EAT (HHJ Tayler), UKEAT/0197/20, [2021] 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

Price v Powys County Council

EAT (Choudhury J, Ms K Bilgan and Miss S Wilson CBE), UKEAT/0133/20/LA, 31 March 2021

Here the EAT rejected a claim that an employer had discriminated unlawfully on grounds of sex by permitting the claimant, the father of a recently born child, the equivalent of statutory maternity pay only if he were to take 37 weeks’ Shared Parental Leave (as was his statutory entitlement) whereas a woman who took maternity leave (or who took adoptive leave) would have been entitled to six weeks’ payment at 90% of average weekly earnings followed by 12 weeks at half pay plus statutory maternity pay and 21 weeks’ statutory maternity pay. Continue reading

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

EAT: Eady J, Mr D G Smith, Dr G Smith MBE EA-2019-000638-RN, EA-2020-000128-RN, 27 September 2021

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

Martin v City and County of Swansea

EAT: HHJ Tayler, UKEAT/0253/20/AT, 29 July 2021

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