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

Royal Mail Group Ltd v Efobi

Supreme Court, [2021] UKSC 33, [2021] 1 WLR 3863, 23 July 2021

Lord Hodge, DP, Lord Briggs, Lady Arden, Lords Hamblen and Leggatt

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. 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

Tabidi v BBC

Court of Appeal: Underhill VP, McCombe LJ, and Morgan J, [2020] EWCA Civ 733, 11 June 2020

The requirement for a real or hypothetical comparator in direct discrimination cases has given rise to difficulties in judicial analysis, particularly in the context of pregnancy (see the saga which started with the decision of the EAT in Turley v Alders Dept Store [1980] ICR 66, continued through that of the EAT in Hayes v Malleable Working Men’s Club [1985] ICR 703 and culminated in the decision of the House of Lords in Webb v EMO (No 2) [1995] ICR 1021).Matters improved significantly with the decision of the House of Lords in Shamoon v CC RUC [2003] ICR 337 in which Lord Nicholls pointed out that the purpose of the comparator was not to create an additional arbitrary hurdle for the discrimination claimant, rather to assist in determining whether the claimant’s relevant protected characteristic was the reason for the treatment complained of. The Court of Appeal has recently repeated this lesson in the Tabadi case in which an employment tribunal, having decided that the claimant’s sex was not the reason for the treatment of which he complained, did not then proceed to consider how a hypothetical comparator would have been treated. Continue reading