Discrimination

Religious discrimination and dress bans

A ban on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not amount to direct discrimination under EU law, provided that such a rule is applied in a general and unconditional way.

Indirect discrimination and the 'childcare disparity'

Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours.

Interim relief and discrimination claims

The power to grant an interim relief order is not available in discrimination claims.

Philosophical belief discrimination and transgender issues

‘Gender-critical’ beliefs, including a belief that biological sex is real, important, immutable and not to be conflated with gender identity, are protected under the Equality Act and the European Convention on Human Rights.

Equal pay: comparisons based on EU law

The treaty which forms the basis of the right to equal pay in European law has direct effect in respect of claims where work is said to be of equal value, and not merely in respect of other instances of ‘equal work’ under UK legislation (i.e. like work or work rated as equivalent). It therefore can be invoked in legal proceedings between individuals directly.

Determining 'disability'

When considering whether an impairment has a substantial effect on someone’s ability to carry out day-to-day activities, it’s the statutory definition of ‘substantial’ which should be the focus and not the gloss on it provided in the statutory guidance.

Equal pay and comparability of pay terms

For the purposes of equal pay law, two distinct parts of a workforce (here female shop floor workers and higher-paid male distribution centre workers) can compare their pay, even if they are located at different sites, in different parts of the organisation/group, and with very different pay arrangements/management structures.

Defending discrimination - 'all reasonable steps'

When considering an employer’s defence that it took ‘all reasonable steps’ to prevent an employee discriminating against another employee, it is legitimate to consider how effective the steps that have been taken were likely to be when they were taken and how effective they have proved to be in practice.

Protected acts: specificity of alleged discrimination

An employee’s comment in a written grievance that her employer’s actions ‘may amount to discrimination’ was insufficient to amount to a protected act under the Equality Act for the purposes of her victimisation claim.

Agency workers' rights: EAT clarifies various aspects

The EAT has clarified the scope of certain rights under the Agency Workers Regulations 2010, principally the right to be informed of vacancies (reg.13) and the right to the same basic working conditions as directly employed hires (reg. 5).

Cost considerations and justifying indirect discrimination

While saving costs can never of itself justify indirect discrimination, a need to reduce expenditure to live within budgetary constraints can be a legitimate aim for the purposes of justifying indirect discrimination.

Whistleblowing time limits: one-off act or continuing act?

A change to or the imposition of a new employment contract is a one-off event with continuing consequences - not a continuing act for the purposes of bringing a whistleblowing detriment claim. Also, the tribunal should have considered an uplift in compensation because of a failure to follow the ACAS code of practice as the making of a protected disclosure was a grievance.

Gender reassignment: gender fluid/non-binary employees

A gender fluid/non-binary employee was covered by the definition of gender reassignment in the Equality Act 2010.

Paranoid delusions and disability

An employee who suffered paranoid delusions was not disabled because although these had a substantial adverse effect, they were not long term or likely to recur.

Equal pay: duration of the material factor defence

A ‘material factor’ defence continues to operate until a new pay decision.

Causation and discrimination arising from disability

For a claim under s. 15 of the Equality Act  a claimant cannot argue that ‘but for’ their disability they would not have been put in a situation that led to unfavourable treatment – rather the focus is on the reasons for the treatment itself.

Employer undertaking as a reasonable adjustment

Giving an undertaking not to make an employee work with those she claimed had bullied and harassed her, or to offer her a severance package if this wasn’t feasible, was a reasonable adjustment.

Objective justification of discrimination arising from disability

In assessing justification where discrimination arising from disability is concerned, it’s the balance between the employer’s needs and the discriminatory impact on the employee that is relevant, not the process by which the employer settled on the unfavourable treatment.

Homophobic comments in media interview contravened Equal Treatment Directive

A lawyer’s statement in a radio interview that he’d never recruit a homosexual person for his firm was covered by the EU Equal Treatment Directive, even if no recruitment procedure was in existence at the time such a statement was made.

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