Discrimination

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.

A disabled employee who had reduced his hours from full time to part time before taking ill-health retirement had not been treated ‘unfavourably’ when an element of his pension benefits was calculated by reference to his part-time salary at the date of retirement.

A promotion or change in role within the same organisation will not necessarily amount to a ‘radical’, ‘fundamental’ or ‘significant’ change so as to break a ‘stable working relationship’ for the purposes of calculating time limits for an equal pay claim.

The requirement for a part-time worker to be available for work on proportionately more days than a full-time worker was less favourable treatment. In deciding whether such treatment is legally justified, tribunals should consider statistical evidence.

A bakery did not discriminate against a gay man on the grounds of his sexual orientation or political belief when it refused to supply a cake with a message on it supporting gay marriage.

A flawed ill-health retirement process will not, by itself, amount to direct disability discrimination or discrimination arising from disability.

An employee will be protected from victimisation if they wrongly but honestly believed the allegations they made to be true, even if they had an ulterior motive for making those allegations.

Taking a flexible and individualised approach to reducing sick pay for a disabled employee will help employers make out a justification defence to a disability discrimination claim.

An employer did not discriminate when it dismissed an employee who refused to sign a copyright agreement because she held a ‘philosophical belief’ that she should own the rights to her work.

A disabled employee who was disciplined for 60 days’ absence over a 12-month period was discriminated against because her absence arose from her disability and her employer had failed to establish that its action was a proportionate response to her absence.

Where an employer dismisses a disabled employee for misconduct caused by his or her disability, the dismissal can amount to unfavourable treatment because of something ‘arising from disability’ - even if the employer did not know that the disability caused the misconduct.

The context of unwanted conduct is important when deciding whether the conduct is ‘related to’ a protected characteristic.

A diagnosis of cancer in situ (i.e. a pre-cancerous condition which is present but not yet at an invasive stage) is still a deemed ‘disability’ under the Equality Act.

An expectation or assumption that someone will work late may be sufficient to amount to a ‘provision, criterion or practice’ (PCP) for the purposes of a claim of failure to make reasonable adjustments in disability discrimination.

High Street retailer liable for substantial award for discriminating against a transgender employee.

While an employer hadn’t explored every conceivable avenue, it had done enough to avoid a finding that it had constructive knowledge of an employee’s disability and thus be liable for having to make reasonable adjustments.

Absence management policies which dismiss disabled employees for intermittent absences must be objectively justified.

A police officer, who was turned down for a transfer because her hearing loss was marginally below the medical standard for police recruitment, had suffered direct discrimination because of a perceived disability.

The Court of Appeal has restored what until recently was seen to be the orthodox approach to proving discrimination, i.e. the burden of making out a prima facie case remains on a claimant.

In a radical departure from accepted wisdom and practice, the EAT has held that employees don’t have to establish a prima facie case of discrimination before the burden of proof ‘shifts’ to the employer.