An employer treated an employee unfavourably because of something arising from her disability of menopause and failed to make reasonable adjustments.
Discrimination
An employer’s failure fully to enquire into a dyspraxic job applicant’s needs when he was applying online led to a finding of disability discrimination for failure to make reasonable adjustments.
Only unwanted conduct of which a claimant is aware can be taken into account in a claim for harassment.
‘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.
Employers cannot discipline an employee for manifesting a protected belief because someone else may be offended - unless they have also considered whether the action is both necessary and proportionate.
A decision to dismiss based on tainted information given by a line manager to the dismissing manager could not make the dismissal discriminatory unless the dismissing manager was motivated by the relevant protected characteristic (here pregnancy).
A disabled employee’s dismissal was not discrimination arising from a disability because it was a proportionate means of achieving the employer’s legitimate aim of maintaining good staff attendance.
A director who was dismissed while divorcing her husband, a director at the same company, was not subjected to marital discrimination.
It was not a reasonable adjustment simply to slot a disabled employee into a new structure as part of a redundancy exercise.
A barristers’ chambers discriminated against a barrister due to her protected belief that a woman is defined by her sex (a ‘gender critical’ belief).
An employee’s belief that a person cannot change their sex/gender at will, and his lack of belief in ‘transgenderism’, were protected under the Equality Act 2010. However, a tribunal had correctly held that his employer’s response to his refusal to use transgender service users’ preferred pronouns was not direct or indirect discrimination or harassment.
A failure to give a disabled employee a reasonable trial in a role at a different location meant that the employer could not show that her dismissal was objectively justified.
An employee with long COVID symptoms was ‘disabled’ for the purposes of the Equality Act 2010.
A failure to make reasonable adjustments as part of a dismissal process doesn’t mean that the dismissal itself is necessarily unfair.
An employer’s derogatory and inappropriate remarks about a female employee’s age, in particular that she might be menopausal or be experiencing stereotypical menopausal symptoms, amounted to harassment on the grounds of sex and age.
An employee’s fear of catching COVID-19 did not amount to a protected philosophical belief under the Equality Act.
An employee who cared for her disabled mother was indirectly discriminated against on the grounds of disability, despite not having a disability herself.
It was not a reasonable adjustment to continue to pay an employee their previous higher rate of pay after being moved to a lower-paid role because of their disability.
The burden of proof remains on a claimant in a discrimination case to prove, on the balance of probabilities, facts from which (absent any other explanation) a tribunal could infer that an unlawful act of discrimination had taken place. The change in wording to the balance of proof provisions in the Equality Act 2010 did not introduce a substantive change to the law.
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.
Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours.
The power to grant an interim relief order is not available in discrimination claims.
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.
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.
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.
The removal of a non-executive director from his post after he spoke to the press expressing disapproval for same-sex couple adoption was not discrimination on the grounds of religion.
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.
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.
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).
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.
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.
A gender fluid/non-binary employee was covered by the definition of gender reassignment in the Equality Act 2010.
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.
A ‘material factor’ defence continues to operate until a new pay decision.
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.
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.
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.
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.
For a one-off act to amount to a ‘provision, criterion or practice’ in a discrimination claim, there must be some indication of consistency in how similar cases are generally treated or how they would be treated in the future.
In a disability discrimination claim the existence of a disability must be established at the date of each discriminatory act upon which a claimant relies.
Ethical veganism’ can be a ‘philosophical belief’ and therefore protected in law.
Where someone has been dismissed and then subsequently reinstated, this does not prevent them from subsequently bringing a detriment claim under the Equality Act.
Lying about the reason for dismissal and later amending one’s defence to include the true reason is likely to shift the burden of proof in a discrimination case.
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.
Vegetarianism is a ‘lifestyle choice’ and, as such, not a belief which qualifies for protection under the Equality Act.
Whether an adverse effect is ‘long term’ must be judged at the time of the discriminatory act and is not something to be determined with hindsight.
An employer did not have constructive knowledge of an employee’s disability where the employee hid her disability and would have continued to hide it on further inquiry.
The posting of a racially offensive image via a personal Facebook account was not done ‘in the course of employment’ and was therefore not an action for which the employer could be vicariously liable.
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.
An employer had not simply ‘rubber-stamped’ an occupational health report where the report dealt with the issue of disability in detail and there was no other evidence on which the employer could rely.
Continuing with tribunal proceedings is as much a protected act as bringing proceedings in the first place.
The Equality Act 2010 excludes an impairment of vision where ‘in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed’. ‘Correctable’ is a practical question which must consider not only whether the impairment was corrected but whether there are unacceptable adverse consequences.
A tribunal has made a 25% uplift to an employee’s award following her former employer’s failure to deal with a post-termination grievance.
An employer’s decision to withdraw the offer of an overseas posting to a severely disabled employee because of its medical concerns was not disability discrimination.
Knowledge of an employee’s disability could have been acquired during an appeal against dismissal.
The adverse treatment of a gay head teacher amounted to constructive dismissal and sexual orientation discrimination.
The disciplining of an employee for refusal to obey a lawful instruction (due to a mistaken belief it would impact on her disability) was not unfavourable treatment due to something arising from a disability.
Sending an important letter about redundancies to a woman on maternity leave to a work email account which she could not access could be unfavourable treatment under the Equality Act. But whether it was also maternity discrimination depends upon the reasons why that treatment occurred.
EAT clarifies how to interpret ‘long term’ for the purpose of the definition of disability.
The dismissal of a teacher at an ultra-orthodox Jewish nursery who refused to lie about living with her boyfriend was not discrimination on the grounds of religion or belief.
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.
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.
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.
Talbot v Costain Oil Gas & Process Ltd
When drawing inferences of discrimination, it’s the overall picture which is important.
Government Legal Service v Brookes
Requiring a job applicant with Asperger’s syndrome to complete an online multiple-choice psychometric test was indirectly discriminatory.
Essop v Home Office; Naeem v Secretary of State for Justice
This latest decision from the Supreme Court clarifies the precise legal test to be used and particularly whether a claimant needs to establish the reason why the treatment they received discriminated against them.
Achbita v G4S Secure Solutions; Bougnaoui v Micropole SA
Sometimes, says the European Court of Justice (ECJ). However, one thing the decisions have definitely not done is given the green light to any employer to ban headscarves in the workplace.
Gareddu v London Underground
An employer did not indirectly discriminate (on the grounds of religion or belief) against one of its employees when it refused him permission to take five weeks’ holiday to attend religious festivals with his family.
Herry v Dudley Metropolitan Borough Council
Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by a tribunal) are not of themselves mental impairments. They may simply reflect a person’s character or personality and are ‘reactions to adverse circumstances’.