Discrimination

While the lack of interim relief for discriminatory dismissals does not breach EU law, it does violate the European Convention on Human Rights.

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.

A refusal to accept that trans women are women is not a protected ‘philosophical belief’ under the Equality Act.

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.