Discrimination

Equal pay: 'stable working relationship' not necessarily broken by promotion

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.

Part-time workers, less favourable treatment and justification

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.

Bakers did not discriminate against gay man

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.

Ill-health retirement and disability discrimination

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

Test for 'bad faith' in victimisation claim is honesty not motivation

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.

Extending sick pay for a disabled employee

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.

Sanctity of copyright was not a protected philosophical belief

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.

Disciplining for 60 days' sickness absence was disability discrimination

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.

Discrimination 'arising from' disability and unfair dismissal

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.

Harassment related to religion - the role of context

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

'Pre-cancerous' condition was a deemed disability

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.

Expectation that employee work long hours was a PCP

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.

Transgender discrimination

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

Constructive knowledge of disability: reasonable, not perfect effort required of employer

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.

Trigger points for absence dismissal and discrimination

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

Perceived disability

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.

Proving discrimination - a return to orthodoxy

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.

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.

Burden of proving discrimination

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.

Proving discrimination

Talbot v Costain Oil Gas & Process Ltd

 

When drawing inferences of discrimination, it’s the overall picture which is important.

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