Discrimination

Discrimination and 'gender critical' philosophical belief

A barristers’ chambers discriminated against a barrister due to her protected belief that a woman is defined by her sex (a ‘gender critical’ belief).

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.

Philosophical belief: employee's refusal to use preferred pronouns in the workplace

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.

Justifying discrimination arising from disability

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.

COVID-19: long COVID and disability

An employee with long COVID symptoms was ‘disabled’ for the purposes of the Equality Act 2010.

Reasonable adjustments and fairness of dismissal

A failure to make reasonable adjustments as part of a dismissal process doesn’t mean that the dismissal itself is necessarily unfair.

Menopause and harassment

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.

COVID-19: philosophical belief

An employee’s fear of catching COVID-19 did not amount to a protected philosophical belief under the Equality Act.

Associative indirect discrimination: returning to work full time

An employee who cared for her disabled mother was indirectly discriminated against on the grounds of disability, despite not having a disability herself.

Reasonable adjustments and pay protection

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.

Discrimination and the burden of proof

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.

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.

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.

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