1/ Wisbey v Met Police: Is the EqA's requirement in an unintentional indirect discrimination case to consider recommendations & declarations before compensation incompatible with EU law? No, says the CA. bailii.org/ew/cases/EWCA/…#ukemplaw
2/ The claim arose from the removal of a firearms officer from firearms and driving duties on finding he had a form of colourblindness. Statistically 8% of men but just 0.25% of women suffer from this affliction.
3/ As a result of the difference in incidence among men & women, W brought an indirect sex discrimination claim based on a PCP to pass certain colour vision tests to remain authorised for firearms & advanced driving duties.
4/ The ET dismissed the firearms claim (on proportionality grounds) but allowed the driving claim. It declined to award compensation for injury to feelings, finding the discrimination unintentional.
5/ The question on appeal was whether this application of s.124(4)-(5) EqA was incompatible with the Recast Directive, Charter of Fundamental Rights & ECHR on grounds that they impose an additional hurdle before consideration is given to awarding compensation.
6/ Arguments focused on the requirement for an effective remedy & the need for remedies against findings of discrimination to be both dissuasive & proportionate under EU law & the Convention.
7/ W also argued that given the arguments accepted in Unison about women being particularly affected by hurdles to bringing discrimination claims, an additional hurdle to an EqA claim as against an unfair dismissal claim was discriminatory against women.
8/ In dismissing the appeal, the CA noted that the original position under the SDA & RRA was that there would be no compensation for unintentional indirect discrimination, whereas the EqA allowed for it but after looking 1st at other remedies.
9/ The CA noted that the EqA remedies were not mutually exclusive but could all be made in the same case. None ordinarily has priority over the others. Whilst s.124(4)-(5) prioritises the order of consideration, it doesn't steer tribunals from awarding compensation.
10/ There is no restriction on ordering compensation once the other 2 remedies have been considered. The statutory provisions are no obstacle to a compensatory award. The provision of the option of compensation remains real and effective.
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🧵SSBT v Mercer: Supreme Court issues declaration of incompatibility re the lack of protection from sanction short of dismissal for workers taking part in strike action. The current position breaches Art 11 ECHR.
2/ M was a support worker in the care sector & a UNISON workplace rep, who planned & participated in a lawful strike at her workplace. She was suspended, receiving normal pay but no overtime. Suspension removed her from the workplace during the period of industrial action.
3/ M was also given a first written warning, though that was overturned on appeal.
M brought an ET claim reliant on s.146 TULR(C)A, which provides protection against detriments for taking part in trade union activities. The statutory provisions are below:
🧵 R (TTT) v Michaela Community Schools Trust - High Ct finds it was neither a breach of Art 9 nor indirectly discriminatory for the school to prohibit prayer rituals in response to Muslim pupils seeking to pray during their lunch break.
2/ The facts of this case will be familiar. Michaela is the school run by Katherine Birbalsingh, which has superb results but some incredibly strict rules & practices, including restricting discussion topics & limiting break time socialisation to groups of 4.
3/ The school, which is 50% Muslim, places considerable stock not only in its disciplinary regime, but also in what it calls its Team Ethos by which it seeks 'aggressively' to promote integration and to disrupt separation.
🧵Mathur v HMRC: UT (Tax & Chancery) decides to broadly construe s.401 ITEPA so that a settlement including for claims re dismissal but also re unrelated pre-termination discrim is taxable where the trigger for bringing the claim is dismissal.
2/ M worked for Deutsche Bank. Her employment was ended when the bank entered settlement with the New York State Dept of Financial Services re manipulation of interbank offered rates. DFS ordered the bank to terminate 7 employees, including M, said to be complicit in misconduct.
3/ She was offered c.£80k in a draft settlement agreement for that termination but declined to accept. Instead she brought ET proceedings for an equal pay claim, harassment, direct sex discrim, victimisation, s.47B & s.103A claims & ordinary unfair dismissal.
🧵The Supreme Court's judgment in Tui Ltd v Griffiths is one of those rare non-employment law cases that all employment lawyers (& all other civil practitioners) really must read.
It's about whether you can impugn a witness without putting the point in XX. supremecourt.uk/cases/docs/uks…
2/ The case concerned the court's treatment of an expert report prayed in aid of a claim by Mr Griffiths for the serious stomach upset & longer term stomach problems he suffered following an all-inclusive Tui package holiday at a Turkish resort.
3/ Mr G relied on an expert report from a microbiologist, Prof P. Tui didn't rely on any expert report (they sought unsuccessfully to apply to rely on one at too late a stage) & called no witnesses to give evidence. They didn't require Prof P to attend court to be cross-examined.
🧵Garcha-Singh v BA: It wasn't unfair for BA to repeatedly extend the termination date in a medical incapacity dismissal - it was to G's advantage. There was also no need to provide an appeal against the final refusal to extend that date.
2/ G worked as long haul cabin crew. He was off for a year, 1st for physical health reasons & then stress reasons, at which point his employment was terminated with a little more than 4 months' notice.
3/ During the notice period. G returned to work, performing some duties albeit not his contractual role. BA decided to extend his notice period to allow him to demonstrate an ability to sustain a full flying roster, implying that if he did so the termination might not go ahead.
🧵Jackson v Uni Hospitals of North Midlands: EAT holds ET erred in law in finding a Hogg v Dover dismissal wasn't a Hogg v Dover dismissal. The EAT clarified that there's no special repudiatory breach threshold for a Hogg v Dover dismissal.
2/ J was a specialist research nurse, entitled to 4 weeks' notice of termination. In a restructure, she was placed in a lower grade research practitioner role, against her will (she'd refused to sign T&Cs). Those deciding on this hadn't appreciated this was a redundancy situation
3/ Because of that, J hadn't been offered a trial period in the new role, nor redundancy on enhanced contractual terms, which is what she sought. The contractual terms provided for a loss of enhancement if a person left their job prior to expiry of notice.