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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1/ NMC v Somerville: EAT upholds ET's decision that a member of the NMC's Fitness to Practice panel was a worker under an umbrella contract connecting individual contracts entered into each time he sat. bailii.org/uk/cases/UKEAT…#ukemplaw
2/ This appeal emanates from the same claim as that in yesterday's Somerville thread. Whilst yesterday's thread dealt with whether a holiday pay claim was brought in time, today's thread concerns a separate judgment on worker status.
3/ S was a NMC FTP committee panel member as well as an MPTS panel member. Whilst there were issues of time in the claim against the latter (see
Day 2 of Robinson v Al-Qasimi has just started with a bang, with Singh LJ suggesting the illegality defence should perhaps only bite when there is illegality in the performance of the contract rather than anything wider than that. #ukemplaw
Perhaps a chink of light for the employer on illegality (after a Day 1 where the court appeared to lean heavily against). Singh LJ raises the question whether the illegality defence necessarily loses power following a gap of time between the illegality & the basis of claim.
Moving on to the interim relief appeal, somewhat frighteningly, the CA baulk at the suggestion that the word 'likely' in the interim relief provisions of the ERA means 'pretty good chance', with Singh LJ surprised it is even as high as 'more likely than not'. #ukemplaw
2/ S was a Medical Practitioners Tribunal Service member for 4 years. His relationship with them ended on 4.4.18. His last pay slip on which he expected any payment for unpaid holiday pay was 5.3.18, he didn't contact ACAS until 30.6.18 & put in his ET1 on 20.7.18.
3/ C had been treated as self-employed. He claimed the loss of entitlements of a worker. In F&BP, he claimed entitlements under Reg 16 WTR (payment for periods of leave) but not Reg 14 (compensation for leave outstanding on termination).
Some fascinating insights in this (unsurprisingly) brilliant and thought-provoking paper on the benefits and dangers of the online publication of the employment tribunal register. #ukemplaw
2/ The authors express a particularly prescient concern about unscrupulous employers using automated screening tools to weed out job applicants who've previously brought claims - raising fascinating issues for potential victimisation & discrimination claims.
3/ Relatedly there are concerns about employers using algorithmic analysis of judgments to determine the likelihood of an applicant to take the employer to tribunal in due course. Unsurprisingly, reliance on such analysis would further entrench discriminatory hiring practices.
This really is one to look forward to. Some really interesting issues on interim relief & illegality, with top notch counsel for any practitioner or barrister wannabe to watch for advocacy tips (I think it's @jamesladdie v Heather Williams. I'll be corrected if wrong). #ukemplaw
3/ I'm not entirely sure how @jacquimcguigan does it, by the way. As a 1-woman whirlwind, she has already had Smith v Pimlico's holiday pay appeal & the glorious success in the NUPFC case in the last couple of months, & now this. Are there enough hours in the day?!
1/ Following a judgment on health & safety dismissals and a judgment on separability, the President's decision in Sinclair v Trackwork combines the 2 - a decision on separability in a health & safety dismissal context. assets.publishing.service.gov.uk/media/608983d3…
2/ S was a track maintenance supervisor, required to implement a safe system of work procedure. He was given a mandate to implement a Network Rail safety system, NR019. Trackworks didn't tell S's colleagues he'd been given this mandate.
3/ C implemented the safety system diligently, which caused friction & caused colleagues to raise concerns with management. Due to the upset & friction Trackworks decided to dismiss S. S claimed this was automatically unfair under ERA s.100(1).