1/ Dobson v North Cumbria Integrated Care - In a flexible working requirement discrim claim, the EAT usefully reminds that judicial notice can be taken of the fact that childcare responsibility renders it less likely women can be flexible in hours worked than men. #ukemplaw
2/ D worked for NCIC NHS Trust as a community nurse. She has 3 children, 2 disabled. She worked 2 consistent days a week, but then NCIC required community nurses to change to work flexibly including occasional working weekends.
3/ NCIC's response was to fire & seek to re-engage D on the new terms. D didn't accept them & thus her employment terminated. She brought unfair dismissal, victimisation & indirect sex discrimination claims, but it's the latter we're mainly interested in for the appeal.
4/ A quick word though on the unfair dismissal claim - the ET found NCIC had acted reasonably as the service need required greater flexibility & the employer did what they could to provide reasonable alternatives such as limit when D would work non-standard days & maximise notice
5/ In looking for particular disadvantage, the ET found the PCP of flexible work applied to men & women in D's team & that only D couldn't meet the requirement thus whilst there was individual disadvantage, group disadvantage wasn't proven. Had it been, justification was made out
6/ Grounds of appeal centred on errors in forming the comparative pool, lack of judicial notice of disadvantage to women by flexible working requirements, failure to consider a hypothetical comparison, flawed reasons on justification & consequent error re unfair dismissal.
7/ On the pool, the EAT relied on Lady Hale's guidance in Essop that generally you identify all those affected by the PCP & that then forms your pool. The PCP was applied to all community nurses across the trust, not just in D's team, & thus all community nurses made up the pool.
8/ On the question of burden of proof of particular disadvantage, the EAT noted from Homer & Essop that statistical proof wasn't essential - particular disadvantage could be shown in its absence.
9/ 1 way of proving particular disadvantage absent statistical evidence is through judicial notice. The President derived from Phipson on Evidence two categories of judicial notice: (i) facts so notorious as to be accepted without further enquiry; (ii) facts noticed after inquiry
10/ For category (i), the court must take judicial notice, whilst category (ii) is a matter of discretion. The burden is on a claimant to convince a judge that a matter falls within category (i). A court should give notice to the parties before relying on stereotypical assumption
11/ Plenty of authorities accepted the childcare disparity, & hence it fell into category (i). Whilst male childcare responsibility has progressed, the position remains far from equal. If the childcare disparity is put in issue, the ET must take judicial notice of it.
12/ Even if judicial notice is taken of the childcare disparity, to find group disadvantage the ET needs to consider the interrelationship between that disparity & the PCP. The judicial notice doesn't invariably mean the disadvantage is made out.
13/ Here though disadvantage was made out in light of NCIC's expectations. NCIC sought on individual disadvantage to argue that giving D notice meant her difficulties weren't insurmountable, but the EAT found impossibility to overcome disadvantage isn't necessary.
14/ Sweeping up other EqA issues, the EAT held the ET had considered the hypothetical comparison but had also confined that to D's team rather than all community nurses in the trust. Justification had to be revisited as it needed to be considered against the correct pool.
15/ Finally on unfair dismissal, whilst it's not necessarily the case that a discriminatory dismissal is unfair (see Grosset), the ET needed to revisit the point in light of the errors made on the EqA decision. It was possible the outcome would not be different.
16/ If you've read the whole thread to find a link to the judgment, I'd best not disappoint. Here it is:
🧵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.