Sex Discrimination - Burden of proof
The Appellant sought to appeal against 3 case management orders made in the course of protracted litigation between her and her ex-employers in which she claims unfair dismissal, sex discrimination and breach of contract. At the core of her claim is the complaint that, after she transitioned to a female role and then underwent gender reassignment surgery, the Respondents ceased to allocated her to jobs as they had done before and dismissed her for sham redundancy. The Court of Appeal held that t ...
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Appeal against findings of sex, race and victimisation discrimination. The EAT held that there was a firm evidential basis for the findings of sex and victimisation discrimination, but that the Employment Tribunal erred in its approach to the question of race discrimination. Since there was no evidence which could possibly justify that inference referred to in the decision, the EAT substituted a finding that there had been no such discrimination.
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Statutory Dismissal Procedure: In Homeserve v Dixon, the EAT held that a 'step 1' letter did not need to state that the employer was contemplating dismissal provided that it was implicit within the letter that the employer was contemplating dismissal or other disciplinary action. Thus, on the facts, it was held that an employer who sent a letter inviting the Claimant to a 'formal disciplinary hearing' and complied with step 1 where the Claimant had previously been caught red handed in an act of ...
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Appeals against interim Judgments of Employment Tribunals were dismissed when the Employment Tribunal subsequently struck out the Claimant’s case and the EAT refused to allow an appeal against it. In a separate appeal, it was an abuse of the process of the EAT to consider an appeal relating to a stay, when the condition relating to the stay had been discharged.
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Age Discrimination and Article 119: In Lloyd-Briden v Worthing College, the EAT rejected the novel approach of the ECJ in Mangold v Helm. Mr. Lloyd-Briden's claim for unfair dismissal had been struck out pursuant to s.109 ERA 1996 (as it then was) because he was older than 65 when he tried to claim unfair dismissal. The EAT held that the principle in Mangold must be limited to cases where a Member State has breached part of the Directive as otherwise EU law intervenes to affect the outcome of do ...
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Unfair Dismissal: In Corus UK Ltd v Mainwaring, the EAT considered various points arising out of conduct / capability investigation where an employee was accused of malingering. The EAT held that there is no obligation on the employer to obtain a statement from the person who 'tipped off' the employer that the employee may be malingering if the employer then relies on medical / video evidence when dismissing. Further there is no obligation to seek a report on malingering from a consultant as an ...
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Employment Tribunal Chairman not entitled to issue a certificate of correction to add a new finding to the decision. The Employment Tribunal was irrational in failing, in the light of its findings of fact on one issue, to find a prima facie case of unequal treatment on grounds of sex or victimisation in relation to that specific issue.
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Practice and Procedure - Application/Claim
The Claimant’s ET1, presented during his employment, made reference to numerous complaints but did not identify sex discrimination as one of them. He had presented a formal grievance in which he had made no reference to sex discrimination. He raised the possibility of a sex discrimination case for the first time a day or so before the pre-hearing review, which decided that he had not made such a complaint and had not sought leave to amend to make it. Held (1) he had not made such a complaint (2 ...
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Appeal – Perversity challenge on finding important for remedy. Cross-Appeal – Did ET misdirect itself on burden of proof on victimisation claim.
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This case addressed the calculation of the compensatory award for a constructively dismissed employee who had gone off sick. Was the loss of earnings caused by the constructive dismissal or by the long term sickness of the employee? Distinction made between an actual dismissal where loss of earnings might not be awarded, and a constructive dismissal that covered a whole series of events that contributed to the sickness in the first place.
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