Employment and Equality experts, Jones Cassidy Jones, have agreed to write a quarterly report on equality law developments that will impact in Northern Ireland and beyond.

In this quarterly review we have selected some interesting recent cases on anti-discrimination law which we believe will be of interest to Legal-Island readers.

a) Birmingham City Council v Abdulla and others (2012) UKSC 47
b) Atkins v Odyssey Care (2012) (ET/2371356/11)
c) Weeks v Newham College of Further Education [2012] UKEAT 0630/11/ZT
d) Seldon v Clarkson Wright & Jakes (a partnership) [2012] UKSC 16

a) TIME LIMITS FOR EQUAL PAY CLAIMS

The decision in the case of Birmingham City Council v Abdulla and others (2012) UKSC 47 SC considered the approach that civil courts should take when deciding whether or not to strike out equal pay claims which are time barred from being heard in an employment tribunal.

In this case several hundred claimants were pursuing equal pay claims against Birmingham City Council. On realising that their claims would be time barred in the employment tribunal, the claimants lodged their claims in the civil courts within the six year limitation period. In its defence of the claims, the Council argued that the claims should be struck out on the basis that they could be more conveniently disposed of by an employment tribunal due to its expertise in handling equal pay claims. Both the High Court and Court of Appeal rejected the Council’s argument.

The Supreme Court dismissed the Council’s appeal. It was clear that the present claims could not be more conveniently disposed of by an employment tribunal as they were time barred from being heard there.

Civil Courts have retained their discretion when deciding whether or not to strike out an equal pay claim which is time-barred and cannot be heard in an employment tribunal.

The Supreme Court commented that it was unsatisfactory that the current equal pay legislation does not allow employment tribunals to extend the six month time limit. This judgement will see more claims for equal pay being brought in the Civil Courts where the six year time limit applies.

The full transcript of the Supreme Court’s decision can be found at:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKSC/2012/47.html&query=abdulla&method=boolean

b) SEX DISCRIMINATION AND RACE DISCRIMINATION

In the case of Atkins v Odyssey Care (ET/2371356/11) the Claimant worked as a residential care officer. The employer was found to have discriminated against her when it refused to allow her grievance appeal to go ahead on the basis that too much delay had been caused by the employee’s maternity leave.

In the same case, the employee claimed that she had been subjected to race discrimination when she was asked to transfer to a different location on her return to work. This was found to amount to a detriment. The Tribunal found that this was because the decision to transfer her was based on the belief that the Claimant had been found guilty of racism when she had not.

c) SEXUAL HARASSMENT

In the case of Weeks v Newham College of Further Education (EAT) a male employee distributed an offensive cartoon resulting in a claim of sexual harassment being lodged by the Claimant.

The Tribunal and the Employment Appeal Tribunal both agreed that although this was capable of amounting to sexual harassment, it did not do so.

The reasoning behind this was that infrequent inappropriate comments had also been made by the same employee who had distributed the cartoon, they were not made at the Claimant and she had not complained about them. In this particular context, even through the behaviour was considered to be inappropriate, it was found not to amount to sexual harassment as it had nothing to do with the Claimant’s sex.

The full transcript of this case can be found at:
http://www.employmentappeals.gov.uk/Public/Upload/11_0630fhwwSBZT.doc

d) AGE DISCRIMINATION

The case of Seldon v Clarkson Wright & Jakes (a partnership) 2012 is of interest as it looks at justification and direct age discrimination. In this case Mr Seldon was a solicitor who was an equity partner. The most recent partnership deed provided for the mandatory retirement of a partner at the end of the year in which they became 65. Mr Seldon proposed that he would work in the capacity of a consultant or salaried employee for a further three years upon reaching the age of 65. The firm rejected both of these options but instead offered £30,000 as an ex gratia payment in light of Mr Seldon’s long service. The ex-gratia payment was withdrawn when Mr Seldon indicated that he was seeking legal advice.

Mr Seldon issued proceedings for direct age discrimination when he retired and also for victimisation for the withdrawal of the ex-gratia payment.

The Supreme Court held that direct age discrimination must be justified by aims which are consistent with the public interest factors referred to in Article 6(1)g of the Equal Treatment Framework Directive.

The full transcript of this case can be found at:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKSC/2012/16.html&query=seldon&method=boolean

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Legal-Island would like to thank Alison Collins, Jones Cassidy Jones Solicitors, for the main content of this email.

Contact:

Email: ACollins@jcjsolicitors.co.uk
Telephone No: +44 (0)28 90642290: Fax No: +44 (0)28 90642297.
Address: 220 Ormeau Road, Belfast, BT7 2FY

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Keep an eye on the Legal-Island events pages for future additions and developments:
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Legal-Island
13 November 2012

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