Equality, diversity and human rights
Twenty-eight years after its birth, TUPE still raises thorny questions. Its complexity is evidenced by the number of groundbreaking tribunal cases which have come to the fore recently, many of which could have far-reaching ramifications at a time of economic instability, writes Lesley Murphy.
In London Borough of Islington v Ladele EAT/0453/08, the EAT overturned the employment tribunal decision that a Christian registrar who was disciplined for refusing to undertake civil partnership duties was subjected to religious discrimination.
In English v Thomas Sanderson Blinds [2008] EWCA Civ 1421 CA, the Court of Appeal held that alleged homophobic abuse towards a man who is not gay, and aware that the perpetrators did not believe him to be gay, amounts to harassment on the grounds of sexual orientation.
The Employment Appeal Tribunal has held that an employment tribunal was not wrong to hold that a claim was out of time and there was no continuing act of discrimination. Nor was it wrong not to exercise its discretion to hear the claim on just and equitable grounds.
In Eweida v British Airways plc EAT/0123/08, the EAT held that a uniform policy that prohibited visible items of jewellery, unless worn in pursuance of a mandatory scriptural requirement, did not indirectly discriminate against a Christian employee who wished to display a cross over her uniform.
In Live Nation Venues (UK) Ltd v Hussain and other appeals EAT/0234/08, EAT/0235/08 & EAT/0236/08, the EAT held that the fact that the employer's decision to dismiss was influenced by the employee's perceived difficulty in being managed by two younger female colleagues did not give rise to an inference that the dismissal was on grounds of the employee's age.
In Saini v All Saints Haque Centre and others EAT/0227/08, the EAT held that, where a tribunal found on the facts that the employer had mistreated an employee in order to target his colleague on the grounds of the latter's religion, the tribunal erred in finding that the mistreatment was not unlawful because it was not based on the employee's own religion.
In Chagger v Abbey National plc and another EAT/0606/07, the EAT held that a claim of discrimination on grounds of skin colour inevitably involves a complaint of discrimination on the grounds of race or ethnic origin, thus engaging s.54A of the Race Relations Act 1976. In addition, allowing an appeal against an award of around £2.8 million compensation, the EAT held that the tribunal should have considered a Polkey-type question in relation to loss of earnings, and that recoverable loss should be limited to that flowing from loss of employment with the discriminator.
In Rolls-Royce v Unite [2008] EWHC 2420 HC, the High Court held that two collective agreements that set out an approach to redundancy giving points for length of service in the selection process were lawful under the age discrimination legislation.
The Court of Appeal has held that paying bonuses to employees who worked night shifts did not constitute sex discrimination.
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