Equality, diversity and human rights
Article 141 of the EC Treaty of Rome is not limited to situations where men and women work for the same employer, but it does not cover the situation where pay differences between equal pay claimants and their comparators cannot be attributed to a single source, so that there is no single body responsible for the inequality and which can restore equal treatment, the European Court of Justice holds in Lawrence and others v Regent Office Care Ltd and others.
An employee on long-term sick leave who failed to maintain communication with his employer regarding his continued absence, and who had not provided continuous medical certificates, was lawfully dismissed so as to terminate any entitlement to benefits under the employer's permanent health insurance scheme, the Court of Appeal holds in Briscoe v Lubrizol Ltd.
In Smith v Reliance Secure Task Management Ltd t/a Reliance Monitoring Services [2002] ET/1400993/02, an employment tribunal found that the job of tagging offenders did not need to be held by a woman to preserve decency or privacy of female offenders, so there was no genuine occupational qualification defence to a claim of sex discrimination.
In Wilding v British Telecommunications plc, the Court of Appeal upholds a decision by an employment tribunal that, by refusing an offer of part-time re-employment, an employee who had been unfairly dismissed and discriminated against on the ground of his disability had thereby failed to mitigate his loss.
In Zaiwalla & Co and another v Walia the EAT holds that an employment tribunal which upheld an employee's complaint of sex discrimination was entitled to award aggravated damages of £7,500 to reflect the fact that the employer conducted its defence of the tribunal proceedings in a manner deliberately designed to be intimidatory and threatening, and to cause the maximum distress to the employee.
This month's case round up in brief.
In Yeboah v Crofton [2002] IRLR 634 CA, the Court of Appeal held that an employee can be made personally liable for acts of unlawful discrimination committed by him or her in the course of his or her employment against a fellow employee, even though the employer is held not to be legally liable for its conduct because it took reasonably practicable steps to prevent its employee from doing the act in question.
In Wilson and others v the United Kingdom, the European Court of Human Rights holds that, whereas the absence under UK domestic law of compulsory collective bargaining did not, in itself, give rise to a violation of article 11 of the European Convention on Human Rights, preventing employees from exercising their right to have their trade union protect their interests rendered that right illusory.
In Goodwin v United Kingdom (11 July 2002), the European Court of Human Rights (ECHR) rules that the lack of recognition in the UK of a transsexual's new gender identity for legal purposes is a breach both of article 8 of the European Convention on Human Rights (respect for private life) and article 12 (right to marry).
Disciplinary proceedings taken by the Securities and Futures Authority against a securities trader involved the "determination of his civil rights and obligations", but not the determination of "any criminal charge" within the meaning of article 6 of the European Convention on Human Rights, even though the proceedings could result in fines and a suspension, holds the Court of Appeal in R v Securities and Futures Authority Ltd and another ex parte Fleurose.
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