“Burden of Proof”
Igen v Wong 2005 ICR 337
The Court of Appeal set out 13 practical guidance points as to how the “shifting of the burden of proof” rules in discrimination cases should be applied. In practice, these ‘guidance points’ are to apply a two stage test from which (a) the employee has to prove facts from which the conclusion could be drawn that the employer has committed an unlawful act of discrimination – (b) If the employee has proved facts from which conclusions could be drawn that the employer has treated the employee “less favourably”, then the burden of proof shifts to the employer that the treatment was in no sense on the grounds of a protected characteristic.
Archibald v Fife Council  IRLR 651 HL
An employer has a positive duty to make reasonable adjustments for the benefit of an employee who by reason of disability has become incapable of doing the job for which he or she is employed if he or she could do another job within the same organisation.
Archibald v Fife Council  IRLR 651 HL (para 33):
“The critical questions therefore relate to the duty of an employer under section 6(1) to take reasonable steps to prevent any arrangements made by him placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. If the employer fails to carry out that duty, he discriminates against the disabled person under section 5(2) unless he can show that his failure to comply with the duty is justified by a reason that relates to the circumstances of the particular case and is substantial. In broad terms, the idea is that, if an employer leaves a disabled person at a substantial disadvantage from his arrangements when he should have taken steps to shield her from that disadvantage, he discriminates against her.”
Eastern and Coastal Kent PCT v Grey (IDS 875)
The duty to make adjustments does not apply if the employer does not know, and could not be reasonably expected to know, that the employee has a disability and is likely to be placed at a substantial disadvantage.
Nottingham County Council v Meikle (2004 IRLR 703 CA)
For an employee to win a constructive dismissal case, it is not necessary that the repudiatory breach of contract by the employer of which the employee complains about should be the sole cause of the resignation. An employer’s failure to make reasonable adjustments to accommodate a disabled employee as required by the Equality Act 2010 can amount to a serious breach of the implied contractual term of trust and confidence, and give the employee the right to resign and claim constructive dismissal. The duty to make reasonable adjustments can include a duty to consider paying employees’ full pay during sickness absence regardless of their contractual sick pay entitlements.
Ring v Dansk almennyttigt Boligselskab April 2013, Court of Justice of the European Union (CJEU) (joined Cases C-335/11 and C-337/11)
1. A “disability” can include a condition caused by an illness that is medically diagnosed as curable or incurable, if that illness entails a limitation that results in particular from physical, mental or psychological impairments that, in interaction with various barriers, may hinder the full and effective participation of a person in professional life on an equal basis with other workers. The limitation must be a long-term one.
2. A “disability” does not necessarily imply a complete exclusion from work or professional life. A person can be disabled if his or her professional activity is hindered, but not made impossible. A person who is fit to do some work, but only part time, is capable of being disabled.
3. A finding that there is a disability does not depend on the nature of the accommodation measures to be taken by the employer, such as the use of special equipment.
Harvest Press Ltd v McCaffrey. (EAT). (1999)IRLR 778
The EAT upheld the Tribunal’s decision saying that the words in the statute (ERA 1996 S.100) “are quite general” and that a “danger” could cover “dangers” caused by the behaviour of other employees. The EAT gave other examples where co-workers’ behaviour could give rise to “danger”.
Cook v Bradford Community Health NHS Trust, CA, 23 October 2002  EWCA Civ 1616
The employer had a duty not to place Ms. Cook unnecessarily in a position where there is a risk of foreseeable danger.
R v Merseycare NHS Trust,Ormskirk MC, 5 September 2002
Mersey Care NHS Trust was found guilty of breaching the Health and Safety at Work Act 1974 due to it failure to carry out sufficient procedural checks.
Keys v Shoe Fayre Ltd  IRLR 476
Ms. Keys was asked to take money to the bank, but was worried about being mugged as there had been a number of muggings in the vicinity. She refused to go to the bank and was sacked. It was held that the employer had failed in its obligation of trust and support:, viz: Ms. Keys concerns had not been taken seriously neither had alternative methods of getting the money to the bank been explored. This amounted to a breach of contract.
Walker v. Northumberland County Council (1995)
This case established the precedent that an employer can be held liable for mental injury to an employee caused by work-related stress. This judgement underlined the employer’s duty of care to provide safe systems of work in respect of occupational stress as well as other hazards, and to take steps to protect employees from foreseeable risks to mental health.
Spring v Guardian Assurance Plc (1994) 2 All ER 129
“The changes which have taken place in the employer-employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and even psychological welfare of its employees”.
Dickens v O2 PLC 2008
A very important case, where workplace stress led to the triggering of an employees disability. The Claimant, Ms Dickins, was employed as a secretary. She had informed O2 on a number of occasions that she needed help with her work and was exhausted. Ms Dickens asked for a less stressful job and was told to wait for 3 months. Ms Dickens requested a “sabbatical” and told her manager, in effect, that she was at the end of her tether. Despite repeated request, still, nothing was done. As a consequence, Ms Dickens was signed off work for “anxiety and depression” (recognised disabilities) and her employment was terminated. Ms Dickens brought a claim in the County Court for psychiatric injury, negligently caused by excessive stress and was awarded damages in excess of £100,000.
The court held their was a “reasonably foreseeable risk of harm” to Ms Dickens. Ms Dickens had expressed and exhibited “signs of impending harm to health”. The signs were plain enough for O2 to have realised that Ms Dickens would “go over the edge” due to stress, and suffer an “injury to health” unless O2 took appropriate action to alleviate the stress. The Court of Appeal held that an employer’s short-term counselling service could not have reduced the risk of a breakdown, since it did not reduce her workload – the cause of the stress.
The Court of Appeal held that where there is an obvious “risk of harm” to an employee’s health, or that the employee may be harmed by stress at work, the employer needs to get to the “root cause” of the employee’s stress, and manage the situation to remedy stress at work. Further, employers have to have anadequate stress and bullying policy and, most importantly, to train managers to recognise stress, to identify symptoms, and how to act appropriately when symptoms are identified.
Intel Incorporation (UK) Ltd v Daw, Court of Appeal 2007
Mrs Daw suffered a breakdown “caused” by chronic depression (disability) arising from her ‘excessive workload’. She issued proceedings against her employer for damages for personal injury arising from the employer’s negligence, “breach of statutory duty” and “duty of care”. Mrs Daw had complained about her workload in e-mails, and was found in tears by one of her line managers, no urgent action plan was put in place immediately to reduce her workload. The Court of Appeal held that an employer’s short-term counselling service could not have reduced the risk of a breakdown, since it did not reduce her workload – the cause of the stress. At best, such a service could only have advised the employee to see her own doctor. This was insufficient to discharge the employer’s duty to provide a “safe working environment”. While it recognised that Intel could not have reasonably foreseen Daw’s breakdown in health by virtue of her medical history, this was not considered to be relevant.
The Court of Appeal has made it clear that where an employee is experiencing stress relating to excessive workloads, a failure by management to combat work-related stress – when made known to it – is likely to lead to a finding that the employer has failed to discharge its “duty of care owed” to its employees. The court also accepted that the employer did not have prior knowledge that the employee was susceptible to work-related depression. But despite this lack of knowledge, the employer was still held liable, because it was aware of Daw’s excessive workload. Employers must put measures in place to reduce workloads when receiving grievances from staff who cannot cope. Otherwise, the employer will risk paying considerable damages in claims for personal injury caused by the working environment. Mrs Daw was awarded £114,764 + interest whilst awaiting the Court of Appeals decision.
Hatton v Sutherland  EWCA Civ 76
Barber v. Somerset County Council 
It was decided that an employee can withstand normal job pressures (unless the employer knows of a particular problem or vulnerability). If an employee does not complain about stress and bring it to the attention of the employer, the employee is unlikely to succeed in a claim for damages. However, the House of Lords put increased emphasis on the duty of employers to be on the look out for signs of stress in their employees, and to keep themselves abreast of developing knowledge of occupational stress and protective measures which can be taken to alleviate it, viz: (duty of care).
“Mutual Trust and Confidence”
Courtaulds Northern Textiles Ltd v Andrew (1979) IRLR 84.
Two types of conduct relating to a “breach” of the “mutual trust and confidence”: (a) conduct likely to undermine the trust and confidence required if the employment relationship were to continue, and (b) conduct which itself amounted to a repudiatory breach entitling the employee to resign. Conduct amounting to a breach of the implied term would inevitably mean that there had been a fundamental or repudiatory breach.
Morrow v Safeway Stores  IRLR 9
The EAT holds that any breach of the implied duty of trust and confidence will inevitably be repudiatory, entitling the employee to resign and claim constructive dismissal.
Horkulak v Cantor Fitzgerald International  IRLR 942
The Court of Appeal held that threatening to dismiss an employee as to intimidate them, amounted a breach of mutual trust and confidence. The Courts have held that the public reprimand of an employee in a manner accepted by the court as “humiliating” would amount to a breach of the duty of mutual trust and confidence.
Western Excavating (ECC) Ltd v Sharp  ICR 221)
It is an implied term in every contract of employment that the employer “will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties”
Malik v BCCI 1997 IRLR
An employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
“A Fair Grievance Procedure”
Wigan Borough Council v Davies ICR 411
An implied term in contracts of employment is that the employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow workers; and where an employer has an obligation to take reasonable steps to achieve something and takes few or no steps, the onus of proving what steps would have been reasonable is on the employer.
Bracebridge Engineering Ltd v Darby  IRLR 3 EAT
A failure to seriously consider a genuine grievance, or to operate an ineffective grievance procedure could be grounds for constructive dismissal.
Goolds v MccOnnell  IRLR 516
The duty to reasonably and promptly afford an opportunity to employees to obtain redress of any grievance they may have.
Spink -v- Express Foods Limited  IRLR 320
“It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case.”
“Sex Harassment – Sexual Harassment – Sex Discrimination”
Bracebridge Engineering Ltd v Darby  IRLR 3 EAT
A single act of harassment if it is sufficiently serious will be unlawful discrimination.
Canniffe v East Riding of Yorkshire Council  IRLR 555, EAT
The existence of an employer’s formal policy against sex harassment is not necessarily enough on its own to amount to an adequate defence against a sex discrimination claim by an employee arising from sex harassment. To havea valid defence, an employer must prove that it took such steps as were reasonably practicable to prevent the employee from doing the sex discriminatory act. Therefore if the employer has not taken such steps, it cannot escape liability by showing that the discriminatory act would have taken place even if it had taken them.
Beadles Group Ltd v Angelica Graham
The employer had no written policy on either sex discrimination/harassment, or equal opportunities, and did not provide training or advice to ordinary employees about sexual harassment, or warn them against it. Ms Graham was awarded £180,000
Reed v Steadman  IRLR 299
The Employment Appeal Tribunal held that, in relation to sexual harassment, the issue is whether “the words or conduct [are] unwelcome to the victim and it is for her to decide what is acceptable or offensive. The question is not what (objectively) the employer/tribunal would or would not find offensive.”
Fletcher and Steele v Cannon Hygiene Ltd
A failure by an employer to separate two women from their female harasser amounted to harassment. The employer failed to take sufficient steps to protect them from further sex harassment. This case takes into account the European Commission Code of Practice on Sex Harassment 1991 to separate the victim from the alleged harasser.
Insitu Cleaning Co Ltd v Heads  IRLR 4
The EAT held that a ‘sexual remark’ was discriminatory. Mrs. Heads was greeted in a meeting by the words “Hiya, big tits”. She found the remark “very embarrassing” and “distressing”. The tribunal found that the remark was sufficiently serious to constitute a “detriment” for which her employer’s were “vicariously liable”.
Waters (A.P.) v. Commissioner of Police For The Metropolis  1 WLR 1607;  UKHL 50;  IRLR 720
“If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and, if they do, that physical or mental harm may be caused to an individual.”
Hilton International Hotels (UK) v Protopapa  IRLR 316
“If the supervisory employee is doing what he or she is employed by the employer to do and in the course of doing it he or she behaves in a way which, if done by the employer, would constitute a fundamental breach of contract between the employer and the applicant, then in our judgement, the employer is bound by the supervisory employee’s misdeed.”
Jones v Tower Boot Co Ltd  IRLR 168 CA
In Jones v Tower Boot Co Ltd, the Court of Appeal holds that the words “in the course of employment” in the Race Relations Act should be interpreted in the sense in which they are employed in everyday speech, and not restrictively by reference to the principles laid down by case law for establishing an employer’s liability for the torts committed by an employee during the course of his or her employment. The employer is liable for all discriminatory acts by employees’ in the course of their employment.
Collins v First Quench Retailing Ltd, 31 January 2003,Court of Session,  GWD126
Mrs Collins successfully sued her employer (off licence) for £179,000 on the basis that her employer was at fault for failing to provide her with adequate protection from an attack under Regulation 3 of the Management of Health and Safety at Work Regulations 1999, whereas employers are required to carry out risk assessments of hazards in the workplace.
Day v Pickles Farms Ltd  IRLR 217
Employers must pay attention to the obligation to carry out health and safety risk assessments in respect of young women of child bearing age, and not just those who are pregnant.
Madarassy v Nomura International Plc  EWCA Civ 33,  All ER (D) 226 (Jan)
The EAT and the Court of Appeal qualified this by holding that no duty arises under regulation 16 of the (MHSWR 1999) unless it is established ‘in evidence’ that there is a potential risk of “danger” to health and safety in the specific working conditions.
O’Neill v Buckinghamshire County Court –  All ER (D) 19 (Jan)
The Employment Appeal Tribunal held that there will be no automatic right for new and expectant mothers to be risk assessed in their workplaces, unless the employee can ‘demonstrate’ that their work poses a “risk of harm” to their (or unborn child/s) “health and safety”. The “nature and extent” of the expectant mother’s work, ought to be taken into consideration, insofar that she is not subjected to a “detriment” which could give rise to her making a claim in the Tribunal.
Whitbread plc t/a Thresher v Gullyes 1.7.94 EAT 478/92
The employer was found to be in fundamental breach of the implied term that the employer should not act so as to prevent the employee from being able to carry out her part of the contract.
Abbey National plc v Robinson 20.11.2000 EAT 743/99
It is not relevant that the employee has waived an earlier incident that in itself constitutes a repudiatory breach.
Lewis v Motorworld Garages Ltd  IRLR 465
A series of acts may cumulatively amount to a repudiatory breach of the implied duty of trust and confidence, notwithstanding the fact that some of the incidents making up the course of conduct are not sufficiently serious in themselves to establish a repudiatory breach in their own right.
Arthur v London Eastern Railway Ltd t/a One Stansted Express  EWCA Civ 1358, Court of Appeal on 25th October 2006, reported at  IRLR 58.
1.It is possible in appropriate circumstances for a series of detrimental acts or omissions, some within and others outside the three month limitation period specified by Employment Rights Act 1996 s.48, to be treated as a single continuing act so that a particular act or action occurring within the three month period may be treated as happening on the last day on which the continuing act occurred.
2.In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and those before the start of the 3 month period.
Matuszowicz v Kingson upon Hull City Council,  EWCA Civ 22, Court of Appeal on 10th February 2009 reported at  ICR 1170 (also at  IRLR 288)
Continuing omissions are deemed to be acts committed at a notional moment and must therefore be eliminated from the computation of time for purposes of deciding whether a DDA claim is within time.
Virgo Fidelis School v Boyle  IRLR 268).
In Virgo Fidelis School v Boyle  IRLR 268 EAT, the Employment Appeal Tribunal held that awards of compensation for injury to feelings in whistleblowing cases should be based on the guidelines set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police  IRLR 102 for race and sex discrimination cases.
Miklaszewicz v Stolt Offshore Ltd  IRLR 344
An employment tribunal had jurisdiction to consider a complaint by an employee that he had been unfairly dismissed for making a “protected disclosure” about his employer to the Inland Revenue. Notwithstanding, the relevant disclosure was made in 1993, six years before the provisions of the Public Interest Disclosure Act 1998 (“the PIDA”) came into force. NB: It is the date from which the employer subjects the employee to “detriment treatment” – and not the date the protected disclosure was actually made.
Parkins v SODEXHO Ltd  IRLR 109
The EAT held that a protected disclosure for the purposes of s.43B Employment Rights Act 1996 can relate to a breach of the employee’s own contract of employment.