The Employment Appeal Tribunal (EAT) has adopted a new approach to the burden of proof in discrimination cases. Up to now, the courts have held that the claimant must, in the first instance, prove sufficient facts from which (in the absence of any other explanation) an inference of discrimination can be drawn. Once the claimant has established these facts, the burden of proof shifts to the respondent to show that he or she did not breach the provisions of the Act. The EAT has now said that courts should consider all of the evidence (both the claimant’s and the respondent’s) when making its finding of facts, in order to determine whether or not a prima facie case of discrimination has been made out. It is then open to the respondent to demonstrate that there was no discrimination. This is an important development in how the burden of proof is dealt with in discrimination cases. It clarifies that it is not only the claimant’s evidence which will be scrutinised in determining whether the burden of proof has shifted, but also the respondent’s evidence (or lack thereof). |
Case Reports |
2017/41 New approach to burden of proof in discrimination claims (UK) |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | General discrimination |
Authors | Hannah Price |
AbstractAuthor's information |
Case Reports |
2017/46 Supreme Court upholds right to equal survivors’ pensions for same-sex partners (UK) |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Sexual orientation discrimination |
Authors | Anna Bond |
AbstractAuthor's information |
The Supreme Court has ruled in favour of a man seeking to establish that, if he died, his husband should be entitled to the same survivor’s pension as a female spouse would receive in the same circumstances. The Court unanimously held that an exemption in the Equality Act 2010 allowing employers to exclude same-sex partners from pension benefits accruing before December 2005, was incompatible with EU law and should be disapplied. |
Case Reports |
2017/42 Asda retail employees can compare themselves to distribution centre employees in equal pay claim (UK) |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Gender discrimination |
Authors | Katie Johnston |
AbstractAuthor's information |
Between 2008 and 2016, around 7000 Asda employees working in retail stores (who were largely women) issued equal pay claims in the Manchester Employment Tribunal (‘ET’). The Claimants argued that retail store workers carry out work of ‘equal value’ to the predominantly male workforce working in the distribution centres, meaning they were appropriate comparators for the purposes of an equal pay claim. The ET upheld their claim, even though the stores and distribution centres were run by different departments and the rates of pay set by a different method. Asda appealed to the EAT, which dismissed all grounds of appeal and upheld the ET’s decision, allowing the UK’s largest private-sector group equal pay claim to proceed. |
Case Reports |
2017/30 Discrimination of workers’ representatives – burden of proof (LI) |
Journal | European Employment Law Cases, Issue 3 2017 |
Keywords | Discrimination (other), Discrimination of workers’ representatives |
Authors | Vida Petrylaite |
AbstractAuthor's information |
The Lithuanian Supreme Court has found discrimination against an employee based on his trade union activities and ruled that there was no need for the burden of proof to shift to the employer. |
Case Reports |
2017/28 Failure to enhance parental leave pay to level of maternity pay held to be direct sex discrimination (UK) |
Journal | European Employment Law Cases, Issue 3 2017 |
Keywords | Gender discrimination |
Authors | Anna Bond |
AbstractAuthor's information |
It was direct sex discrimination for a male employee who wished to take shared parental leave (SPL) to be entitled only to the minimum statutory pay where a female employee would have been entitled to full salary during an equivalent period of maternity leave, according to a first-instance decision from the Employment Tribunal (ET). |
Case Reports |
2017/27 Supreme Court clarifies indirect discrimination test (UK) |
Journal | European Employment Law Cases, Issue 3 2017 |
Keywords | General discrimination, Indirect discrimination |
Authors | Soyoung Lee |
AbstractAuthor's information |
The Supreme Court has given a clear explanation of how the test for indirect discrimination works, holding that it is not necessary to know why a particular group is disadvantaged by an employer’s policy in order to show indirect discrimination. This decision is not particularly helpful for employers as it makes it easier for individuals to make an indirect discrimination claim. However, the Supreme Court emphasised that it is always open to an employer to show that indirect discrimination is justified. |
Case Reports |
2017/31 Lawful positive discrimination in favour of women (FR) |
Journal | European Employment Law Cases, Issue 3 2017 |
Keywords | Discrimination (other), Positive discrimination |
Authors | Claire Toumieux and Susan Ekrami |
AbstractAuthor's information |
Company agreement provisions granting a half-day of leave to female employees on International Women’s Day constitute lawful positive discrimination in favour of women. |
Case Reports |
2017/3 Meeting the qualification requirements for a job is not a prerequisite for an applicant to be entitled to damages on grounds of discrimination (GE) |
Journal | European Employment Law Cases, Issue 1 2017 |
Keywords | Age discrimination |
Authors | Paul Schreiner and Nina Stephan |
AbstractAuthor's information |
A claim for compensation for discrimination was not excluded simply because the applicant did not have the ‘objective qualifications’ necessary for the job. According to the German General Equal Treatment Act (the ‘Allgemeines Gleichbehandlungsgesetz’, or ‘AGG’), what is necessary for a compensation claim is a ‘comparable situation’. According to the latest decision of the German Federal Labour Court (the ‘Bundesarbeitsgericht’, or ‘BAG’) this can occur even if the applicant does not fulfill the general requirements to do the job. |
Case Reports |
2017/1 Early retirement pension cannot justify age discrimination (AU) |
Journal | European Employment Law Cases, Issue 1 2017 |
Keywords | Age discrimination |
Authors | Peter C. Schöffmann and Andreas Tinhofer |
AbstractAuthor's information |
The Austrian Supreme Court has held that the selection of employees for redundancy because of their entitlement to an early retirement pension constitutes unfair dismissal on grounds of direct age discrimination. Although it was accepted that individual employers (here the Austrian Broadcasting Corporation) can pursue a legitimate aim within the meaning of Article 6(1) of Directive 2000/78/EC, the means to achieve that aim were not considered appropriate and necessary. The Court stressed that a balance must be struck between the interests of older and younger employees, taking into account that it is generally easier for younger employees to find a new job. In the case at hand, however, the employer had not managed to show that its redundancy selection programme met that requirement. |
Case Reports |
2017/6 Danish Supreme Court holds there is no duty to reassign an employee during the notice period (DK) |
Journal | European Employment Law Cases, Issue 1 2017 |
Keywords | Discrimination, Pregnancy, Gender Discrimination |
Authors | Mariann Norrbom |
AbstractAuthor's information |
In a precedent-setting case, the Danish Supreme Court recently ruled that a pregnant employee under notice, who claimed discrimination because she had not been reassigned to a vacant position that arose during the notice period, was not discriminated against. |
Case Reports |
2017/4 Obesity may constitute a disability even if it is falsely presumed (BE) |
Journal | European Employment Law Cases, Issue 1 2017 |
Keywords | Discrimination, Disability |
Authors | Gautier Busschaert |
AbstractAuthor's information |
For the first time, a Belgian court has relied on the Kaltoft case, which holds that obesity may constitute a disability. That case gives rise to protection against discrimination, according to the Labour Tribunal of Liège, even if it is falsely presumed. This is the case where an employer sends an email to an applicant stating that the applicant cannot be hired because his or her obesity is a disability in relation to the job. |
Case Reports |
2017/5 Unlawful dismissal of pregnant employee upon business takeover (CY) |
Journal | European Employment Law Cases, Issue 1 2017 |
Keywords | Discrimination, Pregnancy |
Authors | Christiana Michael |
AbstractAuthor's information |
The dismissal of a pregnant employee upon her employer’s business takeover was deemed to be unlawful discrimination. |