• Robert Spicer

Recent employment cases: age discrimination, employment tribunals, personal injury

AGE DISCRIMINATION New pension scheme Case London Fire Commissioner v Sargeant and others UKEAT/0137/17/LA Facts In 2015 a new pension scheme was introduced for firefighters. Members of the existing scheme born on or after April 2, 1971, were transferred to it. Members born between April 1967 and April 1971 were subject to tapering measures. Claims of age discrimination were brought by thousands of firefighters on the basis that the new scheme was less favourable than the old scheme. For the employers, it was argued that they had acted under legislation introduced by central government over which they had no control and could not therefore be in breach of the Equality Act. The ET allowed the claims. It found that a non-discrimination rule had been inserted into the new scheme and a duty not to discriminate had been imposed on the manager of the scheme. The employers appealed to the EAT. Decision 1. The appeal was dismissed. 2. The employers were obliged not to discriminate on the ground of age. That obligation took priority over the discriminatory provisions in the pension scheme. 3. It was not a defence that the discrimination was to avoid being in contravention of a statute. EMPLOYMENT TRIBUNALS Unless order Case Klukowska v Bridge of Weir Leather Company Ltd UKEATS/0038/18/SS Facts K brought a number of discrimination claims against B. K was a litigant in person. The ET issues an unless order. This ordered K to provide details of alleged statements pr actions related to her claims. K provided a document. The ET ruled that the document did not comply with the unless order. It was confused and confusing and aggregated her protected characteristics rather than separating them out. The claims were dismissed. K appealed to the EAT. Decision 1. The appeal was allowed. 2. The document had been in material compliance with the unless order. 3. The ET had not engaged directly with the terms of the document and had not explained why it was defective. 4. The claims could proceed. PERSONAL INJURY Damages Foreseeability Case X v Kuoni Travel Ltd (2021) The Times, April 6 Facts Mrs X was raped by an electrician who was employed by a hotel in Sri Lanka. The electrician was wearing a staff uniform and had offered to show Mrs X to reception. She was on a Kuoni holiday. She claimed compensation from Kuoni for breach of contract or under the Package Travel etc. Regulations 1992, which transposed article 5 of Directive 90/314/EEC into domestic law. The claim was dismissed by the High Court, in part because the operator could not be responsible for circumstances which could not have been anticipated or avoided. This decision was confirmed by the Court of Appeal. On appeal to the Supreme Court, that court stayed the proceedings and referred the matter to the Court of Justice of the European Union for a preliminary hearing. Decision 1. The matter would be referred to the Supreme Court to determine the appeal and decide on liability. 2. An employee of a supplier of services, performing duties under a package holiday contract concluded between the holiday organiser and a consumer, could not be regarded as a supplier of services for the purposes of the 1992 regulations, in the event of improper or non-performance of the contractual obligations by the employee. 3. Those actions were within the organiser’s sphere of control and could not be regarded as events which could not be foreseen or forestalled. The organiser could not be exempted from liability arising from improper or non-performance of the contract.


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