Equality 2 COPY Flashcards
1
Q
Grant v South-West Train
A
Distinction between ‘sex’ and ‘sexual orientation’:
sexual orientation discrimination not sex discrimination because woman and men would have been equally discriminated against so could not fall within sex.
2
Q
- manifestation of religion or belief
CA - silver cross, rule in question as a no jewellery question. Wearing a cross comes within religion but not essential to it, so fall under religious belief but it is indirect discrimination. Can be found as objectively justified under indirect discrimination case.
but see ECtHR in:
Eweida v United Kingdom [2013] IRLR 231
A
Eweida v British Airways
3
Q
Discrimination against ‘migrant workers’ as a group is not direct racial discrimination – does not fall within the scope of ‘nationality and ethnic or national origins’:
– two migrant domestic workers (both Nigerian) mistreated by their employers. SC held: discrimination because of immigration status was not discrimination because of, or on grounds of, nationality. Not within the scope of the EA even though the conduct of the employer would have amounted to unlawful discrimination if it had been on racial grounds. Parliament did not choose to include immigration status in the definition or as a PC, so even though immigrations tatus is a function of nationality, it is not the same as nationality. Although immigration status is a function of nationality it is not the same as nationality. The case was either direct discrimination or outside the scope of the EA. Fine line.
A
Taiwo and Onu
UKSC
4
Q
Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:
– detailed guidance to ETs. CA set out guidance for tribunals for evidence which would be relevant in equality claim. The employee bringing claim needs sufficient evidence for discrimination/harassment on balance of probabilities from which an inference can be drawn, then burden of proof shifts to employer and then they must give cogent evidence.
A
Igen
5
Q
Igen v Wong
A
Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:
– detailed guidance to ETs. CA set out guidance for tribunals for evidence which would be relevant in equality claim. The employee bringing claim needs sufficient evidence for discrimination/harassment on balance of probabilities from which an inference can be drawn, then burden of proof shifts to employer and then they must give cogent evidence.
6
Q
Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:
pre-Equality Act case law still applicable
what evidence is relevant? All evidence from all source -e.g. witnesses can be adduced by the tribunals. There has to be sufficient evidence which in context of lack of adequate explanation is enough for tribunal to be satisfied that on balance of probabilities that discrimination led to dismissal.
overturning Efobi v Royal Mail Group
A
Ayodele
7
Q
Jessemey v Rowstock [2014] EWCA
A
Post-employment discrimination s108
can bring a post employment victimisation claim. You can even in post employment situation bring ea claim so long as alleged discriminatory act is connected to your employment s108. n
8
Q
Hawkins v Atex Group [2012]
A
Marriage and civil partnerships s8
chief executive of the company was told by the owner not to employ any family members due to concerns about conflicts of interests. Nevertheless he employed his wife, she was told she was dismissed because she was married to chief executive. Held: it was not her marriage per say but because she was married to chief executive. It was necessary to avoid potential conflicts.
9
Q
De Souza v Vinci
A
The tribunal can award a 10% uplift in compensation if there is also personal injury:
mental health impact would also fall within this.The Court of Appeal held that the 10% Simmons v Castle applied to awards for both psychiatric injury and injury to feelings.
10
Q
A man cannot bring a claim for sex discrimination based on special treatment afforded to a woman in connection with pregnancy or childbirth – EA s13(6)(b) – but the employer must apply the rule proportionately to the need to compensate the woman for the disadvantages occasioned by her pregnancy or maternity leave:
man compared to woman on maternity leave when talking about redundancy. Man not on leave, other woman on maternity leave. They used a performance test, in order to avoid discrimination, they awarded woman perfect mark. He thought system was discriminatory against her. S13(6) example of where a man cannot bring a claim in this situation. Reading s13(6) literally appears to prevent the man from bring claim but court said the court must apply rule proportionality to compensation woman. Notwithstanding fact woman would not be discriminated again would need to be proportionate. He suffered sex discrimination, relying on this to show he was subject to less favourable treatment.
A
Eversheds v De Belin [2011]
11
Q
philosophical belief’
does not apply if the claimant is the only person known to hold such a belief. G working for M and she refused to sign a standard contract clause, she feared it would give them ownership of a novel and screenplay she was written, she was dismissed. She claimed, she had a belief in the sanctity of copyright, this was a PC so should be protected. But tribunal concluded that the belief lacked sufficient cogency under the act, doubtful whether there was a belief. Noted: even if could be argued there was sincere belief, she might be the only person to hold that belief and there would not have been a group.
A
Gray v Mulberry
12
Q
Compensation is payable based on the principles in a civil claim in tort, s119, and may include compensation for injury to feelings. Guidelines on compensation for injury to feelings from the Court of Appeal introduced.
– where an award was reduced from £50,000 to £18,000 – three broad bands of compensation were introduced. Some formula for calculating injury to feelings. Award was reduced in this case because the CA was satisfied that you needed somehow to have figure in mind depending on seriousness of claims. Vento banks have been revised over the years.
This guidance is not binding but tribunals must have regard to it.
The “Vento Guidelines
A
Vento
13
Q
Catholic Child Welfare Society v Various Claimants [2012]
SUPREME COURT
A
, Lord Phillip’s test - BRACC
‘The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
iii) The employee’s activity is likely to be part of the business activity of the employer;
iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
v) The employee will, to a greater or lesser degree, have been under the control of the employer.’
Lord Reed in Cox, paras 21-22, explained that the first and fifth criteria are not as significant as the second, third and fourth
14
Q
Subjecting to a ‘detriment’?
HL – does not have to be physical or economic consequences but the worker must be disadvantaged in their subsequent work circumstances by reason of the act complained about – in the view of the reasonable worker. Shamoon gave general approach to the word detriment. Are you disadvantaged by actions of employer in the view of the reasonable worker? Threat of dismissal but not actually dismissed will fall within detriment.
Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?
A
Shamoon
15
Q
M refused to provide counselling to same-sex couples contrary to Relate’s policy of non- discrimination on the grounds of sexual orientation. Held: religious belief did not place M above equality law.
A
McFarlane v Relate Avon
16
Q
Shamoon
A
Subjecting to a ‘detriment’?
HL – does not have to be physical or economic consequences but the worker must be disadvantaged in their subsequent work circumstances by reason of the act complained about – in the view of the reasonable worker. Shamoon gave general approach to the word detriment. Are you disadvantaged by actions of employer in the view of the reasonable worker? Threat of dismissal but not actually dismissed will fall within detriment.
Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?
17
Q
RELIGIOUS BELIEF
Art 9 ECHR – freedom of thought, conscience and religion:
such religions must have a clear structure and belief system
A
X v UK
18
Q
MOD v Jeremiah
A
Subjecting to a ‘detriment’?
deprivation of choice. Men required to undertake dirty work to be eligible to work overtime, women were not required. This imposition upon men was a detriment. Men as a group had been deprived of a choice. Irrelevant that they received financial reward, it was a detriment.
19
Q
- Sex
woman who worked part time was required to do a job full time. She was a child raiser and this rule was found to be discrimination.
A
Home Office v Holmes
20
Q
s136 Proving discrimination
employer failed to give an adequate explanation on a statutory questionnaire – this ‘could’ lead to discrimination – ET must draw any inferences that are just and equitable from an evasive or equivocal reply by employer.
A
King v Great Britain
21
Q
St Helens MBC v Derbyshire [2007] UKHL
A
Victimisation s27
focus should be on detriment to the claimant – threat of cutbacks and redundancies in response to a group action – amounted to intimidation. Threat of cut backs from LA, it was shown in response to action being brought by group of employees under EA, this was argued to be intimidatory and fell within scope of victimization.
22
Q
Victimisation s27
employee did not show cause and effect – why did the alleged discriminator act as he did? May be a reasonable response by employer to protect his interests as a litigant. If failure to show Cause and effect, victimization will be unsuccessful. Police had refused to give him reference when he applied for a job in another police force. Was this a detriment by refusing to give a detriment, was it because of a protected act? Held: no because reason they refused was because they were worried it might prejudice their case against EA. As it was not due to Protected act, it was not victimisation. They acted honestly and reasonable but here employment issue was ongoing. Would be different if employment issue was not ongoing. Argument about nature of proceedings.
A
Khan [2001] UKHL
23
Q
The tribunal can award a 10% uplift in compensation if there is also personal injury:
mental health impact would also fall within this.The Court of Appeal held that the 10% Simmons v Castle applied to awards for both psychiatric injury and injury to feelings.
A
De Souza v Vinci
24
Q
Eweida v British Airways
A
- manifestation of religion or belief
CA - silver cross, rule in question as a no jewellery question. Wearing a cross comes within religion but not essential to it, so fall under religious belief but it is indirect discrimination. Can be found as objectively justified under indirect discrimination case.
but see ECtHR in:
Eweida v United Kingdom [2013] IRLR 231
25
Mandla
Mandla established that discrimination on grounds of ethnic origin or racial origin is based on a group disadvantage test (what is the group and is there a disadvantage) Sikhs found there to be a disadvantage. – reference point is membership of an ethnic group. Sikhs could be regarded as an ethnic group although they were not biologically distinguishable from other peoples’ living in the Punjab: ‘an ethnic group … must … regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics [that] distinguish the group from the surrounding community’, per Lord Fraser.
26
Mandla and JFS case
Any rule of racial segration automatically forms within this.
The Supreme Court in *JFS* held that discrimination on grounds of ethnic origin also applies *where a person is treated less favourably because s/he* *lacks certain prescribed ethnic origins*. Orthodox Jewish school’s application of an entry test for Judaism based solely on descent in the matrilineal line was a test based on ethnic origins. Denial of admission to a Jewish boy (M) whose father (E) was Jewish and whose mother was a converted Jew (under the auspices of a non-Orthodox synagogue), was held to be discrimination on the ground of his ethnic origin. The mother had, by conversion, become an ethnic Jew under the *Mandla* test. JFS should have treated M as having a matrilineal link with an ethnic Jew. Less favourable treatment because of lack of ethnic origin. A child was found by the school not to be jewish. Discrimination based on a lack of ethnic origin also would fall in this.
27
Achbita
1. **manifestation of religion or belief**
Belgian case - Muslim woman told that she could not wear an Islamic headscarf. Company applied a general rule prohibiting visible political, philosophical and religious symbols in the workplace.
Held: not direct discrimination. It was a neutral rule - not based on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. Was indirect discrimination but could be objectively justified. Judgment criticised for giving insufficient weight to freedom of religion in Art 10 of the EU FR Charter. A Muslim woman was told she could not wear an Islamic headscarf, this was unlike in Bouganoui, a **general rule,** which prevented philosophical, religious status being displaced in the employment space. Held: this could not be direct discrimination because the company applied this general neutral rule (not cover discrimination), not based on stereotypes or prejudice. Having found it was indirect discrimination, they found that it was a business policy/need and they determined that they wanted to appear neutral to their customers. Achbita’s role was that she came into contact with customers. Criticised to give weight to freedom of religion art 10.
28
Victimisation s27
focus should be on detriment to the claimant – threat of cutbacks and redundancies in response to a group action – amounted to intimidation. Threat of cut backs from LA, it was shown in response to action being brought by group of employees under EA, this was argued to be intimidatory and fell within scope of victimization.
St Helens MBC v Derbyshire [2007] UKHL
29
Ladele
Relationship between religion and conscience – actions of workers as a manifestation of their religion or belief:
registrar refused to conduct civil partnerships due to religious belief – duty of local authority to protect its citizens against sexual orientation discrimination. Found: manifestation of belief and LA could take action to address this because duty to citizens to protect against sexual orientation discrimination.
30
Rank Nemo
Like harassment, victimisation is a freestanding claim of ‘prohibited conduct’
employer failed to pay a judgment debt following an employee’s successful claim for race discrimination and unfair dismissal. Entitled to bring a separate claim for victimisation – claimed that other creditors who had not done a ‘protected act’ were paid. Employer failed to pay compensation after successful EA claim, in these circumstances, a separate claim could be brought within 3 months of detriment. And could be brought post employment context.
31
Injury to feelings caused by one off remarks would normally be in the lower band:
one off remarks in lower bank is harassment case in injury to feelings award.
Kemeh v MOD
32
In cases where there is an uplift, compensation for injury to feelings is assessed separately rather than as part of a composite award:
non-national and disabled, discriminated against on PC on race and disability. Tribunal said even though two different PC where discrimination found they found one composite award. EAT said this was wrong application, injury to feelings should be assessed separately where there has been a violation separate wrongs where damages should be provided.
Al-Jumard v Clwyd
33
**Pregnancy**
pregnant employee dismissal during probationary period – employer unhappy with the employee’s performance. Found out later, before the dismissal took effect, that the employee was pregnant – employer should have re-examined their decision after they learned of the pregnancy. Key question is whether the decision was made because of pregnancy. Argument here was employer should have re examined position after they learnt. Found: key test for dismissal was whether dismissed WAS DUE TO pregnancy, when looking at context should they have reviewed the decision\>
Really Easy Car Credit v Thompson [2017]
34
**Race**
Discrimination based on a lack of ethnic origin also would fall in this.
JFS
SC
35
MBA v LB Merton
CA
What matters is that the religious belief is sincere even if not all of those who have the religious belief practice it in the same way:
RELIGIOUS BELIEF
Christian employee refused to work on a Sunday – was subject to a detriment – could bring a claim, was a **sincere belief even if only a minority of Christians would regard working on a Sunday as central to their religious belief**. A good example of this structure. Christian employee refused to work on a Sunday, and was subject to a detriment. Found possible to bring a claim based on discrimination because it was a sincere belief, even though only a few Christians would find it essential to not work on a Sunday.
36
Really Easy Car Credit v Thompson [2017]
**Pregnancy**
pregnant employee dismissal during probationary period – employer unhappy with the employee’s performance. Found out later, before the dismissal took effect, that the employee was pregnant – employer should have re-examined their decision after they learned of the pregnancy. Key question is whether the decision was made because of pregnancy. Argument here was employer should have re examined position after they learnt. Found: key test for dismissal was whether dismissed WAS DUE TO pregnancy, when looking at context should they have reviewed the decision\>
37
Distinction between ‘sex’ and ‘sexual orientation’:
sexual orientation discrimination not sex discrimination because woman and men would have been equally discriminated against so could not fall within sex.
Grant v South-West Train
38
R v Registrar
SC
**‘religious belief’**
‘spiritual or non-secular belief system, held by a group of adherents’, per Lord Toulson.
39
Home Office v Holmes
1. **Sex**
woman who worked part time was required to do a job full time. She was a child raiser and this rule was found to be discrimination.
40
There must be evidence of the objectively verifiable existence of a direct link between the occupational requirement and the activity concerned – promotion of the organisation’s ethos - and, if so, the test is whether the occupational requirement imposed, by reason of the nature of the activities concerned or in the context in which they are carried out, is ‘genuine, legitimate and justified’ (three criteria), having regard to that ethos:
Finally, the requirement must comply with the principle of proportionality (as a general principle of EU law).
genuine
legitimate
justified
proportionate
German church published an offer of employment – task was to write a parallel report on the UN Convention on the elimination of all racial discrimination – requirement: must be a member of a Protestant or other listed churches in Germany. E, who had no church denomination, was shortlisted but not appointed. Involved someone who worked in a church and not given a job to write a report on behalf of the church talking about UN Convention. Egenberger was protestant, but she did not have a particular denomination and was not appointed. CJEU – direct link between occupational requirement and activity concerned (was writing this report protecting ethos of organisation). Applied a genuine, legitimate and justified criteria. And if it fits in this, then it must be in accordance with proportionality principle (was it proportionate not to employ Egenberger?)
ECJ: courts must conduct a balancing exercise between competing rights – i) the autonomy of churches and other organisations whose ethos is based on religion or belief and ii) the rights of workers not to be discriminated against on grounds of religion or belief.
There must be evidence of the objectively verifiable existence of a direct link between the occupational requirement and the activity concerned – promotion of the organisation’s ethos - and, if so, the test is whether the occupational requirement imposed, by reason of the nature of the activities concerned or in the context in which they are carried out, is ‘**genuine, legitimate and justified**’ (three criteria), having regard to that ethos:
* ‘**genuine**’ – ‘professing the religion or belief on which the ethos of the church or organisation is founded must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy’, para 65;
* ‘**legitimate**’ - ‘to ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy’, para 66;
* ‘**justified**’ – ‘the church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary’, para 67.
Finally, the requirement must comply with the principle of proportionality (as a general principle of EU law). Therefore, there must be an objective assessment by a court rather than reliance on the self-perception of the religious organisation.
Egenberger
41
, Lord Phillip's test - **BRACC**
## Footnote
‘The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
i) The employer is **more likely** to have the means t**o compensate the victim than the employee** and can be expected to have insured against that liability;
ii) The **tort** will have been **committed as a result of activity** being taken by the employee **on behalf of the employer;**
iii) The employee's **activity** is likely to be **part of the business activity of the employer;**
iv) The **employer, by employing** the employee to carry on the activity will have **created the risk of the tort** committed by the employee;
v) The **employee** will, to a greater or lesser degree, **have been under the control of the employer.’**
Lord Reed in *Cox*, paras 21-22, explained that the first and fifth criteria are not as significant as the second, third and fourth
Catholic Child Welfare Society v Various Claimants [2012]
SUPREME COURT
42
Al-Jumard v Clwyd
In cases where there is an uplift, compensation for injury to feelings is assessed separately rather than as part of a composite award:
non-national and disabled, discriminated against on PC on race and disability. Tribunal said even though two different PC where discrimination found they found one composite award. EAT said this was wrong application, injury to feelings should be assessed separately where there has been a violation separate wrongs where damages should be provided.
43
1. **manifestation of religion or belief**
Belgian case - Muslim woman told that she could not wear an Islamic headscarf. Company applied a general rule prohibiting visible political, philosophical and religious symbols in the workplace.
Held: not direct discrimination. It was a neutral rule - not based on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. Was indirect discrimination but could be objectively justified. Judgment criticised for giving insufficient weight to freedom of religion in Art 10 of the EU FR Charter. A Muslim woman was told she could not wear an Islamic headscarf, this was unlike in Bouganoui, a **general rule,** which prevented philosophical, religious status being displaced in the employment space. Held: this could not be direct discrimination because the company applied this general neutral rule (not cover discrimination), not based on stereotypes or prejudice. Having found it was indirect discrimination, they found that it was a business policy/need and they determined that they wanted to appear neutral to their customers. Achbita’s role was that she came into contact with customers. Criticised to give weight to freedom of religion art 10.
Achbita
44
Kirby
**Subjecting to a ‘detriment’?**
transfer to a less interesting job found detriment if discrimination of a PC.
45
Three-month time limit for bringing claims before an ET – s123. Calculation of the time limit begins when the act complained of was done, or from the date that a deliberate omission was decided upon. The ET has a wide discretion to consider a claim out of time where it thinks it ‘just and equitable’ to do so:
DCA v Jones
46
Amicus v Secretary of State for Trade and Industry
narrow application of the exception – **is the requirement to have the religion or belief in question essential for the particular job?** If it is essential to hold a particular religion, you can hold that they must hold that religion.
ECJ: courts must conduct a balancing exercise between competing rights – i) the autonomy of churches and other organisations whose ethos is based on religion or belief and ii) the rights of workers not to be discriminated against on grounds of religion or belief.
47
Vento
Compensation is payable based on the principles in a civil claim in tort, s119, and may include compensation for **injury to feelings**. Guidelines on compensation for injury to feelings from the Court of Appeal introduced.
– where an award was reduced from £50,000 to £18,000 – three broad bands of compensation were introduced. Some formula for calculating injury to feelings. Award was reduced in this case because the CA was satisfied that you needed somehow to have figure in mind depending on seriousness of claims. Vento banks have been revised over the years.
This guidance is not binding but tribunals must have regard to it.
The “*Vento* Guidelines
48
Egenberger
There must be evidence of the objectively verifiable existence of a direct link between the occupational requirement and the activity concerned – promotion of the organisation’s ethos - and, if so, the test is whether the occupational requirement imposed, by reason of the nature of the activities concerned or in the context in which they are carried out, is ‘genuine, legitimate and justified’ (three criteria), having regard to that ethos:
Finally, the requirement must comply with the principle of proportionality (as a general principle of EU law).
genuine
legitimate
justified
proportionate
German church published an offer of employment – task was to write a parallel report on the UN Convention on the elimination of all racial discrimination – requirement: must be a member of a Protestant or other listed churches in Germany. E, who had no church denomination, was shortlisted but not appointed. Involved someone who worked in a church and not given a job to write a report on behalf of the church talking about UN Convention. Egenberger was protestant, but she did not have a particular denomination and was not appointed. CJEU – direct link between occupational requirement and activity concerned (was writing this report protecting ethos of organisation). Applied a genuine, legitimate and justified criteria. And if it fits in this, then it must be in accordance with proportionality principle (was it proportionate not to employ Egenberger?)
ECJ: courts must conduct a balancing exercise between competing rights – i) the autonomy of churches and other organisations whose ethos is based on religion or belief and ii) the rights of workers not to be discriminated against on grounds of religion or belief.
There must be evidence of the objectively verifiable existence of a direct link between the occupational requirement and the activity concerned – promotion of the organisation’s ethos - and, if so, the test is whether the occupational requirement imposed, by reason of the nature of the activities concerned or in the context in which they are carried out, is ‘**genuine, legitimate and justified**’ (three criteria), having regard to that ethos:
* ‘**genuine**’ – ‘professing the religion or belief on which the ethos of the church or organisation is founded must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy’, para 65;
* ‘**legitimate**’ - ‘to ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy’, para 66;
* ‘**justified**’ – ‘the church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary’, para 67.
Finally, the requirement must comply with the principle of proportionality (as a general principle of EU law). Therefore, there must be an objective assessment by a court rather than reliance on the self-perception of the religious organisation.
49
Simmons v Castle
The tribunal can award a 10% uplift in compensation if there is also personal injury:
50
Like harassment, victimisation is a freestanding claim of ‘prohibited conduct’
(“veil case”) - claimant awarded £1,000 for victimisation even though indirect discrimination was found to be justified. Possible with victimization for someone to lose claim of discrimination but may still win victimization.
Azmi v Kirklees
51
Clements v Lloyds Banking
**Resignation not because of the breach:**
there must be sufficient evidence of discriminatory act which caused claimant to resign. In this case, claimant was a banker in his 50s, management had performance concerns and thought the claimant should move on from role. Manager, according to claimant said “you are not 25 anymore”, manager denied this, relationship got worse and didn’t like remarks. She resigned for constructive dismissal because of age discrimination. Tribunal found accumulated breach of mutual trust and confidence, entitled to resign and management said these words. But even though these remarks were detrimental to claimant they were not the reason why he resigned. EAT said: they were entitled to consider it was not the discriminatory act which caused employee to resign.
52
JFS
SC
**Race**
Discrimination based on a lack of ethnic origin also would fall in this.
53
Redfearn v UK
onsider the implications of Art 11 ECHR – freedom of expression – in this context of PHILOSOPHICAL belief
The message in Redfearn is clear: claims for unfair dismissal in such cases should be afforded special protection regardless of the nature of the belief.
Arises in relation to political belief. This involved a bus driver who was employed to transport disabled people of mainly ethnic origin. He was dismissed by employer when he was elected by a party which had a racist policy. Issue: arose before religion or race was PC. Was he dismissed because political belief and to stop him expressing it. Court of human rights said, reasonable and appropriate measures should be taken to protect employees from dismissal on grounds of political opinion or affiliation. Although not decided based on religious or philosophical belief. Due to guidance of the court of human rights, it would probably come under philosophical belief.
54
Taiwo and Onu
UKSC
Discrimination against ‘migrant workers’ as a group is not direct racial discrimination – does not fall within the scope of ‘nationality and ethnic or national origins’:
– two migrant domestic workers (both Nigerian) mistreated by their employers. SC held: discrimination because of immigration status was not discrimination because of, or on grounds of, nationality. Not within the scope of the EA even though the conduct of the employer would have amounted to unlawful discrimination if it had been on racial grounds. Parliament did not choose to include immigration status in the definition or as a PC, so even though immigrations tatus is a function of nationality, it is not the same as nationality. Although immigration status is a function of nationality it is not the same as nationality. The case was either direct discrimination or outside the scope of the EA. Fine line.
55
**Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:**
race discrimination - inference drawn from statistical evidence of disadvantage . statistical evidence of disadvantage in an indirect discrimination claim could be enough.
Singh
56
Saunders v Richmond-upon-Thames LBC
can challenge the procedures used for short listing and the interview. Evidence is important here.
57
McFarlane v Relate Avon
M refused to provide counselling to same-sex couples contrary to Relate’s policy of non- discrimination on the grounds of sexual orientation. Held: religious belief did not place M above equality law.
58
Broad approach to definition of ‘race’:
Even class discrimination can be excluded. The situation: C and T, Ms T was a migrant worker from India employed as a nanny alleging that she was being mistreated as she was from a lower cast. Employers argued that this claim should be struck out because class is not under the employment act. The EAT disagreed and said that class is not a free standing protected characteristic but elements of class identify might form part of an individuals ethnic origin, especially by descent. Class discrimination may be protected on facts of the case as a form of race discrimination, for ET to describe. Parliament did not make this a PC because it would be hard to define.
Chandhok v Tirkey
59
1. **manifestation of religion or belief**
veil No need for there to be a position that a “manifestation” of a religious belief always has to be dealt with as indirect discrimination. Could be direct discrimination. A veil was found to be a manifestation of a religious belief. This has now been brought to light by recent cases before CJEU.
Azmi v Kirklees
60
Azmi v Kirklees
Like harassment, victimisation is a freestanding claim of ‘prohibited conduct’
(“veil case”) - claimant awarded £1,000 for victimisation even though indirect discrimination was found to be justified. Possible with victimization for someone to lose claim of discrimination but may still win victimization.
61
Amnesty International v Ahmed
An act of unlawful discrimination may not necessarily breach mutual trust and confidence according to the EAT:
Motive was banine, when she was refused promotion, resigned and claimed she was constructively dismissed. Although benine motive, and unlawful act of discrimination was found and so repudiatory breach of contract so she could resign and bring a claim. Not merely breach of equality act but also mutual duty of trust and confidence which is implied in every contract of employment. Malik case – trust and confidence was destroyed.
62
Bouganoui
1. **manifestation of religion or belief**
There was not a general rule here, but once a customer complained about Bouganoui wearing a headscarf, she was told not to wear it. So a particular instruction was given to her. Court found: it fitted in with Achbita, because employer would have applied this rule to anyone. Explanation: displaying a symbol of religion is not the same as belief. A-G if symbol is so essential to the belief, it should be classed as the belief itself. They went to say if it was direct discrimination could it be an occupational requirement, they found no.
63
Mandla established that discrimination on grounds of ethnic origin or racial origin is based on a group disadvantage test (what is the group and is there a disadvantage) Sikhs found there to be a disadvantage. – reference point is membership of an ethnic group. Sikhs could be regarded as an ethnic group although they were not biologically distinguishable from other peoples’ living in the Punjab: ‘an ethnic group … must … regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics [that] distinguish the group from the surrounding community’, per Lord Fraser.
Mandla
64
MOD v Cannock
compensation
There is **no upper limit** on compensation awarded by an ET following a successful claim under the EA:
Emphasises the advantage of an equality claim in a dismissal scenario.
Reference to act is that compensation is JUST AND EQUITABLE, there is no equitable limit on upper claim. In relation in s119 because equality action arises from a violation of dignity or something was doen to a person which had effected then (Discriminatory/harassment) then it is possible to treat this as analogous to tort and bring an action for feelings.
65
McClintock v DCA
1. **‘philosophical belief’**
‘there must be a religious or philosophical viewpoint in which one actually believes’ (Elias J)
66
Lyons v DWP
This protected characteristic does not apply as a ground for a claim after the protected period even if the claimant has a pregnancy-related illness such as post-natal depression. Must claim ‘sex’ discrimination - requires male comparator:
67
Various Claimants v Barclays Bank
Vicarious liability is a tort derived from common law: employers can also be found vicariously liable
the tribunal or court must apply a two-stage test:
1. Is the relevant relationship one of employment or ‘akin to employment’?
2. If so, was the tort sufficiently closely connected with that employment or quasi employment?
Question: where does responsibility of the employer lie? As long as person is performing their job or carrying out an activity relating to their employment, it is within scope of vicarious liability. Barclays Bank has been followed and closely connected test needs to be looked at on a day to day basis.
68
can challenge the procedures used for short listing and the interview. Evidence is important here.
Saunders v Richmond-upon-Thames LBC
69
Race
nationality is within race
Amnesty International v Ahmed
70
Grainger v Nicholson
**‘philosophical belief’ = GLOAR THIS MIGHT NOT BE APPLICABLE NOW SINCE THE 2012 REDFEARN V UK case whereby the Human rights court held that a political belief should be classified as a political belief. But this would not pass Burton's number 2 criteria as it is an opinion. Therefore, Burton's criteria should be changed to repflect this!!**
Burton J set out five criteria which must be satisfied if a belief is to be protected under section 10:
‘(i) The belief must be **genuinely held.**
(ii) It must be a belief and **not . . an opinion or viewpoint** based on the present state of information available.
(iii) It must be a belief as to a **weighty and substantial aspect of human life and behaviour.**
(iv) It must attain a **certain level of cogency, seriousness, cohesion and importance. (CCSI)**
(v) It must be **worthy of respect** in a democratic society, be **not incompatible** with **human dignity** and **not conflict with the fundamental rights of others**
includes strong belief in man-made climate change – applied Art 9 ECHR - pacifism and vegetarianism recognised as philosophical beliefs by ECtHR – but a philosophical belief does not have to be an ‘ism’. Political beliefs not excluded. Can be a genuinely held belief based on science such as Darwinism. It does not necessarily entail that an absence of such a belief would be a philosophical belief. Two elements of the legal test (1) Does it fall within the scope of [EA s10]? (2) Must adduce evidence to establish the genuineness of his belief (if this is in doubt), and that what was done was done on grounds of his belief. Nicholson was employed as an executive with Grainger PLC, his job was to advise them at a senior level on environmental practises. He found that the company had good policies on paper but was critical in practise. Critical of Chief executive. In the end, he was dismissed. Question: could his own green beliefs, effecting how he lived his lim amounted to philosophical belief. Found: this was a genuinely held sincere philosophical belief. If he had been discriminated against due to this belief, he could bring a claim.
71
1. **manifestation of religion or belief**
There was not a general rule here, but once a customer complained about Bouganoui wearing a headscarf, she was told not to wear it. So a particular instruction was given to her. Court found: it fitted in with Achbita, because employer would have applied this rule to anyone. Explanation: displaying a symbol of religion is not the same as belief. A-G if symbol is so essential to the belief, it should be classed as the belief itself. They went to say if it was direct discrimination could it be an occupational requirement, they found no.
Bouganoui
72
Amnesty International v Ahmed
Race
nationality is within race
73
**‘religious belief’**
‘spiritual or non-secular belief system, held by a group of adherents’, per Lord Toulson.
R v Registrar
SC
74
**‘philosophical belief’ = GLOAR THIS MIGHT NOT BE APPLICABLE NOW SINCE THE 2012 REDFEARN V UK case whereby the Human rights court held that a political belief should be classified as a political belief. But this would not pass Burton's number 2 criteria as it is an opinion. Therefore, Burton's criteria should be changed to repflect this!!**
Burton J set out five criteria which must be satisfied if a belief is to be protected under section 10:
‘(i) The belief must be **genuinely held.**
(ii) It must be a belief and **not . . an opinion or viewpoint** based on the present state of information available.
(iii) It must be a belief as to a **weighty and substantial aspect of human life and behaviour.**
(iv) It must attain a **certain level of cogency, seriousness, cohesion and importance. (CCSI)**
(v) It must be **worthy of respect** in a democratic society, be **not incompatible** with **human dignity** and **not conflict with the fundamental rights of others**
includes strong belief in man-made climate change – applied Art 9 ECHR - pacifism and vegetarianism recognised as philosophical beliefs by ECtHR – but a philosophical belief does not have to be an ‘ism’. Political beliefs not excluded. Can be a genuinely held belief based on science such as Darwinism. It does not necessarily entail that an absence of such a belief would be a philosophical belief. Two elements of the legal test (1) Does it fall within the scope of [EA s10]? (2) Must adduce evidence to establish the genuineness of his belief (if this is in doubt), and that what was done was done on grounds of his belief. Nicholson was employed as an executive with Grainger PLC, his job was to advise them at a senior level on environmental practises. He found that the company had good policies on paper but was critical in practise. Critical of Chief executive. In the end, he was dismissed. Question: could his own green beliefs, effecting how he lived his lim amounted to philosophical belief. Found: this was a genuinely held sincere philosophical belief. If he had been discriminated against due to this belief, he could bring a claim.
Grainger v Nicholson
75
Eversheds v De Belin [2011]
A man cannot bring a claim for sex discrimination based on special treatment afforded to a woman in connection with pregnancy or childbirth – EA s13(6)(b) – but the employer must apply the rule proportionately to the need to compensate the woman for the disadvantages occasioned by her pregnancy or maternity leave:
man compared to woman on maternity leave when talking about redundancy. Man not on leave, other woman on maternity leave. They used a performance test, in order to avoid discrimination, they awarded woman perfect mark. He thought system was discriminatory against her. S13(6) example of where a man cannot bring a claim in this situation. Reading s13(6) literally appears to prevent the man from bring claim but court said the court must apply rule proportionality to compensation woman. Notwithstanding fact woman would not be discriminated again would need to be proportionate. He suffered sex discrimination, relying on this to show he was subject to less favourable treatment.
76
Like harassment, victimisation is a freestanding claim of ‘prohibited conduct’
employer failed to pay a judgment debt following an employee’s successful claim for race discrimination and unfair dismissal. Entitled to bring a separate claim for victimisation – claimed that other creditors who had not done a ‘protected act’ were paid. Employer failed to pay compensation after successful EA claim, in these circumstances, a separate claim could be brought within 3 months of detriment. And could be brought post employment context.
Rank Nemo
77
* **‘ethos’** **– an occupational requirement**
– scope of loyalty and good faith obligation in Article 4(2) of the Directive - JQ, a Roman Catholic, was the head of the medical service for a Roman Catholic non-profit organisation, IR. There were other employees performing managerial tasks for IR who were not Roman Catholics. JQ was dismissed when IR found out that he had divorced and remarried – said was contrary to religious ‘ethos’ of IR. RC head of medical service for IQ, dismissed when IR had found out he was divorced saying it was contrary to their religious ethos. Argued: adherence to marriage did not appear necessary.
ECJ: adherence to the notion of marriage did not appear to be necessary for the promotion of the organisation’s ethos bearing in mind the occupational activities carried out by IR. Should not impose a stricter loyalty obligation on those who are employed because of their religion or belief as opposed to those who are not employed for that reason.
IR v JQ,
78
Vicarious liability is a tort derived from common law: employers can also be found vicariously liable
the tribunal or court must apply a two-stage test:
1. Is the relevant relationship one of employment or ‘akin to employment’?
2. If so, was the tort sufficiently closely connected with that employment or quasi employment?
Question: where does responsibility of the employer lie? As long as person is performing their job or carrying out an activity relating to their employment, it is within scope of vicarious liability. Barclays Bank has been followed and closely connected test needs to be looked at on a day to day basis.
Various Claimants v Barclays Bank
79
Kemeh v MOD
Injury to feelings caused by one off remarks would normally be in the lower band:
one off remarks in lower bank is harassment case in injury to feelings award.
80
**Subjecting to a ‘detriment’?**
transfer to a less interesting job found detriment if discrimination of a PC.
Kirby
81
There is **no upper limit** on compensation awarded by an ET following a successful claim under the EA:
Emphasises the advantage of an equality claim in a dismissal scenario.
Reference to act is that compensation is JUST AND EQUITABLE, there is no equitable limit on upper claim. In relation in s119 because equality action arises from a violation of dignity or something was doen to a person which had effected then (Discriminatory/harassment) then it is possible to treat this as analogous to tort and bring an action for feelings.
MOD v Cannock
compensation
82
What matters is that the religious belief is sincere even if not all of those who have the religious belief practice it in the same way:
RELIGIOUS BELIEF
Christian employee refused to work on a Sunday – was subject to a detriment – could bring a claim, was a **sincere belief even if only a minority of Christians would regard working on a Sunday as central to their religious belief**. A good example of this structure. Christian employee refused to work on a Sunday, and was subject to a detriment. Found possible to bring a claim based on discrimination because it was a sincere belief, even though only a few Christians would find it essential to not work on a Sunday.
MBA v LB Merton
CA
83
IR v JQ,
* **‘ethos’** **– an occupational requirement**
– scope of loyalty and good faith obligation in Article 4(2) of the Directive - JQ, a Roman Catholic, was the head of the medical service for a Roman Catholic non-profit organisation, IR. There were other employees performing managerial tasks for IR who were not Roman Catholics. JQ was dismissed when IR found out that he had divorced and remarried – said was contrary to religious ‘ethos’ of IR. RC head of medical service for IQ, dismissed when IR had found out he was divorced saying it was contrary to their religious ethos. Argued: adherence to marriage did not appear necessary.
ECJ: adherence to the notion of marriage did not appear to be necessary for the promotion of the organisation’s ethos bearing in mind the occupational activities carried out by IR. Should not impose a stricter loyalty obligation on those who are employed because of their religion or belief as opposed to those who are not employed for that reason.
84
**Marriage and civil partnerships s8**
chief executive of the company was told by the owner not to employ any family members due to concerns about conflicts of interests. Nevertheless he employed his wife, she was told she was dismissed because she was married to chief executive. Held: it was not her marriage per say but because she was married to chief executive. It was necessary to avoid potential conflicts.
Hawkins v Atex Group [2012]
85
Gray v Mulberry
philosophical belief’
## Footnote
does not apply if the claimant is the only person known to hold such a belief. G working for M and she refused to sign a standard contract clause, she feared it would give them ownership of a novel and screenplay she was written, she was dismissed. She claimed, she had a belief in the sanctity of copyright, this was a PC so should be protected. But tribunal concluded that the belief lacked sufficient cogency under the act, doubtful whether there was a belief. Noted: even if could be argued there was sincere belief, she might be the only person to hold that belief and there would not have been a group.
86
DCA v Jones
Three-month time limit for bringing claims before an ET – s123. Calculation of the time limit begins when the act complained of was done, or from the date that a deliberate omission was decided upon. The ET has a wide discretion to consider a claim out of time where it thinks it ‘just and equitable’ to do so:
87
Chief Constable of West Yorkshire Police v Khan [2001] UKHL
Victimisation s27
## Footnote
employee did not show cause and effect – why did the alleged discriminator act as he did? May be a reasonable response by employer to protect his interests as a litigant. If failure to show Cause and effect, victimization will be unsuccessful. Police had refused to give him reference when he applied for a job in another police force. Was this a detriment by refusing to give a detriment, was it because of a protected act? Held: no because reason they refused was because they were worried it might prejudice their case against EA. As it was not due to Protected act, it was not victimisation. They acted honestly and reasonable but here employment issue was ongoing. Would be different if employment issue was not ongoing. Argument about nature of proceedings.
88
Nagarajan
HL
s27: victimisation
## Footnote
– motive irrelevant – did victimisation amount to less favourable treatment? Test is one of cause and effect. Was one of the protected acts an ‘important cause’ or a ‘significant influence’ on the decision of the perpetrator to discriminate against the victim?
Question 1 - Did A subject B to detriment,
question 2 -was it because of knowledge of protected act.
Motive for the detriment is irrelevant so long as there is a cause and effect. Cause and effect test. HOUSE OF LORDS TEST. It is a significant/important factor, to subject detriment.
89
1. **‘philosophical belief’**
‘there must be a religious or philosophical viewpoint in which one actually believes’ (Elias J)
McClintock v DCA
90
Singh
**Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:**
race discrimination - inference drawn from statistical evidence of disadvantage . statistical evidence of disadvantage in an indirect discrimination claim could be enough.
91
Azmi v Kirklees
1. **manifestation of religion or belief**
veil No need for there to be a position that a “manifestation” of a religious belief always has to be dealt with as indirect discrimination. Could be direct discrimination. A veil was found to be a manifestation of a religious belief. This has now been brought to light by recent cases before CJEU.
92
The tribunal can award a 10% uplift in compensation if there is also personal injury:
Simmons v Castle
93
King v Great Britain
s136 Proving discrimination
employer failed to give an adequate explanation on a statutory questionnaire – this ‘could’ lead to discrimination – ET must draw any inferences that are just and equitable from an evasive or equivocal reply by employer.
94
Post-employment discrimination s108
can bring a post employment victimisation claim. You can even in post employment situation bring ea claim so long as alleged discriminatory act is connected to your employment s108. n
Jessemey v Rowstock [2014] EWCA
95
onsider the implications of Art 11 ECHR – freedom of expression – in this context of PHILOSOPHICAL belief
The message in Redfearn is clear: claims for unfair dismissal in such cases should be afforded special protection regardless of the nature of the belief.
Arises in relation to political belief. This involved a bus driver who was employed to transport disabled people of mainly ethnic origin. He was dismissed by employer when he was elected by a party which had a racist policy. Issue: arose before religion or race was PC. Was he dismissed because political belief and to stop him expressing it. Court of human rights said, reasonable and appropriate measures should be taken to protect employees from dismissal on grounds of political opinion or affiliation. Although not decided based on religious or philosophical belief. Due to guidance of the court of human rights, it would probably come under philosophical belief.
Redfearn v UK
96
Chandhok v Tirkey
Broad approach to definition of ‘race’:
Even class discrimination can be excluded. The situation: C and T, Ms T was a migrant worker from India employed as a nanny alleging that she was being mistreated as she was from a lower cast. Employers argued that this claim should be struck out because class is not under the employment act. The EAT disagreed and said that class is not a free standing protected characteristic but elements of class identify might form part of an individuals ethnic origin, especially by descent. Class discrimination may be protected on facts of the case as a form of race discrimination, for ET to describe. Parliament did not make this a PC because it would be hard to define.
97
s27: victimisation
## Footnote
– motive irrelevant – did victimisation amount to less favourable treatment? Test is one of cause and effect. Was one of the protected acts an ‘important cause’ or a ‘significant influence’ on the decision of the perpetrator to discriminate against the victim?
Question 1 - Did A subject B to detriment,
question 2 -was it because of knowledge of protected act.
Motive for the detriment is irrelevant so long as there is a cause and effect. Cause and effect test. HOUSE OF LORDS TEST. It is a significant/important factor, to subject detriment.
Nagarajan
HL
98
X v UK
RELIGIOUS BELIEF
## Footnote
Art 9 ECHR – freedom of thought, conscience and religion:
such religions must have a clear structure and belief system
99
Relationship between religion and conscience – actions of workers as a manifestation of their religion or belief:
registrar refused to conduct civil partnerships due to religious belief – duty of local authority to protect its citizens against sexual orientation discrimination. Found: manifestation of belief and LA could take action to address this because duty to citizens to protect against sexual orientation discrimination.
Ladele
100
The “*Vento* Guidelines” have been up-rated by the Presidents of the Employment Tribunals – from 6 April 2018 the bands are:
* £900 - £8,600 for ‘less serious’ cases (lower band)
* £8,600 - £25,700 for ‘serious’ cases (middle band)
* £25,700 - £42,900 for the ‘most serious’ cases (upper band) – such as where there has been a lengthy campaign of harassment
* Over £42,900 for exceptional cases
Vento Guidlines
101
Vento Guidlines
The “*Vento* Guidelines” have been up-rated by the Presidents of the Employment Tribunals – from 6 April 2018 the bands are:
* £900 - £8,600 for ‘less serious’ cases (lower band)
* £8,600 - £25,700 for ‘serious’ cases (middle band)
* £25,700 - £42,900 for the ‘most serious’ cases (upper band) – such as where there has been a lengthy campaign of harassment
* Over £42,900 for exceptional cases
102
narrow application of the exception – **is the requirement to have the religion or belief in question essential for the particular job?** If it is essential to hold a particular religion, you can hold that they must hold that religion.
ECJ: courts must conduct a balancing exercise between competing rights – i) the autonomy of churches and other organisations whose ethos is based on religion or belief and ii) the rights of workers not to be discriminated against on grounds of religion or belief.
Amicus v Secretary of State for Trade and Industry
103
Ayodele
**Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:**
pre-Equality Act case law still applicable
what evidence is relevant? All evidence from all source -e.g. witnesses can be adduced by the tribunals. There has to be sufficient evidence which in context of lack of adequate explanation is enough for tribunal to be satisfied that on balance of probabilities that discrimination led to dismissal.
overturning Efobi v Royal Mail Group
104
**Subjecting to a ‘detriment’?**
deprivation of choice. Men required to undertake dirty work to be eligible to work overtime, women were not required. This imposition upon men was a detriment. Men as a group had been deprived of a choice. Irrelevant that they received financial reward, it was a detriment.
MOD v Jeremiah
105
Any rule of racial segration automatically forms within this.
The Supreme Court in *JFS* held that discrimination on grounds of ethnic origin also applies *where a person is treated less favourably because s/he* *lacks certain prescribed ethnic origins*. Orthodox Jewish school’s application of an entry test for Judaism based solely on descent in the matrilineal line was a test based on ethnic origins. Denial of admission to a Jewish boy (M) whose father (E) was Jewish and whose mother was a converted Jew (under the auspices of a non-Orthodox synagogue), was held to be discrimination on the ground of his ethnic origin. The mother had, by conversion, become an ethnic Jew under the *Mandla* test. JFS should have treated M as having a matrilineal link with an ethnic Jew. Less favourable treatment because of lack of ethnic origin. A child was found by the school not to be jewish. Discrimination based on a lack of ethnic origin also would fall in this.
Mandla and JFS case
106
This protected characteristic does not apply as a ground for a claim after the protected period even if the claimant has a pregnancy-related illness such as post-natal depression. Must claim ‘sex’ discrimination - requires male comparator:
Lyons v DWP
107
**Resignation not because of the breach:**
there must be sufficient evidence of discriminatory act which caused claimant to resign. In this case, claimant was a banker in his 50s, management had performance concerns and thought the claimant should move on from role. Manager, according to claimant said “you are not 25 anymore”, manager denied this, relationship got worse and didn’t like remarks. She resigned for constructive dismissal because of age discrimination. Tribunal found accumulated breach of mutual trust and confidence, entitled to resign and management said these words. But even though these remarks were detrimental to claimant they were not the reason why he resigned. EAT said: they were entitled to consider it was not the discriminatory act which caused employee to resign.
Clements v Lloyds Banking
108
An act of unlawful discrimination may not necessarily breach mutual trust and confidence according to the EAT:
Motive was banine, when she was refused promotion, resigned and claimed she was constructively dismissed. Although benine motive, and unlawful act of discrimination was found and so repudiatory breach of contract so she could resign and bring a claim. Not merely breach of equality act but also mutual duty of trust and confidence which is implied in every contract of employment. Malik case – trust and confidence was destroyed.
Amnesty International v Ahmed
