Discrimination - 1991

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This page lists 10 cases, and was prepared on 28 October 2012.

Barclays Bank Plc -v- Kapur [1991] 2 AC 355; [1991] IRLR 136
1991 HL Lord Griffiths	Discrimination	Casemap 1 Citers
	The bank had decided not to credit re-located employees, for pension purposes, with their previous service in East Africa. The employees had been re-located to the United Kingdom some time in the early 1970s all upon terms that their prior service was not to count towards their pension entitlement. In 1987 they complained to an Industrial Tribunal that they had been discriminated against on the grounds of race. Held: Lord Griffiths identified the difference between a one off act of discrimination and a continuing discrimination. Where an employer operated a rule, the continuing discrimination which results from the discriminatory rule would only come to an end when the rule was abrogated.

Foster -v- British Gas plc [1991] 2 AC 306
1991 HL	European, Employment, Discrimination	1 Cites
	The House was asked for a preliminary ruling before a referral of the case to the ECJ as to whether the applicants could rely as against the British Gas Corporation on an unimplemented Council Directive. Although the gas industry had been privatised by the time of the litigation and the rights and liabilities of the British Gas Corporation had been transferred to British Gas plc the courts had to consider the position of a nationalised industry. Held: The Corporation was a body against which the Directive could be enforced, thus overruling all the lower courts. "The principle laid down by the ECJ is that the state must not be allowed to take advantage of its own failure to comply with Community Law. The policy of the BGC which involved discrimination against women in breach of the Directive, was no doubt thought to be in the financial and commercial interests of the BGC. The advantages of that policy would accrue indirectly to the State which provided through the BGC a supply of gas for all citizens generally and which was entitled to the surplus revenue of the BGC. If the BGC were allowed to escape the consequences of an admitted breach of the Directive the State would be taking advantage of its own failure to comply with Community Law. I can see no justification for a narrow or strained construction of the ruling of the ECJ which applies to a body "under the control of the state" ............... I decline to apply the ruling of the ECJ, couched in terms of broad principle and purposive language characteristic of Community Law in a manner which is, for better or worse, sometimes applied to enactments in the United Kingdom parliament."

Regina -v- Department of Health, Ex parte Ghandi [1991] 1 WLR 1053
1991	Discrimination, Health Professions	Casemap 1 Citers
	A claim was brought under the section which provides that it is unlawful "for an Authority or Body which can confer an authorisation for, or facilitates, engagement in a particular profession or trade to discriminate." It was claimed that there had been a breach of the section in respect of the failure to appoint a doctor to a vacancy or inclusion on a medical list of a locality.
	Race Relations Act 1976 12(1)

Bain -v- Bowles [1991] IRLR 357
1991 CA Beldam LJ, Dillon LJ	Media, Discrimination	Casemap 1 Citers
	The Lady magazine had no defence to a complaint by a man whose advertisement for a housekeeper in Tuscany they had refused to accept. Following past complaints of sexual harassment, the magazine's policy was to accept such advertisements only where the employer was a woman. The perception of the risk of harm to those who answer the advertisement was not a relevant circumstance for the purpose of the Act. Essentially, it comes within the category of motive for the discrimination and for the policy adopted by the defendants.

King -v- Great Britain China Centre [1992] ICR 516; [1991] EWCA Civ 16; [1991] IRLR 513
1991 CA Neill LJ	Employment, Discrimination	Casemap 1 Cites 1 Citers
	The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim. Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence of racial discrimination, and a case will usually depend on what inferences can properly be drawn. If a claimant can show that he has been less favourably treated than comparable individuals from a different racial group, then the court will look to the alleged discriminator for an explanation. If no explanation is put forward or if the explanation is inadequate or unsatisfactory, it will be legitimate to infer that the discrimination was on racial grounds. Discrimination may not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in." The case will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal, including any inferences which it is just and equitable to draw in accordance with the section from an evasive or equivocal reply to a questionnaire. A finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. This is not a matter of law but, "almost common sense." "The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal . . Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances, the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts."
	Race Relations Act 1976 65(2)(b)
	Link[s] omitted

Cotter and others -v- Minister for Social Welfare C-377/89; [1991] EUECJ C-377/89; [1991] ECR I-1155
13 Mar 1991 ECJ	European, Discrimination	Casemap 1 Citers
	Europa Article 4(1) of Council Directive 79/7/EEC, on the prohibition of all discrimination on grounds of sex in matters of social security, must be interpreted as meaning that if, after the expiry of the period allowed for implementation of the directive, married men have automatically received increases in social security benefits in respect of a spouse and children deemed to be dependants without having to prove actual dependency, married women without actual dependants are entitled to the same increases even if in some circumstances that will result in double payment of the increases to the same family. Article 4(1) of Council Directive 79/7 must be interpreted as meaning that where a Member State has included in the legislation intended to implement that article, adopted after the expiry of the period allowed by the directive, a transitional provision providing for compensatory payments to married men who have lost their entitlement to an increase in their social security benefits in respect of a spouse deemed to be dependent because actual dependency cannot be shown to exist, married women in the same family circumstances are entitled to the same payments even if that infringes the prohibition on unjust enrichment laid down by national law.
	Link[s] omitted

Sougrin -v- Haringey Health Authority [1991] UKEAT 586_90_3107; [1991] IRLR 447
31 Jul 1991 EAT	Employment, Discrimination	Casemap 1 Citers
	The applicant alleged discrimination arising out of a disputed grading. She claimed the grading she had received in 1988 amounted to direct discrimination on grounds of race, and that because this affected her pay there was a 'continuing act' of discrimination, which entitled her to present a complaint in 1990. Held: The fact she continued to receive lower pay than her comparator was the consequence of the decision to place her at the disputed grade - not the result of a 'continuing act'. There was no less favourable term of her contract because the relevant term in her contract was that she would be paid according to her grade, and that was not a discriminatory provision.
	Race Relations Act 1976
	Link[s] omitted

Clarke -v- Hampshire Electro Plating Co Ltd [1991] UKEAT 605_89_2409; [1992] ICR 312
24 Sep 1991 EAT Wood J	Employment, Discrimination	Casemap
	The EAT remitted a case to the Employment tribunal and stressed the importance of determining, as between alleged incidents of discrimination on different dates, when the act of discrimination "crystallized".
	Link[s] omitted

Livingstone -v- Hepworth Refractories Plc [1991] UKEAT 643_90_0512
5 Dec 1991 EAT	Discrimination, Employment
	Sex Discrimination Act 1975
	Link[s] omitted

Webb -v- EMO Air Cargo (UK) Ltd [1992] 1 All ER 43
20 Dec 1991 CA	Discrimination, European	Casemap 1 Citers
	The applicant had been taken on to stand in for an employee taking maternity leave. She herself became pregnant, and she was dismissed. Her clam for sex discrimination had been rejected by the industrial tribunal and EAT. Held: Since a man who had been recruited in the same situation would have been dismissed if he taken substantial time off for sickness, there was was no sex discrimination. The dismissal of a temporary replacement employee working in the place of an employee on maternity leave who in turn became pregnant was not discriminatory.
	Sex Discrimination Act 1975 1(1)