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EasyJet have recently lost a sex discrimination case. Two cabin crew asked for flexible working, in particular they wanted agreement that they would not be rostered for more than 8 hours at a time as they wanted to be able to express milk to continue breast feeding their babies. EasyJet refused their request on the basis that a bespoke rota for these individuals could prevent them from delivering their flight schedule and/or cause delays to flights. The claimants claimed that this amounted to indirect discrimination on the grounds of sex as it was harder for women to comply with the roster than men. Their claim succeeded as the court found that Easyjet had failed to produce evidence that bespoke rotas had caused them difficulty in the past or that it would cause them difficulty in this particular case. This decision highlights the importance of having sound reasoning and evidence to back up rules and procedures, and refusals to grant flexible working requests, that might be discriminatory.

In Taiwo v Olaigbe, Onu v Akwiwu two Nigerian nationals had only a limited right to remain in the UK because they were on domestic workers’ visas. They claimed race discrimination on the basis that their employers were abusive towards them because of their vulnerable immigration status. The Supreme Court held that although “race” includes nationality and national origin, it does not include immigration status and that the employers’ abuse was not discriminatory because other Nigerian nationals who had a right to remain in the UK would not have been subject to the same abuse (in fact the employers were Nigerian nationals).

In Williams v Trustees of Swansea University Pension & Assurance Scheme Mr Williams had a disability and took early ill health retirement which entitled him to pension based on his salary at the date of his ill health retirement. He claimed that he had been treated less favourably than a worker without a disability because his pension entitlement was based on the reduced hours he had to work because of his disability. The Employment Appeal Tribunal disagreed and held that the nature of the ill health retirement scheme was that all applicants would have a severe health condition or disability and so the ill health retirement scheme was favourable treatment and not less favourable treatment.

Finally, in Griffiths v SSWP the Court of Appeal looked at an attendance policy that issued warnings/ sanctions to people on hitting specified levels of absence. This is something that I advise clients to have in place to aid consistent management of absences and to limit risks in moving towards a dismissal on the basis of absences. The Court of Appeal held that this policy could potentially be discriminatory towards someone whose absences were caused by disability – which is of course the case. I advise clients to make reasonable adjustments for those employees whose absences are caused by a disability e.g. by adjusting the levels of absence that trigger a warning/ sanction. The Court of Appeal approved this approach and said it would be up to the Employment Tribunals in each case to decide whether it was reasonable for the employer to accommodate further absences or not.