ET is allowed flexibility in deciding whether the burden of proof has shifted

Canadian Imperial Bank of Commerce v. A Beck [2010] UKEAT 0141_10_2408

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02/09/2010

In CIBC v Beck, a case of alleged age discrimination by a dismissal committee, the EAT decided that the ET was right to take into account not only the fact that there were candidates older than the Claimant, but that the manager who dismissed the Claimant had expressed a preference for a 'younger' worker.

The EAT (Wilkie J) decided that this was capable of reversing the burden of proof, and that the employee was dismissed on the grounds of his age.

It was open to the ET to decide that age discrimination had occurred even though it had at first had considered a non-discriminatory explanation, that age discrimination did not play a role in the dismissal. The ET was none the less allowed to decide that the burden of proof had reversed.

As regards calculating a week's pay in relation to the making a protective award, that the date for awarding a bonus had not yet occurred the ET under EU law did not need to take this into consideration.
The transcript of this case follows:-   Canadian Imperial Bank of Commerce v. A Beck [2010] UKEAT





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Some recent employment cases:-
2010
The employer's ability to pay is irrelevant - Tao Herbs & Acupuncture Ltd v Jin [2010] UKEAT
An absolute contractual right of substitution undermines the possibility of worker status - Community Dental Centres Ltd v. Sultan- Darmon [2010] UKEAT 0532_09_1208
Pension loss: "simplified" and "substantial" compensatory approaches - Sibbit v The Governors of St Cuthbert's Catholic Primary School [2010] UKEAT 0070/10/ZT
TUPE: Failure to consult doesn't give an individual the right to claim unfair dismissal - Nationwide Building Society v. Benn & Ors [2010] UKEAT 0273_09_2707
Limits on Redundancy Payments affecting older workers are not Age Discrimination - Kraft Foods UK Ltd v. Hastie [2010] UKEAT 0024_10_0607
Employees must be informed of changes to collective agreement terms - Worrall v Wilmott Dixon Partnership [2010] EAT UKEAT/0521/09/DM
An employer can not plead its own irrationality in seeking to amend a compromise agreement - Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678
Time limits may be extended following wrong information from an employer (but not an adviser) - Northamptonshire County Council v Entwhistle [2010] UKEAT/0540/09/ZT
Even after the Unite decision unions must continue to careful with TULRCA compliance - British Airways Plc v Unite the Union [2010] EWCA Civ 669
A disability discrimination claim under the DDA must be for actual not perceived disability - Aitken v. The Commissioner of Police of The Metropolis [2010] UKEAT 0226_09_2106
A GP's opinion on depression is valid in an employment tribunal - J v DLA Piper UK LLP [2010] UKEAT 0263_09_1506
University and College Union (UCU)backs antisemite who incited violence against jews
Retirement and re-employment is a reasonable adjustment - Chief Constable of South Yorkshire Police v. Jelic [2010] UKEAT 0491_09_2904
Histadrut condemns violence, describes extent of cooperation with palestinian trade union Palestinian General Federation of Trade Unions (PGFTU)
Where an employer is contemplating disciplinary action the thoroughness of the investigation needs to reflect the seriousness of the consequences to a worker - Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522
Damages are not limited to the term of the breached fixed term contract (but reflect the total loss caused) - Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571
The disclosing of without prejudice communications - Woodward v Santander [2010] UKEAT/0250/09/ZT
Criterion for awarding uplifts under the Dispute Resolution Procedures - Lawless v Print Plus [2010] UKEAT/0333/09/JOJ
A local council is a single establishment thus allowing white collar workers to use manual workers as comparators - City of Edinburgh v Wilkinson & ors [2010] UKEATS/0002/09/BI
A compromise agreement can be valid even though the claimant does not understand it - McWilliam & Others v Glasgow City Council
When using the closed procedure for national security purposes the claimant must still be provided with the gist of the employer's case -
Home Office v Tariq [2010] EWCA Civ 462 An employer can not repair a fundamental breach of contract. It is up to the employee whether to resign and claim constructive unfair dismissal. - Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121
A worker can not claim constructive dismissal if he is in breach of the duty of trust and confidence - Bateman & Ors v. Asda Stores Ltd [2010] UKEAT 0221_09_1102
A worker can not claim constructive dismissal if he is in breach of the duty of trust and confidence - Aberdeen City Council v McNeill [2009] UKEAT 0037_08_1011
BA dress code forbidding the open display of faith symbols was not discriminatory - Eweida v British Airways Plc [2010] EWCA Civ 80
When deciding whether to allow an amendment the lateness of the application is only one factor to be taken into account by the employment judge - Baker v The Commissioner of Police of The Metropolis [2010] UKEAT 0201_09_0502
National courts should should strike down discriminatory legislation - Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECJCase C-555/07
Judges restrict employers' use of the illegality defence against employee unfair dismissal claims - SAN LING CHINESE MEDICINE CENTRE v LIAN WEI JI - [2010] EAT UKEAT/0370/09/ZT
There is a right to legal representation at a disciplinary which might result in the loss of the right to practise a profession - G, R (on the application of) v X School & Ors [2010] EWCA Civ 1
Cabin crew spending 5% of their time in the UK were considered to have worked partly at an establishment in Great Britain. - BA v Mak EAT [2010] UKEAT/0055/09/SM
The 'genuine occupational requirement' rule may apply to a maximum age for employment - Wolf v Stadt Frankfurt am Main [2010] Case C-229/08 ECJ
Different dress codes do not necessarily amount to sex discrimination - Dansie v. The Commissioner of Police for The Metropolis [2009] UKEAT
Certain conditions must exist for the obligation to carry out a risk assessment for a pregnant worker to arise - ONeill v. Buckinghamshire County Council [2010] UKEAT

2009
An employment tribunal may decide if a compromise decision is unenforcable - Industrious Ltd v Horizon Recruitment Ltd & Anor [2009] UKEAT
Registrar claiming right to refuse to officiate at civil weddings loses religious discrimination case - Ladele v London Borough of Islington [2009] EWCA Civ 1357
A philosophical belief based on science is protected by the Employment Equality (Religion or Belief) Regulations 2003 - Grainger Plc v Nicholson [2009] UKEAT/0219/09/ZT
Christian counsellor who would not help same sex couples was not discriminated against - McFarlane v Relate Avon Ltd [2009] UKEAT 0106_09_3011
Under TUPE the obligation to inform always applies, even when no measures are contemplated relating to the transfer - Cable Realisations Ltd v GMB Northern [2009] UKEAT
The Court of Appeal rules on Harassment and 'Oppressive and Unacceptable' behaviour
Veakins v Kier Islington Ltd [2009] EWCA Civ 1288
For s4A(3) of the DDA to apply the employer must have known (or ought to have known) that the employee was disabled and that the disability would affect him in the manner described in section 4A(1) - DWP v Alam [2009] UKEAT 0242_09_0911
A discrimination case may not proceed on the mere possibility that evidence might emerge during cross examination - ABN Amro Management Services v Hogben [2009] UKEAT 0266_09_0111
In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202
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