Employment Cases Update

Governing Body of Sutton Oak Church of England Primary School and others v Whittaker UKEAT/0211/18/BA

Date published: 22/03/2019

Appeal against the ET’s decision upholding the Claimant’s claims of unfair dismissal and direct discrimination on the grounds of sexual orientation. Appeal allowed.

The Claimant, who was gay, worked as a primary school teacher. He was dismissed after he was seen in a classroom alone with a male pupil during the lunchtime break, giving the pupil some sweets. He had received a written warning, and the school had given him guidelines, in relation to a similar incident 13 years earlier, when he was newly qualified. The Claimant brought claims of unfair dismissal and discrimination on the grounds of sexual orientation and disability, as well as claims of victimisation and harassment. The ET rejected the claims of disability discrimination, victimisation and harassment, but it upheld the claims of unfair dismissal and direct discrimination on the grounds of sexual orientation. The Respondents appealed against the ET's decision on the basis that it erred in law in its approach to the hypothetical comparator and/or that it reached a conclusion as to discrimination that was not supported by the facts.

The EAT held that there were material omissions rendering the ET's hypothetical comparator inappropriate, with the result that the ET's conclusions in respect of discrimination on the grounds of sexual orientation were seriously flawed. The case would be remitted to a fresh ET, with jurisdiction to consider only the complaint of direct discrimination on the grounds of sexuality.

Employment Claims without a Lawyer 2nd edition published March 2018

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