i) A disabled person’s job offer was withdrawn following a negative verbal reference from their former employer. That reference was given partly as a result of the employee’s absence due to sickness, which was a consequence of their disability. The EAT held that where a former employer provides a negative reference which amounts to discrimination arising from a disability, the prospective employer’s withdrawal of a job offer based on that negative reference may also amount to disability discrimination.
ii) An employer instructed an employee, who had been acting suspiciously, not to speak in Russian so that conversations in the workplace could be understood by the English-speaking managers. The reason for this was that the employer carried out animal testing and had previously received unwelcome attention from animal rights activists, including violent assaults on some of its employees. The EAT found that where an employer has a reasonable explanation for giving an instruction to an employee not to speak in their native language, which is unrelated to the employee’s nationality or national origins, was not direct race discrimination or racial harassment.
iii) The new owner of a university campus appointed a new security provider, purportedly on an interim basis pending an expected redevelopment of the site. The new security provider refused to take on the existing security staff, relying on the exception in TUPE 2006 for activities which the client intends to be carried out in connection with a “single specific event or task of short-term duration”. The EAT concluded that although the exception is predicated on the client’s intention at the time of the alleged transfer, subsequent events may cast light on what the relevant intention was at that time.
iv) A financial trader brought a claim in relation to his employer’s exercise of its discretion on the basis that, in awarding him a significantly smaller bonus than two of his colleagues, his employer breached an express contractual term to treat him consistently with his “peers” and the implied term to act rationally and in good faith. The High Court found that the employer had sound reasons for awarding the two colleagues a guaranteed bonus on a formula basis as opposed to a discretionary bonus and that the employer had not breached its express or implied obligations.