Saturday, 21 July 2012

Equality & Diversity News: July 2012

In This edition:

  • Editorial: “Not Just a Game…”
  • Global study shows workplaces still homophobic
  • BA steward victim of disability discrimination
  • Mark McCammon 'went through hell' at Gillingham FC
  • Northern Ireland Gay blood case passes first stage
  • BP settles $5.4m Claim over Gender Bias
  • Twitter declares War on Racism
  • Flat adverts that may be breaking the law
  • Nurse sacked for mocking black colleagues by attaching a golliwog to her uniform and making monkey noises was then 'hired by council to draft race-relations policy'
  • Equality for men in the application of Parental Leave
  • Discrimination against someone around the use of their own language can amount to direct race discrimination
  • Reasonable Adjustments by Police when dealing with the public
  • “Equality Conflicts”: Pending cases before the European Court of Human Rights
  • Any Questions/Comments

Editorial: “Not Just a Game…”

The recent court case involving international footballer John Terry charged with allegations of “racism” has illustrated that the sport could do with a good dose of Equality and Diversity training and a huge culture-shift in the way players, their clubs and their supporters deal with each other, both on and off the pitch. Whatever your views on Terry’s guilt for the actual remarks he admitted saying (“Black cunt”) which he said were merely repeating what Rio Ferdinand said to him, the court case showed an industry riddled with a lack of basic respect for all involved in it and the upholding of human dignity. Not a role model for children that I would currently want!

We were informed of a deep culture of abuse (not necessarily racist or otherwise) that players and fans use to one another on a daily basis; the abuse hurled by fans at players (and vice versa) and the, at best, near complete indifference of football club managements and the FA in tackling it. It’s as if such a culture is taken for granted as “normal” and natural”. In such an atmosphere of total disrespect no one should be surprised that all forms of sexist, racist, homophobic and disablist language is also commonplace and “normal” – despite policies and “statements of intent” by all those involved the industry that they take equality and respect “seriously”. There may be some exceptions from some – but it appears they are exceptions rather than the rule.

The court case may have illustrated this appalling state football is in, but the result (Terry was found not guilty) will certainly do nothing to put it right. Or will it?

Will John Terry walk away feeling he has been vindicated with no willingness to contemplate what has gone wrong. Will Black players feel they have been left isolated and unsupported? Will managers and clubs continue to ignore the tinder-box of hatred, anger and feelings of injustice that the case has demonstrated? I hope not. Football is too important, both in the UK and internationally, for this to happen. To tackle the underlying causes does, however, require courage and a spirit of learning and reconciliation from all involved – at all levels, from professional football to the local Sunday leagues and school sport – and to put this at the top of their agenda for many years to come. There will be no quick-fixes here as the rot appears deep and entrenched.

But it is possible - with determination, a clear vision of what the sport could be, and a determination to learn the lessons – our national sport could become something to be proud of and set an example not only for the UK as a whole but the world. As I heard someone say recently “football is not just a game… it’s a way of life”. Millions of people across the world live this life and they deserve better, much better – as do we all!

Global study shows workplaces still homophobic

The world’s largest research study into the lives of GLBT people has just released the first ever global data comparing experiences of homophobia at work and in daily life for GLBT people living in 21 countries around the world.

The research includes important information about real life experiences of GLBT people on all six continents – and reveals the clearest picture yet of the prevalence of homophobia and its current impacts on the lives of many millions of lesbian and gay people globally.

Almost one in every six respondents to the LGBT2020 study from both the USA and UK (US: 15.3% and UK: 14.5%) told researchers they have personally experienced harassment from colleagues at work during the past 12 months, because of their perceived sexuality.

BA steward victim of disability discrimination

An in-flight steward for British Airways (BA) has won £8,500 in compensation after being banned from flying by the firm, leaving him languishing on restricted duties for months. Mr. Frank Duckworth, 51, was hospitalised a few hours after he consumed a mushroom risotto on a trip from London to Las Vegas on October 4th, 2010, the Daily Mail reported.

He had to spend several days under medical attention and BA subsequently grounded his duties, leading him to fear for his future employment.

Mr Duckworth suffers from diabetes and coeliac disease, and when he ate the mushroom risotto the gluten in the meal triggered a reaction, aggravating his condition and making him very ill with sickness and diarrhoea. It was the only meal made available to him on the long-haul flight and he ate it while looking after the passengers. A doctor judged upon his arrival in the UK that he was unfit to fly, a ruling which was eventually overturned last July. He was then put on short-haul duty, but found the move was hit by delays.

An employment tribunal judged that he was a victim of disability discrimination, with BA having to pay out £6,000 for "injury to feelings" and £2,500 for loss of earnings that he would have gained from working as part of a long-haul cabin crew, as well as his basic wages.

Mr Duckworth said: "I've been attempting to return to work as an air steward since October 2010, I've been passed fit by BA's own doctor for flying duties since July 21, 2011, and yet I was only allowed to return to flying duties for the first time on May 13, 2012. "I believe I was being pushed out and forced to leave British Airways and from a job which I’ve done well and enjoyed for over 20 years."

Reasonable adjustments were not made by BA to cater for Mr Duckworth's needs, which would allow him to carry on his duties despite his conditions.

Mark McCammon 'went through hell' at Gillingham FC

A black footballer who claims his former club racially discriminated against him has told an employment tribunal he had been "through hell".
Striker Mark McCammon, 33, felt the management and chairman at League Two side Gillingham acted differently after he queried the payment of his wages.

He claims he was victimised because of the colour of his skin and was treated differently from white players. "It was traumatising to be at Gillingham Football Club," he said. "I have been through hell at this club," he told the tribunal in Ashford.

Mr McCammon claimed in his witness statement that he was ordered to come into the ground amid "treacherous" snowy driving conditions, while some white players were told they were not required. He has also alleged that the club tried to "frustrate him out" by refusing to pay private medical bills to help him regain his fitness following injury.

The former Charlton, Swindon, Millwall and Brighton player said that in contrast, a white team-mate had been flown to Dubai for treatment at the club's expense.

Mr McCammon signed for Gillingham in 2008 on a salary of £2,500 a week, making him the club's highest-paid player. "It was a phenomenal deal," he said. "It was a deal that most players would have taken."
But he disputed claims that the "trade off" was that if Gillingham remained in League Two during contract terms, his salary would be cut by 15%. Mr McCammon said: "There was absolutely no way I would have agreed to that. That wasn't making sense to me."

The tribunal has heard that a clerical error in Mr McCammon's contract meant the 15% line was accidentally omitted despite being agreed verbally.

Dubai-based Gillingham chairman Paul Scally has described claims that Mr McCammon was racially discriminated against as being made "maliciously and without foundation", adding that the club had not had to deal with an allegation of racism in 18 years.

Mr McCammon is suing the club and Mr Scally for race discrimination, breach of contract, unfair dismissal and failure of his ex-employer to pay him.

The judgement will be announced at a later date.

Northern Ireland Gay blood case passes first stage

A Gay man has won the first stage in a legal challenge to a lifetime ban on homosexuals giving blood in Northern Ireland.

The High Court ruled he had established an arguable case that Health Minister Edwin Poots' stance was irrational and unlawful. A judge granted leave to seek a judicial review and listed the case for a full hearing later in the year.

The man has been granted anonymity due to his perceived vulnerability.

His lawyers are seeking a ruling that would force Mr Poots to bring his policy into line with the rest of the UK. The complete prohibition, put in place during the 1980s AIDS threat, was lifted in England, Scotland and Wales last November. It was replaced by new rules that permit donations from men whose last sexual contact with another man was more than a year ago.

The 12-month deferral was left in place following a Government Advisory Committee report. It identified a much shorter window period during which infection with blood-borne viruses could not be detected. But Mr Poots has so far maintained the ban in Northern Ireland, declaring it was to ensure public safety. It was argued that the health minister has no legal authority for his position. The blood donation issue should be taken by the secretary of state for health, rather than devolved to Stormont, it was claimed.

BP settles $5.4m Claim over Gender Bias

In the United States oil giant BP has settled a $5.4m claim to resolve complaints that some women weren't considered for temporary jobs responding to the 2010 Gulf of Mexico oil spill because of their gender.

The agreement, announced on Thursday 28th June, ends an investigation by the US Equal Employment Opportunity Commission without filing a lawsuit. The commission says it has not determined that BP violated any anti-discrimination laws and BP denies it engaged in any wrongdoing.

An undetermined number of women from Texas, Louisiana, Mississippi, Alabama and Florida who applied for BP spill response jobs will be eligible for shares of the money.

"There has not been a determination that BP violated anti-discrimination laws, and BP denies that it has engaged in any wrongdoing" said a statement jointly issued by the EEOC and an exploration and production unit of BP.". This is a voluntary resolution, under which the EEOC and BP are partnering to ensure that contractors used during emergent situations in the future are committed to equal employment opportunities at BP" the statement said.

Twitter declares War on Racism

The Twitter micro blog service is taking measures to fight racism and trolling on the platform. Abusive comments will be hidden. The company’s Chief executive Dick Costolo told the Financial Times that the scale of hate speech, abusive and insulting messages is intimidating. Twitter will fight trollers and hate instigators by hiding their messages if their accounts have no followers, user information or user picture. Measures are being introduced after the British police initiated an investigation into racist messages against English football team players, who lost to the Italians in the quarterfinals of Euro 2012, the BBC reports. Despite the difficulties with abusive and racist speech Twitter executives believe it is crucial for the service to maintain freedom of speech. Thus they will still allow pseudonyms.

"The reason we want to allow pseudonyms is there are lots of places in the world where it's the only way you'd be able to speak freely," Dick Costolo is quoted as saying. "The flip side of that is it also emboldens these trolls… How do you make sure you are both emboldening people to speak politically but making it OK to be on the platform and not endure all this hate speech? It's very frustrating."

Abuse in Twitter has provoked complaints from many celebrities, sportsmen among them. Hate speech in Twitter has already brought some to justice. In March a court convicted student Liam Stacey for his racist Twitter post about footballer Fabrice Muamba.

Source: ICARE

Flat adverts that may be breaking the law

"To let" advertisements that specify a particular race or religion are visible in newsagents windows in many areas of London. But are they breaking the law? Today overt racial discrimination is both illegal and socially unacceptable. But it is now possible to find advertisements seeking tenants for rented accommodation which specify race, or other characteristics, in a way which some experts believe breaks the law.

Newsagents in different areas of London carry adverts saying:

"Double bedroom available… Asian only"
"Double room to let Gujarati (Indian) only"
Close to the station and bus stops (Filipino only)
"Professional single lady or Sri Lanka professional couple"
"House for rent… only Asian families"

The newsagents or online adverts are not common but they are easy to find in London in particular.

Most people understand that racial discrimination in jobs or education is both unacceptable and illegal. It's a position reinforced by the 2010 Equality Act, covering England, Wales and Scotland, which defines race in terms of both ethnicity and nationality. The same applies to religion - "Christian only" or "Muslim only" are both unacceptable.

It is illegal to seek a Polish architect, for example. But an employer would be able to call for an architect who speaks Polish or is familiar with Polish culture.

In the same way, landlords who specify a certain race are breaking the law, legal experts say. In 2009 the BBC found that letting agents in Lincolnshire were excluding migrant workers at the request of landlords. It was covert discrimination and breached the (then) Race Relations Act 1976.

But in London at least you can find adverts specifying race openly displayed. Examples were not immediately apparent in Glasgow, Cardiff, Leicester or Bradford.

The Equality Act 2010 aims to protect people from discrimination, harassment or victimisation on the basis of age, disability, race, sex and other "protected grounds" such as religion/belief and sexual orientation.
This law applies to any person or organisation providing goods, facilities or services to the public. The service provider must not treat someone less favourably just because of one or more protected characteristics (direct discrimination). The size of the organisation is irrelevant, however rented accommodation in which a private/individual letter lives on or in the same premises may be exempt.

Nurse sacked for mocking black colleagues by attaching a golliwog to her uniform and making monkey noises was then 'hired by council to draft race-relations policy'

 A nurse who pinned a golliwog doll to her uniform to mock black colleagues went on to draft a council’s policy on race relations, a Nursing and Midwifery Council hearing was told. Susan Horton branded a junior nurse a ‘gorilla’, joked about feeding them bananas and made monkey noises while discussing a black doctor.

She was sacked along with her colleague Sarah Cullum when their two-year reign of terror at St Mary’s Hospital in Kettering, Northamptonshire, was exposed.

But in a bizarre twist, the hearing was told that after she was fired by the NHS in 2007, Horton was hired by Wellingborough Council as a community safety officer. During her time at the council, she wrote a policy on race hate and delivered a talk on that to 300 employees at the council,’ said John Lynch, representing Horton. However she resigned this post within a few months following exposure of her previous dismissal by the health trust.

In June Horton and Cullum were kicked out of the nursing profession after being found guilty of more than 60 charges. Richard Williams, of the NMC, said: ‘There was physical abuse of patients and use of inappropriate language when referring to patients both in front of them and behind their backs.’

The hearing was told Horton and Cullum acted in ‘partnership’ to racially abuse staff at all levels, including senior doctors. They were also responsible for physically abusing some patients, including a 70-year-old man who was hit and kicked by Horton. Both nurses shouted at another patient, said he smelled of urine and asked if he was gay and if he liked sharing a room with men. Healthcare assistant Sandy Smith said Horton and Cullum swapped racist remarks when they met for shift handovers.

She said Horton’s golliwog was on her uniform ‘so it was always accessible’ and that she often pointed at it and then at black nurses.
Horton made monkey noises while discussing a black doctor, referred to her as ‘scary Mary’ and said she ‘shouldn’t be allowed to breed’.
She also joked about ‘saving the bananas for Mary’. Both nurses commented that two nurses from Guyana were ‘jabbering away in their gobbledegook’ as they spoke in their native language.

Equality for men in the application of Parental Leave

An interesting case from the European Court of Human Rights (ECHR) confirms that parental leave entitlements should be the same for both men and women. The specifics of the case involved a serviceman in the Russian army who applied for three years parental leave, but this was refused on the basis that only female military personnel were allowed leave of such duration and the “limited participation of women in military service and the special social role of women associated with motherhood”.

After failing to achieve a remedy to this discrimination through the Russian judicial system Mr Markin took his case to the ECHR alleging that his rights under the Convention has been breached (Article 14 – right to non-discrimination and Article 8 - the right to respect for family life).

By six votes to one the ECHR upheld his case. The court held “reference to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example states are prevented from imposing traditions that derive from the man’s primordial role and the women’s secondary role in the family.”

This is a very welcome decision by the ECHR and a powerful ruling which goes towards the advancement of equality between the sexes, particularly in the context of historical roles within the family, traditional assumptions about the roles of men and women and gender stereotyping.

Source: Discrimination Law Association Briefings 634-646. Reference: Konstantin Markin – v – Russia, application 30078/06. ECHR [2012] EqLR 489, March 2012

Discrimination against someone around the use of their own language can amount to direct race discrimination

Ms. D, a Polish national, was dismissed by reason of redundancy but brought claims of unfair dismissal, age and race and sex discrimination. The Employment Tribunal (ET) upheld her claims of unfair dismissal and race discrimination, which were appealed to the Employment Appeal Tribunal(EAT). The ET claim in respect of race discrimination arose from an incident when she was reprimanded by a manager for talking to a colleague in Polish because it distracted other workers.

The EAT upheld the ET’s decision in respect of direct race discrimination as D had been instructed not to speak her own language, which is intrinsically linked to her nationality (or national origins?). No other employee had received an instruction not to speak their own language which established less favourable and detrimental treatment. These factors were enough to shift the burden of proof to the employer which had not provided any non-discriminatory explanation for the treatment. This therefore amounted to direct race discrimination (not indirect discrimination, which had been argued by the employer).

This case illustrates that discrimination related to language can be direct race discrimination for which there is no justification (indirect discrimination can be capable of being “justified”).

Source: Discrimination Law Association Briefings 634-646. Reference: Dziedziak – v – Future Electronics Ltd, UKEAT/0270/11, [2012] EqLR 543, February 2012

Reasonable Adjustments by Police when dealing with the public

ZH is a severely autist, epileptic young man with learning difficulties and he cannot communicate through speech. During a visit to a swimming pool he became fixated by the water and stood by the side of the swimming pool. After 30 minutes and various attempts by classroom assistants to distract him and move him away from the pool, the manager of the pool decided to call then police. Without consulting with ZH’s carers, one of tow police officers who arrived touched ZH, which was a catalyst for him to jump in the water and appeared to be enjoying himself.

Lifeguards then entered to pool and tried to move him to the shallow end. Three ore police officers then arrived and forcibly removed ZH from the pool. ZH’s carers were trying to calm things down, but were ignored by the police and ordered to move away. ZH was then handcuffed and a set of leg restraints applied. Soaking wet he was then taken out of the bulding and placed in a cage in a police van. As a result ZH suffered traumatic stress disorder and an exacerbation of the epileptic seizures.

ZH brought claims for battery, assault, false imprisonment, discrimination by a public body (including failure to make reasonable adjustments) and breaches of his human rights, including inhuman and degrading treatment, the right to liberty and the right to respect for private life. The High Court found that all the claims were successful.

It was found that although police officers considered ZH was in potential danger and they were acting to protect him (i.e. they acted for the best of motives) it was not a reasonable belief that there was an emergency that required them to act before consulting ZH’s carers who were present and trying to assist and offer advice.

The reasonable adjustments claim was successful and were identified as:
  • Trying to find out from carers the best way to communicate with ZH
  • Discussing with carers a plan fro approaching ZH
  • Allow ZH an opportunity to communicate with his carers
  • Giving ZH the opportunity to move away from the poolside at his own pace
  • Recognising that the use of force was a last resort
The concluding remarks of the judge are worth quoting:
“Whilst I am clear in my conclusion that the case against the police is established, I am equally clear in concluding that no one involved was at any time acting in an ill intentioned way towards a disabled person. The case highlights the need for there to be an awareness of the disability of autism within the police service. It is to be hoped that this sad case will help bring that about.” 
Whilst this case may be considered highly unusual and “extreme” it nonetheless illustrates:
  • That good intentions do not prevent a finding of unlawful discrimination – “the road to hell (can) be paved with good intentions”
  • That discrimination law is relevant not only in employment situations but also in the delivery of services – in this case a public service.
  • All too often strait-jacket procedures may be applied instead of having bespoke approaches that take into account the specific needs of individuals and “reasonable adjustments” made for disabled people.
  • The need for awareness training, particularly around disabilities in general and specific disabilities in particular
  • The need to listen to the views of disabled people themselves and their carers before embarking on a course of action – they are often in the best position to suggest what reasonable adjustment might be considered in specific circumstances. 

Source: Discrimination Law Association Briefings 634-646. Reference: ZH – v – Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] EqLR 425, March 14 2012.

“Equality Conflicts”: Pending cases before the European Court of Human Rights

Hearings in the UK cases of Eweide, Chaplin, Ladele and McFarlane will take place in Strasbourg on September 4th. All these cases involve alleged conflicts between the right of Gay people and practicing Christians in connection with their right to manifest their religious beliefs in the workplace. Watch this space for further news on these important cases in the autumn.

Source: Discrimination Law Association Briefings 634-646

Any Questions/Comments

If you have questions or issues that you would like me to address in future newsletters, or you have comments and suggestions about the newsletter, please let me know.


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