Thursday, 20 September 2012

Equality & Diversity News: September 2012 edition

In this edition:

  • Editorial: The legacy of the Paralymics
  • Metropolitan Police Officers sacked over racist comments
  • Vince Cable's Employment Law Reforms
  • Convictions for homosexual offences pre 1967 can be deleted
  • Children from families subjected to racist abuse are more likely to struggle in school 
  • Reconciling “Equality Conflicts” - Religious freedom in UK to be considered by European Court of Human Rights
  • Employee discriminated against because of his wife’s disability
  • "Trendy" Oxford Street and Piccadilly retailer forced Muslim employee to resign over headscarf
  • Heterosexual employee called “gay” because he does not like football wins harassment claim

Editorial: The legacy of the Paralympics

In the June edition of this newsletter I wrote about the Olympic ideal or dream of equality, fair-play and how it is worth defending, even in the face of cynicism, hypocritical commercial exploitation and the continuation of historic inequalities in sporting opportunities. I quoted favourably from the The fundamental of Principles of Olympism which states: “The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play”.

The Olympics and Paralympics have now successful concluded and commentators and politicians are now discussing there legacy and the effect it has had on British society. Opinions seems to be divided, with agreement only on the fact that both events were extremely successful and well organised and “Team GB” performed beyond expectations.

In the context of the Paralympics, speculation has focus on the long-term effect, if any, on disabled sport in general in the UK and how disability is perceived. Has the Paralympics had an effect on diminishing prejudices against disabled people and will this lead on to reduced discrimination and more equality?

I have little doubt that sorting opportunities for disabled people will improve and more disabled people will themselves participate in such activities in the future. Even in the height of a recession the government has also promised more funding to support disabled sports initiatives – so all looking good then! There is also little doubt that the performance of disabled athletes has been inspiring, for both fellow disabled people and non-disabled people alike.

But what will the longer term legacy be in respect of prejudice and discrimination. Here I, and others, are slightly more pessimistic (or are we being realistic?). I think it will take more that the Paralympics to change ingrained attitudes to disabilities – particularly those that are “unseen” such as mental health difficulties. Even in respect of obvious physical disabilities, prejudices are hard to shift with so many of us “seeing” the disability as a barrier to achievement, rather than looking at the abilities of disabled people as an opportunity. Will some also use the obvious achievement of Paralympians as a way of criticising other disabled people for failing to achieve to their level ((“if they can do, why can’t you?”); whereas such standards would not be applied to non-disabled people vis-a-vis non-disabled Olympians (if there were such a comparison I would personally be in serious trouble!).

Are already seeing some of this come through with the new assessments of disabled people for a variety of welfare benefits – with higher than normal refusal rates and many disabled people having their benefits stopped or seriously cut. Does this reflect a more equitable, fairer or respectful society for the vast majority of disabled people who cannot “perform” as society would expect?

There is also not a simple trade-off: prejudice = discrimination. We know that non-prejudiced people can discriminate and prejudiced people do not necessarily discriminate even if they have the opportunity to do so. Discrimination can operate at an institutional/policy level irrespective of the desires or prejudices of individuals; and prejudices can be buried deep within our psyche and can influence our behaviour without our conscious knowledge. We also know that historic societal prejudices are the most difficult to shift in the short-term as they are ingrained and part of our collective “common-sense”.

I suspect, unfortunately, that the struggle for equality and fair treatment for disabled people will not be subject to the quick-fix of the Paralympics. If only life were less complicated and serious problems could be solved in such ways. This does not mean the Paralympics were without value (they were of immense importance and clearly great fun to both participate in and watch) – but it should be seen as a small stepping stone in crossing a wide, very wide, river.

Metropolitan Police Officers sacked over racist comments

Two women police officers have been fired after a conversation in which one of them compared black people to gorillas and monkeys.

The racist chat involving Special Constable Rosanna Garofalo and WPC Joanna Sugda was taped when a colleague left an iPhone on record in her locker at work. The two women were in the changing room at Islington Police Station in March when Garofalo was recorded saying that black people “all look the f*****g same. They just all look like monkeys”.

A disciplinary hearing was told how Special PC Garofalo, also employed as a civilian detention officer, was recorded saying how she had told her mother that a woman she knew who was Italian liked “black d***”. She said her mother had replied that Italian girls made her sick “coming into this country” and wanting to “go f*****g black men”.

Garofalo, whose own surname is Italian, added that she could never sleep with a black man, and that her boyfriend wouldn’t be interested in black women as “they look like gorillas”. Talking about another officer, she said she had “a face like a gorilla”, that she was “f*****g ugly” and that “they all look the f*****g same. They just all look like monkeys”.

These cases come as the Met revealed 96 claims of racism by officers were referred to the Independent Police Complaints Commission between April 1 and June 1, this year. The force had previously said the IPCC had been told of 51 cases since the Stephen Lawrence inquiry. Police chiefs claimed to have stamped out discrimination after the Macpherson report, which followed Stephen’s murder, that branded the Met “institutionally racist”.

Other racism allegations within the Met started earlier this year: PC Kevin Hughes, 36, and PC David Hair, 40, who are based in Newham, East London, are alleged to have made racist comments “within a group of officers”. Both denied two charges in court in early September. PC Philip Juhasz, 31, was fired in July after he told a Pakistani takeaway manager in King’s Cross to “go back to your f*****g country” after he was refused a discount on food. A black female officer was sacked for racially abusing both black and white colleagues at Westminster. She described one black colleague as a “black monkey” and a “coconut” while criticising a white officer for marrying a black woman.

Commander Allan Gibson of the Met’s Directorate of Professional Standards said: “There is no place for racist officers in the Met. We will take action to get them out of the police.” In May, London Mayor Boris Johnson said: “We’ve moved on from the term institutional racism first defined by the Macpherson report”, but added: “I think great progress has been made but there is more to do.” Mr Johnson ordered a review of anti-racism reforms at the Met, which included opening top positions to people from different backgrounds.

Latest figures show that by April 2012, 10 per cent of officers had black or ethnic minority origins, up from eight per cent in April 2007.

Vince Cable's Employment Law Reforms

The Secretary of State for Business, Innovation and Skills has outlined various proposed reforms to employment law - most importantly in the form of consultations on capping the unfair dismissal compensatory award, and introducing 'settlement agreements'.
See the Press Release at:

EHRC staff express concern over funding cuts

The Equality and Human Rights Commission (EHRC) could be left with an "all white" senior management because of Government-imposed cuts, employees have claimed. The EHRC is being chopped down to a fraction of its original size, with staff numbers cut from a peak of 420 (when all three equality commissions were merged into one) to 180.

So far, generous redundancy terms have seen the cuts carried out through voluntary redundancies, but it is feared that dozens of people may have to be sacked in the autumn as volunteers dry up. A high proportion of those in line to lose their jobs are women, disabled or from ethnic minorities – the very sections of the population most vulnerable to the kind of discrimination the EHRC was set up in 2007 to prevent.

The EHRC has attracted criticism in the past because of financial management and complaints about the leadership of its £112,000 a year part-time chairman, Trevor Phillips. Mr Phillips's six-year chairmanship came to an end on 10 September. His former deputy, Margaret Prosser, a former TGWU transport union official, will act as interim head of the organisation while the hunt goes on for a successor.

In a letter to Baroness Prosser, 124 staff members have warned that when the cuts are complete, the senior management will be "all white" – although this was denied by an EHRC spokeswoman, who said new ethnic minority appointments were in the pipeline. The cuts include reducing the number of commissioners from 14 to eight, which means that the majority have been told they must re-apply for their positions.

Insiders complain the job advertisement published by the Cabinet Office lists senior level finance, commercial business experience, and legal skills as essential qualifications while making only passing reference to a background in equality. The previous Minister for Equalities (she lost her position in the recent cabinet reshuffle), Liberal Democrat Lynne Featherstone, ordered the Commission to cut its budget from £50m to £26m in the coming year – but its management are working to a budget of £18m in anticipation of a new round of cuts.

Mark Hammond, the EHRC's chief executive, said: "We don't have any choice about cutting jobs to match our reduced budget... but we are being fair and transparent as we go about it. Our staff diversity is one of the best in government and far better than the average employer in Britain. We are doing everything possible to maintain that record, including using positive action.”

Convictions for homosexual offenses pre 1967 can be deleted

From 1 October men convicted of homosexual offences prior to the decriminalisation of consensual gay sex in 1967 can apply to have convictions deleted from the police national computer. This change is brought in by ss.92-101 of the Protection of Freedoms Act 2012.

Children from families subjected to racist abuse are more likely to struggle in school

The study, by the Institute for Social and Economic Research at Essex University, found that racial prejudice had an impact on children as young as five. Youngsters from the families affected were found to be more likely to struggle with cognitive tests and faced more socio-emotional problems than other children their ages. The findings were based on a study of 2,000 five-year-olds from ethnic minority backgrounds and their mothers.

Of the women, more than one in five had experienced racist abuse, with 23% suffering verbal insults in the past 12 months, 20% reporting unfair treatment and 23% reporting unfair treatment of a family member. Researchers found that their children were more likely to have socio-emotional issues - such as hyper-activity or problems interacting with their peers.

Reconciling “Equality Conflicts” - Religious freedom in UK to be considered by European Court of Human Rights

Earlier this month the Strasbourg Court heard complaints in four applications that UK law has failed adequately to protect the applicants’ right to manifest their religion, contrary to Articles 9 (freedom of religion) and Article 14 (prohibition of discrimination) under the European Convention on Human Rights.

All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Their challenges to their consequent dismissal were rejected by the UK courts on the basis that their employers were entitled to refuse to accommodate views which contradicted their fundamental declared principles – and, all the more so, where these principles were required by law, notably under the (then) Sexual Orientation Regulations 2007, now enshrined in the Equality Act 2010.

The judgment is awaited with considerable anticipation: the National Secular Society and the Equality and Human Rights Commission have both filed intervening submissions.

The EHRC Submission can be found here:

Whatever the outcome the Court's ruling – which is not expected to be issued anytime soon! - it will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention. Watch this space….

Employee discriminated against because of his wife’s disability

As this case demonstrates it is unlawful for an employer to discriminate against an employee by treating him or her less favourably than others because of someone else’s disability.

Atlas Ward Structures Ltd is an engineering firm that employs around 1,000 workers. In December 2010, Mr Bainbridge was employed by the company as a welder. At this time, there were 12 welders employed on temporary contracts. His wife suffered from medical problems, and the company later conceded at the tribunal hearing that she is disabled for the purposes of discrimination law.

In late September and October 2011 and Mr Bainbridge was that his contract would not be renewed. He was “shocked”, as he had not understood that there was any likelihood of redundancies, and had expected to be kept on when his contract came to be renewed. He asked why he had been selected, but did not receive an answer. He believed that the reason was his wife’s disability. He suggested that the amount of time that he had had to take off work, particularly at short notice, had “irritated” the manager, and this was why he had been selected.

At no point was Mr Bainbridge provided with a reason as to why it had been him, rather than any of the 12 or so other welders in the same temporary position.

The employment tribunal stated that the crucial issue was causation: why had Mr Bainbridge's contract been selected for non-renewal? On the evidence before the tribunal, Mr Bainbridge was well respected, experienced and qualified, and generally well regarded by the company. His attendance record, save for the periods of leave he had taken at short notice, was good - there was "no obvious or apparent reason” why he had been selected. Mr Bainbridge’s unchallenged evidence was that other employees who had been taken on after him had had their contracts renewed.

The tribunal accepted, “in the absence of any other plausible reason”, that Mr Bainbridge had been selected because he had, on occasion, taken leave at short notice, causing the company some inconvenience. The tribunal found that “faced with the need to select workers, [the company] had decided to remove this possible future source of selecting Mr Bainbridge”.

The tribunal awarded Mr Bainbridge £10,500 in compensation and made a recommendation that:
  • no later than 8 September 2012, the company should offer Mr Bainbridge a position as welder on his previous terms and conditions, giving him no less than two weeks’ notice to accept or reject the offer; 
  • if Mr Bainbridge returned to work, he should be treated as having been continuously employed since 14 December 2010; and 
  • the company pay compensation to Mr Bainbridge to cover any financial losses he had suffered from 30 May 2012 until his reinstatement. 
Bainbridge v Atlas Ward Structures Ltd ET/1800212/12

"Trendy" Oxford Street and Piccadilly retailer forced Muslim employee to resign over headscarf

A retailer with branches on Oxford Street and Piccadilly forced a Muslim employee who came to work wearing a headscarf to resign because it wanted to retain its "trendy" image, an employment tribunal has found.

Ms Farrah worked part time for a retailer that sells suitcases and employed about 18 people across two stores on Oxford Street and Piccadilly. Farrar worked at the Piccadilly store.

Ms Farrah is a Muslim, but does not normally wear religious dress but came to work with a headscarf one Saturday. The following day the manager asked that Ms Farrah be moved to the Oxford Street store. When informed she was "upset and surprised" at and asked for an explanation. I a telephone conversation with the manger the tribunal concluded that the conversation went as follows:
  • Ms Farrah (after after being informed there was "no reason" for the move): "It's my wearing my headscarf, isn't it?" 
  • Ms Ford (the Manager): "We are trying to maintain an image at Piccadilly; we are trying to be trendy. You never told us you would be wearing a headscarf...You can wear your headscarf." 
  • Ms Farrah: "Yes, I will!" 
After this conversation the roster so that Ms Farrah was always working at the Oxford Street store. The tribunal accepted that the Piccadilly store "caters for a higher class of customer" and working at the Oxford Street store was "less pleasant" for Ms Farrah (for example, she was required to clean shelves).The tribunal rejected evidence that the move was to tackle shoplifting and concluded that the real reason that Ms Farrah was not allowed back to the Piccadilly store was her headscarf.

A few weeks later, Ms Farrah and another employee, Ms Adkins, took a two-hour lunch break, instead of the one-hour break that they were permitted. Despite Ms Farrah's and Ms Adkins' apologies, three of their colleagues who were inconvenienced reported them to the directors. A week later a meeting was held with Ms Farrah about her unauthorised absence. The tribunal noted that they "had already decided to dismiss the claimant by one means or another because she had carried on wearing a headscarf at the Oxford Street store and they did not like this".

At this meeting meeting Ms Farrah was also given a "rather odd" letter that appears to have been given to all staff and stated that the company was having to make cuts and all employees would be assessed for their "quality of work ethic" to determine whether or not they should be retained. The tribunal believed that, by then, the directors had concluded that Ms Farrah's conduct relating to the lunch break would be a "better pretext" on which to dismiss her.

After receiving the letter Miss Farrar was given the option of resigning immediately with a good reference and being paid her wages, or being dismissed "the formal way" and without a reference. Later in the day, Ms Farrah telephoned to say that she would prefer to resign immediately, but she followed this up the next day with a letter complaining about her treatment. Ms Farrah later claimed direct religion or belief discrimination and unfair dismissal.

The employment tribunal regretted that Ms Farrah brought a direct, and not indirect, discrimination claim. It said that the correct comparator for a direct discrimination claim was a non-Muslim or a woman, whether Muslim or otherwise, wearing the same headscarf for non-religious reasons. There was no evidence that such a person would have been treated any differently. In the tribunal's view, it was the headscarf, and not the claimant's Muslim faith, to which the employer objected.

The tribunal concluded that, had Ms Farrah claimed indirect discrimination, the provision, criterion or practice would have been the requirement not to wear a headscarf, a rule with which Muslim women would have had more difficulty complying than non-Muslim women. The tribunal said that it should be some consolation to Ms Farrah that, given that she appeared to it to be a "buoyant and intelligent person who is likely to have a successful career in future", it would have been unlikely to award substantial compensation for injury to feelings anyway.

However, the tribunal went on to uphold Ms Farrah's unfair dismissal claim, concluding that she was either actually or constructively dismissed. She was given a clear indication by the directors that she had no future with the company. She was told that, if she did not resign, she would inevitably be dismissed. This deprived her of her freewill and forced her to resign.

In assessing compensation, the tribunal noted that Ms Farrah was having difficulty in getting another job and awarded her six months' earnings. It assessed her contributory fault at one third (for taking the unauthorised extended lunch break) and uplifted her compensation by 25% to reflect the employer's failure to follow the ACAS code of practice on disciplinary and grievance procedures. Ms Farrah's total award came to £3,218.

Farrah v Global Luggage Co Ltd ET/2200147/2012

Heterosexual employee called “gay” wins harassment claim. Tribunal finds there is a culture of religious discussion and emails of a sexist and racist nature

In this tribunal decision, an employee who suffered workplace abuse successfully claimed sexual orientation and religion or belief harassment, despite being heterosexual and not declaring his religious beliefs.

On 13 September 2010, Samuel Grant (North East) Ltd employed Mr Austin as a sales executive. There were two other sales executives, Mr Kozlowski and Mr Laidlaw, who was also the company’s managing director. Mr Laidlaw had agreed with Mr Kozlowski’s suggestion that, on Mr Austin’s first day at work, Mr Kozlowski would pretend that he had Tourette’s syndrome. Mr Austin’s evidence at the tribunal hearing was that he had suspected that it was a joke, but that Mr Kozlowski’s “performance” had been such that he had doubts as to whether or not Mr Kozlowski actually had Tourette’s syndrome.

At the tribunal hearing, the company accepted that one or both of Miss Laidlaw (who appears to be a relative of Mr Laidlaw, and also worked at the company) and Mr Kozlowski had asked Mr Austin whether or not he liked football and, when they had been told that he was not interested, said “you’re gay then”. The company’s evidence was that this expression is “quite normal in North East England football circles”, and is treated as a joke. Mr Austin’s evidence was that Mr Laidlaw and Mr Kozlowski had called him “gay and a homosexual” throughout his employment, which they denied apart from the one occasion on which Mr Austin had been asked about football.

Mr Austin gave evidence that Mr Laidlaw and Mr Kozlowski had referred to him as a “crafty butcher”, which is a euphemism for male homosexuals. Mr Austin also alleged that Mr Kozlowski had “equated him with being gay” because Mr Austin helps with household chores at home, whereas Mr Kozlowski does not. Mr Austin said that he has a particular interest in the arts and, whenever he had spoken about a television programme on an arts subject, this had been taken by Mr Laidlaw and Mr Kozlowski as further evidence of his homosexuality. On one occasion, Mr Austin alleged, he had been accused of being a homosexual for watching a documentary about Salvador Dali.

The tribunal was presented with examples of emails that Mr Laidlaw had sent to members of staff. Two of these were sexist, and one (headed “coloured-folk”) was racist. In January 2011, Mr Austin fell seriously ill with swine flu. On his return, three colleagues, including Mr Laidlaw, were wearing what appeared to be surgical masks, which had been supplied by Mr Laidlaw.

Mr Laidlaw, Mr Kozlowski and two other members of staff are Jehovah’s Witnesses. Mr Austin’s evidence was that Mr Laidlaw and Mr Kozlowski would “invariably” turn conversations to their religion, and “if an opposing opinion was given by the listener, he or she was referred to as a pagan”. Mr Austin alleged that he had been informed that “come Armageddon, the Jehovah’s Witnesses would be born again in perfect health, but everybody else would perish”. Mr Austin considered that these religious beliefs were not suitable for discussion in an office environment, and alleged that inappropriate religious and homophobic statements had been made weekly until his dismissal. Mr Laidlaw and Mr Kozlowski denied that they promoted or mentioned their religious beliefs unless they were asked a question by a member of staff.

Mr Austin’s evidence was that he had become very distressed about his treatment and humiliation by Mr Laidlaw and Mr Kozlowski. He met the HR director and, on 5 April 2011, the HR director met with Mr Laidlaw and the company’s owners to discuss Mr Austin’s grievance and “capability and future” at the company. Neither Mr Laidlaw nor Mr Kozlowski was suspended, and on 10 May 2011, Mr Austin’s grievance was rejected. The HR director found that, although there had been jokes and banter, none of the employees interviewed by him had found any of it offensive or derogatory and said that Mr Austin had joined in. Mr Austin’s appeal was rejected on 25 May 2011.

On 18 March 2011, Mr Laidlaw had told Mr Austin that, unless his sales figures improved, he would “have to let him go”, although no specific objectives were set. On 15 April 2011, Mr Austin was summarily dismissed. He brought claims for harassment on the grounds of sexual orientation and religion or belief. He also claimed victimisation, arguing that the reason for his dismissal was his grievance about being bullied.

The tribunal preferred Mr Austin’s evidence to that of the company’s witnesses, which was “unconvincing and contrived”. The tribunal found that there had been collusion with the employees in the period between 5 April 2011 (when the company was aware of Mr Austin’s allegations) and 3 May 2011, when the HR director returned from holiday and began his grievance investigation.

The tribunal found that there is a culture in the company of religious discussion and emails of a sexist and racist nature. This conduct “is led by the managing director, who sets the tone of the his own behaviour and by accepting the behaviour of others”. The tribunal inferred from the evidence that the terms “gay”, “homosexual” and “crafty butcher” had been used by Mr Laidlaw and Mr Kozlowski on numerous occasions, and were not one-off remarks. The pornography incident had “obviously” taken place as Mr Austin had described it.

The tribunal held that Mr Austin had suffered both sexual orientation and religion or belief harassment. Although Mr Austin is not homosexual, his treatment by Mr Laidlaw and Mr Kozlowski fell within the relevant definition in the Equality Act 2010. The conduct was unwanted and was intended to violate Mr Austin’s dignity.

Although Mr Austin had not informed the tribunal of his own religious belief, if any, the religious conversations in the office had the purpose and effect of creating an adverse environment for him, and he could not simply ignore them.

The tribunal also held that Mr Austin had been victimised by his dismissal, which was not carried out in accordance with the company’s disciplinary procedure. Mr Laidlaw knew of Mr Austin’s complaint and that it could, with a proper investigation, have been proved. The tribunal found that the company had failed to show that Mr Austin’s performance was less satisfactory than Mr Kozlowski’s (who was not dismissed), and held that the reason for the Mr Austin’s dismissal was his grievance.

The tribunal awarded Mr Austin compensation of nearly £44,000. It also made a recommendation that the company, within six months, update its discrimination policies to take account of the Equality Act 2010, and ensure its directors and managers obtain diversity training from a reputable provider.

Austin v Samuel Grant (North East) Ltd ET/2503956/11


1 comment:

  1. On the issue of Eweida and Chaplin at the Eutopean Court, their employers did not apply restrictions to their wearing crosses, they applied restrictions on the wearing of jewellery (crosses or lucky pixies or the broach your husband bought you for your anniversary).
    Ther was no ban on crosses as such and no religious conflict until it was created by the ladies in question.