In this issue:
- Christian B&B owners discriminated against Gay couple
- Big Fat Gypsy Weddings has caused 'real, measurable and long-term harm’
- Young black men have experienced the sharpest rise in unemployment
- Serb Football Fans’ Racism – call for ban
- International Students Spurn UK due to immigration curbs
- Survey of Lawyers tells of bullying, harassment and discrimination
- Oxford University: Muslim prayer space opened by Vice-Chancellor
- New Faces: It’s all change in the world of UK equality
- Changing attitudes to equality?
- Can an employer ask an applicant or employee whether they have a disability?
Christian B&B owners discriminated against Gay couple
The Christian owner of a B&B in Berkshire were
found to have discriminated against a gay couple by refusing to allow them stay
in a double-bedded room because of her belief that all sexual activity outside
of marriage is wrong.
Although
a county court judgment, this case has been splashed all over the headlines recently because it is so factually similar to
the high-profile case of Bull – v-v- Hall and Preddy which is currently before the Supreme
Court. This judgment has also come along at a time when the European Court of
Human Rights’ decision is awaited in the four conjoined cases of Ladele, Eweida, Macfarlane
and Chaplin, (see last newsletter) all of which involve
issues of religious freedom and two of which involve the same potential
conflict between the right not to be discriminated against on grounds of sexual
orientation and the right to religious freedom. Moreover, Recorder Moulder’s
comprehensive and careful judgment has helpfully been made available online, so
it can be considered in detail. (See: http://tinyurl.com/994vzsz)
Some
novel points in this case:
There
were two elements which made this case different from Bull
v. Preddy.
First,
Mr Morgan and Mr Black are not in a civil partnership, whereas Mr Hall and Mr
Preddy, the claimants in the Bull case, are. Mrs Wilkinson said
this was an important difference, because it meant the correct comparator for a
discrimination claim was an unmarried opposite-sex couple, and she would also
have refused to allow such a couple to have a double bed. However, Recorder
Moulder considered that the decision in Bull was not dependent on the fact that Mr Hall
and Mr Preddy were civil partners, and thus she was bound to follow the Court
of Appeal.
He also noted that, if she were wrong about that, it would still
be direct discrimination using an unmarried comparator as it appeared Mrs
Wilkinson had allowed unmarried opposite-sex couples to share a bed on a few
occasions because she had not found out, until it was too late to refuse, that they
were unmarried.
Second,
the “Swiss B&B” which Mrs Wilkinson owns has its guest bedrooms in the
centre of the family home (unlike the Bulls’ B&B where the guest bedrooms
were in a separate part of the house) . She argued that this meant her B&B
was not a hotel or boarding house for the purposes of regulation 4(2)(b) of the
Regulations. However, Recorder Moulder held that, although different to a hotel
or boarding house, the Swiss B&B is clearly a commercial venture and is a “similar establishment”
to a boarding house, so did fall within regulation 4(2)(b).
Alternatively, Mrs Wilkinson argued that because she treated
guests as if they were part of the family, her B&B fell within regulation
6(1), which exempts from the scope of the Regulations:
“anything
done by a person as a participant in arrangements under which he (for reward or
not) takes into his home, and treats as if they were members of his family,
children, elderly persons or persons requiring a degree of special care and
attention”
Recorder
Moulder did find that Mrs Wilkinson provided a personal and caring, even
loving, service to her B&B guests. However, this did not fall within a
straightforward reading of the regulation, which is intended to cover people (such
as children) who are taken in as if they were family and/or require special
care and attention. B&B guests such as Mr Morgan and Mr Black did not fit
into this category.
Recorder
Moulder therefore held that the Regulations did apply to the Swiss B&B and
there was direct and indirect discrimination, following the decision in Bull. The final
stage was to consider whether this effect of the Regulations was in breach of
Mrs Wilkinson’s Article 8 (private and family
life) and Article 9 rights (religious freedom) under the
European Convention. After considering the case-law and the circumstances, he
held that whilst Mrs Wilkinson’s Article 8 and 9 rights were interfered with,
such interference was justified because Parliament had decided the approach to
be taken where rights conflicted in this way and its decision should be
deferred to.
Unsurprisingly,
given the fact that Bull is currently before the Supreme Court,
Recorder Moulder granted permission to appeal.
Big Fat Gypsy Weddings has caused 'real, measurable and long-term harm’
Channel 4's Big Fat Gypsy Weddings series has been blamed
for an increase in bullying and negative stereotyping of the Gypsy and
Traveller communities. Educational consultant Brian Foster said there was
"no question" in his mind
that the Channel 4 series and its controversial poster campaign – featuring the
strapline "Bigger. Fatter. Gypsier"
– had caused "real, measurable and
long-term harm".
Foster, who chairs the advisory council for the education
of Romanies and other Travellers, is also a trustee of the Irish Traveller
Movement in Britain (ITMB). He was commissioned by law firm Howe and Co, which
represented the ITMB's complaint against the Channel 4 ad campaign, to consider
the impact of the show in its evidence
to the Advertising Standards Authority (ASA). Foster said in his report:
"That harm is on a number of levels, including
physical and sexual assault, racist abuse and bullying, misinformation and
hostile questioning, resulting in damage to the self-esteem of children and
withdrawal from school…Evidence drawn from practitioners across the country
presents a consistent picture that the Big Fat Gypsy Weddings programmes have
significantly contributed to racist bullying and abuse of Gypsy, Roma and
Traveller children in schools."
Arthur Ivatts, an expert in the education of Gypsy, Roma
and Traveller communities who worked as a senior policy adviser to the
Department for Education for more than 30 years, was also commissioned by Howe
and Co to provide evidence to the ASA. His report said:
"There is no doubt in my professional opinion that
this advertising campaign has seriously damaged and harmed Gypsy, Roma and
Traveller communities and caused harm (physical, mental and emotional) to very
many GR&T children…Supposing the posters had said, 'Bigger, Fatter,
Blacker'? Hopefully this example illustrates the point being made here in this
report."
The Channel 4 ad campaign was
criticised by the ASA earlier this month. The watchdog ruled that it depicted a
15-year-old child in a sexualised way, reinforced negative stereotypes and said
Channel 4 had acted "irresponsibly".
The broadcaster has apologised for any offence it caused.
It has said the big-rating show will
not return for a third series but a number of specials are expected to air next
year.
Young black men have experienced the sharpest rise in unemployment
Young black men have experienced the sharpest rise in unemployment since the coalition came to
power, a Trades Union Congress (TUC) report shows. The TUC said more than one
in four of black 16 to 24-year-olds are currently out of work. Young black men
are more likely to be unemployed than any other ethnic group, although young
Asian women have been hit by the biggest rise in unemployment over the past
decade, up from 6% to 13%. The TUC's general secretary, Brendan Barber, said:
"The UK is in the midst of a youth jobs
crisis. Over a million youngsters are out of work and many more are struggling
to find the finances needed to further their education. Last week the prime
minister singled out employment as a great success of the government. That's
cold comfort to the one in four young black men struggling for work, or the one
in six jobless young black women."
Serb Football Fans’ Racism – call for ban
Calls grow for ban
on Serbia following ‘deplorable’ scenes of racism at a recent match between
England and Serbia in Krusevac. Prime Minister David Cameron said he was
"appalled" by reports of
Serbian fan racism in Krusevac.
England’s Under 21
captain Jordan Henderson says players were racially abused and attacked by
missile-throwing Serbian fans after qualifying for Euro 2013. Fans ran on to
the pitch and scuffles broke out after England won 1-0 in Krusevac. “There was a lot of racist abuse out there
from the stands and a lot going on after the game,” he said. “There were also stones, coins and seats
getting thrown at us…What happened
wasn't nice and is not called for in football.”
England defender
Danny Rose, sent off after the final whistle in Serbia after kicking a football
into the crowd, seemed to indicate he had been racially abused. “I didn’t understand why Danny Rose was sent
off at the end,” said Henderson. “I
didn’t see he did anything wrong, other than get abused.”
The FA said in a
statement it “condemns both the scenes of
racism and the confrontation at the final whistle during which time our players
and staff were under extreme provocation”. It added: “The FA has reported a number of incidents of racism to UEFA following
the fixture. These were seemingly aimed at a number of England black players by
the crowd. The matter is now with UEFA.”
In 2007, the Serbian
Football Federation was fined £16,000 at the Under-21 European Championship in
Netherlands after their supporters racially abused England's Nedum Onouha.
Former England player Paul Ince has called for Serbia to be banned from
tournament football and urged UEFA
chief Michel Platini and FIFA President Sepp Blatter to act. Clarke Carlisle,
the Professional Footballers’ Association chairman, echoed the call for a
long-term ban for the Serbs after what he described as “deplorable” scenes. “Uefa need to make a standpoint here and more
importantly FIFA, I feel, because it was a FIFA qualification tournament.”
International Student Spurn UK due to immigration curbs
International
students are spurning the UK's most prestigious universities as a re sult of
Government immigration curbs. Some courses at universities
in the Russell Group – which represents 24 top institutions, including Oxford
and Cambridge – have seen a drop of up to 30 per cent in applications from
Indian students. The impact of strict new
visa rules has been compounded by the negative publicity that followed the
revoking of London Metropolitan University's (LMU) licence to teach overseas
students last month.
The
drop in applications for courses starting in October also follows the murder of
Indian student Anuj Bidve in Manchester last Christmas. But university leaders
said the Government's immigration clampdown was the decisive factor.
Dr
Wendy Piatt, director general of the Russell Group, said: "As ministers crack down on abuse of the system, they must be
careful about the messages they send to the world's best and brightest
students."
Under
new visa regulations that came into force in April, students face tougher
questions about their destination, limits on their ability to work and harder
questions on their English-language capability. The Russell Group says
overseas-student numbers must be maintained because educating non-EU citizens
is "a major UK export industry"
that brings in £2.5bn a year in fees.
The
application figures come as Craig Calhoun, the new director of the London
School of Economics, spoke of his "concern"
about overseas recruitment in an interview with The Independent. He revealed
there has been a "modest drop"
in the acceptance of places from international students because "people are worried about the possibility the
Government might suddenly and without notice revoke visas".
"If you are a bright
student and you have offers from the LSE and Cambridge and Harvard and you
haven't got a visa for the UK, what are you going to do? Every year we have
students turned down for visas for reasons we can't fathom."
He
added that the LMU affair – where the university has won the right for a
judicial review of the situation – had done "untold reputational damage" to the UK higher education system.
His comments, echoed by other universities, are the first signs of the impact
immigration controls are having on student numbers.
Source: http://tinyurl.com/9d3oqaw
Survey of Lawyers tells of bullying, harassment and discrimination
One in six solicitors has been bullied in the
workplace, according to research by the Law Society. Preliminary findings of
the Society’s 2012 omnibus survey of the profession reveal that 17% of
solicitors say they have been bullied at work. The percentage is higher for
those working in government (25%) and commerce and industry (23%), compared
with those working in private practice (16%).
Of around 1,600 who took part in the survey, 6%
said they had experienced sexual harassment and 10% said they had been
discriminated against. Of those, 168 respondents who had experienced
discrimination, nearly two thirds (64%) attributed it to their sex, 20% to
their age, 20% to their ethnicity, 19% to social class. Other things also cited
as factors were religion, disability, pregnancy and sexual orientation.
On the issue of stress, only 5% of practising
certificate holders reported having no negative stress in the work; 65%
reported either moderate or severe stress and 4% said they experienced extreme
stress. However, only 2% said they taken time off work due to stress over the
past 12 months.
The initial findings of the survey were presented
to the Law Society’s membership board, which is looking to develop a strategy
to promote the wellbeing of its membership.
A paper
to the board written by the Society’s corporate responsibility specialist Kate
Walmsley said that the reports of bullying, harassment and discrimination are ‘clearly too high’. She said the reported
instances were not significantly higher than in other sectors, but that a
strategy to address and support members facing such issues is important to
reduce the financial and reputational cost to the profession and the Law
Society.
Oxford University: Muslim prayer space opened by Vice-Chancellor
Muslim students and staff at Oxford University now have
their own dedicated prayer space within the University. The new Prayer Room was
opened on 9 October by the University’s Vice-Chancellor. The space will be
available to students and staff of the University for prayer, as well as for
events and discussion groups.
Aayan Hussein, president of the Oxford University Islamic
Society, said:
“The Oxford University
Islamic Society is delighted by the decision of the University to allocate a
prayer space to cater for the needs of Muslim students. For a long time there
has been no accessible, central location in Oxford for students and staff at
the University to perform their daily prayers and for the Society to provide
educational events for its members. University officials were extremely
receptive, recognised this need and enabled the idea to become a reality. The
prayer space will undoubtedly transform the lives of Muslim students studying
at Oxford and nurture an environment in which students may fulfil their
religious obligations and excel in their studies.’
Source:
http://tinyurl.com/92k6dle
New Faces: It’s all change in the world of UK equality
The Government Equalities Office has moved from the Home
Office to the Department of Culture, Media and Sport where it now comes under
DCMS’ new Secretary of State, Maria
Miller, who has two Parliamentary Under Secretaries reporting to her: Helen Grant (responsible for equal
civil marriage, the Equality and Human Rights Commission, equality legislation
(including litigation and cases), violence against women and girls) and Jo Swinson (responsible for women and
growth, women on boards, LGB&T strategy, Public Sector Equality Duty and
body confidence). Lynne Featherstone,
the previous Equalities Minister has moved to the Department for International
Development.
Meanwhile
over at the Equality and Human Rights Commission Baroness Onora O'Neill, has been selected as the Government’s
preferred candidate for appointment to the role of Chair. Baroness O’Neill is a
cross-bench peer in the House of Lords. She
was formerly Principal of Newnham College, Cambridge and holds the title of
Honorary Professor of Philosophy, Emeritus, University of Cambridge. She has
written extensively on equality and freedom. Baroness O’Neill is a former chair
of the Nuffield Foundation and was President of the British Academy from
2005-2009. Maria Miller has written to the Joint Committee on Human Rights who
will hold a pre-appointment scrutiny hearing with Baroness O’Neill
Changing attitudes to equality?
The Government
Equalities Office recently published a study on attitudes to equality in the UK.
According to the GEO, this shows that there is a broad consensus on equality
values, but not attitudes - data suggests that there has never been consensus
of attitudes, with complexity and diversity at the individual level still
remaining today. However they are changing in the longer term and in some areas
quicker than others
Key
findings were:
·
UK society values equality as a
concept
A significant majority prioritise an
equal and just society with strong values
of equality as a goal, and this proportion is slowly increasing but remains
slightly lower than EU averages (See slide 1 in the presentation below). There
is a complex dis-connect between this and the attitudes on equality people
held.
·
People are likely to feel there is
more prejudice than there actually is
Perceived
prejudice is much higher than prejudicial attitudes even considering that people
are likely to hide prejudice. This suggests that there appears to be much more
negative equality attitudes in UK society than is actually the case.
·
Different people hold different
levels of prejudice to various groups (Inter-group prejudice)
Prejudice is not permanent and
can be changed- Differences in prejudices
are founded on beliefs, attitudes and feelings and so are open to influence,
reconsideration and therefore are changeable.
Why people feel discriminated
against is changing - What people feel is the
reason they are discriminated against appears to be changing over a short
period of time. Colour/race and religion are now dominant reasons cited
significantly more frequently than any other.
Not all groups have the same proportions
of prejudiced individuals. For example, Black people are more likely to be
prejudiced against gay men and lesbians compared to other groups. Whilst
attitudes in general are improving there is still differences between
individuals and groups where, for some, progress is slower than others. These
groups are not always intuitive.
·
We often do not say what we really
feel (self censorship)
Prejudicial attitudes are mostly
hidden and therefore may not be obvious (people keep it to themselves or do not
admit to it publicly). Most attitudes are recorded in a way that enables this
prejudice to be hidden
·
It is unclear whether government is
driving, or responding to change in attitudes
The evidence is unable to indicate
specific government effect on attitude change, but positive attitude change is
happening within the context of new equality laws and rights, as well as
increased representation and significant events and media stories.
Insight
provided by these findings is of significance for the Government Equalities
Office under its strategic objective ‘changing culture and removing barriers’.
Can an employer ask an applicant or employee whether they have a disability?
The general rule is that under
section 60(1) of the Equality Act 2010 an employer cannot ask a candidate or
applicant questions about their health, including a disability or long-term
condition, before an offer of employment
has been made.
Notwithstanding the above general
rule an employer merely asking questions about the candidate, applicants or
employee’s health does not in itself contravene section 60 of the Equality Act
2010 however, the employer’s conduct in reliance on information given in
response can lead to a breach of section 60 unless
an employer can show the purpose for asking the question in relation to health
is to:
·
Establish whether a candidate, applicant or
employee will be able to comply with a requirement to participate in a
selection process.
·
Establish whether a duty to make reasonable
adjustments is or will be imposed on the employer in relation to the candidate,
applicant or employee to participate in a selection process.
·
Establish whether a candidate, applicant or
employee will be able to carry out a function that is intrinsic to the work
concerned.
·
Monitor the diversity of candidates, applicants
or employees that have applied to the employer for work.
·
Establish if a candidate, applicant or employee
has the disability where there is an occupational requirement to have that
disability.
It would be good practice to
separate out the person who receives the answers to most of these questions
from those involved directly in the recruitment process to try and ensure that
the answers do not “contaminate” the recruitment process itself.
The above is not an exhaustive list
of the exceptions under section 60 of the Equality Act 2010 therefore employers
should always obtain employment law advice on any specific issues in relation
to asking questions about a candidate, applicant or employee’s health.
*******
No comments:
Post a Comment