In this edition:
- Editorial: A time for Reflection?
- 2012 Human Rights Day on December 10th. Theme: My Voice Counts
- Age discrimination against job applicant not appointed to role of pizza chef
- Fifa president Sepp Blatter finally admits 'racism cannot be stopped with a handshake
- Nick Clegg announces extension of flexible working
- Equality Duty guidance for schools in England
- Research on ‘LGBT communities in the twenty-first century’
- BNP member wins European Court of Human Rights case: Will there be a 10th “Protected Characteristic”?
- Guidance for Transgender Staff and students
- New videos explore where we belong
Editorial: A time for Reflection?
As we move towards Christmas and New Year many of us take a bit of time out reflect on the recent past and prepare for new challenges. Over recent weeks i have been undertaking this in respect of the present and future of discrimination law and practice. Perhaps this is a bit nerdy, after all others many pick rather more important, day-to-day, issues to reflect on, such as will I still have a job next year; or how are my relationships going with my partner/children/parent(s); or how can I pay of my accumulated credit card debts? But I’m going to stick to discrimination law and practice!
During the years 2010/11 I was pleased with the way things had gone. We had a new piece of legislation on the statute book (the Equality Act 2010) that consolidated and simplified a raft of previous legislation; it was passed unanimously by Parliament and therefore had a degree of “consensus” about it, and it pushed a few boats out in extending legitimate protection from discrimination in some new areas (e.g. dual discrimination and third party harassment), introduced a new protected characteristic of “socio-economic” status (albeit only as a statutory public duty for high-level decision-making) and introduced a new public sector equality duty across all protected characteristics. All well and good and a feeling that we may have put previous controversies to bed. We now have an historic “settlement” around equality law. This would now provide new opportunities to get on with the day to day grind of embedding equality and diversity as “common-sense” in society as a whole and in all the institutions and organisations that make society function. We might even make a diffidence over time in reducing or eliminating historic inequalities in the way society functioned – improving the lot for disabled people, Gay people, Black and ethnic minority groups, women and men (in different contexts)....
But I did not calculate into this equation an economic crisis and a new coalition government that increasingly saw equality and non-discrimination not as something to be proud of, to embed in a society still marred by wide inequalities, and as a state of affairs that was fundamental to enriching opportunities and removing unjust barriers – but rather as something to be embarrassed about, as a “barrier” to efficiency and business development and as “political correctness”.
I really did not expect this, particularly as the Liberal Democrats had, over many years, shown themselves to be committed to equality and anti-discrimination legislation; and even main-steam sections of the Conservative Party seemed to have ditched their knee-jerk reaction to legislation to outlaw discrimination, as part of a new 21st century modernisation of Toryism. It seemed those who might oppose initiates around discrimination and inequality would from now on be confined to the fringes of the far right.
Sadly the new government has seen as its mission to roil-back the gains embedded in the Equality Act 2010 and to go even further in removing opportunities for people to actually exercise any theoretic legal rights under the law they may have by decimating access to legal representation, support and the courts themselves.
Those areas of the Equality Act that have not been enacted by the government include:
· introduction of the socio-economic duty
· introduction of protection from dual discrimination involving two overlapping protected characteristics (such as discrimination against a Black Gay man, but not against a White straight man – when it unclear on what basis the discrimination may have occurred – sexuality or colour?)
· introduction of clear protection from third party harassment
In addition there has been a significant weakening of the legislation in respect of the specific equality duties on public bodies, and a recent speech by the Prime Minister to the Confederation of British Industry he indicated he would like to reduce even further the burden (and effectiveness?) of the general public sector equality duties. Given that these duties do not apply to businesses I fail to see how they would be affected by this proposal – but it seemed to go down well with them anyway!
In addition, recent government enactments include the removal of the statutory questionnaire procedure when allegations of discrimination are being considered (which helps everyone involved clarify the issues and enables complainants to ask for and receive vital information which only the respondent holds); the introduction of significant up-front fees when lodging cases at tribunals; and significantly reducing the funding to and role of the Equality and Human Rights Commission. All this has been done in the name of “reducing red tape” or “reducing the burden on business”, or “saving money” with little or no consideration to its effects on justice, fairness or equality.
So what does all this add up to and what might the future hold?
I must say I am worried. Just simply looking at it from a quite “conservative” stand-point, I fear that it will make things worse for both employers and employees. It makes it less likely that there will be any imperative to deal with equality and unfairness in the workplace promptly and efficiently. There will be fewer informal early interventions and resolutions of disputes. There will be more festering sores going unaddressed and bad employers will get away with such poor practice more often. In addition to bad practice being rewarded those employers who invest in good practice to resolved such disputes early will be penalised.
The purpose of law is to provide incentives for good practice and provide a remedy or “day in court” for victims of an actual or perceived injustice in circumstances where their grievances do not get addressed through other means. Remove this final stage or opportunity to achieve justice (or removal of legal rights themselves) and it does not normally end up well – frustrations and pressures mount in and can explode unpredictably in and out of the workplace. This is not good!
As for individuals, so for social groups or those with protected characteristics who suffer from discrimination. Such groups may increasingly collectively feel that they not full and equal citizens as prospects for improvement in their circumstances diminish. History informs us that when groups feel such injustice, and there are little or no prospects for change (but rather a going backwards) there is the potential for social upheaval and conflict. It most often does not end well.
The coalition government may perceive gains in rolling back the equality agenda in the interests of “business efficiency” etc. But these will be at best (if at all) illusory, insignificant and short-term. In the long-term however its effects may be far more devastating – on individuals and on society as a whole.
I am not optimistic about equality issues for 2013 and into the future!
2012 Human Rights Day on December 10th. Theme: My Voice Counts
"Where we come from does not determine who we can become. What we look like places no limits on what we can achieve. We should all have the right to express ourselves, all have the right to be heard, all have the right to be what we can be: To reach for the sky and touch the stars. No matter who we are, no matter whether we are man or woman, or rich or poor:
My voice, my right. My voice counts."
Desmond Tutu, a key figure in the defeat of apartheid in South Africa, Nobel Prize Laureate, first black Archbishop of South Africa.
For further information about UN Human Rights day go to: http://tinyurl.com/cfthkbl
Age discrimination against job applicant not appointed to role of pizza chef
Mohammed v Bloomsbury Bowling Ltd 2200410/2012
This case serves as a reminder of the importance of having a recruitment policy and procedure in place that is not discriminatory and properly implemented and followed.
The tribunal made the following findings of fact. The head chef, Mr Zorancho, saw Mr Mohammed's CV on Gumtree. As Mr Mohammed's CV showed that he had the ability to make homemade pizzas, and the company were in urgent need of a pizza chef, Mr Zorancho invited Mr Mohammed to an interview. Mr Mohammed's CV did not include his age or date of birth.
There was a dispute as to what happened when Mr Mohammed met Mr Zorancho. Mr Mohammed alleged that Mr Zorancho had asked how old he was, and when he had disclosed his age (he was 40), Mr Zorancho had said that he had been told by his general manager to reject Mr Mohammed because he was too old. Mr Zorancho alleged that he had interviewed Mr Mohammed, however, as a result of doubts about Mr Mohammed's ability to work in a busy kitchen, he had told Mr Mohammed at the end of the interview that he would not be given the job. Mr Zorancho admitted that he had made a joke about Mr Mohammed having grey hair because of the stress of working in kitchens but said that this was to put Mr Mohammed at ease. Mr Mohammed claimed that the company discriminated against him by not appointing him to the position because of his age.
The tribunal did not make a finding of fact in relation to the alleged instruction from Mr Zorancho's manager to reject Mr Mohammed because of his age. However, on the basis of a number of other facts, including Mr Zorancho's comment about grey hair, the fact that the successful candidate was 10 years younger than Mr Mohammed and the company's contradictory and inconsistent evidence, it found that it was appropriate to draw an adverse inference of age discrimination. This shifted the burden of proof to the company to prove that it did not commit discrimination. The tribunal looked to the company for an explanation as to why Mr Mohammed was rejected and the successful candidate appointed. It found that the company was not able to give a "satisfactory and cogent" explanation, on the basis of evidence, of a "transparent and coherent" recruitment process that would rebut the inference of age discrimination. It therefore held that the company discriminated against Mr Mohammed because of his age.
Fifa president Sepp Blatter finally admits 'racism cannot be stopped with a handshake
Fifa president Sepp Blatter has had a rethink on his controversial view that racism can be settled with a handshake. Blatter faced heavy criticism for his "unfortunate words" in an interview with CNN whilst the Football Association was investigating allegations John Terry and Luis Suarez had racially abused opponents.
In an exclusive interview with the Evening Standard a year later, Blatter has changed his mind. “What you can do by a handshake is try and make peace,” he said. “You cannot eradicate racism by a handshake. To eradicate this devil is an educational problem. The problem is, if the school is not educating, if the family is not any longer educating, sport must educate. But sport cannot do everything.”
Source: I CARE News
Nick Clegg announces extension of flexible working
On 13 November 2012, the Deputy Prime Minister gave a speech announcing ‘a range of new family-friendly policies to help working families’ including the right to request flexible working to all employees with 26 weeks’ continuous service with their employer.
He outlined the reasons for these changes as follows and I have reproduced much of the speech as it addressed some very important issues relating to gender equality:
Women who want to work, although not necessarily full time, but who find themselves locked out of the labour market – particularly when they choose to start a family. On rates of female employment the UK ranks 15th in the OECD. This isn’t a new problem: despite rising since the 1960s, female employment has stalled over the last decade.
It is, however, a problem we can no longer afford. Just as working women drove up living standards in the latter half of the 20th Century, after the Second World War, the evidence suggests that living standards in the first half of the 21st Century will need to be driven by working women once again.
So this absence of women from our economy is costing us dearly. If the United Kingdom had, for example, the same proportion of female entrepreneurs as the United States, we would see an extra £42bn on GDP. Women in this country are now better qualified than men. Girls do better at school; more go to university; they are just as ambitious. And, in the words of the World Bank, gender equality is ‘smart economics’.
It isn’t just the key to a fairer society. It’s the key to prosperity too. So the challenge I want to address today is this: when women take a break from work to have children, how do we give them a route back?
This isn’t about forcing mothers to work when they don’t want or need to, but it is about giving them a real choice.
The problem comes down to a whole range of clapped out rules and arrangements. Whether that’s the balance between maternity and paternity leave, or the childcare that’s available, or the way our tax and welfare systems don’t fully reward part-time work. Arrangements which assume that families are still comprised of one bread winner and one homemaker: Mum in the kitchen, Dad in the office. Even though the reality is that, in many families, both parents work, often juggling busy lives, often working part-time, often without relatives or friends close by who can help out.
So we are shaking up those various rules and arrangements – and I’ll come onto how. But before I do, let’s just be clear on the dilemma so many mothers – and fathers – face.
We, as a society, we have got so much better at telling young women: the sky’s the limit. Get a job, be independent, be the boss. Run as far and as fast as your talents can take you. Then, suddenly, when women hit their late 20s, their early thirties, despite all their earlier momentum, despite all the endless possibility, they are suddenly stopped in their tracks. It’s like a rubber band snaps these women back. Because, the moment they start planning a family, their options begin to narrow.
Imagine a young couple expecting a baby, sat around the kitchen table, planning how they’ll divvy up their new responsibilities. That is a hugely exciting time. But that conversation can be extremely stressful too:
· What’s going to happen to their income, and will they manage?
· How much will their bills be?
· How many hours does that mean they need to work?
· How does childcare fit in?
They are about to embark on a monumental, life changing experience, yet it’s boiled down to some very basic sums, and so many couples feel like they are facing an impossible mathematical equation. And it’s an equation where the answer is almost always rigged because, whichever way you look at it, the solution ends up being the mother doing more of the caring, and the father doing more of the earning.
She gets the year long maternity leave; after that, the expectation is she’ll continue to be the primary carer – so she’s the one who goes part-time.
That, very often, means she ends up on lower pay, with fewer chances for promotion, and it’s at exactly this point that the pay gap begins to widen. Just last week two separate reports reminded us what a problem that still is.
Then, as time passes, as more children arrive, women get caught in a kind of cycle: have a baby, work less, so earn less.
Earn less and – because childcare costs so much, because your partner is now earning more than you – work less. Even when the children are grown up, working full time isn’t possible for many women. With the population living longer, we’ve seen the emergence of the so-called sandwich generation: women who spend their thirties raising young children and their fifties caring for elderly parents. And for single mothers it can be even harder. They have a greater need to go to work, but much less help at home.
I don’t pretend there’s an easy answer. And if more traditional arrangements suit a couple, they should absolutely have the right to pursue them. But we cannot continue to shrug our shoulders at the inevitability of it all.
Many families want and need to tread a different path. We have made so much progress on greater equality between the sexes – especially in terms of enshrining equal rights in our laws, and the previous Government certainly deserves credit for that.
But we still have work to do – for the sake of men and women. It’s heartbreaking to see fathers missing out on being with their children.
It’s heartbreaking to watch women lower their ambitions for themselves.
Equality’s promise must not end at 30.
So we have to give these parents more options; more choice; the support they need to make the right decisions for their families.
For full speech go to: http://tinyurl.com/chgv8vq
Equality Duty guidance for schools in England
In November 2012, the Equality and Human Rights Commission (EHRC) published ‘Public sector equality duty guidance for schools in England’.
This is a practical guide that illustrates how the Equality Duty can help schools to raise attainment, tackle bullying and improve behaviour. The guide features a series of short practical case studies and FAQs to help make it more hassle-free for schools to meet their Equality Duty.
To view the guidance go to: http://tinyurl.com/cqwe4hk
Research on ‘LGBT communities in the twenty-first century’
‘Solidarity but not similarity? LGBT communities in the twenty-first century’ by Eleanor Formby was published in 2012 by the Centre for Education and Inclusion Research at Sheffield Hallam University.
The term ‘LGBT community’ is increasingly used in policy, practice and research, yet there is little explicit discussion of what the application of the concept of ‘community’ means to lesbian, gay, bisexual and trans (LGBT) people. This study therefore sought to examine understandings and experiences of LGBT communities, and assess implications for (LGBT) health and wellbeing.
For an Executive Summary of the report go to: http://tinyurl.com/cg8wruw
For a copy of the full report go to: http://tinyurl.com/ccd7jr3
BNP member wins European Court of Human Rights case: Will there be a 10th “Protected Characteristic”?
Redfearn v The United Kingdom (Application no. 47335/06) 6 November 2012
Despite the fact that the British National Party hate the ECRH, a member, Mr. Redfearn, has pursued a case to it and won, at least in part, having lost a more conventional claim under anti-discrimination legislation with the British courts. An interest case of hypocrisy?
Mr Redfearn was employed by Serco Ltd as a driver for less than one year. He was responsible for transporting children and adults with physical and/or mental disabilities on a Serco contract with Bradford Council. The majority of his passengers were Asian in origin. He was considered a good employee and there had been no complaints about his work or conduct. He was dismissed after it became known that he had been elected a BNP local councillor. The dismissal was on grounds of potential risk to health and safety, i.e. the considerable anxiety caused to passengers and their carers discovering his BNP affiliation, and also because of the risk of damage to Serco’s reputation and contract with the Council. Mr Redfearn brought a race discrimination claim against Serco under the then Race Relations Act 1976 (claiming discrimination because he is White), which ultimately he lost in the Court of Appeal. He could not claim unfair dismissal because he did not have sufficient qualifying service.
Mr Redfearn took his case to the ECtHR, claiming breach of various articles of the European Convention on Human Rights. The ECtHR held by a majority that there was a violation of article 11. Article 11 states, inter alia, that ‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others’. These rights must not be restricted except as ‘necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’.
The majority of the ECHR said that UK legislation was deficient because it did not give employees with less than one year’s service (now two years) the right to bring complaints about dismissal on grounds of membership of a political party. The ECHR felt that, in the absence of judicial safeguards, a legal system which allows dismissal from employment solely on account of an employee’s membership of a political party carries with it the potential for abuse. Political parties are a form of association essential to the proper functioning of democracy. Domestic tribunals should at least be allowed to decide whether or not, in the circumstances of a particular case, the interests of the employer should prevail over the Article 11 rights asserted by the employee. The ECHR stressed that it was not being called upon to pass judgment on the policies or aims, obnoxious or otherwise, of the BNP at the relevant time.
The court said the UK had to "take reasonable and appropriate measures to protect employees, including those with less than one year's service, from dismissal on grounds of political opinion or affiliation, either through the creation of a further exception to the one-year qualifying period under the 1996 Act or through a freestanding claim for unlawful discrimination on grounds of political opinion or affiliation".
It will be interesting to see how the British government responds to this decision. Will it amend the Equality Act 2010 to bring in an additional protected characteristic of “Political opinion or affiliation”?
I also wonder if the BNP will now change its policy of opposition to the Human Rights Act, the Equality Act 2010 and the European Court of Human Rights? To quote a famous Chinese saying “may we live in interesting times”.
Source: Discrimination Law Association
Guidance for Transgender Staff and students
Newcastle University has recently shared their comprehensive and extremely useful guidance for Trans staff and students on their Diversity webpage and it may well be useful to others. The webpage also includes some useful links to relevant groups and organisations It can be found at:
New videos explore where we belong by Kara Hadge and Stephanie Durand
In a world where we all too often end up focusing on differences, we can forget that there are many things that can unite us, whether we are Americans, Brits, Christians, Muslims, Israelis, Palestinians, youth, women or members of any number of other communities.
The British Council’s Our Shared Future project and the UN Alliance of Civilizations have just released a new video series, Journeys of Belonging, that brings to light the common threads that bind people of diverse ages, genders, cultures, religions, ethnicities and beyond. Produced in partnership with the University of Missouri School of Journalism, the series features 114 short video clips in which 17 public figures and young leaders discuss their multifaceted identities, the communities they belong to and the journeys they have gone on to find that sense of belonging.
The paths that these individuals have followed were rarely smooth, and many of the videos reveal the conflicts that now shape who they are. Identities and backgrounds can be best understood through storytelling and by looking beneath the surface, which can help us discover shared experiences.
It’s tempting to treat identity as a mere label, or a way to categorise people – which can lead to painful stereotyping. Some individuals, however, have transcended obstacles and stereotypes and found strength in doing so.
Our world is diverse, and everyone in it – ourselves and our neighbours – have complex identities. The journeys we take to understand these complexities, within ourselves and others, are experiences that we all share, even though we may not recognise them as such.
No one can be reduced solely to being a member of a particular religious or ethnic community. Instead, we belong to multiple communities and hold various roles in them – often simultaneously.
One goal of the video series is to prompt questions that can help viewers think through identity and explore questions, like: How can we best respond to practices and belief systems that are not ours? When do we choose to insist on a cultural identify? Do we necessarily have to choose, or can various aspects of our identity coexist?
In an increasingly connected global society, we have more opportunities than ever to find commonalities with people who are continents away, but also with our neighbours. Appearances can be misleading. We may think we understand someone’s identity when it is actually more complex. As members of a global society, we would do well to develop a more nuanced sense of identity and in doing so to find our own sense of belonging.
Kara Hadge is the Manager for Digital Media at the British Council USA and works on the Our Shared Future project (www.oursharedfuture.org). Stephanie Durand is Strategic Media Partnerships Manager at the United Nations Alliance of Civilizations (www.unaoc.org).
Journeys of Belonging can be viewed at www.journeysofbelonging.org.
Source: Common Ground News Service (CGNews), 30 October 2012,www.commongroundnews.org
Happy Christmas and Best wishes for 2013