Friday, 22 March 2013

Equality & Diversity News: April 2013

In this Edition:

  • Agency Worker awarded £35K for disability discrimination and unfair dismissal 
  • Court of Appeal condemns treatment of autistic boy by Police.
  • Tribunal hears how council manager was overlooked for new role because of a 'racial divide'
  • Withdrawal of job offer was direct disability discrimination
  • Age banter: not a case of ‘only joking’
  • Not sex discrimination that male fire-fighters must have short hair
  • European Court of Human Rights finds Austrian adoption law discriminated against same sex couples
  • European Court of Human Rights publishes updated factsheets
  • Weight stigma and health: whose problem is it?
  • Attack of the Clones: Supreme Court keeps its white male first eleven
  • Fulfilling Potential: Building a deeper understanding of disability in the UK today
  • Stop Learning Disability Hate Crime – Helpline
  • The IRR publishes a report on how racial violence is shaping the UK

Agency Worker awarded £35K for disability discrimination and unfair dismissal

Ms Corinda Pegg v London Borough of Camden

Agency workers are set to have better anti-discrimination rights after an Employment Tribunal awarded a woman over £35,000 for disability discrimination and unfair dismissal in a case funded by the Equality and Human Rights Commission.

The Tribunal heard that agency worker Corinda Pegg had been dismissed after 44 weeks service due to absences caused by depression. After a series of bereavements she was absent from work for a week receiving mental health residential care. On her return to work she was sometimes late and, when questioned by her manager, explained that this was due to her disability.

Two months later, she was admitted to hospital following a panic attack and, whilst receiving medical care at home the following fortnight, she was told by phone that her employment had been terminated because of poor attendance and punctuality.

Although she had requested confidentiality, work emails revealed that her medical condition had been openly discussed with a colleague. The data also indicated that discussions about ending her employment had begun before requests for further information about the reasons for her absence from work.

The case went to the Employment Appeal Tribunal on the legal question of whether equality law protects agency workers from being discriminated against by an organisation they are supplied to. The Judge said that, as Ms Pegg was under an obligation to work for Camden Council, it was subject to a legal duty not to discriminate. The compensation was awarded when the case returned for a full hearing to the Employment Tribunal.

Commission deputy director legal, Wendy Hewitt said:
"There was an urgent need to clarify the legal status of agency workers who have been discriminated against, given the increase in this type of working arrangement.

"This case clarifies that agency workers are entitled to the same degree of protection from discrimination at their place of work as permanent employees"

Court of Appeal condemns treatment of autistic boy by Police

 The Court of Appeal in February dismissed an appeal by the Metropolitan police against a finding that they had violated the human rights of a 16-year-old autistic boy, saying that nothing could have justified the manner in which officers restrained him at a swimming pool.

The Equality and Human Rights Commission intervened in the case involving ZH, who also has learning disabilities and epilepsy, to argue that the teenager's treatment by the police had been inhuman and degrading and was so serious that it contravened Article 3 of the European Convention. (1).

The Commission also told the court that the boy's subsequent restraint in handcuffs and leg irons before being locked up, alone, in a cage inside a police van constituted an infringement of Article 5, which protects against the deprivation of liberty(2).

The Court endorsed the Commission's position that, although the police did not intentionally breach his human rights, they had caused matters to escalate to a point where he was restrained wholly inappropriately.

ZH's ordeal happened when a group from his specialist day school had gone with care workers for a familiarisation visit to a baths in Acton, London. ZH, who cannot communicate by speech, broke away from the group and went to stand by the pool staring into the water. After 30 minutes the manager called the police.

The officers did not seek advice from ZH's carers - who knew a patient response was needed, and caused him to jump into the pool by touching him. After he was pulled out, five and then seven police officers restrained him before he was taken, still soaking wet, to the police van. The restraint and detention lasted about 40 minutes.

ZH subsequently experienced acute psychological suffering, including post traumatic stress and an exacerbation of his epilepsy.

In the hearing in the lower court the Metropolitan police officers were found to have subjected ZH to unlawful disability discrimination, assault and false imprisonment and to treatment that breached his rights protected by Articles 3, 5 and 8 (3) of the European Convention of Human Rights.  The Judge awarded damages of £28,250, including compensation for exacerbation of the boy's epilepsy and for psychiatric damage.

Wendy Hewitt, deputy director of legal at the Equality and Human Rights Commission said:

"We welcome the Court of Appeal's judgement in this case. Although the police officers were acting in what they thought to be the best interests of ZH, they made serious errors which led them to treat this vulnerable young man in a way which caused him great distress and anguish. The court supported the view that the threshold of Article 3 had been crossed on the particular facts of the case.

"The police deal with many vulnerable people and must make arrangements to ensure that they make well-informed decisions on how and when to restrain them, to avoid breaching their human rights obligations."

Tribunal hears how council manager was overlooked for new role because of a 'racial divide'

Valdez v London Borough of Camden [2013] EqLR 298

UNION chiefs have warned of a “damaging blot” on Camden Council’s equal rights record after an employment tribunal upheld a manager’s claim of direct racial discrimination.

Fraser Valdez, 31, took Camden Council to an employment tribunal arguing that he was overlooked for a new role because of a racial divide in his department. The tribunal found in favour of the environmental management officer.

Speaking after the seven-day hearing, Mr Valdez said: “I always suspected that foul play occurred during the recruitment and selection process. “All I wanted was equality of opportunity during the recruitment and selection process, free from any racial prejudice.” He added: “The last 16 months have been very stressful and upsetting for me and a soul-destroying period of my life.”

Mr Valdez, of dual nationality and “mixed race”, worked for the the Council for 15 years and was nominated for a prestigious Camden Council staff award in 2005. He took the council to a tribunal after documents leaked by a whistleblower revealed interview scores showing him to be an “outright winner” in the selection process for a senior role in the environment department. But a white colleague had been given the job after a selection team boosted his score, the anonymous memo said.

The documents had been sent to senior managers but had not been properly investigated, Mr Valdez’s solicitor, Chris MacNaughton, said. He said Mr Valdez’s case was built on evidence that the department had been “segregated” into two teams based on race.

The decision not to appoint him for the role appeared to be taken in order to maintain the black-white balance. Mr MacNaughton added: “It is incredibly difficult for any individual to sustain a claim of direct race discrimination when such foul play occurs behind closed doors, where no records of discussions or decisions are made. “If it was not for the whistleblower’s input, the racial discrimination may never have been discovered and justice served.”

Tony Warr, senior officer at GMB union, added:

“This case is a clear indication that such prejudices are still regrettably present in the workplace. It is shocking that such discrimination occurred in this case and it is a damaging blot on Camden Council’s promoted ethos of equality of opportunity and diversity.”

Withdrawal of job offer was direct disability discrimination

White v University Hospitals of Leicester NHS Trust [2013] EqLR 296

The employer withdrew an offer of employment to a disabled person who had recently had an operation. The Tribunal held that this was direct disability discrimination because the employer would have made further inquiries about the health status of a person with the same sickness absence record who was also absent but did not qualify as disabled. The Tribunal also found that the withdrawal of the offer was unfavourable treatment for a reason relating to disability.

Age banter: not a case of ‘only joking’

Nolan v CD Bramall Dealership Ltd t/a Evans Halshaw Motorhouse Worksop ET/2601000/12

The tribunal in this case found that the employer discriminated against Mr Nolan on the grounds of age by making him redundant because he was close to retirement.

The tribunal drew an inference of age bias against Mr Nolan on the basis of workplace age-related banter. This included colleagues changing the number plate on his car from “OAB” to “OAP and nicknaming him “Yoda”, described by the tribunal as “a small wizened character in Star Wars who is several hundred years old”. The fact that Mr Nolan said he found the age-related jokes humorous rather than offensive was not relevant.

So the concept of ‘only joking’ (always a problematic phrase seeking to limit something to one interpretation only) didn’t work here to prevent a finding of age discrimination.

Source: XpertHR

Not sex discrimination that male fire-fighters must have short hair

Holdsworth v Cleveland Fire Authority ET/2508432/2011

The employer in this tribunal case successfully defended a male fire-fighter’s sex discrimination claim over its dress and appearance code that applied different rules to men and women.

In general a policy that requires employees to adopt a “conventional” or “uniform” appearance, but has different rules from men and women (e.g. length of hair), is unlikely to be sex discrimination under the Equality Act 2010.

European Court of Human Rights finds Austrian adoption law discriminated against same sex couples

X and other v Austria – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013)

The Grand Chamber of the European Court of Human Rights (by 10 votes to 7) has found that Austrian law discriminated against a same sex couple as it prevented them from adopting jointly the biological child of one of them (what we would call a second-parent adoption). The Court found a violation of Article 14 (anti-discrimination) in conjunction with Article 8 (respect for private and family life) protection because this was less favourable treatment than if they were an unmarried different sex couple who would have been permitted to adopt together.

There may be an argument to say that the Court was not breaking new ground here but the Grand Chamber went out of its way to reaffirm the Judgment in Schalk & Kopf v. Austria (2010) that same-sex couples enjoy “family life” under Article 8 of the Convention.

European Court of Human Rights publishes updated factsheets

Given all the controversy about human rights, and particularly the work of the European Court of Human Rights, these case-law factsheets on the work of the Court are most welcome and have been updated and extended. In addition, translations are available in French, Russian, German, Polish, and Turkish.

Factsheets cover the following areas:

protection of minors (March 2013)
children's rights (February 2013)
parental rights (March 2013)
reproductive rights (January 2013)

terrorism (December 2012)
violence against women (October 2012)

New technologies (March 2013

Gender identity issues (October 2012)
Roma and travellers (January 2013)
Sexual orientation issues (February 2013)

Case-law concerning the EU (January 2013)
Dublin" cases October 2012)

Terrorism (December 2012)

Health (January 2013)
Mental health (February 2013)
Social welfare (January 2013)

Death penalty abolition (December 2012)
Right to life (February 2013)

Freedom of religion (February 2013)
Trade union rights (November 2012)


Taxation and the ECHR (January 2013)
Trade union rights (November 2012)
Work-related rights (February 2013)

Weight stigma and health: whose problem is it?


A multidisciplinary conference focussing on the subject of Weight Stigma and Health, featuring presentations from both national and international keynote speakers is being held at Birmingham University on May 16th. This conference will be of interest to researchers, clinicians, and students from a wide range of disciplines, including psychology, social sciences, medicine, public health, allied health professions, sports and exercise science, education, media studies, law, business and social policy.

The organisers are also accepting abstracts for oral and/or poster presentations on subjects related to weight-associated stigma, including, but not limited to, weight stigma in health professionals, impact of weight stigma on health and wellbeing, stigma in society, public policy implications, legal considerations pertaining to weight-based discrimination, and interventions to reduce weight stigma. Postgraduate students are especially encouraged to submit their work.

Abstract submission instructions and the submission form can be found on the website at Please indicate if you would also like to be considered to deliver an oral presentation. Abstract submission deadline is 7th April 2013.

Details of keynote speakers and further conference information can be obtained

For further information:

Attack of the Clones: Supreme Court keeps its white male first eleven

Baroness Helena Kennedy has argued that judges have a tendency to clone themselves when choosing successors. It is hard to avoid that impression in the Supreme Court, which kept its white male first eleven in place yesterday by appointing three new justices: Lord Justice Hughes, Lord Justice Toulson and Lord Hodge: all White and very male! The sole woman amongst 12 justices of our highest appeal court remains Lady Hale. There are no black or Asian judges, nor have there ever been.

How did this happen? The answer is know one knows and won’t ever find out. Around two thirds of the Supreme Court’s case load are public law and human rights, decisions which affect millions of people. Yet appointments are made by an opaque commission consisting of senior judges.

The stark fact is that the public has more say over the appointment of X-Factor judges than over those who sit on country’s highest court. The only Parliamentary “scrutiny” of  is through private consultation with the Lord Chancellor, currently Chris Grayling,  but has never exercised it as far as is known. There are no public committee hearings nor can we read the minutes of selection commissions meetings.

Fulfilling Potential: Building a deeper understanding of disability in the UK today

On 13 February 2013 the Department for Work and Pensions (DWP) published ‘Fulfilling Potential: Building a deeper understanding of disability in the UK today’. The aims of this report are described as:
·         to provide an analysis of the current evidence on disability in the UK to inform the development of the next stage of work on Fulfilling Potential – the development of actions, outcomes and indicators
·         to inform public understanding and prompt debate about disability and the issues faced by disabled people
·         to raise awareness, drive a change in attitudes and support an increase in commitment to improving the lives of disabled people in the UK today

The main document is structured in two parts:
Part 1 provides analysis of the number of disabled people in the UK as well as looking at the way disability develops over the life course and at the fluctuating nature of disability.

Part 2 focuses on the lives of disabled people by looking at trends in outcomes and barriers to taking part in different areas of life.

The evidence is structured around the Fulfilling Potential: Next Steps themes of early intervention; choice and control and inclusive communities.

Click here for summary of the report
Click here for main report
Click here for easy read report

Stop Learning Disability Hate Crime – Helpline

In January 2013, Stop Hate UK launched a new 24 hour helpline service, Stop Learning Disability Hate Crime, in England and Wales.

People in England and Wales who have experienced, witnessed or know someone who is experiencing Learning Disability Hate Crime can contact the Stop Learning Disability Hate Crime helpline on 0808 802 1155 for support and information. The helpline is open 24 hours a day, every day of the year. It is free to call the Stop Learning Disability Hate Crime helpline from landlines and most mobiles and the number will not show on a phone bill.

The new service is funded by the Ministry of Justice Victim and Witness Fund.
Click here for details.

The IRR publishes a report on how racial violence is shaping the UK

Racial violence: facing reality by the Institute of Race Relations warns that attacks on BME individuals are actually spreading to new areas of the country, as under the impact of globalisation and austerity measures, populations swiftly change; and points to the potential dangers in ‘decanting’ those affected by the benefits cap to towns and cities which have little history of ‘diversity’.

Attacks are often taking place in communities where BME families or workers are isolated, where there are few support services and such experiences often go unrecorded and become part of a repeat pattern.

The tendency of statutory agencies to view racial violence through a prism of a generalised ‘hate crime’ means that the conditions that give rise to racism are not being understood and addressed and community safety strategies are not being created: the emphasis having moved to simply criminalising individual perpetrators.

The report author, Jon Burnett, said:

The myth is that post-Stephen Lawrence, racial violence has been magically dealt with. A few mechanical changes cannot deal with what is a huge trend tied to national political and economic forces. The legislation is allowing the criminal justice system to target a few perpetrators – and often they are not the most serious offenders, but just the easiest to successfully convict. This is putting the cart before the horse. Violence does not, by and large, spring ready-made from people’s evil thoughts, but from the larger conditions – and these are not being addressed. There is an urgent need for government – nationally and locally – to consider the implications of austerity measures, industrial and services closures, the enforced moving of populations and cuts in welfare to social issues such as racial violence.

In the twenty years since Stephen Lawrence’s killing, we have seen over one hundred deaths from racial violence in the UK. That is a terrible indictment.’

Racial violence: facing reality can be downloaded here


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