Friday, 19 July 2013

Equality and Diversity News: July/August 2013 Issue

In this Edition of E&D News:

  • Editorial: Apologies... and enjoy the summer while it lasts.
  • Same Sex Marriage becomes law
  • Government Disability Confident Campaign
  • Equality Advisory Support Service
  • Employment Tribunal Fees.
  • Religion and belief: Chaplin, Ladele and McFarlane: Appeals rejected
  • Failure to treat disabled person more favourably amounted to disability discrimination, as it was a “reasonable adjustment”
  • Claim for unfair dismissal from day one in cases of alleged political discrimination
  • Caste discrimination tribunal case collapses
  • Caste discrimination to be included in definition of “race” in the Equality Act... but not until 2018?
  • What is and what is not a “protected belief” under the Equality Act 2010
  • An overview of racial violence and convictions over the last few months (May-June 2013)
  • We must end ageism and age discrimination in health and social care
  • Discrimination Law Association Annual Conference
  • Is a Christian hotelier's decision to restrict the offer of double bedrooms to married couples only unlawful 

Editorial: Apologies... and  enjoy the summer while it lasts

My apologies for not producing an Equality and Diversity News since May. However, your patience is amply rewarded by having a bumper edition for the holiday season. What great read on the beach or sitting in the shade with a cool drink or two! Enjoy!

Paul Crofts

Same Sex Marriage becomes law

The Marriage (Same Sex Couples) Bill received Royal Assent on 17 July 2013. Women and Equalities Minister Maria Miller also announced that the first same sex wedding could take place by as early as summer 2014.

The Act, which applies to England and Wales, will:

  • allow same sex couples to marry in civil ceremonies
  • allow same sex couples to marry in religious ceremonies, where the religious organisation has ‘opted in’ to conduct such ceremonies and the minister of religion agrees
  • protect those religious organisations and their representatives who don’t wish to conduct marriages of same sex couples from successful legal challenge
  • enable civil partners to convert their partnership to a marriage, if they wish
  • enable married individuals to change their legal gender without having to end their marriage

The Government has published an equal marriage factsheet, myth-buster and short guide.

Click here for information including a factsheet, myth-buster, impact assessment and short guide

Government Disability Confident Campaign

Through the Disability Confident campaign, the government is working with employers to remove barriers, increase understanding and ensure that disabled people have the opportunities to fulfil their potential and realise their aspirations.
The campaign includes posters, case studies and templates.

Click here for announcement
Click here for details

Equality Advisory Support Service

The Equality Advisory Support Service (EASS) provides information advice and support on discrimination and human rights issues to individuals in England, Scotland and Wales. The Service is funded by the Government Equalities Office and replaces the helpline run by the Equality and Human Rights Commission which had operated in England, Wales and Scotland. Contact details:

Click here for link
Click here for flier
Click here for announcement on the Department for Culture, Media and Sport website.

Employment Tribunal Fees

The final fee structure proposals are as follows (note the fees will come into effect on July 29th)

Fee Type Level 1 single claims:
Issue fee £160
Hearing fee £230

Fee Type Level 2 single claims:
Issue fee £250
Hearing fee £950

Level 1 claims are generally for sums due on termination of employment e.g. unpaid wages, payment in lieu of notice, redundancy payments.

Level 2 claims include those relating to unfair dismissal, discrimination complaints, equal pay claims and claims arising under the Public Information Disclosure Act.

The Ministry of Justice has published its Employment Tribunal and Employment Appeal Tribunal Fees Stakeholder Factsheet, which summarises the new employment tribunal fees regime coming into force on 29th July 2013.
There is a fee remission scheme for those on certain benefits. See link to The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013

Source: HM Court and Tribunal Service

Note that there two outstanding Judicial Review applications challenging the lawfulness of these fees under EU law. One has been issued by the trade union UNISON. Both cases are likely to be heard in the autumn. In the meantime the fee come in, as in both cases the courts refused an order delaying their introduction.


Religion and belief: Chaplin, Ladele and McFarlane: Appeals rejected

In previous editions of E&D News I have reported on the decisions of the European Court of Human Rights in the case of Eweida and others v The United Kingdom (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10). You will remember that Ms Eweida was successful whereas Ms Chaplin, Ms Ladele and Mr McFarlane were not. The Grand Chamber of the Court has now rejected the requests of the three unsuccessful claimants to appeal to the Grand Chamber.

Failure to treat disabled person more favourably amounted to disability discrimination, as it was a “reasonable adjustment”.

Redcar and Cleveland Primary Care Trust v Lonsdale, UKEAT/0090/12 9 May 2013

The claimant was originally employed as a Senior Occupational Therapist, band 6. When her eyesight significantly deteriorated, she could not continue in her role and was redeployed to Workforce Development Co-ordinator, band 4. A few years later, her job disappeared on a large-scale restructuring exercise. The Trust applied a framework whereby, at stage one, employees in at-risk posts could apply for up to five posts at their present grade or one post at one grade higher. At stage two, they could apply for any post, but it was in competition with their colleagues. Within stage one, employees would be slotted in without competition where there was a close match between their old and new posts. Where this was not the case but they had the required skills, they could be considered without competition. If there was more than one candidate, there would be competitive interviews.

The claimant was not allowed to apply for the role of Staff and Patient Safety because it was at band 6, two grades higher than her current post.  As a result of this lost opportunity, she was made redundant. On appeal, the claimant again expressed interest in the band 6 post. A few days later, a colleague (then a band 6 HR adviser) also expressed interest in the role. As it happens, her colleague also had a disability. The appeal panel decided the claimant could not apply for the post, even though she appeared to demonstrate some of the relevant skills and competencies, because it was two grades higher than her current post. She would be allowed to apply at stage two if the post remained unfilled.

In the event this did not happen as the HR adviser was slotted in by the matching panel. The employment tribunal found that the Trust had failed to make a reasonable adjustment by not letting the claimant apply for the post and compete with the other candidate. It did not go as far as saying it would have been a reasonable adjustment actually to slot the claimant in without competition.

The tribunal also found the dismissal was unfair, but it did not consider that the dismissal amounted to disability discrimination. The Trust appealed the finding of failure to make reasonable adjustments and unfair dismissal and the claimant cross-appealed the rejection of her claim that the dismissal was also discriminatory.

The EAT rejected the Trust’s appeal. Applying the stages of the Equality Act 2010 in relation to failure to make reasonable adjustments, the relevant PCP was the prohibition under the HR Framework on staff who were at risk of redundancy applying for posts more than one grade above their current banding. It was not appropriate to consider in this case how a notional comparator would have been treated.

The claimant was put at a substantial disadvantage because, as a direct result of the onset of her visual impairment, she was redeployed from a band 6 to a band 4 post in 2009 and thus was precluded from applying for the band 6 post at stage one of the restructuring. It was a reasonable adjustment to make an exception under the HR Framework policy to allow the claimant to apply for a band 6 post. Reasonable adjustments sometimes entail treating a disabled worker more favourably than others.

The EAT said it did not prevent it being a reasonable adjustment that there was no certainty the claimant would have succeeded in getting the post had she competed against her colleague. It was enough that there was a real prospect of the adjustment removing the disadvantage. The value of the lost chance could be assessed at the remedy stage The EAT went on to uphold the cross-appeal. On the facts, the failure to make the reasonable adjustment meant the claimant’s dismissal for redundancy was inevitable. Therefore the dismissal itself was discriminatory, applying s20(3) of the Equality Act 2010 (failure to make reasonable adjustments) together with s39(2)(c) (discrimination by dismissal)

Claim for unfair dismissal from day one in cases of alleged political discrimination

From 25 June 2013 an employee can claim unfair dismissal from day one of employment, instead of needing to have worked for a qualifying period of two years or in some cases one year, if the reason or principal reason for the dismissal relates to the employee's political opinions or affiliation.

This change was made following a decision by the European Court of Human Rights on 6 November 2012. The case involved Arthur Redfearn, who was employed by Serco as a bus driver in Bradford, West Yorkshire, providing transport services primarily for Asian adults and children with disabilities. He was summarily dismissed in 2004 when he was elected as a British National Party (BNP) councillor, because Serco was concerned about the risk of attacks on him. Until his political affiliation become public knowledge no service users or colleagues had complained about him and he was considered a "first-class employee", but after his election there were complaints from unions and employees.

Redfearn could not bring a claim of unfair dismissal because he did not have the necessary one year's qualifying service (now increased to two years). A dismissal on the grounds of discrimination is automatically unfair and does not require a qualifying period of employment, so he brought a claim of race discrimination, which the employment tribunal dismissed. (I haven't seen anything that indicates why he didn't bring a claim under the Employment Equality (Religion or Belief) Regulations 2003, but it may be because Parliament had explicitly said during debate on the legislation that philosophical belief was not intended to include explicitly political beliefs, and no one wanted one of the first cases, in 2004, to be about BNP membership).

Redfearn then took his case to the European Court of Human Rights not as a discrimination case, but arguing that the UK's unfair dismissal legislation, by preventing him bringing a claim for unfair dismissal, interfered with his right to freedom of assembly under article 11 of the European Convention on Human Rights.

In its decision the human rights court agreed that this was the case, saying Redfearn "had been summarily dismissed following complaints about problems which had never actually occurred, without any apparent consideration being given to the possibility of transferring him to a non-customer facing role". It said governments have a positive obligation to provide protection against dismissal motivated solely by an employee's membership of a particular political party, or at least to provide a way for the proportionality of such a dismissal to be independently evaluated, for example, by the employee being able to make an unfair dismissal claim.

The court recognised that in certain circumstances an employer may lawfully place restrictions on the freedom of association of employees where it is necessary to protect the rights of others or to maintain the political neutrality of civil servants. It accepted that given the nature of the BNP's policies and the fact that the majority of service users were vulnerable persons of Asian origin, Serco may have been in a difficult position when the applicant’s candidature became public knowledge. The court said the issue was not the dismissal itself, but the fact that it was done summarily, was not based on anything Redfearn had done or failed to do during his actual employment, was based only on his BNP involvement and therefore on his right to freedom of association — and without him having any way to challenge the dismissal through the UK courts.

The court said that the UK either had to remove the qualifying period for unfair dismissal where the dismissal is based on political opinions or affiliation, or had to create a freestanding claim for unlawful discrimination on grounds of political affiliation.

Bringing discrimination on grounds of political affiliation or belief within the Equality Act 2010  would have meant that the law would apply not only to employees but also to a wider group of "workers"; there would be no qualifying period to claim unfair dismissal; any dismissal on these grounds would be automatically unfair, with none of the defences available to employers in ordinary unfair dismissal claims; and there would be no limit on the compensation that could be awarded.

Not surprisingly, the government responded to the ECHR decision by removing the qualifying period to claim unfair dismissal. This change was made by s.13 in the Enterprise and Regulatory Reform Act 2013, which amends s.108 of the Employment Rights Act 1996 (qualifying period of employment). The Enterprise and Regulatory Reform Act is at

The current position, that explicitly political beliefs are not protected as philosophical beliefs, thus remains unchanged.

The decision in Redfearn v the United Kingdom is at

Caste discrimination tribunal case collapses

After more than a year and a half of tribunal appearances and delays, the first claim of caste discrimination in employment collapsed on 14 February 2013 on a technicality. Although the claimants could appeal against the reasons for stopping the case it seems unlikely they will do so, as the case has already lasted so long and been so expensive.

The case involves a married couple, Vijay and Amardeep Begraj, who were both employed by Heer Makan Solicitors in Coventry — he as practice manager and she as a solicitor. Mr Begraj is a Hindu and belongs to the Dalit caste, seen as the lowest in India's caste system, while Mrs Begraj is a Sikh from the Jat caste, which is seen as a higher caste.

The couple claim that they were discouraged from marrying because of their caste, including a senior manager telling Amardeep she should not marry Vijay because people of his caste were "different creatures", further hurtful remarks when they married, and Mrs Begraj being given additional work with reduced support following the marriage.

Mr Begraj, who had worked at the firm for seven years, was dismissed in 2010, and Mrs Begraj resigned in January 2011. Mr Begraj claimed unfair dismissal and Mrs Begraj constructive unfair dismissal, and both made a number of other claims, including race discrimination, discrimination on the ground of religion or belief, and breach of contract.

The case originally went to an employment tribunal in August 2011, returned to the tribunal in March 2012, and was postponed until September 2012. In October 2012, while the case was being heard, the judge was handed information about events involving a solicitor employed by Heer Manak. The nature of this information led the judge to recuse herself (excuse herself from the case) in February 2013 because it could appear that the tribunal, having received this information, was biased.

There are good summaries of the case and its collapse on the Guardian website at and in the National Secular Society report on caste discrimination at

Caste discrimination to be included in definition of “race” in the Equality Act... but not until 2018?

The definition of race under s.9 of the Equality Act 2010 includes race, colour, nationality, and ethnic or national origins, and says in s.9(5) that caste may be added to the definition. The government said it would do this if evidence showed it is needed. A National Institute for Economic and Social Report (NIESR) report in December 2010 on caste discrimination and harassment in Great Britain showed it does exist, and a United Nations human rights review of the UK, adopted on 30 May 2012, recommended that the UK should put in place a national strategy to eliminate discrimination against caste, through immediately adopting the Equality Act provision on caste discrimination.

Despite these reports, the government decided against legislating to make caste discrimination unlawful, saying it was not the most appropriate or effective way to tackle the issue. Its preferred option was the development of educational materials to raise awareness of caste discrimination and help tackle the problem, without legislation.

But in a last-minute reversal, the Enterprise and Regulatory Reform Bill was amended and s.97 was included in the Enterprise and Regulatory Reform Act 2013. This amends the Equality Act s.9(5) to change "may amend this section so as to provide for caste to be an aspect of race" to "must amend this section...".

However, the government has said that caste will still not actually be added to the definition of race until there has been a full consultation on key issues, including the definition of caste itself and the need for any related exceptions.

The Enterprise Act allows for a review of the caste discrimination legislation and whether it remains appropriate, but this cannot be done before 25 April 2018.

The International Dalit Solidarity Network and the National Secular Society produced briefings in April 2013 on caste discrimination in the UK, summarising the NIESR and UN reports and the struggle to get the new legislation passed. The IDSN report is at and the more detailed NSS report at The Dalit Solidarity Network-UK has further information at

The Enterprise and Regulatory Reform Act is at

What is and what is not a “protected belief” under the Equality Act 2010
The cases below show how courts are interpreting the 2009 employment appeal tribunal decision in Grainger plc v Nicholson, setting out the factors to be taken into account when assessing whether a belief should be protected as a religious or philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003. (The regulations have since been replaced by the Equality Act 2010.) These factors are:

  • the belief must be genuinely held;
  • it must be a belief, and not an opinion or viewpoint based on the present state of information available;
  • it must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • it must attain a certain level of cogency, seriousness, cohesion and importance;
  • it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In Hashman v Milton Park Dorset Park Ltd (trading as Orchard Park) Hashman, a lifelong animal rights campaigner, was dismissed from his job at Orchard Park Garden Centre when his employers discovered he was an active campaigner against fox hunting. At a preliminary hearing on 10 January 2011 the employment tribunal had said that Hashman's belief in the sanctity of life extended to his fervent anti-fox hunting and anti-hare coursing beliefs, and such beliefs met the criteria in Grainger v Nicholson for a protected philosophical belief for the On 26 October 2011 the tribunal found that Hashman had been discriminated against because of these beliefs. An article by Bindmans Solicitors, who represented Hashman, is at

In another case in October 2011, Lisk v Shield Guardian Co Ltd, an ex-serviceman claimed direct discrimination and harassment on grounds of philosophical belief after being asked by Shield Guardian, his employer, to remove his poppy at work. In a pre-hearing review, the tribunal said that although Lisk's belief in the importance of showing respect by wearing a poppy was clearly serious, it could not be described as a philosophical belief because it lacked the cogency, cohesion and importance that were required by Grainger, and was too narrow to be described as a belief about a weighty and substantial aspect of human life and behaviour.

In August 2011 an employment tribunal, in a preliminary hearing, ruled in Farrell v South Yorkshire Police Authority that Farrell's belief that the 9/11 and 7/7 terrorist attacks were authorised by the US and UK governments and were part of a conspiracy led by a world elite was not a protected belief. This case is particularly unusual because Farrell was employed by the police as a principal intelligence analyst, responsible for producing an annual strategic threat assessment covering all crimes, including terrorism. His risk analysis gave 100% scores to every aspect of internal terrorism, 1% to external terrorism, and 0% to all other crimes. He attached to his report a document saying, amongst other things, that the UK government’s counter-terrorism strategy was a sham intended to divert attention from the government's secret scheming and the evil ways of the elite.

Not surprisingly he was subject to disciplinary proceedings leading to dismissal, on the basis that his views were incompatible with his role and prevented him from carrying out his duties effectively. He brought claims for unfair dismissal and discrimination on the grounds of his philosophical beliefs.

These decisions do not set a precedent, but they illustrate how "philosophical belief" is being interpreted.

An overview of racial violence and convictions over the last few months (May-June 2013)

In the aftermath of the murder of soldier Lee Rigby in May, the harassment of Muslims continues.  Several mosques and Islamic cultural centres have been targeted in attacks, some of which have been attributed to the far Right, and in the most high-profile cases buildings have been firebombed. For the time being, such attacks are in the news. Normally, they are something the mainstream media ignores.

Many of the attacks recorded by the Institute of Race Relations (IRR) – not all of which have been directed against Muslims or appear related to the Woolwich murder – smack of cowardice: vandalising buildings in the middle of the night and then fleeing; chasing isolated victims in packs, beating them and then running away; racially abusing people from the safety of a crowd. In one case, a man went on a spree of violence which included shouting racist abuse at a 78-year-old woman and then assaulting her.

A few of these attacks are detailed by the IRR on their web-site at:

See also:
IRR News story: ‘Spotlight on far-right violence

We must end ageism and age discrimination in health and social care

This content was originally published on The King’s Fund Blog.

Age discrimination can take several forms: the failure to afford older people sufficient respect, choice and control – described in numerous reports, most recently by the Delivering Dignity Commission – or the attitudes towards, language about and labelling of older people, who are often written off as ‘acopic’ or ‘bed blocking’. Some services and system rules are skewed in favour of the young, with far worse access and quality for older people in services like mental health and psychological therapies. And some conditions largely affecting older people (eg, dementia, osteoarthritis, osteoporosis or incontinence) receive systematically worse attention and treatment than those equally common in mid-life.

A survey of more than 1,000 experts in ageing and ageing in health care from across Europe for the Economist showed that 80 per cent were concerned about the standard of their own care when older and 51 per cent felt that older people were far less likely than younger people to have adequate assessment and treatment in their countries.

Yet there is legal protection against age discrimination in the NHS. The NHS Constitution guarantees a ‘comprehensive service to all, irrespective of age, a duty to respect human rights, access based only on clinical need,’ and the Equality Act explicitly bans age-based discrimination, whereby ‘meeting individual’s needs should be based on individual circumstances and not arbitrary assumptions based on their age.’

As a doctor who looks after older people and fights ageism, my first reaction is ‘thank goodness’ – clarity from government about rights, expectations and responsibilities. But so far, there have been no test cases on age discrimination in health care and the impact of the Constitution is unproven.

It’s sad that older people should need any special legal protection. Even the minority who are frail, demented, dependent or dying are fully contributing citizens. They are not somehow ‘other’ and generally have the same expectations of wellbeing and health services as younger people. But in a youthfulness-obsessed society, ageist attitudes, language or representations are common. NHS staff – some with similar attitudes – are drawn from this society. In his recent report, Francis was emphatic that poor care for older people with complex needs was at the heart of what went wrong and should be a priority for change.

Older people (unlike minority groups at risk of discrimination – eg, people with learning disabilities) account for the most activity and expenditure in health services, and will continue to do so, as the recent Lords’ report Ready for Ageing, made clear. They are in effect a ‘disadvantaged majority’. The care of older people – often with frailty, dementia and complex co-morbidities – is now ‘core business’ and a major part of the jobs of most staff working in health and care. It is key to transforming the way we deliver care, as the recent report on transforming the delivery of health and social care by The King’s Fund sets out.

I do want to acknowledge others’ concerns about the danger of fixating on avoiding accusations of discrimination. For some services it makes perfect sense to focus on a particular age group, because of needs and skills, though this should not be a rigid age-bar. There are also times when age is entirely relevant to decision-making (for instance in relation to the dose or side effects of drugs or survival chances from surgery). Considerations about treatment goals, in terms of length or quality of life are legitimate for both patients and practitioners. And some transparent objective decisions on rationing legitimately take age into account – in some instances (eg, NICE guidance on flu vaccination or osteoporotic fractures) favouring older patients.

However, that doesn’t change the fact that organisations, professions and policy-makers can’t allow age discrimination to continue. And we mustn’t simply accept that ‘hospitals are bad places to care for older people’ as recently asserted by the Chief Executive of NHS England and the Chair of the Care Quality Commission. Let’s make hospitals (and the full range of services) good places to care for the older people who will continue to use them, rather than fancifully wishing them away.

Legislation is only one of a range of solutions in the ‘revolution’ in care for old people, called for at last year’s Leeds Castle Summit. But unless our society changes its attitudes to older people, it will be an uphill battle to deliver results.
We need to remember at all times that older people — even those with severe dementia or disability are someone’s friend or relative, with a life story, needs, likes, dislikes, wishes of their own and people who have contributed to society throughout their lives. And treat them with the same respect with which we would want to be treated in our own older age.

I strongly recommend three documents on this:

·         The King’s Fund document Care of Older People Leeds Castle Summit report
·         The Age UK, the NHS Confederation and the Local Government Association “Delivering Dignity Report
·         Dr Win Tadd’s excellent paper “Dignity in Practice
·         There is also a great paper from Age UK/Peninsula Medical School called “Health care quality for an active later life“.

Discrimination Law Association Annual Conference

The Discrimination Law has announce that its annual conference will be on Monday, 21st October.  Please put this date in your diary and keep it free! The Conference will be hosted by Baker & McKenzie LLP at its London office (100 New Bridge Street, London EC4V 6JA) - the DLA is very grateful to Baker & McKenzie for their generous sponsorship.

The theme of this year’s Conference is “Equality 2015: Setting The Agenda” with a focus on drawing up an agenda on equality for an incoming government - we are working hard to pack the day with lots of interesting speakers and thought-provoking topics.

For further information email:

Is a Christian hotelier's decision to restrict the offer of double bedrooms to married couples only unlawful?

Yes, as this is a form of both direct and indirect discrimination, says the Court of Appeal in Black & anor v Wilkinson.

The Defendant refused to allow a homosexual couple who were not in a civil partnership to stay in her bed and breakfast, on the basis that her religious beliefs would only tolerate the sharing of double bedrooms by monogamous heterosexual married couples.

The Master of the Rolls considered:

·         the county court was right to conclude that this was a case of direct discrimination.
·         if not, it would still have been one of indirect discrimination, as the Defendant's policy put homosexual couples at a disadvantage on the ground of their sexual orientation when compared with heterosexual couples.
·         the Defendant would not have been able to justify her treatment of homosexual couples by reference to her right to manifest religious beliefs, and to enjoyment of her home, as the proportionality exercise would have swayed in the Claimants' favour: (i) priority is only given to religious beliefs in certain narrowly circumscribed circumstances; (ii) the Defendant had failed to show that she would suffer serious damage if she were not to be allowed to refuse rooms to homosexual couples.

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