In This edition:
- Editorial: “Not Just a
Game…”
- Global study
shows workplaces still homophobic
- BA
steward victim of disability discrimination
- Mark
McCammon 'went through hell' at Gillingham FC
- Northern
Ireland Gay blood case passes first stage
- BP
settles $5.4m Claim over Gender Bias
- Twitter declares War on Racism
- Flat
adverts that may be breaking the law
- Nurse
sacked for mocking black colleagues by attaching a golliwog to her uniform and
making monkey noises was then 'hired by council to draft race-relations policy'
- Equality
for men in the application of Parental Leave
- Discrimination against someone around the use of their own
language can amount to direct race discrimination
- Reasonable Adjustments by Police when dealing with the public
- “Equality Conflicts”: Pending cases before the European Court
of Human Rights
- Any
Questions/Comments
Editorial: “Not Just a Game…”
The recent court case involving international footballer
John Terry charged with allegations of “racism” has illustrated that the sport
could do with a good dose of Equality and Diversity training and a huge
culture-shift in the way players, their clubs and their supporters deal with
each other, both on and off the pitch. Whatever your views on Terry’s guilt for
the actual remarks he admitted saying (“Black cunt”) which he said were merely repeating
what Rio Ferdinand said to him, the court case showed an industry riddled with
a lack of basic respect for all involved in it and the upholding of human
dignity. Not a role model for children that I would currently want!
We were informed of a deep culture of abuse (not necessarily
racist or otherwise) that players and fans use to one another on a daily basis;
the abuse hurled by fans at players (and vice versa) and the, at best, near
complete indifference of football club managements and the FA in tackling it.
It’s as if such a culture is taken for granted as “normal” and natural”. In
such an atmosphere of total disrespect no one should be surprised that all
forms of sexist, racist, homophobic and disablist language is also commonplace
and “normal” – despite policies and “statements of intent” by all those
involved the industry that they take equality and respect “seriously”. There
may be some exceptions from some – but it appears they are exceptions rather
than the rule.
The court case may have illustrated this appalling state
football is in, but the result (Terry was found not guilty) will certainly do
nothing to put it right. Or will it?
Will John Terry walk away feeling he has been vindicated
with no willingness to contemplate what has gone wrong. Will Black players feel
they have been left isolated and unsupported? Will managers and clubs continue
to ignore the tinder-box of hatred, anger and feelings of injustice that the
case has demonstrated? I hope not. Football is too important, both in the UK
and internationally, for this to happen. To tackle the underlying causes does,
however, require courage and a spirit of learning and reconciliation from all
involved – at all levels, from professional football to the local Sunday
leagues and school sport – and to put this at the top of their agenda for many
years to come. There will be no quick-fixes here as the rot appears deep and
entrenched.
But it is possible - with determination, a clear vision of
what the sport could be, and a determination to learn the lessons – our national
sport could become something to be proud of and set an example not only for the
UK as a whole but the world. As I heard someone say recently “football is not just a game… it’s a way of
life”. Millions of people across the world live this life and they deserve
better, much better – as do we all!
Global study shows workplaces
still homophobic
The world’s largest research study into the lives of GLBT
people has just released the first ever global data comparing experiences of
homophobia at work and in daily life for GLBT people living in 21 countries
around the world.
The research includes important information about real life
experiences of GLBT people on all six continents – and reveals the clearest
picture yet of the prevalence of homophobia and its current impacts on the
lives of many millions of lesbian and gay people globally.
Almost one in every six respondents to the LGBT2020 study
from both the USA and UK (US: 15.3% and UK: 14.5%) told researchers they have
personally experienced harassment from colleagues at work during the past 12
months, because of their perceived sexuality.
BA steward victim of disability discrimination
An in-flight steward
for British Airways (BA) has won £8,500 in compensation after being banned from
flying by the firm, leaving him languishing on restricted duties for months.
Mr. Frank Duckworth, 51, was hospitalised a few hours after he consumed a
mushroom risotto on a trip from London to Las Vegas on October 4th, 2010, the
Daily Mail reported.
He had to spend
several days under medical attention and BA subsequently grounded his duties,
leading him to fear for his future employment.
Mr Duckworth suffers
from diabetes and coeliac disease, and when he ate the mushroom risotto the
gluten in the meal triggered a reaction, aggravating his condition and making
him very ill with sickness and diarrhoea. It was the only meal made available
to him on the long-haul flight and he ate it while looking after the
passengers. A doctor judged upon his arrival in the UK that he was unfit to
fly, a ruling which was eventually overturned last July. He was then put on
short-haul duty, but found the move was hit by delays.
An employment
tribunal judged that he was a victim of disability discrimination, with BA
having to pay out £6,000 for "injury to feelings" and £2,500 for loss
of earnings that he would have gained from working as part of a long-haul cabin
crew, as well as his basic wages.
Mr Duckworth said:
"I've been attempting to return to work as an air steward since October
2010, I've been passed fit by BA's own doctor for flying duties since July 21,
2011, and yet I was only allowed to return to flying duties for the first time
on May 13, 2012. "I believe I was being pushed out and forced to leave
British Airways and from a job which I’ve done well and enjoyed for over 20
years."
Reasonable
adjustments were
not made by BA to cater for Mr Duckworth's needs, which would allow him to
carry on his duties despite his conditions.
Mark McCammon 'went through hell' at Gillingham FC
A black footballer who claims his former club racially
discriminated against him has told an employment tribunal he had been
"through hell".
Striker Mark McCammon, 33, felt the management and chairman
at League Two side Gillingham acted differently after he queried the payment of
his wages.
He claims he was victimised because of the colour of his skin
and was treated differently from white players. "It was traumatising to be
at Gillingham Football Club," he said. "I have been through hell at
this club," he told the tribunal in Ashford.
Mr McCammon claimed in his witness statement that he was
ordered to come into the ground amid "treacherous" snowy driving
conditions, while some white players were told they were not required. He has
also alleged that the club tried to "frustrate him out" by refusing
to pay private medical bills to help him regain his fitness following injury.
The former Charlton, Swindon, Millwall and Brighton player
said that in contrast, a white team-mate had been flown to Dubai for treatment
at the club's expense.
Mr McCammon signed for Gillingham in 2008 on a salary of
£2,500 a week, making him the club's highest-paid player. "It was a
phenomenal deal," he said. "It was a deal that most players would
have taken."
But he disputed claims that the "trade off" was
that if Gillingham remained in League Two during contract terms, his salary
would be cut by 15%. Mr McCammon said: "There was absolutely no way I
would have agreed to that. That wasn't making sense to me."
The tribunal has heard that a clerical error in Mr
McCammon's contract meant the 15% line was accidentally omitted despite being
agreed verbally.
Dubai-based Gillingham chairman Paul Scally has described
claims that Mr McCammon was racially discriminated against as being made
"maliciously and without foundation", adding that the club had not
had to deal with an allegation of racism in 18 years.
Mr McCammon is suing the club and Mr Scally for race
discrimination, breach of contract, unfair dismissal and failure of his
ex-employer to pay him.
The judgement will be announced at a later date.
Northern Ireland Gay blood case passes first stage
A Gay man has won the first stage in a legal challenge to a
lifetime ban on homosexuals giving blood in Northern Ireland
.
The High Court ruled he had
established an arguable case that Health Minister Edwin Poots' stance was
irrational and unlawful. A judge granted leave to seek a judicial review and
listed the case for a full hearing later in the year.
The man has been granted
anonymity due to his perceived vulnerability.
His lawyers are seeking a
ruling that would force Mr Poots to bring his policy into line with the rest of
the UK. The complete prohibition, put in place during the 1980s AIDS threat, was
lifted in England, Scotland and Wales last November. It was replaced by new
rules that permit donations from men whose last sexual contact with another man
was more than a year ago.
The 12-month deferral was
left in place following a Government Advisory Committee report. It identified a
much shorter window period during which infection with blood-borne viruses
could not be detected. But Mr Poots has so far maintained the ban in Northern
Ireland, declaring it was to ensure public safety. It was argued that the
health minister has no legal authority for his position. The blood donation
issue should be taken by the secretary of state for health, rather than
devolved to Stormont, it was claimed.
BP settles $5.4m Claim over Gender Bias
In the United States oil giant BP has settled a $5.4m claim
to resolve complaints that some women weren't considered for temporary jobs
responding to the 2010 Gulf of
Mexico oil spill because of their gender.
The agreement, announced on Thursday 28th June, ends an
investigation by the US
Equal Employment Opportunity Commission without filing a lawsuit. The
commission says it has not determined that BP violated any anti-discrimination
laws and BP denies it engaged in any wrongdoing.
An undetermined number of women from Texas, Louisiana,
Mississippi, Alabama and Florida who applied for BP spill response jobs will be
eligible for shares of the money.
"There has not been a determination that BP violated
anti-discrimination laws, and BP denies that it has engaged in any
wrongdoing" said a statement jointly issued by the EEOC and an exploration
and production unit of BP.". This is a voluntary resolution, under which
the EEOC and BP are partnering to ensure that contractors used during emergent
situations in the future are committed to equal employment opportunities at
BP" the statement said.
Twitter declares War
on Racism
The Twitter micro blog
service is taking measures to fight racism and trolling on the platform.
Abusive comments will be hidden. The company’s Chief executive Dick Costolo
told the Financial Times that the scale of hate speech, abusive and insulting
messages is intimidating. Twitter will fight trollers and hate instigators by
hiding their messages if their accounts have no followers, user information or
user picture. Measures are being introduced after the British police initiated
an investigation into racist messages against English football team players,
who lost to the Italians in the quarterfinals of Euro 2012, the BBC reports.
Despite the difficulties with abusive and racist speech Twitter executives
believe it is crucial for the service to maintain freedom of speech. Thus they
will still allow pseudonyms.
"The reason we want to
allow pseudonyms is there are lots of places in the world where it's the only
way you'd be able to speak freely," Dick Costolo is quoted as saying.
"The flip side of that is it also emboldens these trolls… How do you make
sure you are both emboldening people to speak politically but making it OK to
be on the platform and not endure all this hate speech? It's very
frustrating."
Abuse in Twitter has provoked
complaints from many celebrities, sportsmen among them. Hate speech in Twitter
has already brought some to justice. In March a court convicted student Liam
Stacey for his racist Twitter post about footballer Fabrice Muamba.
Flat adverts that may be breaking the law
"To let" advertisements that specify a particular
race or religion are visible in newsagents windows in many areas of London. But
are they breaking the law? Today overt racial discrimination is both illegal
and socially unacceptable. But it is now possible to find advertisements
seeking tenants for rented accommodation which specify race, or other
characteristics, in a way which some experts believe breaks the law.
Newsagents in different areas of London carry adverts
saying:
"Double bedroom available… Asian only"
"Double room to let Gujarati (Indian) only"
Close to the station and bus stops (Filipino only)
"Professional single lady or Sri Lanka professional
couple"
"House for rent… only Asian families"
The newsagents or online adverts are not common but they are
easy to find in London in particular.
Most people understand that racial discrimination in jobs or
education is both unacceptable and illegal. It's a position reinforced by the
2010 Equality Act, covering England, Wales and Scotland, which defines race in
terms of both ethnicity and nationality. The same applies to religion -
"Christian only" or "Muslim only" are both unacceptable.
It is illegal to seek a Polish architect, for example. But
an employer would be able to call for an architect who speaks Polish or is
familiar with Polish culture.
But in London at least you can find adverts specifying race
openly displayed. Examples were not immediately apparent in Glasgow, Cardiff,
Leicester or Bradford.
The Equality Act 2010 aims to protect people from
discrimination, harassment or victimisation on the basis of age, disability,
race, sex and other "protected grounds" such as religion/belief and
sexual orientation.
This law applies to any person or organisation providing
goods, facilities or services to the public. The service provider must not
treat someone less favourably just because of one or more protected
characteristics (direct discrimination). The size of the organisation is
irrelevant, however rented accommodation in which a private/individual letter
lives on or in the same premises may be exempt.
Nurse sacked for mocking black colleagues by attaching a golliwog to her uniform and making monkey noises was then 'hired by council to draft race-relations policy'
A nurse who pinned a golliwog doll to her uniform to mock
black colleagues went on to draft a council’s policy on race relations, a Nursing and Midwifery Council hearing was told. Susan Horton branded a junior nurse a
‘gorilla’, joked about feeding them bananas and made monkey noises while
discussing a black doctor.
She was sacked along with her colleague Sarah Cullum when
their two-year reign of terror at St Mary’s Hospital in Kettering,
Northamptonshire, was exposed.
But in a bizarre twist, the
hearing was told that after she was fired by the NHS in 2007, Horton was hired
by Wellingborough Council as a community safety officer. During her time
at the council, she wrote a policy on race hate and delivered a talk on that to
300 employees at the council,’ said John Lynch, representing Horton. However she resigned this post within a few months
following exposure of her previous dismissal by the health trust.
In June Horton and Cullum were kicked out of the nursing
profession after being found guilty of more than 60 charges. Richard Williams, of the NMC, said: ‘There was
physical abuse of patients and use of inappropriate language when referring to
patients both in front of them and behind their backs.’
The hearing was told Horton and Cullum acted in ‘partnership’
to racially abuse staff at all levels, including senior doctors. They were also responsible for physically
abusing some patients, including a 70-year-old man who was hit and kicked by
Horton. Both nurses shouted at another
patient, said he smelled of urine and asked if he was gay and if he liked
sharing a room with men. Healthcare assistant Sandy Smith said Horton and
Cullum swapped racist remarks when they met for shift handovers.
She said Horton’s golliwog was on her uniform ‘so it was
always accessible’ and that she often pointed at it and then at black nurses.
Horton made monkey noises while discussing a black doctor,
referred to her as ‘scary Mary’ and said she ‘shouldn’t be allowed to breed’.
She also joked about ‘saving the bananas for Mary’. Both nurses commented that two nurses from
Guyana were ‘jabbering away in their gobbledegook’ as they spoke in their
native language.
Equality for men in the application of Parental
Leave
An interesting case from the
European Court of Human Rights (ECHR) confirms that parental leave entitlements
should be the same for both men and women. The specifics of the case involved a
serviceman in the Russian army who applied for three years parental leave, but
this was refused on the basis that only female military personnel were allowed
leave of such duration and the “limited
participation of women in military service and the special social role of women
associated with motherhood”.
After failing to achieve a
remedy to this discrimination through the Russian judicial system Mr Markin
took his case to the ECHR alleging that his rights under the Convention has
been breached (Article 14 – right to non-discrimination and Article 8 - the right
to respect for family life).
By six votes to one the ECHR
upheld his case. The court held “reference
to traditions, general assumptions or prevailing social attitudes in a
particular country are insufficient justification for a difference in treatment
on grounds of sex. For example states are prevented from imposing traditions
that derive from the man’s primordial role and the women’s secondary role in
the family.”
This is a very welcome
decision by the ECHR and a powerful ruling which goes towards the advancement
of equality between the sexes, particularly in the context of historical roles
within the family, traditional assumptions about the roles of men and women and
gender stereotyping.
Source: Discrimination Law
Association Briefings 634-646. Reference:
Konstantin Markin – v – Russia, application 30078/06. ECHR [2012] EqLR
489, March 2012
Discrimination
against someone around the use of their own language can amount to direct race
discrimination
Ms. D, a Polish national, was
dismissed by reason of redundancy but brought claims of unfair dismissal, age
and race and sex discrimination. The Employment Tribunal (ET) upheld her claims
of unfair dismissal and race discrimination, which were appealed to the
Employment Appeal Tribunal(EAT). The ET claim in respect of race discrimination
arose from an incident when she was reprimanded by a manager for talking to a
colleague in Polish because it distracted other workers.
The EAT upheld the ET’s
decision in respect of direct race discrimination as D had been instructed not
to speak her own language, which is intrinsically linked to her nationality (or
national origins?). No other employee had received an instruction not to speak
their own language which established less favourable and detrimental treatment.
These factors were enough to shift the burden of proof to the employer which
had not provided any non-discriminatory explanation for the treatment. This
therefore amounted to direct race discrimination (not indirect discrimination,
which had been argued by the employer).
This case illustrates that
discrimination related to language can be direct race discrimination for which
there is no justification (indirect discrimination can be capable of being
“justified”).
Source: Discrimination Law
Association Briefings 634-646. Reference: Dziedziak – v – Future Electronics
Ltd, UKEAT/0270/11, [2012] EqLR 543, February 2012
Reasonable
Adjustments by Police when dealing with the public
ZH is a severely autist,
epileptic young man with learning difficulties and he cannot communicate
through speech. During a visit to a swimming pool he became fixated by the water
and stood by the side of the swimming pool. After 30 minutes and various
attempts by classroom assistants to distract him and move him away from the
pool, the manager of the pool decided to call then police. Without consulting
with ZH’s carers, one of tow police officers who arrived touched ZH, which was
a catalyst for him to jump in the water and appeared to be enjoying himself.
Lifeguards then entered to
pool and tried to move him to the shallow end. Three ore police officers then
arrived and forcibly removed ZH from the pool. ZH’s carers were trying to calm
things down, but were ignored by the police and ordered to move away. ZH was
then handcuffed and a set of leg restraints applied. Soaking wet he was then
taken out of the bulding and placed in a cage in a police van. As a result ZH
suffered traumatic stress disorder and an exacerbation of the epileptic
seizures.
ZH brought claims for
battery, assault, false imprisonment, discrimination by a public body
(including failure to make reasonable adjustments) and breaches of his human
rights, including inhuman and degrading treatment, the right to liberty and the
right to respect for private life. The High Court found that all the claims
were successful.
It was found that although
police officers considered ZH was in potential danger and they were acting to
protect him (i.e. they acted for the best of motives) it was not a reasonable
belief that there was an emergency that required them to act before consulting
ZH’s carers who were present and trying to assist and offer advice.
The reasonable adjustments
claim was successful and were identified as:
- Trying to find
out from carers the best way to communicate with ZH
- Discussing with
carers a plan fro approaching ZH
- Allow ZH an
opportunity to communicate with his carers
- Giving ZH the
opportunity to move away from the poolside at his own pace
- Recognising that
the use of force was a last resort
The concluding remarks of the judge are worth quoting:
“Whilst I am clear in my conclusion that
the case against the police is established, I am equally clear in concluding
that no one involved was at any time acting in an ill intentioned way towards a
disabled person. The case highlights the need for there to be an awareness of
the disability of autism within the police service. It is to be hoped that this
sad case will help bring that about.”
Whilst this case may be
considered highly unusual and “extreme” it nonetheless illustrates:
- That good
intentions do not prevent a finding of unlawful discrimination – “the road to
hell (can) be paved with good intentions”
- That
discrimination law is relevant not only in employment situations but also in
the delivery of services – in this case a public service.
- All too often
strait-jacket procedures may be applied instead of having bespoke approaches
that take into account the specific needs of individuals and “reasonable
adjustments” made for disabled people.
- The need for
awareness training, particularly around disabilities in general and specific
disabilities in particular
- The need to
listen to the views of disabled people themselves and their carers before
embarking on a course of action – they are often in the best position to
suggest what reasonable adjustment might be considered in specific
circumstances.
Source: Discrimination Law
Association Briefings 634-646. Reference: ZH – v – Commissioner of Police
for the Metropolis [2012] EWHC 604 (QB), [2012] EqLR 425, March 14 2012.
“Equality
Conflicts”: Pending cases before the European Court of Human Rights
Hearings in the UK cases of Eweide, Chaplin, Ladele and McFarlane will take place in Strasbourg
on September 4th. All these cases involve alleged conflicts between
the right of Gay people and practicing Christians in connection with their
right to manifest their religious beliefs in the workplace. Watch this space
for further news on these important cases in the autumn.
Source: Discrimination Law
Association Briefings 634-646
Any Questions/Comments
If you have
questions or issues that you would like me to address in future newsletters, or
you have comments and suggestions about the newsletter, please let me know.
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