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Showing posts with label Justice. Show all posts
Showing posts with label Justice. Show all posts
Wednesday, 3 September 2014
Monday, 19 May 2014
Most people want to cut the gap between rich and poor. Overwhelming majority want action to reduce inequality
To download the full pdf click here
Explaining the data
These figures are taken from polling carried out on behalf of the High Pay Centre by ICM. To see the results in more detail, visit http://highpaycentre.org/blog/
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Sunday, 19 January 2014
Who inherits what?
Download the full pdf here
Explaining the data
This information comes from a 2011 report by Dr Eleni Karagiannaki at LSE (‘Recent Trends in the size and the distribution of inherited wealth in the UK’). The original data come from HMRC statistics on inherited estates, and the Attitudes to Inheritance Survey.
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.
Source: Equality and Diversity Forum
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.
Source: Equality and Diversity Forum
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:
- Call on the telephone line – 0808 800 0082
- Text users can dial 0808 800 0084
- Call RAD through their webcam portal at http://www.royaldeaf.org.uk/webcam/ to speak to an adviser in BSL or text
chat
- Website: www.equalityadvisoryservice.com
- Address: Freepost, Equality Advisory Support Service,
FPN4431
Click here
for flier
Source:
Equality and diversity Forum
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.
Sources:
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.
Source: Discrimination Law Association
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 www.legislation.gov.uk/ukpga/2013/24/contents/enacted
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
www.bailii.org/eu/cases/ECHR/2012/1878.html
Source: Sandy Adirondack
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 tinyurl.com/cjzaocs and in the National Secular Society report on caste
discrimination at tinyurl.com/lf85a6v.
Source: Sandy Adirondack
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 tinyurl.com/mdn4g5d and the more detailed NSS report at tinyurl.com/lf85a6v. The Dalit Solidarity Network-UK has
further information at www.dsnuk.org.
The Enterprise
and Regulatory Reform Act is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.
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 www.bindmans.com/index.php?id=1089.
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: http://www.irr.org.uk/news/spotlight-on-racial-violence-may-june-2013/
See also:
Source:
Institute of Race Relations
We must end ageism and age discrimination in health and social care
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 Age UK, the NHS
Confederation and the Local Government Association “Delivering
Dignity Report“
·
There is also a great paper
from Age UK/Peninsula Medical School called “Health care quality for an active later life“.
Source: Michael Rubenstein Presents..
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: info@discriminationlaw.org.uk
Source: Discrimination Law Association
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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Thursday, 25 April 2013
Equality & Diversity News: May 2013
In this issue:
- Editorial: Where’s AL gone?
- Caste Discrimination to be made unlawful
- Viewed with suspicion: The human cost of Stop and Search
- Government backs off repeal of the Equality and Human Rights Commission’s General Duty
- Tribunal case re-emphasises legal protection against discrimination based on an “association” with a disabled person
- The menopause – the last workplace taboo?
- ECU announces pilots of schemes to bring about systemic change to improve equality
- EHRC guidance to help employers support staff experiencing domestic abuse 7
- ‘Sex and Power 2013: Who Runs Britain?’
- Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails
- Has Anti-Semitism in Europe become acceptable again
- ‘Illegal immigrant’ no more? How language changes and labels
- Employing older workers: an employer’s guide to today’s multi-generational workforce
- EHRC Research Reports and Reading Lists
- Stonewall Healthcare Equality Index 2013
Editorial: Where’s AL gone?
EQUALITY? or EQUITY?
I
recently came across the above cartoon and I thought it was really useful as
way of visualising equality in different ways. As someone who has been involved
in equality and diversity issues over many years I still find it difficult
sometimes to verbally explain that the word “equality” carries different
meanings in different contexts and sometimes these different meaning can seem
contradictory.
The
first picture, for example, shows an example of what might be described as formal
equality: everyone is being treated “the same” (equally) as they are all
standing on the same sized box. If all the people are “the same” (in this case
terms of height) this would be a good thing – it would be wrong and
discriminatory if the boxes were of a different
height and this resulted in some suffering a detriment as consequence.
The law calls
this direct discrimination: less
favourable treatment on grounds of (in this case) height. But remember “height”
is not a protected characteristic
under the Equality Act, so it would not be illegal! It’s just an example, to
illustrate a point, right. However if the detriment was caused with reference
to race, or gender or disability or sexual orientation etc., (a “protected
characteristic”) then it would be
illegal.
But as
the children in the cartoon are different
in terms of height, treating them the same (“equally”), as the cartoon
illustrates, results in discrimination against the smallest! So treating people
“the same” or “equally”, when people are not “the same”, can result in
discrimination. The law describes this form of discrimination as indirect discrimination: a provision,
criteria or practice (in this case the size of the boxes they are standing on)
which applies equally to all (it’s the same size box), but puts someone (the
smallest) at a particular disadvantage because of a characteristic they do not
share with others (in this case smaller height).
When
indirect discrimination is identified (as the cartoon does) the solution to
solving or eliminating the discrimination does not lie in treating everyone the same (this has actually created
the discrimination), but rather treating different people in different
situations differently. In the cartoon the solution is to give different
sized boxes to differently sized children to put them in the same situation to
see the match (an equitable outcome!). Formal equality is thereby
transformed into substantive equality or equity, where it’s the outcome that becomes important, not the
process (of providing same-size boxes).
I just
have one tiny gripe with the cartoon. The outcome could have been achieved not by providing different sized
children with differently sized boxes, which is complicated, expensive and
focuses on the individual size of each child. But rather by taking down the fence (or not building it in the first place),
which is the real barrier to full
equality for all! Without the fence, irrespective of size, all can now see the
match. Quite a radical solution, but with the benefit of simplicity and (if it
had not been built in the first place) might have saved a great deal of money!
Sometimes the simple solutions are the best!!
This latter
point illustrates the difference between (in the case of disability) the medical or individualised model of looking at solutions to inequality, as
opposed to the societal model of
inequality favoured by disabled people themselves – where the real social barriers to full participation, involvement and equality are identified and removed; or better still not created in the
first place.
Amazing
what a simple set of cartoons can do...
Paul
Crofts
Caste Discrimination to be made unlawful
Vince Cable the Business
Secretary announced on Monday April 22 2013 that the government intends to make
caste discrimination unlawful by extending the definition of “race” to include
it in the Equality Act 2010. This represents a bit of a volte-face for the
government as it had previous argued that it did not think it was necessary to
extend protection in this area. However, after successive votes in the House of
Lords to extend protection to the estimated 400,000 Dalits (or “untouchables”)
resident in the UK, the government has changed its mind. In March the House of Lords passed an amendment to the Enterprise and Regulatory
Reform Bill to add caste to anti-discrimination laws.
Viewed with suspicion: The human cost of Stop and Search
The numbers are stark — data shows that black people are
stopped and searched at seven times
the rate of white people. Asians are stopped at twice the rate of whites. But
what do the statistics mean in terms of people's lives?
A new report,
portrait series and film look at some of the personal
stories behind the numbers.
StopWatch and
the Open
Society Justice Initiative conducted interviews with nine people
from across England whose lives have been directly affected by stop and search.
They are a small sample, but their stories echo those repeated day after day in
the lives of ordinary people who happen to fit the stereotypes that might lead
to a stop and search. To provide context for these stories, the accompanying
report draws on police and survey data to provide a clear picture of how stop
and search is used and the unseen toll it takes.
Source: StopWatch
Government backs off repeal of the Equality and Human Rights Commission’s General Duty
Following a vote in the House of Lords on 4th March 2013 the Government announced on
April 22 that it does not intend to real the EHRC general equality duty. Peers
had previously voted 217-166 in support of Baroness Jane Campbell’s amendment
to s57 of the Enterprise and
Regulatory Reform Bill, opposing the government’s planned repeal of the
Equality and Human Rights Commission’s General
Duty.
In addition to Baroness
Campbell’s powerful speech a
range of impassioned interventions came from all sides of the House including
Baroness Thornton, Baroness Lister, Baroness Hollis, Lord Lloyd, Baroness
Hussein-Ece and Lord Morris. Each pointed out the critical importance of both
aspirations and values in addition to rules and enforcement in achieving the
cultural change required to ensure that equality and human rights principles
take root in our society.
The House of Lords had made its view clear – the General
Duty should not be repealed and the Government appears to have listened
(although a more cynical view may be that they would not have mustered
sufficient support in the House of Commons to overturn it).
Tribunal case re-emphasises legal protection against discrimination based on an “association” with a disabled person
The Claimant, Rachel Price has a
degenerative disc disease and as a result was absent from work for some days
due to back pain. Her husband has leukemia.
When her husband’s condition
deteriorated, Mrs Price found it hard to concentrate at work, and was signed
off for a week by her GP as having high blood pressure. When she returned to
work, she was told by her employer that her employment was not working out and
“if I had known about your husband’s
illness I wouldn’t, no might not, have taken you on”. He then terminated
her employment with immediate effect. Mrs Price brought a claim of disability
discrimination.
The Tribunal pointed out that it
is clear from the wording of the Equality Act that it is unlawful to
discriminate “on grounds of disability – not simply or necessarily on grounds
of the Claimant’s disability”. The Equality Act 2010 was intended to extend the
prohibition on direct discrimination to associative
discrimination and Price v Action-Tec Services Ltd t/a Associated Telecom
Solutions illustrates the difference this protection makes.
This is an important case reaffirming the Equality Act
provisions relating to discrimination by association.
Source: Michael
Rubenstein presents...
The menopause – the last workplace taboo?
Approximately half of
the UK workforce (47%) is made up of women aged 50 years or older. With around
two-thirds of women aged 50 to 59 in employment, these women will be
experiencing the menopause or have been through it. The menopause is part
of the aging process. It is not a medical disease and it can have a significant
impact on psychological well-being, physical health, cognition and social
implications on the working lives of women.
Many managers are
unaware of the many physical symptoms of the menopause which might affect a
woman’s well-being at work. Menopausal symptoms most likely to affect women
include hot flushes (70% of women suffer from them for one year, 30% for five
years and 5% – 10% for 10 to 15 years), palpitations, night sweats and sleep
disturbance, fatigue, poor concentration, irritability and mood disturbance. These
working women may also have to care for frail and aging parents, look after
their own family, experience changes in health and changes in their
relationships.
The Working
through the Change study
conducted by the Trades Union Congress (2003) surveyed 500 safety
representatives on menopausal issues. Symptoms attributed to the menopause made
worse by work were hot flushes, headaches and tiredness. Workplace temperature
and poor ventilation also made symptoms worse. Employers can help to reduce the
stigma and embarrassment when women are in the company of work colleagues and
by supporting women experiencing the menopause employers can reduce
absenteeism, maximise productivity and make the workplace environment as
comfortable as possible.
To help develop a rich
and diverse working culture within the workplace here are ten top tips to help employers cultivate good working practices:
1. Raising awareness of the menopause in an occupational
setting through health promotion programmes and awareness training for
managers.
2. Organising social support within the work place. This
could include information packs, mentoring schemes and lunch time support.
3. Offer flexible working hours, job sharing, and opportunities
to work from home. Many women experience tiredness.
4. The temperature of the work environment can be an issue,
especially in refined spaces. Fans and temperature controls could be
implemented.
5. A rest room where women can relax, just to have some space.
6. Cold drinking water – many organisations do not provide
this.
7. Prioritise work life balance and maintain firm boundaries
in working life and non-working life. Adopt buffer zones so that women feel in
control more effectively. Many menopausal women experience feelings of ‘not
coping’. If work becomes an issue encourage a specific time each day so that
worries can be written down and then discarded.
8. Remain hopeful and optimistic – women experiencing the
menopause often go through different types of emotions such as anxiety and
depression. Remember these feelings do subside. Encourage women to discuss how
they feel as these feelings are very normal.
9. Become a supportive manager, women are more likely to
discuss menopausal issues with somebody they feel able to talk to. This also
encourages organisational loyalty and less absenteeism which can only be a good
thing for all companies.
These tips are based on research undertaken by Amanda
Griffiths of Nottingham University: Women’s Experience of Working through the Menopause [PDF].
ECU announces pilots of schemes to bring about systemic change to improve equality
The advisory equality group for
universities (the Equality Challenge Unit) is developing a national charter
marks to kick-start initiatives tackling race and gender inequality in
employment in higher education.
The charter marks are being
developed to help the sector address the continuing underrepresentation of
black and minority ethnic staff and the similar underrepresentation of women at
senior levels.
They are intended to instigate
long term systemic and cultural changes to tackle discrimination. Our
experiences with the Athena SWAN Charter (improving gender equality in STEMM
subjects) have shown that such a scheme can have a significant impact on
entrenched exclusionary practices and be successful in changing behaviour
within higher education institutions.
·
A race equality charter mark will focus on improving race equality
for staff, concentrating on career progression and pipeline issues.
·
A gender equality charter mark will extend the Athena SWAN scheme
to cover all disciplines.
The charter marks build on
programmes run by ECU over the past year investigating effective initiatives.
A pilot of the gender equality
charter mark has been undertaken and, subject to consulting with the sector on
the proposal, we plan to develop this further. The current Athena SWAN charter
will continue to operate as it currently stands, with a view to bring the two
together further down the line.
The challenges to gender and
race equality are different, so the charter mark for race will begin as a
small-scale pilot, but will grow incrementally.
Both schemes will be developed
in consultation with the sector and be flexible to take into account the
individual context of an institution (including size and geographical area).
David Ruebain, Chief Executive of ECU said:
‘Despite the diligent work of individual higher education institutions
and sector organisations, systemic discrimination continues to exist in higher
education. Entrenched exclusionary practices have been found to stifle the
careers of black and minority ethnic academics and support staff, and women are
also still underrepresented at senior levels.
We have worked with many institutions on initiatives to promote race and
gender equality, but these are complex, and sometimes sensitive, issues
requiring a strategic approach. It is clear that cultural and systemic changes
are necessary if we are to make any real headway on these challenges.
There is a long way to go, but the scheme has the potential to have a
significant impact and be successful in changing behaviour within
universities.’
ECU will be circulating further
details, including projected timescales and resource implications, as soon as
possible in the coming weeks.
EHRC guidance to help employers support staff experiencing domestic abuse
In April
2013, the Equality and Human Rights Commission (EHRC) published guidance to
help employers manage and support employees affected by domestic abuse, which
one in four women will experience at some point in their lifetime.
‘Managing
and supporting employees experiencing domestic abuse’,
developed by the EHRC and the Chartered Institute of Personnel and Development,
outlines how employers should respond if an employee is affected by domestic
abuse.
The guidance is
designed to enable employers to develop a domestic abuse workplace policy and
provides tips for managers on how to manage and support an employee
experiencing domestic abuse. These small steps can include giving an employee
time off to consult a lawyer, diverting telephone calls or providing a safe car
park space.
The guidance is
necessary because domestic abuse is a subject that managers struggle to respond
to appropriately. People experiencing domestic abuse can be subject to
disciplinary action and even lose their jobs because their behaviour, being
late for example, is misinterpreted. A domestic abuse workplace policy will
mean that skilled and experienced staff are able to retain their jobs and
feel safe and supported in the workplace.
Statistics show
that:
·
Domestic
abuse currently costs UK businesses over £1.9 billion a year
·
In the
UK, in any one year, more than 20% of employed women take time off work because
of domestic violence, and 2% lose their jobs as a direct result of the abuse
·
75% of
women that experience domestic abuse are targeted at work – from harassing
phone calls and abusive partners arriving at the office unannounced, to physical
assaults.
Ann Beynon, EHRC Board Member and Commissioner for Wales, comments:
“We are delighted to publish
this guide in partnership with the CIPD which will have huge benefits for
organisations. As Commissioner for the Equality and Human Rights Commission my
aim is that every employer benefits from taking effective action in the
workplace to ensure their staff experiencing domestic abuse feel safe and
supported at work.
“This guidance includes low
cost, common sense practical tips through to steps on developing an effective
domestic abuse workplace policy. Therefore, whether a large company or one of
the many SMEs there are steps you can take to help managers facilitate
conversations about domestic abuse and put in place support for employees."
‘Sex and Power 2013: Who Runs Britain?’
The
report examines the presence – or lack thereof – of women in politically
powerful positions in politics and other spheres of public life in the UK
today, including the police, the education sector, the arts and the world of
finance. It then goes on to consider the implications of a country largely
governed by men, and makes a series of recommendations for tackling the dearth
of women in influential positions.
Key
findings included:
- just 22.5 percent of MPs are women, 21.7 percent of
peers and 17.4 percent of the Cabinet. Women make up 13.3 percent of
elected mayors and 14.6 percent of Police and Crime Commissioners.
- Britain is falling down the global league table when it
comes to the representation of women in politics, as other countries move
forward faster: in 2001 we were ranked 33 out of 190 countries, but by the
end of 2012 we had fallen to 60th[1] place.
- women are similarly ‘missing’ in many other spheres of
public life: just 36.4 percent of public appointments are women, 13.6
percent of the senior judiciary and 5 percent of Editors of national daily
newspapers.
- women’s absence is particularly marked in finance and
economy: there are no women at all on the Bank of England Monetary Policy
Committee; women hold just 11.1 percent of UK Bank Chief Executive
positions, 17.3 percent of FTSE 100 Director positions and make up just
15.1 percent of members of Local Economic Partnerships.
The
report explores the impact of this dearth of women at the top tables of public
life, and concludes that:
- The lack of diversity in public life weakens democracy
and public confidence in it;
- Women make a positive difference to actual
decision-making itself; excluding them from politics and other areas of
public life means missing out on the substantial benefits greater
involvement of women would bring, while also wasting the huge investment
made in women and girls through the education system and beyond
- A more diverse body politic with a wider spread of
expertise and reflecting the life experience of both halves of the human
race would be better placed to lead us through the complex times that face
us.
- Real, committed and targetted action is required; failure
to do so means the UK will continue to ‘drift’.
Source:
Equality
& Diversity Forum
Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails
In this case, a member of the
Union brought various claims of harassment related to his “race, religion or
belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in
essence, from the way in which Union had handled the Israel/Palestine debate.
For example, claims arose from motions debated at the Union’s congress on
proposals for a boycott of Israeli academic institutions and related questions.
The Claimant alleged that the Union was guilty of “institutional anti-Semitism”
which he alleged constituted harassment of him as a Jewish member of the Union.
The
Tribunal described the litigation as being “gargantuan” in scale. It heard from
34 witnesses including academics and MPs. The hearing lasted 20 days and
required 23 hearing bundles.
Ultimately,
in an extremely robust decision, the Tribunal rejected the Claimant’s
allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”.
The Tribunal also expressed themselves as being worried by the implications of
the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance
and freedom of expression”. Of particular interest was the way in which the
Tribunal dealt with issues of legal principle at heart of the claim.
Source: Human
Rights Blog
Has Anti-Semitism in Europe become acceptable again
This video,
produced by the European Network Against Racism (ENAR) as part of its Recycling
Hate series, explores the issue of anti-Semitism in Europe
Source: ENAR
‘Illegal immigrant’ no more? How language changes and can label people
The American Associated
Press (AP) Stylebook is making some changes in how they describe people
living in a country illegally. These changes are interesting because they
reflects how use of language can change over time and also emphasises accuracy
of reporting over emotive phases which can “label” and stereotype people,
rather than focusing on unacceptable actions or behaviour.
AP’s Senior Vice President and Executive Editor Kathleen
Carroll explained the thinking behind the decision:
The Stylebook no longer sanctions the term “illegal immigrant” or the
use of “illegal” to describe a person. Instead, it tells users that “illegal”
should describe only an action, such as living in or immigrating to a country
illegally.
Why did we make the change? The discussions on this topic have been
wide-ranging and include many people from many walks of life. (Earlier, they
led us to reject descriptions such as “undocumented,” despite ardent support
from some quarters, because it is not precise. A person may have plenty of
documents, just not the ones required for legal residence.)
Those discussions continued even after AP affirmed (at that time) “illegal immigrant” as the best use, for
two reasons. A number of people felt that “illegal immigrant” was the best
choice at the time. They also believed the always-evolving English language
might soon yield a different choice and we should stay in the conversation.
Also, we had in other areas been ridding the Stylebook of labels. The new section on mental health issues argues for using
credibly sourced diagnoses instead of labels. Saying someone was “diagnosed
with schizophrenia” instead of schizophrenic, for example.
And that discussion about labeling people, instead of behavior, led us
back to “illegal immigrant” again.
We concluded that to be consistent, we needed to change our guidance.
So we have.
Is this the best way to describe someone in a country without
permission? We believe that it is for now. We also believe more evolution is
likely down the road.
Will the new guidance make it harder for writers? Perhaps just a bit at
first. But while labels may be more facile, they are not accurate...
Change is a part of AP Style because the English language is constantly
evolving, enriched by new words, phrases and uses. Our goal always is to use
the most precise and accurate words so that the meaning is clear to any reader
anywhere.
The updated entry is being added immediately to the AP Stylebook Online and
Manual de Estilo Online de la AP, the new Spanish-language Stylebook. It
also will appear in the new print edition and Stylebook Mobile, coming out later in the spring. It reads
as follows:
illegal immigration: Entering or residing in a country in
violation of civil or criminal law. Except in direct quotes essential to the
story, us illegal only to
refer to an action, not a person: illegal
immigration, but not illegal
immigrant.
Acceptable variations include living
in or entering a country
illegally or without legal
permission.
Except in direct quotations, do not use the terms illegal alien, an illegal, illegals or undocumented.
Do not describe people as violating immigration laws without
attribution. Specify wherever possible how someone entered the country
illegally and from where.
Crossed the border? Overstayed a visa? What nationality?
People who were brought into the country as children should not be
described as having immigrated illegally...
Discrimination arising from disability
Jamieson v Governing Body of Chorlton High School [2013] EqLR 429
Unlike direct
discrimination, discrimination arising from
disability can be
justified as proportionate. In this
case the Claimant teacher was dismissed for taking a 16-year-old former pupil
to a concert and bringing her home at 3am in an intoxicated state. He produced
medical evidence that his judgment was impaired by then-undiagnosed bipolar
affective disorder and/or the effects of medication he was taking for
depression.
On that basis, the
Tribunal founds that the predominant reason for the Claimant’s behaviour was
his disability.
Although the school
acted in accordance with the legitimate aims of safeguarding children and
protecting its reputation, the Tribunal concludes that dismissal was not
proportionate in that there had been no assessment of the risk that such
behaviour would be repeated. The Tribunal also concluded that to dismiss the Claimant
for his behaviour when it was materially affected by his disability was not “proportionate to address any perceived
threat to reputation”.
Source: Michael
Rubenstein presents...
Employing older workers: an employer’s guide to today’s multi-generational workforce
This guide provides answers to employer questions about recruitment,
performance, succession management, retention and transfer of skills, bringing
on younger workers and retirement. It offers good practice solutions tried and
tested by employers of various sectors and sizes.
The accompanying collection of over 30 case studies provides real life examples,
showing how employers of various sectors and sizes have made the best of the
opportunities, and effectively managed the issues presented by an ageing
workforce. They offer practical examples and transferable experience.
EHRC Research Reports and Reading Lists
The
Equality and Human Rights Commission (EHRC) research team circulated updated
information about EHRC research in the March 2013 research database newsletter.
To subscribe to the Research Database or request PDFs or printed
copies of research reports please email research@equalityhumanrights.com
Since
September 2009, each of these newsletters has included a reading list prepared
by the EHRC’s Librarian on a particular equality theme. The latest reading list
contains key books and journal articles on race issues. All reading lists are
available HERE.
Source:
Equality and Human Rights Commission
Stonewall Healthcare Equality Index 2013
The
Healthcare
Equality Index 2013 is Stonewall’s guide to the
top healthcare organisations who have committed themselves
to improving the health of lesbian, gay and bisexual people. The Top Ten
healthcare organisations in England were:
1. Sussex
Partnership NHS Foundation Trust
2. Liverpool
Community Health NHS Trust
3. London
Ambulance Service NHS Trust
4. St Andrews
Healthcare Charitable Trust
5. Central and
North West London NHS Foundation Trust
6. Mersey Care
NHS Trust
7. Barts
Health NHS Trust
8. Royal
Liverpool and Broadgreen University Hospitals NHS Trust
9. Brighton
and Sussex University Hospitals NHS Trust
10. County
Durham and Darlington NHS Foundation Trust
*******
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