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.
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 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.
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.
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
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.
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.
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.
See also:
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.
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
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.
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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