Equality Flashcards
The Appeal cases
of Eweida v UK and Chaplin
Eweida v uk: In the case of Ms Eweida, the refusal by BA between September 2006 and February 2007 to allow her to remain in her post while visibly wearing a cross amounted to a disproportionate interference by BA plc with her right to manifest – and the Court of Appeal had not struck the correct balance in its ruling. “while [BA’s] aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Important:
- The cross was discret, not detracting from professional appearance
- no evidence that wearing other items of religious clothing had a negative impact on BA’s brand or imagine
Chaplin> In Ms Chaplin’s case, the grounds for the ban were health and safety. Her managers considered there was a risk that a disturbed patient might seize and pull the chain, thereby injuring the patient or Ms Chaplin, or that a swinging cross on a chain might come into contact with an open wound. Moreover, another Christian nurse had been requested to remove a cross and chain, two Sikh nurses had been told they could not wear a kara bangle or kirpan and flowing hijabs were prohibited – again on health and safety grounds. Furthermore, Ms Chaplin had been offered the alternative of wearing a cross as a brooch or under a high-necked top under her tunic but she did not consider that this would be sufficient to comply with her religious convictions (para 98). In the circumstances, the interference had not been disproportionate and Ms Chaplin’s claim was therefore dismissed unanimously.
Though the Court accepted that there had been an interference with both women’s right to manifest their religion it took the view that the two cases were distinguishable:
- Ms Eweida worked for a private company – BA plc – so she could not attribute the interference with her right to manifest directly to the state.
- BA had previously given permission for male Sikh employees to wear a dark blue or white turban and to display the kara bangle in summer if wearing a short-sleeved shirt and for female Muslim ground staff to wear the hijab in BA-approved colours – without any apparent negative impact on BA’s brand or image.
- The domestic authorities had therefore failed sufficiently to protect Ms Eweida’s right to manifest her religion, in breach of Article 9.
Chaplin
- In Ms Chaplin’s case, however, the issue of health and safety in a hospital ward was inherently of much greater importance than the reasons adduced by BA in the case of Ms Eweida
- Moreover, hospital managers were better placed than a court to make decisions about clinical safety
Comparator for direct discrimination
In Lockwood, the CA held that a tribunal treating people over 35 as improper comparators for a 26 years old woman, because younger women can more easily find subsequent employment, completely miconceived the point of the comparison. Lord Rimer, then compared this to a race discrimination case, saying that “the whole purpose of the comparison is as an aid to seeing whether or not the way in which the comparator was or would have been treated in the relevant circumstances”>
It is difficult to reconcile this with the case of Palmer where the EAT rules that differential treatment between the 49 year old claimant and c-workers between 50 and 55, in administraring a voluntary redundancy scheme, was not discrimination because the latter were inappropriate co,paraotrs. However, in that case, the Finance Act 2004 only permitted people aged 50 or over to participate in the kind of scheme involved in this case/ The legal fact, which did not flow inevitable from age, was deemed to be a relevant circumstance other than age that could distinguish the comparators.
Where is direct discrimination
– less favourable treatment because of a protected characteristic
s13(1) EA:
Amnesty International v Ahmed [2009]
Motive is irrelevant. Treats… less favourably [because of a PC]
motive for not selecting a woman of Sudanese origin for promotion to the post of “Sudanese researcher” at AI was benign – would be exposed to increased safety risk when posted to Sudan and might compromise AI’s impartiality. Resigned and claimed race discrimination - “but for” test applied – but for her ethnic origin – ‘race’ (includes nationality) - she would undoubtedly have been promoted. Motive is irrelevant. Woman worked and Sudanese who applied for position, which would have been a promotion, she was qualified. But AI took view that their position in country might be jeopardised if they promoted here as they might not be seen as being neutral in conflict. She claimed race discrimination. BUT FOR her nationality – would she have been treated in this way? Held: she would have undoubtedly have been promoted. Comparison: if she was not of the same nationality.
European Roma Rights Centre v Immigration Officer [2005] 2 WLR 1 HL
Direct discrimination
‘treats … less favourably [because of a protected characteristic]’
Stereotyping is direct discrimination:
– treatment of a person cannot be based on stereotypical beliefs or assumptions – ‘the object of the legislation is to treat each person as an individual and not assumed to be like other members of the group’ – per Baroness Hale. Roma people being stopped by UK immigration and treated more sceptically than non Roma people. Found by HL that treatment of person cannot be based on stereotypical beliefs or assumptions. Object of legislation is to treat each person as an individual and not assumed to be part of a group – Lady Hale.
Moyhing v NHS Trust [2006
‘treats … less favourably [because of a protected characteristic]’
Stereotyping is direct discrimination:
chaperoning of male nurses performing intimate procedures on female patients but not vice versa – benign motive – but stereotyping, therefore, direct sex discrimination. Male nurses responsible to female patients, were required to have a female chaperone, but female nurses were not required to have a chaperone when required to do intimate procedures on intimate procedures. Held: either neither should have it or BOTH should have it. Requiring one sex to have it and not the other was less favourable and it was based on a presumption.
treats or would treat others’
provides a basis for ET to assess the treatment of an actual or hypothetical comparator if there is no real comparator
Under EA s23 the basis for comparison is as follows:
‘On a comparison of cases … there must be no material difference between the circumstances relating to each case’ (emphasis added)
Zafar v Glasgow City Council
HOUSE OF LORDS
Lord Browne - Wilkinson’s test = 1) should first inquire whether less favourable treatment has been afforded to the complainant, 2) and then proceed to investigate the reasons for the less favourable treatment.Zafar shows the determination of the House of Lords to direct the courts and tribunals to inquire into the reasons why a person was subjected to unfavourable treatment.
BOB WATT - believes that the “but why” test lord browne wilkinson formulated should be applied.
s23 : Material difference comparator. D
The selection of the comparator and the relevant ‘circumstances’ present a complex challenge and will also depend on the protected characteristic at issue. Leading case:
- race - test is not simply whether the employer has treated the employee less favourably, but whether he has treated him less favourably than he would have treated an otherwise similarly situated employee belonging to another racial group.
Race discrimination. Test laid down by lords in this case is that it is not simply whether employer has treated employee less favourably but whether he has treated him less favourable to another situated employee, belonging to another racial group. For example, a number of people in a certain department, if someone has been subjected to less favourable treatment because of race or ethnic origin, would someone similar who is in same ethnic group has been treated the same then = comparator.
S23 STATES in making this comparison, there must not be a material difference to comparator in the relevant circumstances.
Lockwood v DWP [2013] EWCA
s23 : Material difference comparator. application of the ‘no material difference’ test
age - comparison cannot take account of age-related differences. Employer has a scheme for voluntary redundancy. Scheme was more generous to those who were over the age of 35. Lockwood who was younger would miss out. Could she compare herself to the over 35’s? Held: she could not because there was a material difference between her and older work group: difference was to purpose of permeance: this was to reflect comparative difficulty of loss of employment to older workers. It provided the older workers with a proportionate financial cushion.
the no material difference argument was mounted by the DWP who argued that civil servants over 35 were in a materially different position because they were at a different stage of their career. It might be more difficult for them to find another job. This argument may have been accepted at the ET but the EAT judgment is that even if the treatment is discriminatory it is objectively justified age discrimination (only justifiable because age is the PC). The reason is that the older workers may take longer to find alternative work and need a financial cushion ( the amount being proportionate). I think tho is better than the argument that these employees were not comparable.
The Court of Appeal first considered whether there had been direct age discrimination and held that there had. The purpose of the comparative exercise was to test whether the claimant had been discriminated against on a prohibited ground, in this case that of her age. The relevant comparator must therefore be materially similar to the claimant in all relevant ways except for the protected characteristic. Her comparator was that of an employee over 35 whose term of service had been identical to hers. He or she would receive at least twice what the claimant received and it followed that she was treated less favourably and was so treated because of her age. However, the Court of Appeal found that the respondents had adopted proportionate means to achieve the legitimate aim to produce a proportionate financial cushion for workers until alternative employment is found when balanced against the disparate treatment of younger workers and the appeal was thus dismissed.
Palmer v RBS
- age-related differences arose from Statute – two groups (under and over aged 50) not comparable. Not employer’s fault
Ms Palmer had two options available to her. Her comparators had three. They were in materially different circumstances which were not caused by unlawful discrimination on the ground of age, but by lawful discrimination which was required by statute.
Balamoody v UK Central Council for Nursing
CA
no actual comparator?
where no actual comparator for a complainant to compare their treatment with, the ET must construct a hypothetical comparator.
Hypothetical comparator could be constructed. When comparator exists, the tribunal must construct a hypothetical comparator. Shamoon HL took you how to do this – two questions tribunal needs to ask to show link between Reason and PC on the other.
Shamoon v CC of RUC
HL
Direct discrimination
no need to identify the comparator - key issue is the link between the reason for the less favourable treatment and the ground relied on - ET must ask two questions:
- Why was the claimant treated in the way in which he or she was? (Motive irrelevant to answering this question).
- REASON. Motive is irrelevant in answering the question.
- Was it on the proscribed ground that was the foundation of the application or was it for some other reason? If the former, there will usually be no difficulty in finding less favourable treatment.
- Grounds = protective characteristic.
Lord Nicholls did not expressly cast doubt on the “but for” test in Shamoon,
Case law on dress codes
- Schmidt v Austicks Bookshop
- Smith v Safeway
Schmidt v Austicks Bookshop
– ‘sex appropriate dress code’ can be relevant circumstances .
Woman who worked for company required to wear skirts and not trousers, men did not have this. Schmidt was dismissed for refusing to wear a skirt at work. Found: this could not be direct discrimination, based on the relevant circumstances aspect – argument, employer using managerial prerogative was applying a uniform rule to both men and woman, they just applied a different type of uniform rule. Rule itself did not need to be the same as far as the court was concerned, they were being treated alike. Employer was entitled to a large measure of discretion in controlling appearance of staff, especially when in contract with public. Not direct discrimination when like for like treatment. Men were compared vis a vis to woman.
In Schmidt men were not allowed to wear t-shirts. It was deemed to be an equivalent rule even though these were completely different items of clothing. Highlights a deference to the managerial prerogative of the employer in dress code cases. I’m not entirely convinced it would be decided in the same way today - it was 1977- but it might. See the governments recent guide on dress codes for a run through of the case law on the lecture handout.
Nor was the requirement that women should not wear trousers less favourable treatment on grounds of sex within s 1(1)(a), as there was no comparable restriction which could be applied to the men which could lead to the conclusion that women were being treated less favourably. In any event, there were certain restrictions, albeit different ones, on what the men could wear, and so it could be said that the employers treated men and women alike in that rules governed clothing and appearance in both cases
Smith v Safeway
employer has a large measure of discretion over uniforms, dress codes etc – can have different rules for each sex so long as the treatment is not less favourable
Large measure of discretion, as long as treatment is not less favourable. Regarded as not less favourable if rules like for like. If only rules for woman and not for men, finding would be different. Difficult in dress code test to show less favourable treatment, because looking at circumstances and showing that LFT is due to a particular characteristic. If cannot be direct discrimination but indirect, then employer might be able to show indirect discrimination is objectively justified.
Bullock v Alice Ottley
Casual connection between less favourable treatment .
Less favourable treatment ‘because of a protected characteristic’ - must be a causal connection:
Teacher and domestic staff at school were required to retire at 60 but gardeners and maintenance staff required to retire at 65. Bullock said teachers and domestic staff predominantly female and all gardeners and maintenance staff at school were male, this must be direct discrimination. Held: because no evidence that a male teacher would have been treated differently, this couldn’t be treated comparatively. There were male teachers, albeit small. This was the comparison which must be made. It could be indirect discrimination, but is not direct discrimination. Indirect discrimination because rule of employer appearing to be neutral but disadvantage to a group.
Coleman v Attridge Law
Court of Justice decidedd this
Explanatory notes in the EA exoressly provide for discrimination by association is covered.
EU legislation uses the term ‘on grounds of’, but the ECJ has given these words a purposive interpretation to encompass associative discrimination – where the employer discriminates against a person because of his/her association with a person with a protected characteristic.
ground for discrimination alleged by C against her employer was that she was treated less favourably than other workers because she had caring responsibilities for a disabled child. Worked for law firm and had a disabled child, she needed to ask for time off to care for her child, made arrangements to make sure she is available for this. She was subjected to a detriment in terms of how she was treated in course of work. She also suffered harassment. Question: could she claim LFT because of disability even though this was not of her own but of her child’s. Court of Justice held: gave guidance of term “on grounds of”.
ECJ: she could claim less favourable treatment on the ground of her child’s disability even though she was not herself disabled if the less favourable treatment related to the ground.
The Opinion of Advocate General Maduro in the Coleman v Attridge Law case
He uses the term “because of”. Even if she does not possess PC herself she can claim it via association.
Nowhere in directive does it say, on the grounds of HER disability, only on the grounds of disability. So if someone is subjected to LFT on account of disability, this is the test, one can be a victim of unlawful discrimination without being disabled oneself.
This test was applied when went back to EAT.
Saini v All Saints Haque Centre
Associative discrimination
Regulation 5(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 will be breached not only where an employee is harassed on the grounds that he holds certain religious beliefs, but also where he is harassed because someone else holds certain religious beliefs.
Reference to “religion or belief” includes a lack of religion or belief. As such, non-believers have the same rights as believers.
English v Thomas Sanderson Blinds [2009] EWCA
The concept of discrimination extends to perceptive discrimination – where a person is discriminated against because of a protected characteristic regardless of whether he or she in fact has that characteristic. This can be implied from the term ‘because of a protected characteristic’:
– homophobic abuse amounted to unlawful discrimination on grounds of sexual orientation – harassment – it is the objective nature of the [prohibited conduct] rather than the orientation of the victim that is determinative. It was irrelevant whether the perpetrators knew that the claimant was or was not gay – the discrimination was because of sexual orientation. Subject to vile abuse from fellow employees, homophobic abuse which was found unlawful falling within scope of harassment. English was subject to homophobic abuse because he was from BRIGHTON – a stereotype that men from Brighton might be gay. He was subject to this, even though the fellow employees knew that he was not gay. Question: could this because of a PC. Found: it could be, it is of the objective nature of prohibited conduct rather than the orientation of the victim. Irrelevant whether perpetrators knew he was gay or not.
Occupational requirement:
In certain situations, having a particular characteristic in relevant to doing a particular job. Burden of proof: on employer to show three things (sch 9, part 1, s1(1) EA):
- It is an OR – strict job function test, Johnston is it required for the job.
- Application of the OR is a proportionate means of achieving a legitimate aim, Etam, Bougnaoui (ECJ)
- The person does not meet the OR. Does the person not have this particular requirement.
Occupational Requirement burden
Places the burden on the employer to show the occupational requirement to, typically, hire a person who has a particular protected characteristic, to justify the reason, and to satisfy a proportionality test.
Johnston v RUC
The OR must be something which is essential for the person to be able to perform the functions of the job.
Joined troubles in NI, back in 1980s woman police officers were not permitted to carry fire arms, this was an occupational requirement that was gender specific on basis they were not trained in carrying firearms. Ms Johnston was unable to carry firearms so her contract was not renewed. The occupational requirement was personal safety – sex could be a genuine determining factor. Held: this could be an occupational requirement (probably won’t be today), but it was not proportionate to dismiss her because she could continue to work as a police officer carrying out other duties rather than being dismissed.
Etam v Rowan
Proportionality is strictly applied when showing the OR is justified
decency argument – women’s clothing shop – staff required to carry out changing room duties – men could perform other duties so could be hired. Woman’s clothing store. Rowan applied for a job for the store, he was refused because he was a man because the job involved changing room duties. Argued for decency and privacy a man should not be in changing room when woman were changing. Tribunal: it could be an occupational requirement but it was not proportionate, shop had sufficient female staff to cover the duty. Therefore, even though it would normally be a normal part of the job, you could not have a blanket ban. Sex.
Bougnaoui v Micropole
OR Application in dress code cases:
Cannot use a general occupational requirement in relation to religion. Worked at a design engineer at Micropole, she was a Muslim and advised that some customers would reject to her wearing a headscarf at work. A customer complained about her and was then instructed by the company to not wear the headscarf because they wanted to be neutral for customers. She was then dismissed for not following instruction. Question: was employers decision to take into account customers wishes for neutrality rule an occupational requirement? Held: this was direct discrimination. If it were to be direct discrimination could there be an occupational requirement. Held: it was not a genuine occupational requirement to take into account wishes of customers, “only in very limited circumstances be a religious requirement be an occupational requirement, it must be an objective requirement relating to occupational activities concerned”. So it must be objective or in the context they are carried out. In this case, it was subjective (to place considerations of customer above the employee). A-G was more strict saying direct discrimination and you could not have religion as an occupational requirement because it was contrary to human rights freedom of religion.
compare the Opinion of AG Sharpston with the judgment of the Court.
Enderby v Frenchay
Indirect discrimination: application of a provision, criterion or practice
– statistical evidence of a significant disparity sufficient. There was a comparison made between pay of pharmacists and speech therapists in health service. Method of payment was a PCP, men and woman could carry out both professions, but statistics showed that predominantly pharmacists were male and speech therapists were female. Statistics shows skills involved, degrees gained was comparable, so it was enough to show a disparity.
Carreras [2018] CA
Indirect discrimination: application of a provision, criterion or practice
disabled employee who had reduced his hours to reflect disability was required to work longer hours to reflect similar hours of others in workplace. Was that a PCP? Held: it was (repeated requests by employer pressurised him to agree) – was a PCP
Pendleton v Derbyshire County Council [2016]
Indirect discrimination: application of a provision, criterion or practice
P was a teacher. Husband was Head Teacher. Husband convicted of making indecent images of children. She was told if she wanted to continue to work at the school, she would have to leave her husband. P refused to leave her husband and continued working at the school. Had strict Christian beliefs and believed in the sanctity of marriage vows. School dismissed P for failing to end her relationship with her husband.
Held – school’s policy of dismissing someone who had chosen not to end their relationship with a convicted sex offender was a ‘practice’. P was in a group of people who shared a ‘belief’ in the sanctity of marriage vows. Held: practise of school they had chosen to apply in this particular situation and fell within PC because it was a belief( religion or belief), practise which put someone who had a particular belief at a disadvantage. You needed to put it with a particular characteristic.
Rutherford v Towncircle
HL
Indirect discriminationThe actual or hypothetical comparator rule in s23 applies also in cases of alleged indirect discrimination.
Old approach to group disadvantage – pool of comparison in the workforce required:
relevant pool for statistical comparison – focus on advantaged group – emphasis on statistical evidence.
Age limit of 65 to compete particular job, another rule, you could not bring an unfair dismissal claim if you were over 65. Statistics showed significantly more men than woman were affected by bringing unfair dismissal claims. Argument: collective disadvantage for men comparing men over 65 and woman over 65. Held: comparison should have been between ALL men and all woman. Looking at them as a country as a whole, statistics did not show that. Lady Hale dissented and said it should only be the disadvantaged group. Lady Hale’s approach is now SC’s approach. This also now follows approach of CJ. Rutherford approach replaced discrimination act with the equality act and reworded s19 to say “with that particular disadvantage” test
JämÖ
The actual or hypothetical comparator rule in s23 applies also in cases of alleged indirect discrimination.More recent approach – focuses on the disadvantaged group:
CJEU test is there ‘a substantially higher proportion of women than men in the disadvantaged group?’
Somerset CC v Pike
The actual or hypothetical comparator rule in s23 applies also in cases of alleged indirect discrimination: ofcus on the disadvantage group
The Court of Appeal, applying the House of Lords decision in Rutherford and another v Secretary of State for Trade and Industry (No.2) [2006] IRLR 551 HL, agreed. The employment tribunal was wrong to reject the narrower pool that Mrs Pike had advocated. By adopting the entire teaching profession as the pool of comparison, the employment tribunal had brought into the equation people who have no interest in the advantage or disadvantage in question.
– those who have no interest in the advantage in question should not be part of the pool of comparison. Retired teachers only considered as part of the pool – employer’s scheme allowed those in receipt of work to return to teaching only if they worked full-time. Claimed this was indirect sex discrimination because it disadvantaged a substantially higher proportion of women than men within the pool (if those who had not retired were excluded). There was re-employment scheme for retired teachers, the various teachers were retired so shortage of teachers. LA decided that the teachers could only return if they worked full time and statistics showed that this rule had the effect of disproportionately effecting woman because eof caring responsibilities, woman were not in same position as men to go back to work. Practise of employer to go back that disadvantaged woman in particular if you only make comparison for those who were retired. If you consider work place as a whole, it would not have worked.
CC of West Yorkshire Police v Homer [2012]
UKSC
The actual or hypothetical comparator rule in s23 applies also in cases of alleged indirect discrimination.More recent approach – focuses on the disadvantaged group:
– per Baroness Hale: new formulation ‘was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages.’
Statistics are relevant but in the Homer case, the new formulation of “at a particular disadvantage” was to do away with statistical comparisons where no statistics might exist, rather it looks at evidence of a particular disadvantage when compared with other people who did not have that PC. Statistical evidence might show more woman is disadvantaged but evidence as a whole might show more of a disadvantage, might take into account societal disadvantage (black and white people which might cause adverse impact).
XC Trains Ltd v CD
The actual or hypothetical comparator rule in s23 applies also in cases of alleged indirect discrimination.But statistics can be a reliable pointer to show disadvantage:
rule requiring train drivers employed by XCT to work at least 50% of their roster and on a number of Saturdays was a PCP - put women at a particular disadvantage. ET based its decision on the relative numbers and proportions of women and men train drivers employed by XCT who could and could not comply with the PCP. XCT employed 559 train drivers - only 17 (3%) were women. ET looked at number of train drivers, they said that statistics was so overwhelming that a rule requiring Saturdays and rule of requiring societal impact, showed that it disadvantaged woman of that PCP.
London Underground v Edwards [1999]
Indirect discrimination
Individual disadvantage - ‘that disadvantage’ – no need to show why they have suffered the disadvantage – the fact of disadvantage is sufficient:
imposition of new rostering arrangements discriminated against single mother. E was a train operator and when the new rostering system was introduced, unlike the other 20 female train operators and all the thousands of male train operators, she was unable to comply with the new arrangements. Held: appropriate food of employees was all those affected by the new shift arrangements. Tribunal could look at broader principles, such as more woman than men had child care responsibilities. The smaller number of woman train drivers meant that the small number who could not comply with the requirement to change the shift pattern was proportionately larger than equivalent number of men.
Essop v Home Office (UK Border Agency) [2017] UKSC
Indirect discrimiantion
Individual disadvantage - ‘that disadvantage’ – no need to show why they have suffered the disadvantage – the fact of disadvantage is sufficient:
skills assessment test in civil service, not intended to be discriminatory but evidence of a much lower pass rate among black and ethnic minority applicants. Evidence was put to show and satisfied tribunal and EAT that it was sufficient to show systematic disadvantage of a group. According to EAT no need for member of the group to show they were disadvantaged.
Eweida v British Airways [2010]
Disadvantage of a single individual but not a group is insufficient to show indirect discrimination:
(silver cross) – BA’s policy prohibited visible jewellery from being shown over the uniform – E claimed religious discrimination when not allowed to wear a silver cross. Held: no evidence that a group of Christians were put ‘at a particular disadvantage’ by the policy compared with non-Christians. Some identifiable section of the workforce, quite possibly a small one, must be shown to suffer a particular disadvantage which the claimant shares. Solitary disadvantage is not sufficient.
Rule was neutral PCP, Eweida objected because she wished to express her religious beliefs, she was told she could not wear this cross. Indirect discrimination? Held: no evidence that rule put Christians as a group put them in a disadvantage. Questions as a group whether they would be required to display their religious beliefs compared with non Christians. Minimum: some identifiable section of the workforce, even if small, must be shown to suffer a particular disadvantage which claimant shares. Fact this was a solitary disadvantage was not sufficient. Court of human rights in Strasburg found that UK law applied in Eweida case is below.
Eweida v UK
Disadvantage of a single individual but not a group is insufficient to show indirect discrimination: BUT
- ECtHR found that UK law, as applied in E’s case, did not strike the right balance between the protection of her right to manifest her religion and the rights and interests of others. Her right to display her belief and rights of BA who wishes to apply this jewellery rule so it put the court of human rights, put freedom of religion at forefront of its view. In future, notwithstanding human rights approach to this, but court of justice has taken a different approach.
Achbita v G4S Secure Solutions NV [2017]
Disadvantage of a single individual but not a group is insufficient to show indirect discrimination:But less weight given to freedom of religion by the ECJ in:
In Achbita v G4S the Court of Justice was asked whether a private firm could prohibit the wearing of Islamic headscarves by employees who dealt with customers, or whether this violated the ban on religious discrimination in the workplace, found in Directive 2000/78. The claimant, Ms Achbita, worked as a receptionist for G4S in Belgium. When she began wearing a headscarf she was warned that it was against company policy, which disallowed all religious, political or philosophical signs in the workplace. When she continued, she was dismissed.
The Court found that under the right circumstances a company might be entitled to have a policy of this sort. One condition was that the policy must be in writing – in the interests of certainty and clarity. Another condition was that it must apply without distinction to all beliefs.
employed as receptionist as G4S, this carries out duties in public section, there was not a written rule but an unwritten rule (custom and practise) from wearing employee wearing signs about their political, philosophical or religious beliefs. She informed her employer that she would like to wear her Islamic headscarf during working hours. They said this was contrary to position of neutrality adopted by G4S, they wanted to be neutral to public. Eventually, she returned to work wearing headscarf and was dismissed but only after a works council of company got together and put the rule in writing, by time she was dismissed it became a written rule. Held: PCP, but was it indirect discrimination did it put those who share similar PC at a particular disadvantage? CJEU held: such an internal rule does not introduce a difference of treatment. Not direct discrimination, indirect discrimination? Might be if it put persons adhering to PC at particular disadvantage. Found moving to third heading that there was objective justification, company’s desire to direct neutrality is legitimate only when workers involved are in contact with customers. As she was a receptionist, she applied. Criticism the way it was applied specifically to a religious headscarf, should it have been direct discrimination.
Achbita
Bougnaoui
cases
Both cases concerned, on differing facts, an individual female Muslim employee, who wished to wear a hijab at work. In both instances, this was not permitted by her employer, and both employees were dismissed.
In Achbita, there was a rule within G4S that employees could not wear visible signs of their political, philosophical or religious beliefs in the workplace and/or from engaging in any observance of such beliefs. Pursuant to that rule, Ms Achbita was dismissed when she insisted on wearing her Islamic headscarf at work.
In Bougnaoui, it was not clear whether there was any internal neutrality rule such as that in Achbita. However, Ms Bougnaoui had been told by her employer that her headscarf had upset its customers, and so the employer insisted on the need for neutrality. The French court referred the following question:
Two very different opinions from AG Kokott (Achbita) and from AG Sharpston (Bouganoui) provided radically different reasoning and results, in respect of whether any neutrality rule could constitute direct or indirect discrimination, but also as to proportionality. AG Kokott placed heavy emphasis on the freedom of the employer to conduct its business, in line with Article 16 of the Charter of Fundamental Rights, and far less on the individual’s integrity and religious rights, whilst AG Sharpston adopted a more balanced approach that weighed both the employee’s individual needs and rights alongside those of the employer. As she said in her Opinion, “when the employer concludes a contract of employment with an employee, he does not buy that person’s soul”. [1] So, which route would the CJEU adopt?
The Court decided in Achbita that the so-called neutrality rule could constitute indirect rather than direct discrimination.
Bilka-Kaufhaus
Once the claimant has shown discriminatory adverse impact, the burden of proof switches to the employer to show justification - first, that the aim pursued is legitimate and, second, that the PCP is a proportionate means to achieve it. If the employer succeeds in showing justification on the facts the ET must find that there is no discrimination – see ECJ case law:
employer must show objectively justifiable factors for the PCP unrelated to any discrimination on grounds of sex – the aim cannot be discriminatory. The measures taken must correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and are necessary to that end. Discrimination against part time workers in a pension scheme, this discrimination, PCP, impacted woman, satisfying 2nd stage, could employer objectively justify it. Held: needs of business required that they reduced cost of pension scheme and apply it to part time workers was a proportionate means of the business. Might be decided differently now (part time discrimination) and proportionality test, saved money on pension scheme another way.
Barry v Midland Bank
Once the claimant has shown discriminatory adverse impact, the burden of proof switches to the employer to show justification - first, that the aim pursued is legitimate and, second, that the PCP is a proportionate means to achieve it. If the employer succeeds in showing justification on the facts the ET must find that there is no discrimination – see ECJ case law:
The defendant implemented a voluntary retirement scheme under which benefits were calculated according to the period of service of the employee. The plaintiff claimed that the scheme discriminated against workers who had taken career breaks, and therefore against women.
justification for indirect discrimination in a redundancy scheme - Bilka-Kaufhaus applied . Redundancy scheme may have an impact on woman/young workers. Upheld on Barry that a real business need to make redundancies.
Allonby v Accrington and Rossendale College [2001]
Redundancy - length of service
Strict proportionality test:
ET must apply a proportionality test – if measures were available to the employer that would have less of a discriminatory impact and these measures were not taken – would be disproportionate and such discrimination could not be justified.
Lecturers dismissed by collage then re employed by agency. New contracts cut their pay and reduced sick entitled etc. Those made redundant and re employed were mainly part time lecturers, evidence showed particular disadvantage to woman, employer said it was a business decision applying Bilka. CA held: this was disproportionate, tribunal should have considered whether less discriminatory measures could have been used by collage to deal with budget problem, could have found alternatives.
Azmi v Kirklees
Strict proportionality test:
employer’s justification for discrimination on the grounds of religion or belief based on a legitimate aim and was proportionate – see also Achbita above.
Kalliri
Strict proportionality test:
same height rule for men and women for police service in Greece – disproportionate – alternative tests of physical ability could have been used - would have been less discriminatory.
Same height rule of police officer for men and woman in police service. Evidence showed on average woman shorter than men, could have been alternative tests for showing physical ability.
Hardy v Lax
CA – rejected a ‘margin of appreciation’ or range of reasonable views test for proportionality in this context. It is a matter for ET to determine, upon a fair and detailed analysis of the working practices and business considerations involved, whether the proposal of the employer is reasonably necessary.
Rolls-Royce v Unite the Union [2009] IRLR 576 CA
Strict proportionality test:
– length of service selection criteria for redundancy was lawful because justified by the legitimate aim of rewarding loyalty, and desirability to achieve a stable workforce in the context of a fair process of redundancy selection. It was proportionate because length of service was only one of a substantial number of other criteria to measure the employees’ suitability for redundancy and was by no means determinative.
Woodcock v Cumbria Primary Care Trust
Strict proportionality test:
employee dismissed on grounds of redundancy to avoid paying out for early retirement – cost of avoiding that impact could be disproportionately high – would be a legitimate aim – but cost alone cannot justify discrimination.
Realising that Mr Woodcock was due to reach age 49 in June 2007 and that if notice was not given before then he would become entitled to an enhanced early retirement pension (at a cost of c. £500,000), the Trust dismissed him without formal consultation.
Mr Woodcock brought claims to the employment tribunal for compensation for unfair dismissal and for discrimination on the grounds of age.
Comments made by the EAT in relation to the doctrine that “costs alone” cannot be a legitimate aim, led to speculation that the doctrine might be weakened or even removed by this decision. This is not the case. While the Court of Appeal acknowledged “some degree of artificiality” in the required approach, it confirmed that an employer will need more than a saving or avoidance of costs to have a legitimate aim capable of justifying discrimination.
Although employers may be disappointed that they still cannot justify discrimination on cost grounds alone, this decision is helpful for its acknowledgement of the role that costs can play.Mr Woodcock was the Chief Executive of the North Cumbria Primary Care Trusts (PCT). Following a reorganisation of PCTs in the North West in 2006, Mr Woodcock’s post disappeared and he was unsuccessful in securing a new position.
Reed v Stedman
Harrassment
Problem – the test has subjective and objective elements:
subjective test –
Ms Stedman resigned because of sexually provocative remarks made to her. The Employment Appeals Tribunal held that it was for Ms Stedman to decide what was acceptable or offensive.
In upholding this decision, the Employment Appeal Tribunal refer to sexual harassment as consisting of ‘words or conduct which are unwelcome to the recipient’, undermining the employee’s dignity at work and creating an ‘offensive’ and ‘hostile’ work environment. ‘It is for the recipient to decide for themselves what is acceptable to them and what they regard as offensive’.
This emphasis on the definition of harassment being a subjective matter to be determined by the recipient is significant
Driskel v Peninsula Business Services
Harrassment
the test has subjective and objective elements:
objective element – a reasonable person’s understanding of the effect of the conduct. taking into account her subjective attitude to the incidents and the spirit in which they were made but giving those matters their proper weight in the circumstances. It was important to remember that sexual banter by a man towards a woman often had a wholly different effect on the recipient than banter between members of the same sex.
Moonsar v Fiveways
Harrassment
Problem – the test has subjective and objective elements
- Viewed objectively, the behaviour on three occasions by male colleagues clearly had the potential effect of causing an affront to a female employee working in the close environment and as such was degrading or offensive. This case was about colleagues (men) looking at photographic material at work.
English v Thomas Sanderson Blinds
Includes associative and perceptive harassment:
‘If … tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible. In both cases the man’s sexual orientation, in both cases imaginary, is the basis – that is to say, the ground – of the harassment. There is no Pandora’s box here: simply a consistent application of the principle that you cannot legislate against prejudice, you can set out in specified circumstances to stop people’s lives being made a misery by it.’ Sedley LJ,
Kücükdeveci
EA protects people in all age groups and the comparison is with a person not of the same age group. For example, see:
even though she worked 10 years, she only had 3 years taken into account. Comparing her group (those under 25) with those over. The reference point.
Is age a PC that can justify direc discrimiantion?
Age is the only protected characteristic that allows an employer to justify direct discrimination if it is ‘a proportionate means of achieving a legitimate aim’, EA s13(2).
Mangold v Helm
AGE - General guidance from the ECJ:
principle of non-discrimination on grounds of age is a general principle of EU law – therefore strict interpretation of justifications and proportionality .
Petersen
AGE - Max age. Justification - share out employment. Found: accetpable
maximum age for practice as a dentist in Germany – labour market justification, share out employment among the generations – legitimate aim, proportionate – must be applied in a consistent and systematic manner by the employer example of application of employment policy relating to maximum age. Maximum age of 68 found to be upheld. This was direct discrimination but justified on basis of the labour market, if you could do max age limit would help to share out employment between ages. Those starting career would be able to enter profession.
Seldon UKSC
AGE
The leading UK case on the scope for justification:
narrower test for justifying direct age discrimination – per Baroness Hale – employers have flexibility to choose which objectives to pursue providing that: LPCSP
- “*(i) these are legitimate objectives of a public interest nature
(ii) are consistent with the social policy aims of the state and
(iii) the means used are proportionate, that is both appropriate to the aim and (reasonably) necessary to achieve it.”
Facts: Mr Seldon, a partner at solicitors Clarkson, Wright & Jakes, raised a direct age discrimination claim after he was forced to retire under the partnership deed.
Employers would still be required to show that implementation of a mandatory retirement age is the only way of proportionately achieving the objective and it could not be achieved by any other means.
This is likely to be a difficult evidential burden to overcome, and a policy which was once proportionate could become untenable over time with a change in the workforce or prevailing market conditions. Faced with such challenges, many employers have simply abandoned any mandatory retirement age at all.
