Equality COPY Flashcards
Much of the litigation concerns rules on retirement ages. Retirement is no longer listed as permitted exception relating to age in the EA following the repeal of the default retirement age (DRA) of 65 with effect from October 2011.
Note that after the abolition of the DRA it is still possible for employers to justify direct discrimination in a retirement scenario – or redundancy - if they can show that their policy is ‘a proportionate means of achieving a legitimate aim’, s13(2). Consider:
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;
Woodcock v Cumbria Primary Care Trust
How do you show a PCP has a discriminatory impact?
this involves a group comparasion. The claimant is treated as part of a group sharing his or her PC, and the effect of the rule on this group is then compared with the effect of the rule on others who do not share the characteristic.
Kücükdeveci
Court’s treatment of age rules applying to younger workers.
Claimant received notice of termination calculated on the basis of 3 years service for her employer. She had worked for the firm for 10 years, but national law provided that service before the age of 25 did not count. The national government argued that the rule protected the job security of older workers and reflexted the greater flexibility of younger workers. The Court disagreed, pointing out that the rule did not apply equally to younger workers because it disadvantaged those who entered the labour market early.
The ruling suggests that length of service criteria may now fall to be scrutinised closely for their impact on younger workers
1) Identify a Provision, criterion or practise (PCP
2) Show that the PCP has a discriminatory impact
3) Justification
Steps to show indirect discrimination
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.
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.
Coleman v Attridge Law
Court of Justice decidedd this
Explanatory notes in the EA exoressly provide for discrimination by association is covered.
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.
It is direct discrimination on ethnic and therefore racial grounds for a school to give preference, in admissions, to children who are Orthodox Jews according to the Chief Rabbi’s criteria of Orthodoxy; for, by those criteria, unless a boy be a convert to Orthodoxy, he is Orthodox only if, at his birth, his mother was Orthodox by conversion or matrilineal descent, and such matrilineality is ethnic in character.
R v JFS
Supreme Court
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.
Patel v Oldham
‘long-term’ at least 12 months,
calculation of the twelve months can be applied retrospectively if not previously diagnosed, idea of 12 months as a reference point in s6. Explains what 12 months mean – it is retrospective if not diagnosed. Flexibility in how interpreted.
Is the Kücükdeveci compatible with seldon?
Could be argued that Kücükdeveci IS NOT compatible but you could still have a justification on a case by case basis on the facts, when length of service rules, particularly in redundancy scheme they have been sympathetic, this length of service rule could be argued to be indirect discrimination as does not specify age.
Case law on dress codes
- Schmidt v Austicks Bookshop
- Smith v Safeway
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.
Mandla v Dowell Lee [1983]
Broad definition of race
it was held that Sikhs were an ethnic group for the purposes of a race discrimiantion claim. Now that religious discrimination is prohibited by law, there is less need to manipulate the distinction between the two.
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.
Allonby v Accrington and Rossendale College [2001]
Attempt to define “Religion”
spiritual or non-secular belief system, held by a group of adherents which claims to explain mankind’s place in the universe per Lord Toulson
R(Hodgkin) v Registrar-General
SC
Difference between Eweida and Chaplin
As to Ms Eweida and Ms Chaplin, however, the major distinction was their employers’ grounds for their uniform policies. In BA’s case it was about corporate image – and the company shot through its own goal when it subsequently decided to change the policy to allow employees to wear approved religious symbols, including crosses. The NHS Trust, on the other hand, had founded its policy on principles of health and safety and had followed the Department of Health guidelines on appropriate dress for clinical staff. Moreover, quite apart from the possibility of a necklace-wearer being accidentally throttled by a disturbed patient, there was the broader issue, not mentioned explicitly in the judgment, of infection control and the desire to minimise the risk of MRSA .
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.
Driskel v Peninsula Business Services
This provision is permissive rather than mandatory: employers are allows to use positive action.
- The two candidates must be equally qualified, and the employer may not apply a blanket policy.
- proportionality requirement required
When does s159 apply?
Recent case law on obesity highlights the application of the definition in the CRPD:
Considered after UN convention took effect, in this case he was a childminder, under WHO of obesity, he was obese and the council took the view that his obesity affected him in his job and he could not do it and he was dismissed. Held: obesity is not a PC. But could be if it is is a hindrance in the exercise of someone’s professional activities and it fits within the definition. Reason for the disability was not relevant – so could be blames for being obease Depends on circumstances of the cases – e.g. if reduced mobility caused discomfort
Kaltoft
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.
social disability definition
focus’ on the interaction between the individual’s impairment and socially constructive barriers. It focuses less on what the disabled person cant do and more on society’s responisbility to accomodate people with a range of different abilities.
Where individual refuses on grounds of conscience to perform a certain aspect of his or her job.
McFarlane refused to provide counselling to same sex-couples in contravention of equality police. Argued that this was because they did not agree with same sex relationships because of their particular Christian beliefs. McFarlane was aware of the requirement to provide services to same sex couples when he took the job. Court held that: the employer’s policy was proportionate because it pursued the important objective of providing a service without discrimiantion on grounds of sexual orientation.
McFarlane v Relate Avon
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.
Barry v Midland Bank
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.
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
Reed v Stedman
Home Office v Holmes
A requiremnt to do a particular job full time is indirectly discriminatory: it is a PCP that puts women at a particular disadvantage to men because women are more likely to have child care responsibilities.
In order to bring a successful discrimination claim, the claimant must show that the employer:
- discriminated (directly or indiretly) or committed an act of harassment
- because of a protected characteristic (PC)
- at work
Rutherford v Towncircle [2005] ICR 119 HL
Predates the age discrimination law.
A group of men challenged a rule that employees dismissed when they were 65 or over could not claim unfair dismissal. They argued that the rule indirectly discriminated against men because slightly more men than woman continued work after the age of 65. HL rejected this claim. Majority held that there was no discrimination because men in work over the age of 65 got the same treatment as women in work over the age of 65. Nowadays this case would be easier to argue because it is an example of direct age discrimination.
Archibald v Fife Council [2004] UKHL
The Council’s policy was to require people seeking redeployment on a higher grade to take part in competitive interviews. the substantial disadvantage she faces is being dismissed for not being able to do her job. Her employer is under a duty to take reasonable steps to overcome that disadvantage. The House of Lords noted that one of the reasonable steps listed in the DDA is transfering the person to fill an existing vacancy. Inability to do the present job, therefore, cannot mean that there is no duty at all and this is clearly reflected in the Code of Practice;The House of Lords also noted that the DDA refers to transferring to ‘an existing vacancy”. It does not qualify this with “at the same or a lower grade.” Transfers can be upwards as well sideways or downwards and “transferring her ‘to fill’ an existing vacancy is clearly more than merely allowing her to apply, shortlisting or considering her for an existing vacancy.
Held: This important decision provides much needed clarity on how the reasonable adjustment of transferring a disabled person to a suitable alternative vacancy fits, not only with an organisations own policies and procedures, but with other legislation too. Before going down the redeployment route employers should assess whether reasonable adjustments would enable the employee to stay in their original job. Where, as in this case, this is impossible the employer should assess the transferable skills that the employee already has and could acquire with training. It is the employer’s duty to then consider whether a vacancy currently exists or is likely to arise in the foreseeable future for a job that the disabled person can do. If such a vacancy exists the disabled employee should simply be transferred into that position and provided with any necessary training.
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.
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.
Zafar v Glasgow City Council
HOUSE OF LORDS
Case similar to Eweida, but found the policy was justified on health and safety grounds (because the employee was a nurse).
The court did not require the employee to show any form of group disadvantage, it is clear that not all Christians feel obliged to or even wish to wear a cross, nor evidence that employees other than the claimants had been adversely affected at work by the employer’s rules.
Pitt suggests that the courts will have to use s3 HRA to interpret EA 2010 to bring it in line with this approach.
Chaplin
Held: this was not sex discrimination because the relevant comparison was with a man with a same-sex partner (Rather than a woman with a different sex partner) who would also have been denied the travel benefit by the employer.
Grant v South-West Trains [1998] ECR I-621 ECJ
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.
Note that the employer must know, or be reasonably expected to know, that the employee was disabled at the time of the alleged discriminatory act or acts:
employer followed medical evidence that wrongly regarded the employee as not disabled. If employer follows medical evidence which they were supplied with and then turns out to be wrong, this could fall in situation that they did not have knowledge, depends if evidence was sufficient certain enough and this depends on case by case.
Donelien v Liberata
Grant v South-West Trains [1998] ECR I-621 ECJ
Held: this was not sex discrimination because the relevant comparison was with a man with a same-sex partner (Rather than a woman with a different sex partner) who would also have been denied the travel benefit by the employer.
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
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:
The employer’s underlying motive is irrelevant
A police officer was given a reduced role after complaints were made about her conduct. Held: the tribunal should have considered whether her role was changed because of the complaints or because she was a woman (in that a man who had been the subject of similar complaints would have been treated differently).
Possible to engage in direct discrimination against someone without subjectively intended to do so.
Shamoon v Chief Constable of the RUC
No - it does not protect non-disabled people in the same way that sex discrimination law protects men and women - so no restriction on an employer favouring disabled people in employment
Does the law treat disability discrimination as symmetrical?
causal connection between unfavourable treatment and disability – dismissal of employee found to be disproportionate.
Teacher who has systic fibrosis, stressed by workload. He had a disability, he was dismissed for gross misconduct for showing an 18 rated film at lessons, he asserted an error of judgement and arose from stress linked with disability. Question: did s15 apply? Held: you had to apply an objective test, left to tribunal to make own assessment if this was a disiincaiton arising from a disability. Grosset found: not to have been unfairly dismissed under employment rights act (Separate legislation because under this, there must be unreasonable to dismiss person for this reason), this is not the same test under s15 EA so tribunal could find unfair dismissal under s15 and was a discriminatory dismissal notwithstanding that it was not an unreasonable dismissal under another act.
unfavourable treatment - disabled employee can argue that he/she is being treated unfavourably (not less favourably) because of an absence from work, or because he/she is slow at her/his job etc. As this is not direct discrimination the employer would be able to show objective justification – or a proportionate means of achieving a legitimate aim - for its treatment of the employee to defeat the claim. Not the same as less favourable treatment but unfavourable treatment.
City of York v Grosset [2018] EWCA
English v Thomas Sanderson Blinds
Perception characteristic: the claimant is discriminated against on the grounds of a PC, regardless whether or not he in fact has that charateristic. This claim can arise even where the employer knows that the person does not have the PC.
Facts: claimant was subjected to homophobic harassment by his work colleagues, who knew that he was heterosexual. The harassment nevertheless took place “because of” sexual orientation
Is pregnancy claims limited to direct discrimination only?
yes. Indirect discrimination claims or harassment claims must be brought as sex discrimination claims.
Claims relating to breast feeding are deemed to constitute sex discrimination claims under s13(6) EA 2010
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.
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).
Is age a PC that can justify direc discrimiantion?
This well-publicised case is authority for the proposition that an employer can justify restrictions on religious dress in the workplace where the employer is able to demonstrate that it would otherwise interfere with an employee’s job performance, subject to ways of accommodating the employee’s beliefs having been explored.
Facts: Azmi was a devout Muslin employed at a school. The school, after a period of time asked her to remove her veil in certain situations as the communication was being stuntted. She refused and was suspended.
Direct discrimination
ET held: case not of direct discrimination because she fialed to show she suffered less favourable treatment than a comparator in similar situations. The comparator here was a person (not of the Muslin religion) who covered her face. They found that any such comparator would also have been suspended since it was a barrier to effective learninh.
EAT held: ET chose correct comparator.
Indirect discrimination
ET - There was a PCP but it was of general application. The PCP was “apparently neutral”. Therefore, the ET then compared whether appellant’s belief was at a “particular disadvantage” when compared with others. As persons of another religion would not be required to cover their face. The ET found there was potential for indirect discrimination. But held that it was a proportionate means of achieving a legitimate aim because:
1) the school did not impose the requirement immediately
2) Made allowances for the appellant
3) The school made stringent investigations of alternative means of achieving the aim by not imposing the reqiuirment.
Azmi v Kirklees MC
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.
Achbita
Bougnaoui
cases
YES - it is not a free-standing right. All the protected characteristics are covered except marriage and civil partnership, the government having taken the view that there was no need for protection on this ground.
A specific provision is made for conduct of a “specific nature” in s26(2).
Does harassment have to be “related to” a PC?
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 British Airways [2010]
two migrant domestic workers (both Nigerian) mistreated by their employers. SC held: discrimination because of immigration status was not discrimination because of, or on grounds of, nationality. Not within the scope of the EA even though the conduct of the employer would have amounted to unlawful discrimination if it had been on racial grounds. Parliament did not choose to include immigration status in the definition or as a PC, so even though immigrations tatus is a function of nationality, it is not the same as nationality. Although immigration status is a function of nationality it is not the same as nationality. The case was either direct discrimination or outside the scope of the EA. Fine line.
Taiwo and Onu’
SC
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.
Hawkins v Atex Group [2012] IRLR 807
claimant was dismissed because her husband was the chief executive of the company employing her, and he had appointed her in breach of an instruction not to employ members of his own family. Her claim failed because the EAT found that she had been dismissed because of these close relationship and not because of the fact they were actually married.
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.
- discriminated (directly or indirectly) and/or committed an act of harassment
- because of a protected characteristic
- in employment
Claimant relying on equity law must show that the employer has:
Can the employer invoke a justification defence in regards to indirect discrimination
yes - where the employer can show that the rule is a proportionate means of achieving a legitimate aim.
NOT IN DIRECT DISCRIMINATION THOUGH - the law regards it as illegitimate for the employer to make a decision based on a protected characteristic (unless it is an occupational requirement).
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.
Pendleton v Derbyshire County Council [2016]
- discriminated (directly or indiretly) or committed an act of harassment
- because of a protected characteristic (PC)
- at work
In order to bring a successful discrimination claim, the claimant must show that the employer:
Toy v Chief Constable
Note that the employer must know, or be reasonably expected to know, that the employee was disabled at the time of the alleged discriminatory act or acts:
even in situation where claimant believed they had a disability, just because employer said they believed they had a disability. This is not the same as the employer KNOWING they had a disability. Police officer dismissed over performance after termination procedures started, the employee told about dyslexia, Held: employer could not have been expected to know. Knowledge of disability will be held to be a factor.
Kücükdeveci
Length of service AGE
Ms Kücükdeveci worked for Swedex from the age of 18. She was dismissed at age 28 with 10 years’ service. German law does not take into account time employed before the age of 25 in order to calculate service-related minimum notice periods in case of dismissal. Swedex therefore gave her notice of dismissal based on three years’ service. Ms Kücükdeveci brought a claim arguing that this was unjustified direct age discrimination. Held: there was direct discrimination. Could it be justified?: the objective that young people had more mobility to find a job was taken onboard. They fell within Article 6(1) but CJEU decided that the law was not an appropriate and necessary measure for achieving these aims and was not therefore justified
The case of Mangold v Helm saw a marked departure from the general rule on indirect effect. The ECJ found in Mangold that that the “general principle of non-discrimination” on the grounds of age is a general principle of EU law and rather than national law prevailing, the general principle should. In the present case, the ECJ was able to clarify what was meant.
When a national law conflicts with a Directive on discrimination, it should be set aside, not because it conflicts with the Directive, but because it is not consistent with the general principle of non discrimination which underlines EU law.
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.
European Roma Rights Centre v Immigration Officer [2005] 2 WLR 1 HL
Does s19 EA 2010 apply to all PC?
No - it does not apply to pregnancy, though a pregnant woman may be able to present her case as a sex discrimination claim.
Ring and Werge
The formal definition is in Art 1 of the UN Convention on the Rights of Persons with disabilituies
This definition includes both medical and social elements. The EU ratified the Convention in 2010. The ECJ used this as a basis to bring the EU definition of disability in line with the CRPD .
CJEU example of Ms Werge was a full time employee, she suffered whiplash injuries in road traffic accident, uncertain how long she would be affected by the injuries, later she was dismissed. Did she have a disability – substantial and long term disability. CJEU taking account into social definition of equality that dismissing her was discrimination. Appropriate to change the way she was working but someone whose prognosis was uncertain but could have long term effects, fell within ambit. She was capable of doing her job so should have offered work on part time basis.
Definition of harrassment
Occurs where the individual is subject to unwanted behaviour that violates his or her dignity because of his or her PC
Chacon Navas
The formal definition is a medical definition of disability – it is concerned with what an individual cannot do because of a physical or mental impairment:
Heavily criticised criticised by those arguing for a wider social definition of disability – concerned with removing barriers that hinder an individual’s full and effective participation in society – see now Art 1 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD):
s13(1) EA:
Where is direct discrimination
– less favourable treatment because of a protected characteristic
what the individual ccannot do because of mental or physical impairment
Medical disability definition
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.
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,
Shamoon v CC of RUC
HL
Discrimination by association
claimant was discriminated against by her employer because of her caring responsibilities in relation to her son, who had a disability.
Coleman v Attridge Law
R v JFS
Supreme Court
It is direct discrimination on ethnic and therefore racial grounds for a school to give preference, in admissions, to children who are Orthodox Jews according to the Chief Rabbi’s criteria of Orthodoxy; for, by those criteria, unless a boy be a convert to Orthodoxy, he is Orthodox only if, at his birth, his mother was Orthodox by conversion or matrilineal descent, and such matrilineality is ethnic in character.
Court rejected an argument that the pension on offer was insuffiient. Here the retirement rules were determined by collective agreement. The court was attracted to this because it allowed for the specific situation of particular types of job to be taken into account. T
Rosenbladt
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.
The Opinion of Advocate General Maduro in the Coleman v Attridge Law case
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.
English v Thomas Sanderson Blinds [2009] EWCA
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
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
The Appeal cases
of Eweida v UK and Chaplin
this involves a group comparasion. The claimant is treated as part of a group sharing his or her PC, and the effect of the rule on this group is then compared with the effect of the rule on others who do not share the characteristic.
How do you show a PCP has a discriminatory impact?
Rosenbladt
Much of the litigation concerns rules on retirement ages. Retirement is no longer listed as permitted exception relating to age in the EA following the repeal of the default retirement age (DRA) of 65 with effect from October 2011.
Note that after the abolition of the DRA it is still possible for employers to justify direct discrimination in a retirement scenario – or redundancy - if they can show that their policy is ‘a proportionate means of achieving a legitimate aim’, s13(2).
Examples from the ECJ in:
question to what extent can a retirement age be justified by employer even if state does not allow it on basis it is necessary to share opportunity between ages. Backed up with evidence. CA referred to the dignity to the ages – this dignity argument which is secondary to the other argument has not been approved in Seldon (SC). Lady hale took the view that the main focus should be on genuine reasons and strict test for generational fairness. Dignity was a stereotype for older workers. In this case retirement was 65 at the work. Within context of case a legitimate aim and left to ET to see whether it was proportionate.
In direct discrimination cases, does the employer need to show that he WAS treated differently?
In s13(1) EA 2010, the use of the word “WOULD” as in Art 2(2)(a) of the framework directive means that there is no need for the claimant to show that he or she was treated differently to a real person (comparator).
It is sufficient for the claimant to show that had he or she not had the characteristic in question, his or her treatment would have been different. This may involve imagining a hypothetical comparator.
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.
Recruitment age – see the use of occupational requirements in: would be a justification.
maximum recruitment age of 30 for fire-fighters justified as a ‘genuine and determining occupational requirement’.
Wolf
Steps to show indirect discrimination
1) Identify a Provision, criterion or practise (PCP
2) Show that the PCP has a discriminatory impact
3) Justification
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 v G4S Secure Solutions NV [2017]
R(Hodgkin) v Registrar-General
SC
Attempt to define “Religion”
spiritual or non-secular belief system, held by a group of adherents which claims to explain mankind’s place in the universe per Lord Toulson
To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and necessary in order to do so - said SC
Homer
proportionality
‘normal day-to-day activities’: interpreted broadly
police officer suffered from ME and had mobility problems effecting them at certain hours of the day, specifically the night shift. Nature of ME was that they could do job normally during the day but when working night shift, the condition had an effect on him. Tribunal held: he was disability, question: was he carrying out normal day to day activities. Found on appeal: man people work nightshifts, so working nightshift is a normal day to day activity and his ME had an effect on his day to day activity. Nightshift can be a day to day activity.
CC v Adams
London Underground v Edwards
The existing indirect discrimination law is already sufficiently flexible to accomodate the Eweida and Chaplin decisions.
Facts: the claimant was a single mother who was adversely affected by the employer’s decision to move to a flexible shift pattern because she could not find suitable child-care. Women were in a very small minority at her workplace and, of the women, she was the only one who could not cope with the new shifts. CA held: it would be unfair to deny the claim because of the claimant’s inability to point to other affected woman since - given the poor gender balance in the workplace - this was probably a result of discrimination in itself.
Wolf
Recruitment age – see the use of occupational requirements in: would be a justification.
maximum recruitment age of 30 for fire-fighters justified as a ‘genuine and determining occupational requirement’.
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.
Yes - a person who does not have a disability could not complain of discrimination if an employer preferred a disabled person when hiring. This is not the case with other PC, such as sex discrimination.
Is it lawful to discriminate in favour of people with disabilities?
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.
Taylor v Ladbrokes
Type 2 diabetes is a ‘progressive condition’:
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
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.
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?’
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).
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
Rutherford v Towncircle
HL
- Schmidt v Austicks Bookshop
- Smith v Safeway
Case law on dress codes
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
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.
Rolls-Royce v Unite the Union [2009] IRLR 576 CA
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.
Rolls Royce v Unite the Union
Kücükdeveci raises serious questions about the compatibility of Schd 9, s10 with EU law. Consider the judgments in:
CA having a length of service rule (take into account length of service as a number of factors to consider who is made redundant) this is in ambit of indirect discrimination and then justify it on basis of loyalty and business need.
Does direct discrimination have a justification defence?
No. There cannot be good reason for this. Age discrimination is the only exception. Only the concept of “occupational requirement” be allowed. This test includes a proportionality requirment and is strict.
– ‘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
Schmidt v Austicks Bookshop
Positive discrimination definition
Where the employer selects a person for a job or promotion because people with that person’s protected characteristic are under-represented in the workplace. The law permits this in some cases as a means of advancing substantive equality.
Claimant relying on equity law must show that the employer has:
- discriminated (directly or indirectly) and/or committed an act of harassment
- because of a protected characteristic
- in employment
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.
Balamoody v UK Central Council for Nursing
CA
Archibald v Fife Council [2004] UKHL
HOUSE OF LORDS
Duty to make reasonable requirements - employer should consider redeploying an employee who becomes disabled and remains able to work but not in his or her original job
Claimant was a road sweeper who was unable to walk because she suffed a complication after undergoing surgery. She applied for numerous office jobs but was unsuccessful because she did not have relevant experience. It was held that it would be a reasonable adjustment for her employer simply to transfer her to an appropriate office job when it fell vacent without forcing her to compete against other candidates.
Eweida v UK [2013]
The Courts may need to modify their approach in response to recent ECtHR decision in the area of religious freedom.
The current law: indirect discrimination is about “group” comparasions: the claimant must show that he is a member of a group sharing a protected characteristic, and that members of the group are put at a “particular disadvantage” by the PCP.
Facts: But in this case, the court considered employers’ uniform policies which prohibited employees from wearing crosses or crucifixes at work. The Court found that these policies were indirectly discriminatory. Found: not justified in relation to an airline check in employee (compare Champlin). Held: disproportionate because its aim was insufficent to outweigh the claimant’s article 9 rights
The court did not require the employee to show any form of group disadvantage, it is clear that not all Christians feel obliged to or even wish to wear a cross, nor evidence that employees other than the claimants had been adversely affected at work by the employer’s rules.
Pitt suggests that the courts will have to use s3 HRA to interpret EA 2010 to bring it in line with this approach.
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).
What does the EA 2010 use of the phrase “because of a protected characteristic”?
It does not say “because of the claimant’s protected characteristic. Therefore this broadens the law to include discrimination by association and perception.
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.
Smith v Safeway
Duty to make reasonable requirements - employer should consider redeploying an employee who becomes disabled and remains able to work but not in his or her original job
Claimant was a road sweeper who was unable to walk because she suffed a complication after undergoing surgery. She applied for numerous office jobs but was unsuccessful because she did not have relevant experience. It was held that it would be a reasonable adjustment for her employer simply to transfer her to an appropriate office job when it fell vacent without forcing her to compete against other candidates.
Archibald v Fife Council [2004] UKHL
HOUSE OF LORDS
