Prohibited Grounds of Discrimination

Question 1

s 5 Equality Act 2010

Answer 1

Age is a protected characteristic - age means a person belonging to a particular age group.

Explanatory Notes state that this includes people of the same age and people of a particular range of ages - broad scope under s 5.

Question 2

Article 6 Directive 2000/78 (Equality Framework Directive)

Answer 2

DD on grounds of age can be objectively justified, unlike other protected characteristics. It must be a proportionate means of achieving a legitimate aim.

Question 3

Age Concern England v Secretary of State for Business

Answer 3

UK default retirement age of 65 was challenged and reference made to ECJ.

ECJ accepted justification that a default retirement age could be justified on the basis of promoting intergenerational equity and ensuring dignity for elderly. Note that the aims which permit age discrimination under Art 6(1) Directive 2000/78 are social policy objectives - so to rely on these objective justifications for DD on grounds of age, they must relate to broad public policy factors, not individual economic reasons particular to an employer.

I.e. labour market justifications for DD on grounds of age must be broad social policy objectives (e.g job creation), rather than a particular employer trying to maintain competitiveness.

Question 4

Seldon, Clarkson, Wright and Jakes

Answer 4

Justification of DD on grounds of age is NARROWER than the justification for ID - i.e. more difficult to justify. Employer must show:

1) They have an aim.
2) That aim is potentially legitimate as a public interest aim under Directive 2000/78.
3) Aim is also legitimate in the particular circumstances of the case.

Question 5

Petersen

Answer 5

CJEU held that since the default retirement age for public healthcare dentists was not found in the private sector, this demonstrated that competence of dentists over 65 was not reduced. Therefore, DD on grounds of age not objectively justified.

Court may look at whether public/private sector employs the same age discrimination policy to determine whether it is objectively justified - if the other sector does not adopt this, it may demonstrate the policy is not a legit means of achieving a proportionate aim.

Question 6

s 6 Equality Act 2010

Answer 6

Disability must be a mental or physical impairment which has a substantial and long-term adverse effect on C’s ability to carry out normal day-to-day activities.

Schedule 1 - “long term” means over a year.

Question 7

Kaltoff v Municipality of Billund

Answer 7

CJEU held that obesity can constitute a disability under EU equality law if it meets the requirements of having a substantial and long-term adverse affect on the individual’s ability to carry out day-to-day activities.

Question 8

s 20 + s 189 Equality Act 2010

Answer 8

Imposes a positive duty on employers to make reasonable adjustments to accommodate any disability that falls within the scope of s 6.

Question 9

Archibald v Fife

Answer 9

HL held that the council should have made a reasonable adjustment by waiving the need for an interview for an alternative job when C lost his mobility and could not work as a street cleaner. Nothing to suggest that C could not also do the administrative job and other means of showing his skills than interview.

Question 10

s 15(1) EqA 2010

Answer 10

A discriminates against B if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. E.g. if employee cannot perform their contractual obligations as a consequence of their disability, they may be protected under s 15.

Question 11

s 15(2) EqA 2010

Answer 11

s 15(1) does not apply if A shows that A did not or could not reasonably have known about B’s disability.

So e.g. if B was dyslexic but never told A, and B failed to perform contractual duties due to slow reading, then A could argue that s 15(1) does not apply.

Question 12

Akerman-Livingstone v Aster Communities

Answer 12

SC tightened objective justification for less favourable treatment due to a consequence arising from B’s disability under s 15. 4 step test:

1) Is the objective sufficiently important to justify limiting a fundamental right?
2) Is them measure rationally connected to the objective?
3) Are the means no more than necessary to achieve the objective?
4) Is the disadvantage caused to C disproportionate to the aim pursued?

Question 13

s 10 EqA 2010

Answer 13

s 10 EqA defines ‘religion and belief’ fairly broadly. A religion must have a clear structure and belief system. Denominations/sects also fall within s 10.

Explanatory Notes explain that a lack of religion or belief also falls under s 10.

Question 14

EHRC Code of Practice

Answer 14

Sets out a list of requirements for a philosophical belief to be protected under s 10:

• It must be genuinely held;
• It must be a belief, not an opinion;
• It must be a belief as to a weighty and substantial aspect of human life;
• It must attain a certain level of cogency, seriousness, cohesion and importance.

Explanatory Notes - atheism counts as philosophical belief, but adherence to X football team would not.

Question 15

Grainger plc v Nicholson

Answer 15

EAT held belief in climate change counts as a protected belief under s 10 because it represents a comprehensive set of moral views about a substantial aspect of human life.

Question 16

Mba v Merton LBC

Answer 16

C does not need to show that their belief is shared by a group of individuals - quantitative element is not necessary.

Question 17

Azmi v Kirklees Metropolitan Board

Answer 17

Teacher insisted on wearing a full-face veil when men and children in room. Some children were ESL, so this made it harder for them to learn.

EAT held no DD or ID. Hypothetical comparator (non-Muslim covering their face for whatever reason) would also have been dismissed, so not less favourable treatment for DD. On ID, the PCP was objectively justified because the school had considered alternatives such as changing teaching rota, but none of these were viable.

Question 18

Ladele v Islington

Answer 18

Registrar refused to perform civil partnerships due to religious views on marriage. CA held that no DD since ALL registrars were required to perform civil partnerships. Therefore, there was not less favourable treatment due to her religion.

CA also held that there was no ID because the council could objectively justify the PCP - proportionate means of achieving a legitimate aim of ALL registrars performing civil partnerships as part of its dignity policy.

Question 19

Achbita v G4S

Answer 19

G4S had a ban on all customer-facing employees making a general display of religious or political belief. A was banned from wearing her headscarf and argued this was discriminatory - claimed both DD and ID.

CJEU GC held that there was no DD against A on grounds of religion because the ban applied to ALL employees for ANY display of religious or political belief - therefore not less favourable treatment since the ban also applied to e.g. Christian

CJEU GC also said no ID because the ban was a proportionate means of achieving a legitimate aim - therefore it was objectively justified. Freedom to conduct a business = legitimate aim. Belgian court needed to consider whether the ban was indeed only applied to customer-facing employees, and whether A could be reassigned to a non-customer facing role.

Question 20

Bougnaoui v Micropole SA

Answer 20

Employer required employee to remove headscarf after a customer had objected to her wearing it.

CJEU Grand Chamber said that this constituted DD due to the basis of the employer’s request for the employee not to wear a headscarf. Since the employer only required her to remove her headscarf, and did not have a general ban on manifestation of religious belief by employees, A treated B less favourably than others on grounds of her religion. This was not an occupational requirement that could be an exception to DD

Question 21

Analysis - Headscarf Cases

Answer 21

Note the material difference on the facts between Achbita and Bougnaoui - in the former there was a neutral ban on all religious or political displays of belief; whereas in the latter, there was a ban against a particular employee only wearing a headscarf.

Therefore, in light of these cases, it is possible to ban employees wearing headscarves at work. However, this policy must apply neutrally to ALL employee-facing customers (since it must have a legitimate aim - freedom to conduct business) and to ALL displays or religion or belief. So employees would also have to be unable to wear environmental badges etc.

However, arguably the difference between an employer banning headscarves due to a customer request, and banning all symbols of religion and belief in anticipation of a customer reaction is a thin line that does not justify such different treatment.

Question 22

Kokott AG - Achbita

Sharpston AG - Bougnaoui

Answer 22

Opinions of the two AGs prior to the CJEU Grand Chamber judgment was radically different. AG Kokott argued that Achbita’s claim could not amount to DD, but possibly ID since the ban applied to all customer-facing employees.

Conversely, AG Sharpston in Bougnaoui decided the headscarf ban on DD since it was less favourable treatment to require only B to remove her headscarf after a customer complaint - no other employees were asked to remove religious manifestation/symbols/clothing etc.

Also, different focus in relation to the protected grounds by the Attorneys General. Kokott AG characterised the case more as a matter of religion and belief, thereby distinguishing it from protected characteristics like race. Sharpston AG conversely characterised religion as a form of identity akin to protected characteristics such as race and gender.

Question 23

s 12 EqA 2010

Answer 23

s 12 EqA provides that sexual orientation means a person’s sexual orientation towards:

(a) persons of the same sex (homosexual);
(b) persons of the opposite sex (heterosexual);
(c) persons of either sex (bisexual).

Question 24

Schedule 9 EqA 2010

Answer 24

There are two distinct occupational requirement justifications for sexual orientation:

1) If the nature of the job is such that requiring a particular sexual orientation is a legitimate means of achieving a proportionate aim.
2) If somebody is employed by an organised religion and there is a requirement of heterosexuality.

Question 25

Maruko

Answer 25

M was in a same-sex civil partnership under German law. M’s partner worked for German theatre - widowers of theatre workers normally received a survivor’s pension. However, the theatre did not grant M the survivor’s pension since their policy only applied to married couples.

ECJ held that there was DD contrary to Article 2 of Directive 2000/78 on grounds of M’s sexual orientation. Civil partnerships were unions with similar legal effects to marriage, so to deny the survivor’s pension to same-sex couples amounted to less favourable treatment on grounds of sexual orientation.

Question 26

Prigge v Deutsche Lufthansa

Answer 26

ECJ held that DD on grounds of age was not objectively justified by employer airline reducing pilot retirement age from 65 to 60. Even though airline gave good evidential reasons for reducing the retirement age (such as decreased reaction time), court held that because other airlines did not have the same policy it could not be objectively justified.

Good reasons insufficient if inconsistent with other employers/sectors.