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What to expect in equality law

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Equality Law is an area which can change rapidly. Below is a summary of some of the bigger changes expected in the coming months and years.

Equal Pay

A class-action claim has been brought by Asda’s female shop floor staff, who argue that their pay should be the same as male workers in the company’s distribution centres. The claim is expected to be heard by the Employment Tribunal this year, at which point it would need to consider whether the claimants and their male colleagues do work of equal value. Whilst this claim is not the only one of its type given that Sainsbury’s staff have already brought a similar claim, a win could encourage yet more supermarket workers to seek legal redress.

In large firms with over 250 staff (Sainsbury’s and Asda included), data will need to be published regarding the gender pay gap. Whilst companies’ first reports are not due until April 2018, employers would be wise to review their pay practices now and ensure that they are able to comply with reporting requirements.

Discrimination at work

The Court of Justice of the European Union has heard cases on whether an employer’s decision to prohibit female Muslim staff from wearing headscarves at work amounts to religious discrimination (Bougnaoui v Micropole Univers and Achbita v G4S Secure Solutions).

The Advocate General’s view in Achbita was surprising, finding that outward symbols of religion could effectively be ‘left at the door’, such that a policy prohibiting them did not discriminate. It will be interesting to see if the CJEU follows this decision (either in Achbita or in Bougnaoui).

Discrimination in services

The well-publicised ‘gay cake’ case, Ashers Baking Co v Lee, will go before the courts again. The bakery has appealed against the judgment that it discriminated against a potential customer by refusing on religious grounds to bake a cake bearing a pro-gay marriage message. Whilst the Northern Irish courts’ decisions do not bind courts and Tribunals in England, the decision will still be persuasive when faced with similar cases.

In England, the Supreme Court must consider the rights of wheelchair users on buses. An appeal has been instituted against the Court of Appeal’s decision that it was not disability discrimination for a bus company to ask – but not to require – that other passengers move to make room for a wheelchair user.

Family-friendly rights

It may only have been in place for a year, but the government is expected to be simplifying the rules on shared parental leave in the near future. A consultation will also be launched into whether the rules should permit leave to be split with grandparents as well as between the parents.

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To which cases does the Acas code apply?

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The Acas Code of Practice on Disciplinary and Grievance Procedures does not apply to cases where there is no culpability on the part of the employee, including where the dismissal is on ill health grounds or due to a breakdown in the working relationship.

In Holmes v Qinetic, Mr Holmes was employed as a security guard but problems with his back, hips and legs meant he had extended absences from work. Qinetic later decided to dismiss Mr Holmes on ill health grounds as he was no longer capable of performing his duties. Qinetic accepted that the dismissal was unfair. Mr Holmes argued that an uplift should be applied to his compensation to reflect the fact that Qinetic did not follow the Acas Code.

The Employment Appeal Tribunal held that the Acas Code could not apply. The Code was intended to cover situations where the employee is facing an allegation which could lead to a disciplinary procedure. In a case where illness precludes the employee from doing his job, there could not be said to be culpability which requires sanction.

In Phoenix House Ltd v Stockman, Ms Stockman was employed as a Financial Accountant by Phoenix House, a charity. After the charity was restructured, her role was lost and she applied internally for other positions. The role she was given, Payroll Controller, was more junior. Ms Stockman felt she had been treated unfairly in the process by the Finance Director, Mr Lambis, and lodged a grievance critical of him. She later confronted him whilst he was in a meeting and was subjected to a disciplinary procedure for misconduct. Whilst she was on sick leave, Ms Stockman’s grievance was dismissed and she was given a 12 month written warning.

After unsuccessful appeals and a mediation, the charity asked Ms Stockman (who was still on sick leave) to attend a formal meeting to discuss whether the employment relationship had irreparably broken down. At the meeting, Ms Stockman said she wanted to return to work and that she would be able to work with Mr Lambis. The charity decided to dismiss Ms Stockman on the basis that the working relationship had broken down without hope of repair.

The Employment Appeal Tribunal held that, whilst Ms Stockman’s dismissal had been unfair, it was not a case to which the Acas Code could apply. Whilst certain elements of the Code could be used in a situation such as this, it makes no express provision for dismissals of this type so a Tribunal cannot impose a sanction for failure to comply with it.

Whilst these decisions are helpful, employers should always apply their minds to whether the Code applies in each individual case. Even if employers are under no legal obligation to follow it, the Code remains good practice and it may be that some aspects of it can be applied.

Holmes v Qinetic Ltd UKEAT/0206/15 and Phoenix House Ltd v Stockman and another UKEAT/0264/15

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Tottenham Hotspur wins case over taxation of Peter Crouch’s termination payment

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Tottenham Hotspur did not need to pay employer’s National Insurance contributions in respect of the payments it made to Peter Crouch and Wilson Palacios when they transferred to Stoke City – those payments were termination payments despite both players agreeing to go.

Both Peter Crouch and Wilson Palacios were employed by Tottenham Hotspur on fixed term contracts. In 2011, Spurs sought to reduce their wage bill, so it suggested that Crouch and Palacios transfer to Stoke City. Neither player was keen to go, but Crouch eventually agreed on the basis that he would be paid compensation under a settlement agreement for ending his contract early. Palacios seems to have made a similar decision. Payments were made to both players accordingly.

HMRC challenged the payments, arguing that they should have been subject to employer’s National Insurance contributions. HMRC argued that, as the players’ contracts contained a term permitting early termination by mutual agreement, payment on that basis was a contractual payment rather than compensation on termination.

The First-Tier Tax Tribunal held that the payments were not subject to employer’s NICs as they were compensating Crouch and Palacios for the termination of their rights under their contracts. The Tribunal noted that all contracts can by their nature be terminated by mutual consent, so the inclusion of an express term to that effect did not change things.

At first blush, this decision is good news for employers – particularly Spurs, who saved a significant sum of money. However, the benefit is only temporary given that all taxable termination payments will be subject to employer’s NICs from April 2018.

Tottenham Hotspur Ltd v HMRC [2016] UKFTT 0389

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Employee reinstated to job on restricted duties after dismissal 9 years ago

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A tribunal may order that a person be reinstated to his/her job following an unfair dismissal even where several years have elapsed in the interim. The proper course is to reinstate him/her to the role as it was when the employee was dismissed, not an earlier incarnation of it.

Ms McBride worked as a fingerprint officer for the Scottish Criminal Records Office from 1984. Criticism of fingerprint evidence after a murder enquiry in 1997 led to Ms McBride and 3 colleagues being suspended from work between August 2001 and May 2002. After being exonerated, Ms McBride and her colleagues returned to work in restricted roles, which prevented them from signing court reports or giving evidence in court. Ms McBride continued to work in that restricted role after her request to return to full duties was rejected. Her employment transferred to the Scottish Police Services Authority in April 2007. The following month, after a meeting with the Director of Forensic Services, Ms McBride was dismissed on the basis that there were no suitable roles for her.

Ms McBride won her unfair dismissal claim and requested that she be reinstated to her old job, meaning the role as it was before it was restricted.

The Supreme Court upheld the decision to reinstate Ms McBride, not to her job as it originally was, but to the restricted role from which she was dismissed. By the stage the Supreme Court had handed down its decision, it had been around 9 years since Ms McBride had been dismissed, yet it was held to be practicable for the Scottish Police Services Authority (replaced by the Scottish Police Authority in 2013) to reinstate her. It was right to order that the job to which Ms McBride should be reinstated was the job she had held when she had been dismissed, with restricted duties, as that was the status quo. It was not necessary to consider whether Ms McBride would accept continuing to work on a restricted basis.

Reinstatement orders are made only rarely, and this is an interesting example given the length of time since dismissal and the fact that Ms McBride was reinstated to a job with restricted duties that she was unhappy with.

McBride v Scottish Police Authority [2016] UKSC 27

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Confidential information on defendants’ computers ordered to be destroyed

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A court has ordered that confidential information used by a company despite belonging to a competitor must be destroyed.

Mr Skriptchenko worked for Arthur J Gallagher, insurance brokers, until his dismissal in July 2014. Around February 2015, he began working for Portsoken, who were also in the insurance brokerage industry. A few months later, Gallagher suspected that Mr Skriptchenko may have taken its confidential information with him to Portsoken. Gallagher brought claims against Mr Skriptchenko and Portsoken for breach of confidence. Mr Skriptchenko admitted taking a client list from Gallagher and Portsoken admitted to using it to contact over 300 of Gallagher’s clients.

Gallagher obtained a court order requiring that Mr Skriptchenko deliver up all of his electronic devices for inspection and that Portsoken’s systems be analysed by a forensic IT expert to look for confidential information. As a result, 4,000 documents were disclosed which showed that several other members of staff at Portsoken, including some senior directors, had misused Gallagher’s confidential information. Internal emails made clear that those using the information knew it was a breach of confidence to do so, such as one which read:

“I don’t think you can formally put these in any presentation as we would obviously be breaching confidentiality but would suggest that we keep in our back pocket to show on a nudge nudge wink wink basis to interested parties”.

Gallagher sought an injunction requiring that: (i) all of the defendants’ computers be inspected and imaged; and (ii) any confidential information found on them which belonged to Gallagher be deleted.

The High Court granted the injunction. It considered that there were no less intrusive ways to protect Gallagher’s information given that the defendants had knowingly misused the confidential information and showed a “high degree of subterfuge” in doing so. As the evidence showed that the defendants could not be trusted to delete the material themselves, the interim order should require it. The court held that there was a “high degree of assurance” that Gallagher would succeed at trial in any event.

Injunctions like this are rare but, as this case shows, will be granted when it is appropriate to do so.

Arthur J. Gallagher (UK) Ltd v Skriptchenko [2016] EWHC 603

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Race discrimination may not include mistreatment due to immigration status

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A person’s immigration status may not found a discrimination claim if the reason for their mistreatment is not connected to race.

In Onu v Akwiwu, Ms Onu, a Nigerian national, was a domestic worker employed by a Nigerian family. Ms Onu’s employers failed to pay her the National Minimum Wage, did not give her suitable accommodation and told her that she would be arrested and sent to prison due to her immigration status if she tried to run away. Ms Onu eventually left the family and brought claims against them, including for race discrimination.

In Taiwo v Olaigbe, Ms Taiwo was also Nigerian and a domestic worker; she was employed by a Nigerian man and his Ugandan wife. As with Ms Onu, Ms Taiwo was paid below the National Minimum Wage and her living conditions were substandard. She was also subjected to verbal and physical abuse, made to work long hours and denied rest breaks. Ms Taiwo resigned and brought a race discrimination claim.

The Supreme Court was of the view that both Ms Onu and Ms Taiwo had been treated disgracefully because of their vulnerable immigration status, which made them much more dependent on their employers for the continued right to live and work in the UK. However, that did not mean that they had been discriminated against on grounds of their race. Immigration status is not a characteristic protected by discrimination law in its own right, so in order for a claim to succeed it would have to connect to race or nationality. The Supreme Court held that, in this case, a Nigerian worker with more stable immigration status would not have been mistreated in the same way, so the mistreatment suffered by Ms Onu and Ms Taiwo was not discrimination on grounds of race.

Both Ms Onu and Ms Taiwo did, however, receive sizeable awards for underpayment of the National Minimum Wage and breach of working time legislation. Nonetheless, the Supreme Court suggested that powers under the new Modern Slavery legislation be extended to employment tribunals to allow them to compensate workers for the distress caused by such mistreatment.

Taiwo v Olaigbe; Onu v Akwiwu [2016] UKSC 31

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Expectation that disabled employee would work late could be discriminatory

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An employer’s expectation that employees would work late had the potential to be discriminatory on grounds of disability.

Mr Carreras was employed as an analyst at United First Partnership Research from October 2011. He typically worked long hours, averaging 9am to 9pm. In July 2012 Mr Carreras had a serious bike accident which required several weeks off work. When he returned, he continued to suffer with dizziness, fatigue and head aches and found it difficult to work in the evening. He worked a maximum of 8 hours a day in the first 6 months after returning and thereafter worked from 8am to 7pm. From October 2013, United began requesting, and then assuming, that Mr Carreras would work late nights. Mr Carreras felt that he may be made redundant or be denied his bonus if he refused.

In February 2014, Mr Carreras objected to working late as he was feeling tired. One of United’s owners loudly reprimanded Mr Carreras in front of his colleagues and indicated that he could leave if he did not like it. Mr Carreras resigned that day and, a few days later, wrote a detailed email with his reasons for doing so. He brought claims for constructive dismissal and disability discrimination, alleging that United had failed to make reasonable adjustments.

The Employment Appeal Tribunal found that the expectation that Mr Carreras would work late was in fact a requirement (as opposed to a request) which could place him, as a disabled person, at a substantial disadvantage. The EAT stressed the need to look at the reality of the situation; though United did not, strictly speaking, compel Mr Carreras to work late, in practice, Mr Carreras had been made to feel that he was obliged to do so.

It is hard to see where the line will be between a hard-and-fast requirement or practice (which could found a discrimination case) and a mere request.

Carreras v United First Partnership Research UKEAT/0266/15

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Is it lawful to ban a Muslim woman from wearing her headscarf at work?

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An employer’s policy against staff wearing visible symbols of their faith – a head scarf worn by a Muslim woman, in this case – is not discriminatory, according to an opinion of the Advocate General.

Ms Achbita was employed by G4S in Belgium as a receptionist from 2003 and is a practicing Muslim. G4S in Belgium operates a policy which prohibits staff from wearing visible symbols of their religious, political or philosophical beliefs at work. This policy was initially unwritten but later became part of the company’s code of conduct.

Ms Achbita had initially worn her headscarf outside of working hours, but in April 2006 informed G4S that she would be wearing it at work in observance of her religious beliefs. G4S dismissed Ms Achbita in June 2006 for failing to abide by the code of conduct in not removing her headscarf. Ms Achbita brought a claim for direct religious discrimination.

The case went before the Court of Justice of the European Union. Advocate General Kokott determined that the dress code did not directly discriminate on grounds of religion or belief but, even if it did, it could be justified as a genuine occupational requirement.

The Advocate General held that the ban on religious and political symbols applied equally to all employees of all faiths, including, for example, a male Sikh employee who wanted to wear a turban at work, or a Christian wearing a crucifix. The Advocate General stated that some characteristics are immutable, such as sex or age, but the wearing of a head covering or other religious symbol was a subjective choice.

The Advocate General accepted that it could be said that the policy was indirectly discriminatory. However, even if that were so, the Advocate General was of the view that the measure was justified. G4S had a genuine occupational requirement for neutrality which did not prevent staff from having religious beliefs, but only from wearing symbols of that belief at work. G4S served a wide variety of clients and its staff had face-to-face contact with many people. The Advocate General therefore considered that the policy was essential to avoid G4S or its clients being associated with the employee’s faith.

This decision is surprising and problematic. Many would struggle to agree that some religious symbols are entirely optional – many Muslim women feel compelled by their beliefs to wear a headscarf, just as many Sikh men do not regard the wearing of a turban as discretionary. Perhaps the decision was affected by two factors: the culture of secularism in Belgium; and the fact that Ms Achbita had previously complied with the policy.

Even if the CJEU issues a judgment which aligns with this opinion (which is not automatic, especially as a different Advocate General in a separate but similar case has taken the reverse view), it is unlikely to give employers across the EU sweeping permission to implement similar policies.

Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV C-157/15

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Excluding pupil with ADHD for having sex on school premises was not discriminatory

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A pupil’s Attention Deficit Hyperactivity Disorder was not a “disability”, so her school’s decision to exclude her as a result of her having sex on school premises could not be discriminatory on grounds of disability.

M was a female boarding school pupil who suffered with ADHD. In 2013, a teacher caught M having sex with a male pupil in a classroom. The school decided to exclude M, though the principal advised M’s mother that it might be best to withdraw M from school to avoid an expulsion going on her disciplinary record. M’s mother claimed that the exclusion and suggested withdrawal from school amounted to discrimination on grounds of M’s disability, namely her ADHD, which her mother said affected her decision-making skills.

The Scottish Court of Session held that M could not have been discriminated against. Firstly, her ADHD did not amount to a disability within the meaning of equality legislation because, on the evidence of M’s teachers, it did not have a substantial and long term adverse effect on her ability to do day-to-day activities. Secondly, the evidence did not suggest that M’s actions had been caused by her ADHD; the sexual encounter had been planned in advance rather than being an impulsive decision.

Though M’s ADHD did not fulfil the definition of a disability, that is not to say that it will never be a disability. The question of whether a claimant is disabled will be determined in every case where disability discrimination is alleged, regardless of the kind of impairment. More severe cases of ADHD could conceivably fit the definition.

JC v Gordonstoun Schools Ltd [2016] ScotCS CSIH_32

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France considers banning work emails outside of working hours

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French legislators are considering the introduction of a new law which would ban sending work-related emails outside of working hours.

In 2014, employers and unions in the technology and consultancy sectors entered into a labour agreement which banned the use of work phones and email accounts after 6pm.

The French National Assembly has since voted to pass a bill which would extend a similar ban across all sectors. The Bill proposes that companies with a workforce of 50 people or more would be required to draw up a policy setting out hours (broadly speaking, weeknight evenings and weekends) during which employees are prohibited from sending work emails.

The Bill has passed to the Senate for consideration.

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Is it discriminatory to dismiss a Christian for standing by her paedophile husband?

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It was indirectly discriminatory on grounds of religion to dismiss a Christian teacher who refused to break her marriage vows and leave her husband, who had been convicted of child sex offences.

Mrs Pendleton was employed from 2001 as a teacher at a junior school and is a practicing Anglican Christian. Her husband, the head teacher of an affiliated junior school, was arrested in January 2013 on suspicion of voyeurism and downloading indecent images of children. It was alleged that he had used a camera hidden in his pen to take pictures of boys in a state of undress in his school’s changing rooms. Mrs Pendleton expressed the view that, given her beliefs in the sanctity of her wedding vows, she would continue to support her husband so long as he showed unequivocal repentance for his actions.

Mrs Pendleton’s school acknowledged, after an investigation, that, prior to his prosecution, she knew nothing of her husband’s offences. Despite this, Mrs Pendleton was told in April 2013 that it would be inappropriate for her to return to her job if she continued to support her husband in the event he was charged, which he later was. The school commenced a disciplinary investigation to consider whether Mrs Pendleton’s refusal to leave her husband damaged the school’s trust and confidence in her safeguarding abilities as a teacher. Mrs Pendleton was suspended from work a month after her husband began a 10-month prison sentence and, following a disciplinary hearing, she was dismissed. Mrs Pendleton brought claims for unfair dismissal and indirect religious discrimination.

The Employment Appeal Tribunal held that, by having a policy of dismissing those who do not leave spouses who are convicted of making indecent images of children and voyeurism, the school had indirectly discriminated against Mrs Pendleton on the basis of her Christianity. Whilst anyone in Mrs Pendleton’s situation would be at a disadvantage when being asked to end a relationship with their partner, there is an additional difficulty for those with Christian beliefs in the sacrosanct nature of wedding vows made before God.

Pendleton v Derbyshire County Council and the Governing Body of Glebe Junior School UKEAT/0238/15

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