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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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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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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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Lord Chief Justice intervenes in judge’s race discrimination claim against MoJ

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The Lord Chief Justice has personally intervened in the case of the judge who has brought a race discrimination claim against the Ministry of Justice.

The judiciary’s governing body has recommended that Peter Herbert be handed a written warning for remarks he made at a “Defend Democracy” rally in April 2015 relating to the presence of racism in the judiciary. The remarks were said to breach a rule of judicial conduct which requires judges to “refrain from any activity, political or otherwise, which could conflict with their judicial office or be seen to compromise their impartiality”.

Herbert, who is a human rights barrister, sits as a judge in employment and immigration tribunals and chairs the Society of Black Lawyers, claims that the recommendation is discriminatory on grounds of his race and amounts to victimisation.

For the written warning to be given, the Justice Secretary, Michael Gove, and the Lord Chief Justice, Lord Thomas, must agree. Rather than rubber-stamping the recommendation, Lord Thomas has stated his concern that some of the points Herbert raised have not fully been considered and recommended that a disciplinary panel be appointed to investigate.

Read press coverage here.

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Was it discriminatory to sack a wheelchair user for using racial slurs when complaining about accessibility?

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Mr Risby is paraplegic and was employed by the London Borough of Waltham Forest for 23 years. In 2013, Waltham Forest decided to put on a series of workshops for management staff and hired an external venue, which was wheelchair-accessible, for that purpose. However, cost-cutting measures led to the workshops being held internally instead; the venue, being in the basement, was inaccessible by wheelchair. Mr Risby became very angry about this. He shouted at a junior colleague (who, unknown to him, was mixed race), using serious racial slurs.

Following an internal investigation and disciplinary procedure, Mr Risby was summarily dismissed for gross misconduct given his use of offensive and racist language. Mr Risby’s appeal was unsuccessful so he brought a claim for unfair dismissal and discrimination arising from disability.

The Employment Appeal Tribunal held that Mr Risby had been unlawfully sanctioned for conduct which arose in consequence of his disability. It held that Mr Risby would not have been angered by the choice of venue had he not suffered with paraplegia, so his disability was an effective cause for his subsequent dismissal.

The employer could at the next hearing still justify its decision as a proportionate means of achieving a legitimate aim. Therefore, this case should not be understood as saying that disabled employees who act in this way cannot be sanctioned.

Risby v London Borough of Waltham Forest UKEAT/0318/15

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Employers have a duty to make reasonable adjustments to sickness absence policies

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Employers are under a duty to make reasonable adjustments to the way in which they apply their sickness absence policies.

Ms Griffiths was an administrative officer employed for the Department for Work and Pensions for 35 years. She had been on sick leave for 62 days suffering from post-viral fatigue and, once she returned to work, she was found to have fibromyalgia. This was a disability. The DWP’s sickness absence policy stipulated a “consideration point” of 8 days’ absence in any rolling 12 month period, after which a sanction may be imposed, ranging from a written warning to dismissal. On the basis of this policy, the DWP issued Ms Griffiths with a written warning.

Ms Griffiths brought a claim of disability discrimination by way of failure to make reasonable adjustments. She alleged that she was disadvantaged by the policy so, in order to redress the disadvantage, the DWP should have: (i) disregarded her 62 days’ absence on the grounds that it was an exceptional absence; and (ii) the consideration point should have been extended from 8 days to 20 days.

The Court of Appeal held that application of the sickness absence policy imposed a requirement to maintain a certain level of attendance at work in order to avoid the risk of a disciplinary sanction. This was a requirement which substantially disadvantaged Ms Griffiths as a disabled employee.

The next step was, however, to consider whether the employee’s proposed adjustments were reasonable. The Court of Appeal held that they were not. The proposal to disregard the 62 day period of absence was not reasonable because further lengthy periods of absence were likely to arise. The proposal to increase the consideration point was not reasonable because a relatively short extension would be unlikely to remove the disadvantage for disabled persons.

Griffiths v The Secretary of State for Work and Pensions [2015] EWCA Civ 1265

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Instruction not to speak native language at work was not discriminatory

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It is not discriminatory on grounds of race for an employer to ask its employees not to speak their native language at work in circumstances where there are legitimate security concerns.

Mrs Kelly was a Russian national employed by Covance Laboratories Ltd. Covance carried out animal testing and had previously had serious issues with animal rights activists, including activists who had posed as workers for the company in order to gather information. From early on in Mrs Kelly’s employment, Covance considered her behaviour unusual and had suspicions that she may be an activist; for example, she would frequently use her mobile phone at work and would have lengthy conversations in Russian in the staff toilets. As a result of the concerns, Mrs Kelly’s manager instructed her not to speak Russian whilst at work so that the English-speaking management team could understand her.

Mrs Kelly ultimately resigned and brought a claim against Covance alleging race discrimination on grounds of her nationality.

The Employment Appeal Tribunal found that the reason for the instruction not to speak Russian was not connected to Mrs Kelly’s Russian nationality; rather, it was because her conduct had given rise to a suspicion that she may be a security risk. This was reasonable in the circumstances, particularly given that other Russian-speaking employees had been given the same instruction.

Kelly v Covance Laboratories Ltd UKEAT/0186/15

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Negative reference can be discriminatory regardless of referee’s motive

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The EAT has found that it is not necessary to show a referee’s motive when bringing a disability discrimination claim following a negative reference, which is based partly on an individual’s frequent absences.

Ms Pnaiser was employed by Coventry City Council. She had a disability which resulted in some significant absences from work. In July 2013, she was offered a job with NHS England subject to satisfactory references. In responding to the reference request, Ms Pnaiser’s former manager, Ms Tennant, sent a written reference which had been agreed in a settlement agreement, but she invited the recruiting manager to discuss the reference further by telephone. During the conversation, Ms Tennant stated that Ms Pnaiser’s frequent absences had impacted her performance at work. As a result of this discussion, the offer of employment was withdrawn, and Ms Pnaiser brought a claim against NHS England and Coventry City Council alleging disability discrimination.

The EAT found that the correct approach is to consider whether mentioning Ms Pnaiser’s absences as part of a wider discussion about performance could be discriminatory regardless of Ms Tennant’s motives. The EAT found that there was sufficient evidence to show that the absences had been at least part of the reason for the negative reference, and it was for NHS England to show that the absences and performance assessment played no part in the withdrawal of the job offer.

This decision puts employers in a tricky situation in relation to references. Certainly if there has been an agreed reference it would be wiser not to volunteer further information. It also reminds employers who are recruiting that claims can arise as a consequence of acting on a reference which is potentially discriminatory.

Pnaiser v NHS England and Coventry City Council UKEAT/0137/12

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Caste discrimination claim succeeds

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A case brought by a former domestic servant against her employers has established for the first time that a person may be treated as discriminated against on grounds of race where the derogatory treatment is connected to their caste status.

Ms Tirkey was employed by Mr and Mrs Chandhok as a domestic worker, initially in India and then in the UK, between 2008 and 2012. Ms Tirkey is of the Adivasi caste, which is traditionally considered to be the ‘servant’ caste indicating low socio-economic status. Ms Tirkey brought a large number of claims against the Chandhoks which related to the derogatory and unfair treatment she received whilst employed by them. They included a claim for discrimination on grounds of race, which Ms Tirkey later sought to amend to add a complaint of caste discrimination.

At present, whilst ethnic origin is expressly mentioned by the legislation as an aspect of race; caste is not. On that basis, the Chandhoks sought to strike out the claim. The Employment Appeal Tribunal in December 2014 rejected the strike-out attempt, holding that caste can be considered an aspect of race for the purposes of racial discrimination. Previous cases had found that Jews and Sikhs were entitled to protection related to their ethnic origin; President Langstaff at the EAT concluded that “ethnic origin” therefore has a wide ambit which includes characteristics determined by descent. As caste is traditionally an inherited quality which does not change, it could fit that definition.

Ms Tirkey’s claims were therefore heard in the Employment Tribunal and were all successful. The Tribunal held that Ms Tirkey had been paid below the minimum wage for the duration of her employment and calculated that the shortfall was £183,773.53.

This case is the first to make clear that a person can be discriminated against on grounds of their caste. One can also conceive of other characteristics which may satisfy President Langstaff’s definition of “ethnic origin”; for example, class status in the UK is arguably determined by a person’s descent.

Tirkey v Chandhok and another ET/3400174/13

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