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The proportionality test in discrimination

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The Court of Appeal said that the concept that ‘not working on a Sunday is not core to Christian belief’ is irrelevant for Tribunals working out whether a Christian’s belief that she should not be required to work on Sundays for faith reasons should be granted.

Ms Mba was a care assistant at a children’s home run by a Council. She brought an indirect religious discrimination claim when the council required her to work on Sundays. The Court of Appeal agreed that the council’s requirement for Ms Mba to work some Sunday shifts was a proportionate means of achieving a legitimate aim (i.e. the needs of the children’s home).

The Court of Appeal was asked to find “whether, in carrying out the proportionality exercise, the Tribunal was entitled to give weight to its finding that Mrs Mba’s belief that Sunday should be a day of rest and worship “is not a core component of the Christian faith”. The Court found that the Tribunal was not because human rights law does not require a test of group disadvantage. As such, the Tribunal should only have focused on Ms Mba’s religious freedom when weighing up proportionality. However, what employers need to take away from this decision is that notwithstanding this error, the decision to require Ms Mba to work on Sundays was still proportionate as the council’s needs in managing a children’s home meant there was no reasonable alternative.

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John McCririck loses age discrimination claim

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It was widely publicised before Christmas that John McCririck, horse-racing pundit, lost his age discrimination claim against Channel 4. The Tribunal appears to have found that the decision to dismiss Mr McCririck was not age-related but due to his sexist views, unpalatable presenting style and controversial appearances on reality TV shows. That said, the Tribunal judgment stands up poorly under legal scrutiny and the factual basis for the decision is not entirely clear.

In 2012, Channel 4 secured the exclusive rights to broadcast horse racing ‘crown jewel’ events on terrestrial TV. This was a real coup and the broadcaster decided to use this opportunity to ‘to grow new audiences’.

As part of a shake-up of its presenting team designed to achieve this growth, Mr McCririck, aged 72, was dismissed. He claimed that he lost his job to younger rival, Clare Balding, because of his age and sought £3m in damages.

In age discrimination cases, the legal analysis is as follows:

• Stage 1 – the employee must show evidence from which discrimination can be inferred in the absence of an adequate explanation;
• Stage 2 – if the employee is successful at (1), the burden of proof shifts to the employer to prove that discrimination did not occur i.e. to provide a non-discriminatory explanation for its actions; and
• Stage 3 – if discrimination did occur (i.e. the employer cannot provide a non-discriminatory explanation), it has a second bite of the cherry as it has a chance to argue that its actions are justified in any case.

Mr McCririck satisfied Stage 1 as he convinced the Tribunal that there was sufficient evidence to infer that discrimination had taken place. That evidence included: (1) that Mr McCririck’s co-presenter, Ms Tanya Stevenson, aged 42, was retained as a presenter on Channel 4 racing; and (2) all of the presenters whose contracts were terminated as part of Channel 4’s ‘revamping’ were over 50.

The Tribunal then went straight on to Stage 3 and considered whether the decision to dismiss Mr McCririck could be justified. That suggests that either Channel 4 was unable to provide a non-discriminatory explanation or the Tribunal got confused as to the legal test to be applied.

At the very end of its judgment, the Tribunal suggests that McCririck was “dismissed because of his persona emanating from his appearances on celebrity television shows….together with his appearances as a broadcaster on Channel 4 Racing where, as he accepted, his style of dress, attitudes, opinions and tic tac gestures were not in keeping with the new aims’. That appears to be a non discriminatory explanation for the dismissal but if that is the case, why did the Tribunal go on to consider justification at all?

In terms of justification, the Tribunal found that Channel 4’s aim of attracting a wider audience to horse racing was legitimate and the means used to achieve it were proportionate. Unfortunately, no explanation is provided of why the Tribunal decided the means used were proportionate and there is no discussion of what alternatives Channel 4 might have implemented in order to achieve the same aim.

Is Mr McCririck’s case really so different to that of presenter Miriam O’Reilly who successfully won her age discrimination case against her BBC bosses after being culled from the long-running ‘Countryfile’ series to be replaced by a younger presenting team? In that case, the wish to appeal to a primetime audience, including younger viewers, was found to be a legitimate aim but it was not proportionate “to do away with older presenters simply to pander to the assumed prejudice of some younger viewers”. It is unclear why the same does not apply in the present case.

Bearing in mind the flaws in the judgment, it seems likely we have not seen the last of Mr McCririck.

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Paying older workers larger redundancy payments is discriminatory but justified

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In order to establish discrimination, a Claimant must establish that they have been treated differently to a comparator whose circumstances are materially the same to their own (with the only difference being a protected characteristic such as age, race, disability etc). In Lockwood v. DWP, an age discrimination case, the Court of Appeal gave short shrift to the suggestion that there was a material difference between groups of workers (and therefore no comparator) on the basis of circumstances intrinsically linked to age.

The employer argued that the circumstances of employees under the age of 35 (being that they were less likely to have family and financial commitments) were materially different to the circumstances of staff over the age of 35.  The Court disagreed because the characteristics were intrinsically linked to age and therefore had to be disregarded.  Accordingly, the two groups of employees were comparable and the decision to pay enhanced redundancy payments to employees over the age of 35 was an act of direct age discrimination.

However, in any event, the policy was justifiable on policy grounds and the claim failed on that basis.

Detail

The DWP had a policy whereby employees aged 35 or over benefited from more favourable redundancy payments than employees under the age of 35.

Ms Lockwood was made redundant and paid a redundancy payment of £10,894.04. Had she been 35 or older, she would have received an additional sum of £17,690.  She claimed that the DWP’s redundancy policy amounted to less favourable treatment on grounds of age and was therefore direct age discrimination.

The ET and EAT dismissed the claim on the basis that:

• there was a material difference between the two groups of staff and therefore no comparator (being that the employees under the age of 35 were less likely to have family and financial commitments justifying the generous redundancy package); and, in any event:
• the different treatment was objectively justified on policy grounds and therefore the discrimination claim would fail (as the enhanced redundancy payment to older staff addressees the fact that older workers are likely to experience more difficulty securing alternative work).

The Court of Appeal dismissed the comparator argument.  The DWP could not rely on circumstances intrinsically linked to age to justify a difference between the two groups.

However, it upheld the EAT’s justification argument and was satisfied that the EAT had properly addressed the issue of whether the policy was appropriate and necessary to achieve the policy aim of cushioning the blow of redundancy to older workers.

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Paying for an employee’s private counselling can be a reasonable adjustment

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In Croft Vets Ltd v Butcher, the Employer Appeal Tribunal found that an employer should have agreed to pay for private psychiatric counselling for an employee who was suffering from work-related stress to help her return to work.

Detail

Mrs Butcher worked as a manager at a veterinary practice. In 2007, the practice decided to expand and, as a result, her responsibilities increased, which negatively affected her performance levels. Three years later, Mrs Butcher was signed off work with depression following performance issues. The practice  referred her to a psychiatrist who said that she had suffered from work related stress for two years and recommended that the practice pay for her to have private psychiatric sessions. However, the psychiatrist stated that even with the treatment, there was only a 50/50 chance that Mrs Butcher’s health would improve enough to enable her to return to work. The practice asked some further questions which the psychiatrist was slow to respond to and in the end Mrs Butcher resigned and brought a claim for disability discrimination.

The EAT found that the employer’s failure to arrange and pay for the private counselling amounted to a failure to make reasonable adjustments. Despite the odds, there were reasonable prospects that the psychiatric treatment would be successful and facilitate a return to work and an improvement in Mrs Butcher’s health; therefore it was a reasonable job-related adjustment.

Whilst employers may be surprised and worried by this decision, they should note that this decision is not about funding private medical treatment for employees in general but a specific adjustment designed to allow one employee to return to work and manage her work-related stress. It was clear in this case that Mrs Butcher’s health problems were caused to a large extent by her work.

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Successful internal appeal cancelled out earlier allegation of indirect discrimination

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Ms Little worked as a full time sales executive for Richmond Pharmacology. Richmond required all its sales executives to work full time to provide high customer service.

Ms Little took maternity leave. Prior to returning to work, she made a request to work on a part time basis, which was refused. Consequently, Ms Little appealed but the day before the appeal hearing she resigned. Richmond asked that she reconsider her resignation and attend the appeal hearing. She attended the appeal where Richmond agreed to a three month trial basis of part time working. Ms Little refused this offer, confirmed her resignation and brought claims for: (1) constructive unfair dismissal; and (2) indirect sex discrimination.

The Employment Appeal Tribunal dismissed Ms Little’s claims. The constructive dismissal claim was time barred and in any event, the EAT said that a fair appeal can ‘cure’ the defects in an initially unfair decision to dismiss. In relation to the indirect discrimination claim, the EAT found that it was made out bar that Ms Little suffered no detriment as a result of Richmond’s initial decision as she was on maternity leave at the time. As a result, she was not disadvantaged by the full time working hours initially imposed. Richmond were lucky.

Employers should bear in mind that had Ms Little not been on maternity leave in the period between the refusal to grant her application for part time working and the appeal, she probably would have suffered a detriment as a result of the discriminatory initial decision and been entitled to some compensation.

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Obesity is not a disability (well not for now at least)

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Obesity does not, of itself, render someone disabled and trigger a duty to make reasonable adjustments on the part of an employer. However, if as a result of someone’s obesity there are substantial and long term effects on an employees’ ability to carry out normal day-to-day activities (such as lack of mobility)  this could mean that an employee is deemed “disabled” pursuant to the Equality Act legislation.

The European Court of Justice has been asked to review a recent Danish case, where a child-minder was dismissed because he was obese, and consider whether discrimination on the grounds of obesity is contrary to EU law, and if so how?

Separately, employers must be aware of the risk of perceiving a disability where none exists. For example, if an interviewer believed that an obese job applicant was impaired and that was the reason why the applicant did not get the job; then this belief would amount to direct disability discrimination even if the obese job applicant was not impaired. Discrimination on the grounds of perceived but not actual disability is enough to establish disability.

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What happens when a disabled employee goes on sick leave a lot?

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What is interesting about this case – HMRC v Whiteley – is not the judgement but the guidance given by the Employment Appeal Tribunal relating to disabled employees who exceed the number of days permitted under a sickness absence policy.

Mrs Whiteley, an asthma sufferer, worked for HMRC. As a result of her condition, she had 15 days’ off sick between January and October 2010. Under HMRC’s sickness absence policy, warnings were issued to employees who took more than 10 days’ absence in one year. HMRC made an allowance for Mrs Whiteley’s disability by reducing her sickness absence from 15 to 12 days but as this was still more than 10 days, a warning was issued.

Mrs Whiteley brought a claim in the Tribunal that HMRC had failed to make reasonable adjustments. The Tribunal agreed with her on the basis of medical evidence. However, on appeal, the EAT found that the medical evidence had been wrongly interpreted. As such, the case has been remitted back to the Tribunal. We will update you when the new judgement is published.

However, the EAT has suggested two types of approach that employers may adopt when making allowances for sickness absence caused by the interaction between an employee’s disability and other illnesses (e.g. flu).

1. Consider each absence day in detail (with medical expert evidence if necessary) to understand if it is attributable to the disability; or
2. Investigate what level of absence an employee with a particular disability would reasonably be expected to have over the course of an average year.

An employer in a similar situation to HMRC will need to consider which approach would be appropriate to adopt. The second approach may be more attractive to employers and HR teams as it can be applied fairly easily.

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B&B owner discriminated when refused to allow homosexual couple to share a room

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[post_tags] In Black v Wilkinson, Mrs Wilkinson, a Christian, ran a B&B from her family home. Her policy provided that only heterosexual married couples were allowed to share a room and so in March 2010, she refused to accommodate a homosexual couple. The Court of Appeal found that Mrs Wilkinson’s decision was direct discrimination as she had not allowed the couple to share a room because they were homosexual. As direct discrimination cannot be justified in law, that was the end of the matter. However, the court went on to consider that Mrs Wilkinson had also indirectly discriminated against the homosexual couple because she applied a ‘provision, criterion or practice’ (i.e. only married couples can share a room) that applies to all couples but which puts homosexual couples at a disadvantage because heterosexual couples can marry whilst homosexual couples cannot [Note: with the introduction of the Marriage (Same Sex Couples) Act 2013, this is no longer the case]. Mrs Wilkinson tried to justify this policy on the grounds that it was a proportionate means of fulfilling her legitimate aim, namely exercising her right to manifest her religious beliefs under human rights law. However, the Court disagreed and said that neither religious belief nor sexual orientation trumps the other but what does trump both is the fact that Mrs Wilkinson’s policy is contrary to the Regulations, i.e. that B&B’s are not exempt from the law against discrimination when providing goods, facilities and services. This balanced with the fact that Mrs Wilkinson had failed to show that her business would suffer economic harm if she offered double bedrooms to homosexual couples led the Court to rule that she could not justify her policy on the grounds of religious belief. Following the logic of this case through to an employment context, employers who offer benefits to spouses but not registered civil partners would be guilty of direct discrimination.  However, where benefits are offered to spouses they are routinely offered to registered civil partners these days so the situation is unlikely to arise. Even then, it may be argued that in practice a far smaller proportion of gay couples are registered civil partners or married as compared with heterosexual couples so the rule would still be indirectly discriminatory. This case does not cast light on that question but one suspects the argument would fail because it is probably reasonable and proportionate to require legal commitment towards a partner before a scheme (such as a pension or private medical care) permits that person to benefit. [/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

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Knowledge of disability is essential

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In Patel v Lloyds Pharmacy Ltd, the Employment Appeal Tribunal struck out Mr Patel’s claim for direct disability discrimination because there was no evidence that the manager accused of discrimination was aware of his disability.

Mr Patel had previously worked on a locum basis for Lloyds Pharmacy and when interviewing for that role back in 2008, he informed the interviewer that he suffered from bipolar disorder.  In 2011, he applied for a permanent position with Lloyds and was interviewed by a different manager. His application was unsuccessful and he brought a claim for discrimination.

During the litigation, emails were disclosed which showed that the second interviewer had exchanged emails with the original interviewer which were critical of Mr Patel’s performance. However, therefore was no mention of disability in those emails and there was no evidence that the second interviewer had any knowledge of Mr Patel’s disability.

The Employment Appeal Tribunal said that it would be wrong to allow an apparently hopeless case to proceed on the grounds that something might turn up in cross examination showing that the interviewer was in fact aware of Mr Patel’s disability.

This is a rare example of a Tribunal taking a robust approach to an unmeritorious discrimination claim.  Given that the Tribunal Rules have recently been changed to encourage Tribunal Judges to weed out weak cases at an early stage, it is likely that we will see more of this over the coming months. When faced with spurious claims, employers should certainly consider going for a strike out and this case will be a useful weapon to deploy.

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Shareholder’s homophobic comment gave rise to a discrimination claim

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A shareholder of a Romanian football club commented to a journalist that he would prefer to close the football club than hire a homosexual player, in response to the suggestion that a player who was due to transfer to the club was homosexual.

Despite not being the victim of the alleged discrimination, ACCEPT (an organisation which promotes and protects gay rights) complained that the club had discriminated on the grounds of sexual orientation.  The claim was referred to the European Court of Justice to decide whether or not it could proceed.

The European Court held that the comments could give rise to a claim for discrimination. The shareholder gave the impression to the public and the media that he played a leading role in the club and therefore it didn’t matter that he had no power to make policy or recruitment decisions. The fact that the club failed to distance itself from the comments was a factor which the European Court took into account.

Employers’ should ensure that they act swiftly to distance themselves from any discriminatory comments made by individuals associated with them as well as having a well-drafted equal opportunities recruitment policy.

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Dismissal for bringing discrimination claim against former employer is victimisation

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In Bouabdillah v Commerzbank AG, an Employment Tribunal found that Commerzbank had victimised one of its employees when it dismissed her for bringing a claim against her former employer, Deutsche Bank.

Ms Bouabdillah lodged a claim against Deutsche Bank for sex discrimination and equal pay before joining Commerzbank. In her interview with Commerzbank, she did not mention the lawsuit and she was offered a job. When her claim was reported in the newspapers, she alerted Commerzbank but she was dismissed on the grounds of a breakdown of trust and confidence. Commerzbank said that they dismissed Ms Bouabdillah because she had failed to disclose the proceedings despite ample opportunity and not because she had brought the proceedings.

The Employment Tribunal upheld Ms Bouabdillah’s claim for victimisation for the following reasons:

• While she had not provided full answers in her interview, she had not misled Commerzbank or been dishonest;
• She had tried to inform Commerzbank of the proceedings as soon as the article had been published;
• Commerzbank had suffered no reputational damage (as they had alleged) by virtue of the fact that they were mentioned in the article as Ms Bouabdillah’s current employer; and
• Commerzbank had made a ‘knee jerk’ reaction to the article and had not investigated sufficiently to conclude that there was a breakdown in trust and confidence.

A rather unusual set of facts but a reminder for employers to take a deep breath and investigate before dismissing – whatever the circumstances.

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How far do you have to go to prove ‘reasonable adjustments’?

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Mrs Wade worked for Sheffield Hallam University. Mrs Wade suffered from allergies which, for the purpose of disability discrimination legislation, amounted to a disability.

During a period of absence from the business her role was made redundant.  As part of the redundancy consultation process, Mrs Wade applied for an alternative post. The university advised that she would be required to attend a competitive interview but that if she met the criteria (and adjustments could reasonably be made to accommodate her disability) she would be appointed to the post.

The university interviewed Mrs Wade but she was unsuccessful.  The university said that Mrs Wade did not demonstrate that she could fulfil the core competencies required for the role.

Mrs Wade brought various disability discrimination claims.  In particular, she alleged that the university had failed in its duty to make reasonable adjustments by requiring her to participate in a competitive interview process.

In this case, the Employment Appeal Tribunal held that whilst the competitive interview process was a provision, criterion or practice that put Mrs Wade at a disadvantage (as a disabled person), the university had not failed in its duty to make reasonable adjustments by removing the need for a competitive interview.  This would have meant the university appointing someone who was genuinely unsuitable for the role.  The adjustment was not therefore reasonable.

Although employers should always consider making reasonable adjustments for disabled candidates when assessing their suitability for roles, this case confirms that they do not need to go above and beyond that. Employers need to strike a balance between reconciling the considerations of a disabled employee against the commercial value of obtaining the right candidate for the role.

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