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The Court of Appeal has set out what an employer does and does not need to know in order to be found to have discriminated against a disabled employee.

There are a number of types of disability discrimination, and the extent of knowledge required for an employer to have committed them varies. The Court of Appeal in this case explained what the requirements are in a claim concerning discrimination arising from disability.

The facts of this case help to illustrate how the test for discrimination arising from disability workers. Mr Grosset was a teacher and Head of English and a school in York; he suffered from cystic fibrosis which meant he had to hours of intense physical exercise each day in order to clear his lungs. The school was aware of this and agreed this amounted to a disability. Due to his disability, Mr Grosset struggled to deal with an increased workload at the school; in turn, this caused him stress which exacerbated his cystic fibrosis. During this stressful period, Mr Grosset showed the 18-rated horror film, Halloween, to a class of vulnerable 15- and 16-year-olds. When this was uncovered, Mr Grosset was suspended and eventually dismissed for gross misconduct. Medical evidence eventually presented at the Employment Tribunal showed that the error in judgment in showing the film had been caused by Mr Grosset’s disability.

The Court of Appeal held that the decision to discipline and dismiss Mr Grosset was unfavourable treatment on the basis of something arising from his disability – namely, the error in judgment in showing the film. This was so despite the fact that the council did not know at the time that the conduct arose as a consequence of his disability; whilst it is a defence to a discrimination arising from disability case for an employer to say it was unaware of the disability, there is no requirement for the employer to have been aware of the consequences of it.

The employer in this case had sought medical advice, but that advice did not make the connection between the conduct and the condition, so consulting a doctor will not necessarily absolve the employer of liability. The only other avenue open to an employer in defending such a claim is to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim.

City of York Council v Grosset [2018] EWCA Civ 1105

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The Court of Appeal has considered the circumstances in which an employer will be held liable for acts of discrimination committed by their agents.

The Equality Act 2010 states that an act of discrimination committed by an agent will be treated as an act done by the principal, but the circumstances in which this rule will apply are not always clear. The Court of Appeal in this case has confirmed that union workplace officials are agents for this purpose, with the result that the union can be held responsible for acts of discrimination committed by its officials.

This case concerned Ms Nailard, a regional officer employed by Unite the Union. Part of Ms Nailard’s job was to liaise with elected union officials on site at Heathrow Airport; those included Mr Saini and Mr Coxhill, both of whom were employed by Heathrow Airports Limited, but carried out union-related duties full-time. Both Mr Saini and Mr Coxhill were later found to have subjected Ms Nailard to sexual harassment, and the Court of Appeal held that Unite was liable for it on the basis that they were agents of the union. The test is whether the discriminatory acts were done in the course of Mr Saini’s and Mr Coxhill’s performance of the functions Unite had authorised them to undertake. This was satisfied regardless of the fact that the subject of the harassment, Ms Nailard, was employed by Unite directly.

The employer’s liability in cases such as these is strict. An employer is able to avoid liability for acts of discrimination or harassment committed by its employees if it can show it took reasonable steps to prevent those acts from happening. However, this defence is not open to the employer when the perpetrator of the discriminatory acts is its agent. Therefore, the employer could potentially be fixed with liability no matter what steps it has taken and whether or not it knew about the conduct in question.

Unite the Union v Nailard [2018] EWCA Civ 1203

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It is now well known that advertising a vacancy for a “barmaid” or a “handyman” would discriminate against applicants of the opposite sex. When Human Rights Watch called out a number of Chinese tech companies for advertising for “men-only” and “men preferred” roles, the discrimination was obvious to all.

Gender-biased phrasing in adverts

However, discrimination is rarely this blatant. We all use language that is subtly ‘gender-coded’, and reinforced by societal expectations and behavioural norms associated with what men and women are like. ‘Bossy’, for example, is a word rarely ever used to describe men. Adverts may also be “gender-coded”, i.e. hinting towards a male or female applicant. Totaljobs has published its analysis of 75,000 job advertisements, and it shows that gender-biased phrasing is fairly common.

Male and female-oriented phrasing

In terms of male-oriented phrasing, Totaljobs found that the three most frequently-used words are: lead (mentioned 70,539 times); analyse (35,339 mentions); and competitive (23,079 mentions). The three most commonly used female-related words were found to hbe: support (used 83,095 times); responsible (with 64,909 mentions); and understanding (29,638 uses). Totaljobs also reported that male-oriented language was more frequently used in advertisements for senior positions, such as ‘head’ roles, directors, and partners; on the other hand, the language in advertisements for “assistant” roles leaned heavily toward female-associated language.

The recent publication of large companies’ gender pay gap data revealed significant differences between male and female pay in many instances. Employers with large gender pay gaps have often explained it on the basis that their more senior positions are occupied by men, bringing up the average for male pay.

Under-representation of women in senior roles

Could the way that companies are advertising for senior roles help to explain why women are under-represented at executive level? Totaljobs believes so, concluding that women are hesitant to apply for roles which are worded in a way which appeals to male applicants (albeit unintentionally).

Employers are under increased scrutiny in respect of equality and diversity – for example, the Investment Association recently wrote to a selection of FTSE 350 firms to inform them that shareholders are getting “restless” at the lack of female representation on company boards.

That being the case, a prudent employer may want to take a step back and think about whether the way they advertise job vacancies contains any inadvertent stereotyping or bias. In order to help employers with that process, Totaljobs has created a tool it calls the “Gender Bias Decoder” which will flag any gendered words in a text. Anything the tool flags up can be re-worded to sound more gender-neutral.

ACAS guidance on job advertisements

ACAS also recommends that employers or recruiters include in any job advertisements a statement that applications are welcome from all sections of the community, as well as reinforcing the employer’s commitment to equal opportunities.

Small steps can lead to big changes. If employers begin to gender bias de-code their job advertisements to encourage female applicants to put themselves forward for more senior, better paid positions, they may find that their gender pay gap figures start to improve in coming years as women begin to fill the ranks of those senior, better paid jobs.

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An employer was found to have directly discriminated against an employee on the basis of a hearing disability it perceived that employee to have.

The Employment Appeal Tribunal stated that the evidence clearly showed that the Acting Chief Constable was concerned that Mrs Coffey had a hearing condition which could progress to the extent that she would have to be placed on restricted duties. Therefore, the perception was that Mrs Coffey had a progressive disability.

Mrs Coffey was a police constable in the Wiltshire area. She suffered with some hearing loss which, whilst it did not amount to a disability, put her just outside of the national standards for hearing loss for the police. When Mrs Coffey joined the Wiltshire Constabulary, her hearing loss had been flagged during an initial test, but she passed a practical functionality test showing that she was able to work as a constable without the need for any adjustments.

She later applied to transfer to the Norfolk Constabulary. As before, her hearing was tested and the same level of hearing loss was identified. The Acting Chief Inspector of Norfolk rejected Mrs Coffey’s application on the basis of that hearing test, and did not arrange a practical functionality test.

Mrs Coffey brought a claim for direct disability discrimination on the basis that her application was rejected because of a perception that she had a hearing-based disability.

The Acting Chief Constable denied discrimination; instead, she said her decision to reject Mrs Coffey was influenced by the significant resourcing and cost pressures her Constabulary was facing, in that she could not justify appointing someone who may not be fully operational.

Chief Constable of Norfolk v Coffey UKEAT/0260/16

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The Court of Appeal has decided that the test was not whether the employer did all it could to determine whether an employee was disabled and exhaust every option open to them; rather, it was whether the employer could be reasonably expected to know the employee was disabled.

The facts of this case are not unusual.

Ms Donelien was a court officer employed by Liberata for almost 11 years. Her employment featured numerous of short-term sickness absences for which various explanations were given (including, on one occasion, no explanation) and often no advance notice of her absence was given. Liberata referred Ms Donelien to Occupational Health in May 2009, posing a number of questions as it did so.

In July 2009, OH reported that Ms Donelien was not disabled; however, the report failed to engage with a number of the questions posed. Liberata followed up by requesting a second OH report. Whilst the second report was more detailed (and again stated that Ms Donelien was not disabled), it still failed to answer some questions.. Liberata did not go back to OH a third time, but instead held ‘return-to-work’ interviews with Ms Donelien and reviewed correspondence from her GP.

Liberata dismissed Ms Donelien in October 2009 on the basis of unsatisfactory attendance, a failure to comply with absence notification procedures and a failure to work contractual hours. In response, Ms Donelien brought a number of claims in the Employment Tribunal including a failure to make reasonable adjustments.

The Employment Tribunal found that Ms Donelien was disabled from August 2009. The question was whether Liberata had constructive knowledge of that disability.

This case confirms that employers are allowed to place weight on the reports provided by OH, so long as they exercise their own independent judgment and avoid blindly relying on them.

Donelien v Liberata UK Ltd [2018] EWCA Civ 129

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The Greek police force’s requirement for new applicants to meet a certain minimum height threshold was indirectly discriminatory against women and could not be objectively justified.

Greek national law requires that applicants to police school who wish to train as police officers must be at least 1.7 metres tall without shoes, whether male or female. Ms Kalliri’s application to join the police school was rejected on the basis that she was only 1.68 metres tall. She brought a complaint in the Greek courts, and a referral was made to the European Court of Justice to ask whether the minimum height requirement was compatible with EU equal treatment law.

The European Court of Justice held that the height requirement was indirectly discriminatory on grounds of sex, in that far more women are likely to be disadvantaged by the minimum threshold than men. Whilst the Greek government did have a legitimate aim in the effective accomplishment of police functions, the height requirement was not a proportionate means of achieving it. This was because not all police roles require physical aptitude and, even if they did, physical aptitude is not necessarily correlated to height.

Other reasons pointed to by the ECJ were that the law had previously required female police applicants to meet the lower threshold of 1.65 metres, and that the minimum height requirement for female applicants to the Greek armed forces, port police and coast guard was only 1.6 metres. Ultimately, if the Greek government wished to ensure the physical aptitude of its police recruits, it should conduct pre-selection aptitude tests rather than applying rigid requirements across the board. For those reasons, the disadvantage caused to women by the height requirement was not objectively justified and amounted to indirect sex discrimination.

Minimum height requirements are probably one of the clearest examples of work-related criteria or policies which have the potential to be indirectly discriminatory. Employers should avoid having any kind of blanket restrictions or requirements unless they are clearly able to show that they are a proportionate means of achieving a legitimate aim.

Esoterikon v Kalliri (C-409/16)

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Ruth Gamble comments on the implications of the BBC’s gender pay gap in the Evening Standard, Huffington Post, CNBC and the Guardian

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On 19 July 2017, the BBC for the first time in its history has published a list of its highest earners sorted by pay brackets. The list shows all presenters, journalists and television personalities to whom it pays more than £150,000 per annum.

The list, which published earnings for 96 people in £50,000 brackets, contained only 34 women. The highest 10 earners contained only one woman – Claudia Winkleman.

This move follows the coming into force of The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (the Gender Pay Gap Regulations) in 6 April 2017. According to the Gender Pay Gap Regulations, employers with over 250 employees have a year in which to collate information regarding the pay of its staff, with reports on gender pay disparities due on 6 April 2018.

Ruth Gamble, a BDBF founding Partner, has spoken to the Evening Standard, Huffington Post, CNBC and the Guardian with her thoughts on the BBC’s data and what the implications of it may be under UK employment law.

To read more about the BBC’s data and see Ruth’s comments, please click the following links:

• Evening Standard
• Huffington Post
• CNBC
• The Guardian

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The Court of Appeal clarifies the “public interest test” for whistleblowing claims.

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The Court of Appeal has, this morning, clarified that a disclosure does not need to be in the interest of the public at large in order to attract whistleblower protection. Despite the inclusion of a “public interest test” in whistleblowing legislation, a disclosure can concern only a small group of people, although that the character of the disclosure is relevant.

The Claimant, Mr Nurmohamed, was employed by Chestertons as a senior manager. He made disclosures regarding manipulation of the company’s accounts, which were modified in order to overstate costs and liabilities resulting in lower commission payments for around 100 employees (including himself). Mr Nurmohamed was subsequently dismissed and brought a claim for unfair dismissal against Chestertons.

It was submitted by Chestertons that, as the disclosure only concerned a class of employees (100 employees), it did not satisfy the ‘public interest’ requirement. The EAT had dismissed this and held that disclosure is not required to be of interest to the public at large. A further case, Underwood v Wincanton, widened the definition of a protected disclosure even further by holding that a disclosure affecting just four workers satisfied the public interest test.

Chestertons subsequently appealed this to the Court of Appeal who this morning handed down their judgment in favour of Mr Nurmohamed. Disclosures about a breach of a worker’s own contract can still amount to a whistleblowing disclosure, but factors that will help the worker will be:

1. The number of individuals whose interests the disclosure serves;
2. The importance of the matter being disclosed;
3. Whether the wrongdoing being complained of is deliberate, rather than inadvertent;
   and
4. The prominence of the wrongdoer (such a disclosure about an NHS payroll error affecting thousands of staff would be more likely to attract protection that a complaint about a payroll error in a small, private company).

While Chestertons’ appeal foundered before the Court of Appeal, the judgment is not quite the blank cheque for workers as it may appear. If a matter complained of affects only a very small number of individuals, the Court of Appeal suggests that the would-be whistleblower would need to show one or more of:

• the matter they are complaining of being very important;
• the wrongdoing being deliberate rather than inadvertent; and
• the wrongdoer being a prominent individual or corporate entity.

Nevertheless, the decision does dilute significantly the impact of the inclusion of the “public interest” requirement into whistleblower laws which were intended to prevent claims premised on breaches of an employee’s own rights. The practical point for employers is to carefully consider whether complaints by employees qualify for protection based on these new court guideless and, crucially, to ensure that employment decisions for all employees are based on rational and lawful criteria, not as retaliation.

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Age discrimination: silver quotas

Could the ‘silver quota’ be the answer to improving employment rates in the over 50s? In this article for PLC Magazine, BDBF Partner Polly Rodway considers how such measures sit with UK discrimination law.

This article first appeared in the July 2017 issue of PLC Magazine: http://uk.practicallaw.com/resources/uk-publications/plc-magazine

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Are employers’ bans on headscarves at work discriminatory?

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An employer’s ban on wearing religious symbols at work – headscarves, in particular – may or may not be directly discriminatory depending on the reason for the ban.

The European Court of Justice determined two cases where female employees had been prohibited from wearing their headscarves in the workplace. In the first, Achbita, the employer (G4S in Belgium) had a general policy of religious neutrality at work. Ms Achbita refused to comply with this rule, and was dismissed as a result. In the second, Bougnaoui, the French employer asked Ms Bougnaoui to remove her headscarf whilst at work after a customer complained about it. Ms Bougnaoui was dismissed following her refusal. Both women claimed to have been discriminated against on grounds of their religion.

The Court held that the general ban on religious symbols in Ms Achbita’s case was not directly discriminatory, in that it applied to all staff equally, but could in principle be indirectly discriminatory. What it came down to is whether the ban was justified. The steer from the ECJ was that the ban on all religious symbols may well be justified.

On the other hand, the employer’s decision to dismiss Ms Bougnaoui at the behest of its customer was directly discriminatory. A customer’s instruction not to wear a headscarf could not be considered a genuine occupational requirement, as it was subjective to that customer rather than objectively being a demand of the role in context.

Achbita v G4S Secure Solutions NV (Case C-157/15) & Bougnaoui v Micropole SA (Case C-188/15)

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No need to prove reason for disadvantage in indirect discrimination

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In order to successfully establish indirect discrimination, claimants do not have to prove the reason why a practice puts their affected ethnicity, gender, etc. at a particular disadvantage.

The Supreme Court has considered two cases concerning indirect discrimination. The first, Essop, concerned the Home Office’s Core Skills Assessment test, which had to be completed successfully in order to progress past a certain level of seniority. The Claimants were a group of employees from black and minority ethnic backgrounds over the age of 35; on the basis of statistical evidence, they argued that they as a group were less likely to pass the test, and were therefore at a particular disadvantage.

The second, Naeem, concerned the Prison Service’s pay structure, which contained a scale based in large part on length of service. The Prison Service had only begun employing non-Christian chaplains in 2002 (prior to that, they had been engaged on a sessional basis). Mr Naeem, a Muslim chaplain who began his employment in 2004, argued that the length of service criterion therefore put Muslim chaplains at a particular disadvantage.

Considering these cases, the Supreme Court held that there is no need for Claimants to prove the reason why a particular practice puts a group at a particular disadvantage. It was therefore not a problem that the Claimants in Essop had not done so. What was instead necessary was to show that the disadvantage was caused by the practice (as opposed to something unconnected, such as not turning up for the test), and the statistics the Claimants had put forward in relation to test results for black and minority ethnic staff over the age of 35 were evidence of that. The “context factor” for the disadvantage could involve all sorts of things, including genetics (such as a height requirement), social norms, or traditional employment practices.

The Supreme Court also held that the “context factor”, which, in Naeem, was the shorter average length of service of Muslim chaplains, need not be related to the protected characteristic. By analogy, it reasoned that there is nothing peculiar to being a woman which explains why they usually take a larger share of caring responsibilities.

These clarifications are helpful to Claimants seeking to establish indirect discrimination. However, the Supreme Court also emphasised that an employer will still always have the opportunity to show that its practice was justified, and therefore not discriminatory. This was the outcome in Naeem, as it was legitimate and proportionate for the Prison Service to reward longer service with higher pay.

Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27

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Government responds to pregnancy and maternity discrimination report

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The Government has responded to the Women and Equalities Committee’s report on pregnancy and maternity discrimination in the workplace.

The House of Commons Women and Equalities Committee released a report last year expressing concerns about the treatment of pregnant women and new mothers at work. The report stated that the number of new and expectant mothers who had been forced to leave their jobs had almost doubled since 2005. It stated that “the situation is likely to decline further unless it is tackled effectively now”, and called upon the Government to take urgent action.

The report set out a total of 21 recommendations for the Government to take forward. Among them were the following:

• extending the typical 3-month limitation date for bringing a Tribunal claim to 6 months for pregnancy-related discrimination cases;
• substantially reducing the Tribunal fees for pregnancy-related discrimination cases from the current total of £1,200 (which is the issue and hearing fees combined);
• giving women protection from redundancy for 6 months after returning from maternity leave; and
• assuring that protections for women would not be diminished due to the UK’s vote to leave the EU.

The Government has since released its response to the report. At the outset it states that the Government takes the issue of pregnancy and maternity discrimination very seriously and that it is committed to tackling the problem. It also provided responses to the WEC’s specific recommendations as follows:

• in relation to the limitation date, the Government did not see sufficient evidence to show that the 3-month time frame was acting as a barrier to women looking to bring tribunal claims. It noted that the Tribunal has the discretion to accept discrimination claims submitted after the limitation date where it is just and equitable to do so. However, it agreed to keep the matter under review.
• in the Government’s separate review of the fee regime, it stated that the evidence suggests that the drop in pregnancy and maternity discrimination claims is lower than for other forms of discrimination. It therefore could not see the case for singling out this kind of claim for special fees treatment.
• the Government agreed that the proportion of mothers being made redundant (which research suggests is 6%) is unacceptable. It therefore committed to consider means for ensuring that sufficient protection is afforded to pregnant women and new mothers.
• the Government assured that leaving the EU will not lead to a reduction in employment rights, and pointed to the fact that UK maternity rights already go further than the minimum prescribed by EU law.

Although the Government in its response has rejected a number of the WEC’s recommendations, it did agree to look further into mothers’ protections against redundancy, so further updates are expected in future.

Government response to the House of Commons Women and Equalities Committee report on pregnancy and maternity discrimination

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