L&L 21 May 2015_Edinburgh

Discrimination Key Cases and Developments

Morag Hutchison and Mel Sangster

Thursday 21 May 2015

AberdeenEdinburghGlasgow

Race Discrimination

Race discrimination: caste

What is the definition of “caste”?

Is it covered by the Equality Act 2010?

•Not one of the "protected characteristics" in the Equality Act 2010

•BUT….

•The definition of race is non-exhaustive and includes "colour; nationality; ethnic or national origin"

Caste: legislation?

Consultation on proposed legislation making caste discrimination unlawful was planned to take place in the autumn of 2014 but has not yet begun

This power was introduced on 25 June 2013 but has not yet been exercised by the government

In February, the Government confirmed that it has no "immediate" plans to introduce legislation making caste discrimination a form of race discrimination

Chandhok and another v Tirkey

Facts• Ms Tirkey worked for Mr and Mrs Chandhok

between 2008 and 2012 as a domestic worker

• Her caste is the Adivasi, which is known as a "servant caste"

• Adivasis have been recognised as being at the lowest point of almost every socio-economic indicator


Facts• After bringing other claims in the tribunal, Ms Tirkey

added a complaint of caste discrimination

• She claimed that the reason why she was recruited, and treated in the manner alleged, was that the Chandhoks thought she was of a lower status to them, which was infected with considerations of caste


Decision

The EAT dismissed the appeal and permitted the caste discrimination claim to proceed to full hearing.

Mr and Mrs Chandhok appealed, arguing that caste was not included as a protected characteristic in section 9(1) of the Equality

Act 2010

The Employment Tribunal refused to strike out the claim for caste discrimination.

Impact

The EAT has expanded the protected characteristics to

include caste, even where the Government has not yet

elected to make caste discrimination unlawful

Employers should therefore consider caste

to be a protected characteristic under the

definition of race.

Disability Discrimination

Is obesity a disability?

No?Yes?

Disability discrimination: obesity

Karsten Kaltoft v The Municipality of Billund

Facts• Mr Kaltoft worked as a childminder in Denmark for 15

years

• He was dismissed, on grounds of redundancy, following a downturn in work

• Mr Kaltoft had a BMI of 54

• People with a BMI in excess of 40 are considered severely, extremely or morbidly obese.


Facts• Mr Kaltoft claimed that he had been dismissed

because of his obesity

• He brought discrimination proceedings in a Danish District Court

• The District Court asked the ECJ whether obesity be can classified as a "disability” under European law


Decision• The European Court of Justice held:– No general principle under EU law that prohibits

discrimination on grounds of obesity itself– BUT– the effects of obesity, may, in certain

circumstances, mean that a person is disabled and protected against discrimination

Disability discrimination: obesity

• Critical issue is the effect of any impairments rather than their cause

Things to consider

Be aware of these issues when managing sickness absence or determining

fitness for work

Duty to consider reasonable adjustments to working practices and/or

workplaces?

Duty to help employee lose weight?

Obesity in oil and gas sector: regulations

prohibiting passengers with certain body size

Disability discrimination: diabetes

Is type 2 diabetes a disability?

Metroline Travel Ltd v Stoute

Facts• Mr Stoute was employed as a bus driver 21 years before he was

dismissed for gross misconduct

• He suffered from Type 2 diabetes and brought a claim for disability discrimination

• He followed a diet designed to avoid sugary foods such as fizzy drinks (but had no other treatment)

• At a preliminary hearing, it was held he was disabled

• At the full hearing his complaints were all dismissed


Decision• Metroline appealed as it had a workforce with a

number of people who suffered from Type 2 Diabetes

• They were worried the decision would be used by other employees to support an argument they were disabled

• The EAT held that “treatment” was not wide enough to encompass an abstention from sugary drinks…


"...while a particular diet may be regarded as something which is to be ignored when

considering the adverse effects of a disability, I do not consider that abstaining from sugary drinks is sufficient to amount to a particular

diet which therefore does not amount to treatment or correction”

Things to consider

Employers should not automatically assume an employee with a serious condition is disabled for the purposes of the Equality Act

If a condition can be eliminated or minimised by taking very simple steps, then the condition will not amount to a disability

However, it is a surprising decision given the terms of the guidance on diabetes

Disability discrimination: withholding bonus

• Can operating a bonus scheme which does not pay out to employees who had received a warning for high levels of sickness absence be disability discrimination?

Land Registry v Houghton and others

Facts• The Land Registry operated a discretionary bonus

scheme• Under the scheme, employees receiving a formal

warning during the year would not receive a bonus• Formal warnings for a misconduct could be ignored,

at a manager's discretion• No discretion to ignore a warning in relation to

sickness absence


•Five disabled employees were absent due to sickness during the year

•In all cases as a result of their disabilities

•Each received a warning

•No bonus was paid to them

•They brought claims for disability discrimination


Decision• The tribunal rejected the Land Registry's submission

that the link was too remote• The EAT dismissed the appeal, finding that:– automatic disentitlement to a bonus following

disability-related absences was unfavourable treatment in consequence of the disability

– without the disability each claimant would not have had the same level of sickness absence


Employers should consider incorporating a degree of flexibility into bonus schemes which are linked to attendance

Reasonable adjustments may not be enough

Employers should be able to pay bonus entitlements where it might be seen as discriminatory to withhold these

Disability: reasonable adjustments

• Is an employer's duty to make reasonable adjustments triggered where a sick employee had not given any sign that they will be returning to work?

Doran v Department for Work and Pensions

Facts• Miss Doran worked for Department for Work and

Pensions as an administrative officer• She commenced sickness absence due to stress• She provided medical certificates, but did not suggest

a possible return if adjustments were made• She was offered administrative duties and part time

hours to support her return• She was dismissed a few months later


Miss Doran brought a claim alleging (among other things) that DWP had failed to make reasonable adjustments

She said that the suggestion they made was unreasonable as a demotion would have reduced her salary


•The employment tribunal held that DWP's attendance policy placed Miss Doran, a disabled person, at a substantial disadvantage

•Nevertheless, the tribunal rejected her claim

•The DWP's duty to make reasonable adjustments had not been triggered because Miss Doran had not informed it of a return date or given any other sign that she would be returning to work at a particular time

•The EAT agreed


Implications• The duty on employers to make reasonable

adjustments is only triggered where an employee indicates:

– that they might be fit to return; OR– that they would be fit if reasonable adjustments are

made

Things to consider

Ball is still in employer’s court to make adjustments

Good practice would be to ask a disabled employee about possible adjustments

Other claims are now available to employees in these circumstances

Religion or Belief

Discrimination Update: Religion or belief

• Is a “a profound belief in the proper and efficient use of public money in the public sector” protected as a philosophical belief?

Harron v Chief Constable of Dorset Police

Mr Harron was employed by Dorset Police

He became angry and frustrated at seeing money he thought was being wasted (on bureaucracy, administration, various projects, over paying staff)

Trust

Faith

Belief

Values

Harron v Chief Constable of Dorset Police

While the judge was satisfied that Mr Harron's belief was genuinely held, it was not a belief as it was entirely confined to the workplace.

It failed to satisfy the “weighty and substantial aspect of human life and behaviour” test.

Philosophical belief

• The belief must be genuinely held• It must be a belief and not an opinion or viewpoint based on

the present state of information available• It must be a belief as to a weighty and substantial aspect of

human life and behaviour• It must attain a certain level of cogency, seriousness, cohesion

and importance• It must be worthy of respect in a democratic society, be not

incompatible with human dignity and not conflict with the fundamental rights of others

Age Discrimination

Age discrimination

• Is a requirement to sign up to new contractual terms and conditions indirectly discriminatory by disadvantaging older workers, including the claimants?

Braithwaite v HCL Insurance BPO Services

Facts• Mrs Braithwaite and others became employees of

HCL following a TUPE transfer• There was a disparity between the terms and

conditions in the workforce• After suffering financial losses, it sought to

harmonise all employees’ terms and conditions, to reduce staffing costs


Facts• It was proposed to:– remove their right to a number of benefits (eg

private health insurance);– increase their working hours; and– reduce their annual leave entitlement


Facts• The changes put the claimants at a disadvantage as

they were older workers and had built up greater entitlements by virtue of their longer service

• They claimed, amongst other things, age discrimination on the grounds that the requirement to sign up to new terms and conditions was indirectly discriminatory on the grounds of age


Decision• The EAT held that it was not indirectly discriminatory

because it could be objectively justified• Although the PCP put older workers at a particular

disadvantage, it was a proportionate means of achieving a legitimate aim

• HCL's aim to "reduce staff costs to ensure its future viability and to have in place market-competitive, non-discriminatory terms and conditions" was legitimate

• The PCP was reasonably necessary because there were no less discriminatory means that would achieve HCL's aim

Things to consider

Employers will need to bear this in

mind when changing terms of employment that

may have discriminatory

effect.

Remember a change in terms and

conditions is capable of

being a PCP

Age discrimination

• Is it discriminatory to dismiss after relying upon the reports of colleagues motivated by discrimination?

CLFIS (UK) Ltd v Reynolds

Facts• Dr Reynolds was appointed Chief Medical Officer of

CLFIS (UK) in 2006 under a consultancy agreement.• There was a presentation highlighting deficiencies in

her performance• The General Manager decided to terminate the

agreement• Dr Reynolds was 73 at that point. She raised a claim

for direct age discrimination


Facts• The ET rejected the claim on the basis that there was an

adequate non-discriminatory explanation

• The ET focused on the mental processes of the General Manager in reaching his decision, although it was common ground that this had been informed by views of other employees

• The ET held that the General Manager genuinely believed that Dr Reynolds was not performing to the required standard


Decision• The EAT overruled the decision, holding:

– Discrimination can be made out where a protected characteristic has a significant influence on the outcome (even if the person who made the final decision was not aware of this)

– The views of others had played a part

– As CLFIS could not demonstrate their views were not on grounds of age, they had not discharged their burden

CLFIS (UK) Ltd v ReynoldsDecision• The Court of Appeal reversed the decision in the EAT

• It found that, even if the mental processes of others were relevant, Dr Reynolds had not advanced her claim on that basis

• Her claim was on the basis that the General Manager’s conduct had been discriminatory

• It is fundamental that the employee responsible for the discriminatory act was motivated by that protected characteristic

Things to consider

• The conduct of the person supplying information is treated separately from the person who acted on it

• However, if the claim identifies the people who supplied the information as respondents, that is likely to be sufficient

• May lead to increased requests for information and disclosure

Discrimination by Association

Discrimination by association

• Does an employer have a duty under the Equality Act 2010 to make reasonable adjustments for a non-disabled employee whose daughter has Down's syndrome?

Hainsworth v Ministry of Defence

Facts• Ms Hainsworth was employed by the Ministry of

Defence in a teaching role• She was based in Germany• Her daughter has Down’s Syndrome• The MoD provided facilities to educate children of

employees, but these were not designed for children with “significant needs”


•Ms Hainsworth requested a transfer to the UK to help her meet her daughter's needs

•The

MoD rejected the request

•Ms Hainsworth brought a claim saying that the MoD should have made the reasonable adjustment of transferring her to the UK owing to her daughter's disability


Decision• The tribunal held that the Equality Act only requires

an employer to make reasonable adjustments for an employee or job applicant who is disabled

• There is no obligation to make adjustments for a non-disabled employee who is associated with a disabled person

• On appeal, the EAT upheld the tribunal's decision


The Court of Appeal

agreed with the tribunal and the

EAT

Employers are not obliged to

make reasonable

adjustments for employees who are associated with disabled

people

Things to consider

No obligation, but good practice for the employer to do what it can to assist?

An employee struggling to cope because of family reasons can make a request for flexible working.

Could raise a claim for indirect sex discrimination?

Things to Look Out For

Things to look out for

Caste discrimination

Equal pay reporting duties

Disability-related absence – reasonable adjustments

Age discrimination – mass compulsory retirement

Discrimination by association

Caste discrimination

•Regulations amending the Equality Act 2010 requires the government to provide that caste is an aspect of race

•This power has not yet been exercised by the government

•Consultation was planned for last year but has not yet taken place

•In February, the government confirmed that it has no "immediate" plans to introduce legislation

Equal pay reporting duties

The government will bring in

mandatory gender pay gap reporting

in the next 12 months

Griffiths v Secretary of State for Work and Pensions

Do employers need to disregard absence triggers in their attendance policy as a reasonable adjustment for disabled staff?

No, held the employment tribunal and EAT in Griffiths.

Griffiths v Secretary of State for Work and Pensions

Facts• The tribunal found the duty to make reasonable

adjustments was not triggered because no "substantial disadvantage" had been established.

• The adjustments sought by the claimant (disregarding long periods of absence) were also not reasonable adjustments.

• The claimant has appealed to the Court of Appeal.

Harrod and others v Chief Constable of West Midlands Police and others

Is enforced retirement of

police officers unlawful age

discrimination?

Yes, according to the employment

tribunal in Harrod.

Harrod and others v Chief Constable of West Midlands Police and others

Facts• The tribunal ruled that seven police forces had acted

unlawfully in requiring the compulsory retirement of officers to meet budget cuts imposed by central government.

• Although cost saving and increased efficiency were legitimate aims, the police forces had not adequately considered alternatives for those who wanted to remain in post.

• The police forces have appealed to the EAT.

Can the concept of discrimination by association be extended from direct discrimination to indirect discrimination?

Yes, according to the Advocate General in her opinion in Chez Razpredelenie Bulgaria

Discrimination by Association

Chez Razpredelenie Bulgaria

Facts• Ms Nikolova runs a shop in Bulgaria• Her district is predominantly populated by Roma, although

Ms Nikolova is not Roma herself• The electricity supplier to the district fixed electricity

meters at a much higher height than other areas, due to frequent tampering in the district

• Ms Nikolova complained that the height prevented her from reading her meter and argued that her electricity bills were excessive

• She complained of discrimination on grounds of ethnicity

Chez Razpredelenie Bulgaria

Decision• The Advocate General's opinion is that the definition

of indirect discrimination in the Race Directive is not inconsistent with the concept of associative discrimination by association

• Ms Nikolova could therefore rely on the prohibition of discrimination based on ethnic origin even though she herself does not belong to the Roma ethnic group

Things to consider

•Relevant to the employment context

•The concept in the Equality Act is specifically limited to direct discrimination so it would be a major change

•Will the ECJ agree with the Advocate General?

Morag HutchisonPartner+44 (0)131 473 6029+44 (0)7879 893 [email protected]

Get in touch

Mel SangsterDirector+44 (0)131 473 6013+44 (0)7983 080 [email protected]

L&L 21 May 2015_Edinburgh

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