Institute of Employment

Rights

Discrimination Law Update

Stuart Brittenden

• Themes in Government Equal Opportunities Policy/Proposed Legislative Changes(1) The Equality & Human Rights Commission (2) ET powers to make workforce recommendations(3) The statutory questionnaire procedure(4) Third Party Harassment

• Strand Specific Developments (excluding age discrimination - see afternoon session): (1) Religion(2) Equal Pay(3) Marriage (as a protected characteristic)(4) Aggravated Damages

Equality & Human Rights Commission (EHRC)• Established by Labour (Equality Act 2006)

• Victim of targeted briefings in the media

• The Sun 15 April 2012 published that EHRC: (1) had breached its own guidelines by paying men 4% > than women(2) white staff were paid 6% more than BME staff

• Taxpayers’ Alliance – the gaps exposed the body as a “waste of money”

• Budget attacks – budget halved to £26m by 2015

• Staff numbers cut from 455 (2010) to 180 by April 2013

• £10m grants cut to budget – consequences for local equality groups?

• Helpline for disabled air passengers axed

• Repeal of Equality Act 2006 general duties listed in s. 3, promotion of good relations between groups in s. 10, crime monitoring s. 19, changes to reporting from 3 – 5 yrs

The ‘Red Tape Challenge’•5 April 2011 Public Sector Equality Duty (PSED) in force•EHRC intention to publish statutory codes on PSED and for further/higher education sector and schools•Website announcement:

‘Unfortunately, we are no longer able to proceed with these plans. The Government is keen to reduce bureaucracy around the Equality Act 2010, and feels that further statutory guidance may place too much of a burden on public bodies. Although the Commission has powers to issue Codes, it cannot do so without the approval of the Secretary of State, as we are reliant upon government to lay codes before parliament, in order for them to be statutory’

Recommendations: s. 124(3)(b) EqA 2010• ET powers to issue recommendations affecting the

workforce (vs just limited to a successful claimant)• Potential benefits vs pre EqA regime• Examples of recommendations• Employer to introduce equal opportunities policy• Retraining staff• Publishing selection criteria for promotion/transfer• Enforcement – if ER does not comply, ET can take this

into account in a subsequent similar case

• The Government’s view:‘This Government is committed to promoting economic growth and tackling the red tape and bureaucracy that holds businesses. We are clear that the benefits of economic growth are best achieved when everyone has the opportunity to fulfil their potential, where no one is held back because of who they are or where they come fromA central plank of our strategy to promote growth is to tackle the culture of unnecessary and ever-multiplying regulation that is burdening businesses. We are doing this through the Government’s Red Tape Challenge process: a systematic stock-take of existing regulation’

• ‘The power of employment tribunals to make wider recommendations adds little to the powers that tribunals already have, may be of no direct benefit to the claimant, and is in any case merely discretionary on the employer. But employers have no way of knowing how or when a tribunal may make such recommendations; or whether it is feasible or affordable for them to comply’

• ‘Based on concerns raised by businesses and other organisations, the view of this consultation is that the power of employment tribunals to make wider recommendations is unlikely to serve a practical purpose or to be an appropriate or effective legal remedy for employment tribunals’

The Questionnaire Procedure: s. 138 EqA • Specific procedure for collecting information from

potential perpetrator• 8 week response period• Responses are admissible in ET proceedings• ET can draw inference where no response is provided or

where it is equivocal/evasive• Gov’t statistics: 9,000 – 10,000 forms completed each

year• Each takes 5-6 hours to complete (45,000 – 65,000 hours)• Many respondents seek legal help to complete responses

• Proposed abolition of procedure: ‘The obtaining information procedure was intended to increase pre-hearing settlements and reduce tribunal loads, but it has not had this effect. There is evidence to suggest that this too has created new burdens and risks for employers’

• Removal of procedure ‘… does not affect the essential rights of employees who can still take claims to ET’

• NB ET fees? • What next? Gov’t suggests EEs can send written

questions to ER with replies being admissible in ET proceedings – if so why change?

Third Party Harassment: s. 40 EqA• ER can be liable for 3rd party harassment where:

(1) EE is harassed whilst acting in course of employment;(2) ER knows that EE has been harassed on at least 2 other occasions by a 3rd party(3) 3rd party need not be the same person on each occasion(4) ER fails to take steps as would be ‘reasonably practicable’ to prevent the 3rd party harassing EE

• EqA extended scope to cover all protected characteristics (not just sex)

• Sheffield City Council v Norouzi [2011] IRLR 897 EAT• Resident social worker racially abused by resident in a

care home• ER liable for failing to take sufficient action (under

previous RRA 1976)• “There are environments – including prisons, homes … and,

regrettably, some schools – where employees may be subjected to a level of harassment on a proscribed ground which cannot easily be prevented or eradicated. In such cases the employer should indeed not too readily be held liable for conduct by third parties which is in truth a hazard of the job; and if it is to be held liable on the basis that insufficient steps were taken to protect the employee in question a tribunal must be prepared to focus on what precisely could have been done but was not done” (para 25)

• Gov’t proposal to abolish 3rd party harassment provision• Justifications:

(1) ‘They were introduced by the previous Government without any real or perceived need’(2) Only 1 ET ruling since 2008 – rarely used(3) it is an ‘unworkable requirement … for businesses to take reasonable steps to prevent persistent harassment of their staff by third parties as they have no direct control over it…’(4) Abolition would save £0.3m

• ? Whether conflict with EU Equal Treatment and Race Discrimination Directives: see R (EOC) v SofS Trade and Industry leading to amendments to SDA 1975

EqA 2010 Religious discrimination vs Article 9 ECHR • McFarlane v Relate Avon Ltd [2010] IRLR 872 CA:

Christian counsellor dismissed for refusal re: sex therapy with same sex couples

• Ladele v Islington Borough Council [2010] IRLR 211: Christian registrar refused to carry out civil partnership ceremonies for same sex couples

• Eweida v British Airways [2010] IRLR 322 CA (uniform policy)

• Chaplin v Royal Devon & Exeter Foundation NHS Trust (uniform policy)

• TBC – off to Strasbourg

Equal Pay Developments •Abdulla v Birmingham City Council [2011] IRLR 309 HCt•ET limitation period - usually 6 months after end of employment•Potential to bring claim in ordinary court as breach of contract claim - 6 year limitation period (s. 128 EqA)•Court to decide whether it is more ‘convenient’ for case to be heard in ET•Abdulla – High Court held that it cannot be more convenient for claim to be sent to ET where it is known that ET will refuse jurisdiction on time points

• Ashby v Birmingham City Council [2011] IRLR 473 HCt• NB dilution of Abdulla? Ashby says in assessing whether

it is more convenient for claim to be heard in ET (where it would otherwise be out of time) the Court should take into account:(1) reasons why proceedings had not been issued in ET within time, and (2) whether “they acted reasonably in failing to do so”

• Court of Appeal Abdulla confirmed that Ashby was wrongly decided. Parliament gave claimants a jurisdictional choice (County Court or ET)

• Supreme Court judgment (pending)?• Access to justice for out of time ET claimants

• St Helens & Knowsley Hospitals NHS Trust v Brownbill [2011] IRLR 815 CA

• Females received overall higher pay than men but were allowed to claim equal pay vs unsocial hours payments

• CofA confirm that the focus is upon the equality of contractual terms between the women and the comparators, not on the total pay received by them

• Elements of pay should not be aggregated so as to prevent a comparison of individual terms

• vs Degnan v Redcar & Cleveland BC [2005] IRLR 615 CA where bonuses and allowances were added together and viewed as basic pay with the overall figures used for equal pay comparison with men

Marriage: s. 8 EqA

• Hawkins v Atex Group Ltd [2012] IRLR 807 EAT

• Wife dismissed because of instruction not to employ relatives (husband was CEO)

• Claim failed because she was not dismissed specifically because she was married but due to the closeness of the relationship with her husband and the perceived problems this caused

Aggravated Damages: s. 124 EqA • Awarded where discriminator has acted in a “high-

handed, oppressive, or arbitrary manner”• Commissioner of Police of the Metropolis v Shaw [2012]

IRLR 291 EAT – PIDA case - recent guidance identifying 3 categories of case where award should be made (para 22)(1) the manner in which the wrong was committed(2) the motive of the discriminator(3) subsequent conduct

• Appropriate to make a combined injury to feelings/aggravated damages award given the overlap between the two remedies

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