Discrimination

Prior to the Equality Act 2010, it had been recognised for quite a while that acts of victimisation taking place after the end of the employment relationship were unlawful under predecessor legislation (See Rhys Harper v Relaxion Group PLC [2003] UKHL 33). This would cover, for example, refusing to give an employee a reference for discriminatory reasons. However, it seems that the Equality Act doesn’t clearly cover this situation – although it is certain that this is not intentional. Notwithstanding an earlier ET decision which interpreted the Act purposively, and EHRC guidance suggesting that post employment victimisation is covered, in Rowstock Ltd v Jessemey, the EAT has made it plain that it would not be right to fill the gap in the legislation judicially, because:

It was a mistake, the EAT held in Walker v Sita Information Networking Computing Ltd, for an ET to say that a claimant was not disabled because there was no identifiable or recognisable pathological or mental cause for his “constellation of symptoms”. The tribunal had been wrong to concentrate on the fact that there was no physical or mental cause for the impairments suffered – the point to look at was what effect the impairments had on everyday life, except where there was any doubt as to the genuineness of the symptoms.

The case of Heafield v Times Newspaper is a useful reminder that not all rude remarks, even if related to race, religion or other protected characteristic, amount to harassment. They may be trivial and transitory, and simply not serious enough to violate anyone’s dignity.

The facts of the case were that the claimant, a Catholic, was working as a sub-editor at the Times during the 2010 visit of the Pope; he heard one of the editors bellow across the room, enquiring in blunt terms (quoted above, with asterisks to avoid your spam filters, and spare your blushes, gentle reader) what had become of an article about the Pope. The claimant took offence and complained. When that complaint was not dealt with to his satisfaction he made a harassment claim – without success.

Here is a list of the main new Employment Tribunal compensation maximum limits where the "appropriate date" (for example date of dismissal) is on or after 1st February 2013 (but note that the overall limit for compensatory awards in unfair dismissals may be changed soon) :-

The decision of the European Court of Human Rights in the cases of Eweida, Chaplin, Ladele, and McFarlane has unsurprisingly received a lot of attention this month, and it seems certain to have a big impact. All of the cases centred around the right to manifest a religious belief, and whether UK law protected that right sufficiently. Two of the cases concerned how far an employer has to accommodate an employee’s wish to wear a necklace with a crucifix pendant at work, and the others concerned a relationship counsellor and a registrar respectively, who did not want to perform those parts of their jobs which conflicted with their views on same sex relationships, which in turn were based on their Christian beliefs.

Aderemi v London and South Eastern Railway Ltd gives some useful pointers about what sort of disability will be a protected characteristic under the Equality Act 2010.

• While an inability to carry out all your work duties does not equate to an inability to carry out day to day activities, it should not be assumed from this that a work activity is not a day to day activity;
• Tribunals should concentrate on what the employee cannot do, not what he can do, when looking at whether there is a substantial impact on day to day activities;
• When looking at what is substantial or not, it is wrong to think that there is a sliding scale with ”trivial” at one end and “substantial “ at the other – if an effect is not trivial, it is substantial
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In Redfearn v UK, the European Court of Human Rights has ruled on whether an employee, who was an elected BNP councillor, was entitled to protection from dismissal on the grounds of his political associations.  He worked as a driver for Serco, who had a contract to drive schoolchildren and others for Bradford City Council.  When he was elected, Bradford decided to dismiss him because they were concerned that his continued presence could be a health and safety risk if it provoked attacks on vehicles and/or result in the company losing the contract.  He had not got the necessary qualifying service (one year, at that time) to make an unfair dismissal claim, so he made a claim for direct and indirect race discrimination, which failed in the Court of Appeal; there was no direct discrimination and any indirect discrimination was justified.

In X v Mid Sussex Citizens Advice Bureau & Anor the Supreme Court has, with a very full analysis of the meaning of the EU Framework Directive and, in particular, the meaning of the word “occupation”, upheld the proposition that volunteer workers are not entitled to the protection of disability discrimination law.  The case was brought by a CAB volunteer adviser whose volunteer agreement (which, it was accepted, was not a contract of any sort) was terminated in circumstances which she considered amounted to disability discrimination.

The Supreme Court’s decision in Birmingham City Council v Abdulla is a significant development in equal pay law, opening the way for many cases which would previously been time barred.  The time limit for bringing equal pay claims in the employment tribunal is 6 months and, unlike other types of discrimination claims, there is no scope in the tribunal rules for an ET to allow out of time claims on the ground that is just and equitable to do so.  However, the mechanism used to implement the right to equal pay is to imply an equality clause into every employment contract - and of course the ordinary courts have jurisdiction to hear claims for breach of contract - for which the limitation period is 6 years not 6 months.

In Madarassy v Nomura International the Court of Appeal remarked that:

“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

Birmingham City Council v Millwood is an illustration of one way of establishing the “something more” needed to reverse the burden of proof, where a difference in treatment has been shown.