Discrimination

In Kelly -v- Royal Mail Group Ltd UKEAT/0262/18/RN,

The Claimant worked as a postman. He had a poor attendance record generally and had triggered the Respondent’s Attendance Policy on several occasions due to repeated episodes of planned and unplanned absences. In 2017, the Claimant had two further periods of absence relating to surgery to treat Carpal Tunnel Syndrome in each of his hands. These absences triggered the policy again, the second period of absence triggering the final AR3 stage of the policy, which entitled the Respondent to review the whole of the employee’s attendance record. The Respondent decided that it had lost confidence in the Claimant’s ability to maintain a satisfactory attendance record and decided to dismiss him. The Employment Tribunal (ET) held that, although the decision to dismiss was harsh, it fell within the band of reasonable responses and the dismissal was fair. An allegation that the dismissal amounted to discrimination arising from disability was also dismissed on the basis that the Respondent did not know and could not reasonably be expected to know that the Claimant had a disability. The Claimant appealed on the grounds that it was perverse to conclude that it was fair to dismiss the Claimant for two periods of absence for corrective surgery for which the Claimant was essentially blameless, and for the Respondent to rely upon earlier absences. It was also said that the Tribunal erred in accepting that the Respondent did not have constructive knowledge of disability in circumstances where it did little more than “rubber stamp” the conclusions of Occupational Health in this regard.

The EAT Held. Dismissing the appeal that the Tribunal’s conclusion as to the fairness of the dismissal could not be said to be perverse. The policy expressly permitted earlier absences to be taken into account. Conduct that is in line with policy is unlikely to be unfair. The periods of absence for corrective surgery were, in each case, extended by other factors, and it was not outside the band of reasonable responses to take these absences into account. The policy applied to all absences, irrespective of fault or blame, and the Respondent was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future.

As to disability discrimination, the Respondent had not simply rubber stamped the OH reports, but had, on the face of it, given independent consideration to the question of disability. Moreover, the OH reports themselves contained more than a bare assertion that the Claimant was not disabled. In these circumstances, there was no error in the Tribunal’s conclusion as to the absence of constructive knowledge of disability.

Yes. In HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School, the Court of Appeal has overturned the High Court’s decision that a school’s complete gender segregation of pupils aged 9–16 was not sex discriminatory. In the Court’s view, the High Court had erred by comparing the treatment of boys and girls as two groups and concluding that, since they were both being denied the opportunity to interact/socialise/learn with or from the opposite sex, there was no discrimination. The correct approach under S.13 of the Equality Act 2010 was to look at the treatment from the perspective of an individual girl or boy at the school. The child was being denied the opportunity to mix with the opposite sex, which was a detriment imposed because of the protected characteristic of sex. Thus, the treatment was direct discrimination.
AHS is a voluntary aided faith school for boys and girls aged between four and 16. It has an Islamic ethos and for religious reasons separates boys and girls from Year 5 onwards (when they are aged nine and above) for lessons, trips, breaks and lunchtimes. In June 2016 Ofsted inspected the school, which was later sent a draft of Ofsted’s report rating the school as inadequate and citing concerns about its segregation policy. Ofsted took the view that the policy limited pupils’ social development, and its report pointed out that the school had not considered ‘how to mitigate the potentially negative impact of this practice on pupils’ chances to develop into socially confident individuals with peers from the opposite gender’. Ofsted believed that this gender segregation was unlawful under the EqA. However, there was no suggestion in the report that either boys or girls received a different or qualitatively poorer level of education than the other. The school brought a judicial review challenge to the proposed report. As the most senior official at Ofsted, the Chief Inspector was named as respondent.
Mr Justice Jay upheld the challenge in the High Court (Brief 1062), ruling that Ofsted had been wrong to conclude that there was a breach of the EqA. Given that there was no distinction between the opportunities afforded to girls and boys to interact with each other, it could not be said that one sex was treated less favourably than the other. Furthermore, Jay J held that argument that segregation in a faith school generates a feeling of inferiority as to the status of females in the community is too broad and sweeping an assertion to make in a multi-cultural society, where segregation is not enforced but chosen by parents. Ofsted appealed to the Court of Appeal.
The Court of Appeal agreed with Ofsted’s submission that Jay J had erred by regarding the arrangements at the school as non-discriminatory on the basis that they were ‘separate but equal’. Since the definition of direct discrimination in S.13 EqA refers to a person, it was necessary to view less favourable treatment under that provision from the perspective of an individual pupil, rather than his or her sex as a group. From that perspective, a girl pupil who wished to mix or socialise with a boy pupil was precluded from doing so because of her sex, a protected characteristic; whereas, if she did not have that characteristic, and was a boy pupil, she would have been able to mix or socialise with all the other boys (this was also the case where the genders were reversed). This treatment was clearly less favourable, and the denial of opportunity to mix with the opposite sex was detrimental, as evidenced by the Ofsted report’s finding that segregation had an adverse impact on the quality and effectiveness of the education given by the School to girl pupils and boy pupils respectively. Accordingly, the treatment amounted to direct discrimination contrary to Ss.13 and 85 EqA.
Although it was not necessary, given the above findings on less favourable treatment, the majority of the Court (the Master of the Rolls and Lord Justice Beatson) set out obiter comments refuting Ofsted’s proposition that segregation at the School caused greater psychological harm to girl pupils because the female sex has the minority share of power in society and that power imbalance will be reinforced in adulthood by the loss of opportunity for girls and boys to socialise with each other and to regard each other as equals. The majority considered that, as the Ofsted report itself made no such assertion and there was no evidence from expert educationalists to support the proposition, Jay J had been correct to reject Ofsted’s reliance on this ground. Lady Justice Gloster, by contrast, would also have upheld this ground of appeal. In her view, on the specific evidence before the Court, Ofsted had demonstrated that the sex segregation at the school involved greater practical detriment for girls than boys.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1426.html

The Presidents of the Employment Tribunals in England and Wales and in Scotland have published their response to the consultation launched in July 2017 on uprating the bands of compensation for injury to feelings in discrimination cases. The Presidents have decided that the appropriate bands are now: a lower band of £800 to £8,400 for less serious cases; a middle band of £8,400 to £25,200 for cases that do not merit an award in the upper band; and an upper band of £25,200 to £42,000 for the most serious cases, with only the most exceptional cases capable of exceeding £42,000.

The proposal to uprate the bands came as a result of the Court of Appeal’s decision in De Souza v Vinci Construction (UK) Ltd (Brief 1074) that employment tribunals must increase compensation for injury to feelings and personal injury in discrimination cases by 10%, in line with the Court of Appeal’s decision in Simmons v Castle 2012 EWCA Civ 1039. The new bands will be set out in formal Presidential Guidance and will apply to claims presented on or after 11 September 2017. For claims presented before that date, it will be open to the tribunal to adjust the bands to reflect inflation, and the Presidential Guidance will provide the methodology for doing so.

Link to consultation response: https://www.judiciary.gov.uk/wp-content/uploads/2017/07/vento-consultation-response-20170904.pdf

Multiple choice test subjected job applicant with Asperger’s to indirect disability discrimination

In Government Legal Service v Brookes, the EAT has upheld the decision of an employment tribunal that, in requiring a job applicant with Asperger syndrome to sit a multiple choice test at the first stage of its recruitment process, the GLS subjected her to indirect disability discrimination and discrimination because of something arising in consequence of her disability. The Appeal Tribunal also upheld the finding that, by refusing her request to provide answers to the test in narrative form rather than choosing from multiple options, the GLS failed in its duty to make reasonable adjustments.

The GLS recruits around 35 trainee solicitors each year and receives thousands of applications for these posts. As the first stage in recruitment, all applicants are required to sit an online ‘situational judgement test’ (SJT). This poses multiple choice questions as a means of testing candidates’ ability to make effective decisions. B, a law graduate with Asperger syndrome, contacted the GLS ahead of the 2015 recruitment round and requested adjustments to the SJT by being allowed to submit her answers to the questions in a short narrative form. She was told that an alternative test format was not available but that time allowances were, as well as a guaranteed interview scheme for those who passed the SJT and two subsequent tests. B took the SJT and received a score of 12 out of 22. The pass mark was set at 14, with the result that her application went no further. She subsequently brought claims in the employment tribunal of indirect disability discrimination under S.19 of the Equality Act 2010, discrimination because of something arising in consequence of her disability under S.15 and a failure to comply with the duty to make reasonable adjustments in S.20.

The tribunal hearing B’s claims found that the GLS had applied a provision, criterion or practice (PCP) of requiring all applicants in the trainee recruitment scheme to take and pass the online SJT. Having heard expert medical evidence, it concluded that the PCP generally placed people who had Asperger syndrome at a particular disadvantage compared with those who did not have it. It found that B was put at that disadvantage since her Asperger’s results in a lack of social imagination and causes difficulties in imaginative and counterfactual reasoning in hypothetical scenarios, and no alternative explanation as to why she failed the SJT was advanced by the GLS. The PCP pursued the legitimate aim of testing a fundamental competency required of GLS trainees, but the means of achieving that aim were not proportionate because there was the less discriminatory alternative of the adjustments proposed by B. The tribunal considered these adjustments to be reasonable, so the claims under S.19 and S.20 were both upheld. The claim under S.15 also succeeded: the requirement to take the SJT in its unaltered form amounted to unfavourable treatment; this could not be justified as a proportionate means of achieving a legitimate aim for the reasons found in respect of indirect discrimination. 

On appeal, the tribunal’s finding that the GLS had applied a PCP which placed people with Asperger’s at a disadvantage was not challenged, but the GLS disputed that B had experienced the same disadvantage. However, the EAT held that the tribunal’s reasoning was beyond reproach: ‘The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT, but had not quite managed it.  The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple choice format of the SJT’. The EAT further upheld the tribunal’s reasoning in respect of proportionality under Ss.15 and 19 and reasonableness under S.20. In particular, the tribunal had been entitled to reject the GLS’s submission that this was a case where the method of testing and the competency itself were inseparable and effectively the same thing. The decision-making powers of the small number of candidates with Asperger’s could properly have been measured by requiring them to answer the SJT in narrative format.

Link to transcript: 

http://employmentappeals.decisions.tribunals.gov.uk//Public/Upload/16_0302fhwwATRN.doc

Is segregation of pupils based on sex direct discrimination contrary to s.13 Equality Act 2010? No, held the Administrative Court in X School v HMCI. A mixed-sex Islamic faith school judicially reviewed an Ofsted report following an inspection under section 8 of the Education Act, which concluded that the school unlawfully discriminated against both its female and male pupils by “making parallel arrangements” for their education in the same building. Mr Justice Jay concluded that segregation on grounds of sex did not amount to less favourable treatment under sections 13, 23 and 85 of the Equality Act, because the treatment was identical for both groups. He considered that there was no qualitative difference between the denial to male pupils of interaction with female pupils and the denial to female pupils of interaction with male pupils. In those circumstances, unless Ofsted could demonstrate that the segregation was deliberately discriminatory, for instance because the Islamic faith regards the female gender as inferior and/or considers that females should be prepared for a lesser role in society, its position was hopeless. Ofsted had suggested that segregation was discriminatory because it perpetuated a historic view held by society of inferiority of women, but it did not implicate the Islamic school per se or provide any evidence. The fact that single-sex faith schools exist did not have any relevance for the court’s assessment because Parliament had specifically legislated an exception for faith schools’ admissions policies. Given the importance of central issue, whether segregation per se constitutes less favourable treatment, the court granted permission to both parties to appeal to the Court of Appeal.

How should conflicts between the LGBT community, and the faith community, be resolved under discrimination law? The Northern Ireland Court of Appeal has handed down its decision in the so-called ‘gay cake’ case, more properly known as Lee v Ashers Baking Company, deciding the question of whether religious beliefs trump the law against discrimination in the supply of goods and services on grounds of sexual orientation. Ashers Bakery, owned by Mr & Mrs McArthur, cancelled an order taken by their shop assistant to decorate a cake with a picture of Bert & Ernie and the caption ‘Support Gay Marriage’. The McArthurs are devout Christians who believe that gay marriage is sinful, and they accepted they cancelled the order because of that belief. The Northern Ireland Court of Appeal has upheld the county court’s decision. It held that the benefit from the slogan could only accrue to gay or bisexual people, and that the McArthurs would not have objected to decorating a cake saying ‘Support Heterosexual Marriage’. The ‘reason why’ they cancelled the order was that the message related to gay marriage, and there was an exact correspondence between those of the particular sexual orientation and those whom the message supported the right to marry. Accordingly this was a case of ‘associative discrimination’ with the gay and bisexual community, and amounted to direct discrimination. The Court of Appeal went on to hold that the McArthurs’ own right to free speech (ie objecting to gay marriage) was not being infringed. Nobody could reasonably conclude that by icing a cake, they were expressing personal support for the slogan – just as icing witches on a Halloween cake does not indicate they support withcraft. The McArthurs were entitled to refuse to decorate cakes involving any religious or political message, but they were not allowed to refuse to decorate cakes which carried a particular religious or political message just because it conflicted with their own views.

 

In Ebrahimian v France, the European Court of Human Rights has held that a hospital worker whose contract was not renewed after she refused to remove a headscarf, worn for religious reasons, while at work, did not suffer a breach of her right to religious freedom under Article 9 of the European Convention on Human Rights. The ECtHR held that the principle of secularism and the neutrality of public services justified the interference with the worker’s right to manifest her religious beliefs.

E, a Muslim woman, was engaged under a fixed-term contract as a ‘social assistant’ in the psychiatric unit of a hospital in Nanterre, France. At her interview she had worn a headscarf, which covered her hair, neck and ears but left her face unobstructed. She continued to wear the headscarf while working, which involved acting as a liaison between patients, the hospital and social services. After just over a year of work, the hospital informed E that her contract would not be renewed since she had refused to remove the headscarf, in breach of hospital rules, which had given rise to complaints from patients.

E complained about the non-renewal to a tribunal. She was unsuccessful at first instance but an appeal court held that there had been irregularity in the procedure by which E had been informed of the non-renewal. The appeal court considered that the real reason for the non-renewal was not simply the breach of a dress code that applied to all public service workers but the fact that E’s wearing of the headscarf was a visible manifestation of her religious belief. The appeal court therefore quashed the hospital’s decision. The hospital then re-took the decision and confirmed the non-renewal of E’s contract, this time making it clear that the reason was her religiously-motivated insistence on wearing the headscarf at work. E brought new proceedings to challenge this ground of non-renewal. A tribunal rejected the complaint, finding that the non-renewal of E’s employment for wearing a garment that ‘ostentatiously’ manifested her religion was justified by the principle of secularism and the neutrality of public services. E twice appealed unsuccessfully and eventually lodged a complaint in the European Court of Human Rights. She argued that the non-renewal of her contract was a breach of her right to manifest her religion under Article 9 of the European Convention on Human Rights.

The ECtHR rejected E’s complaint by a majority of six to one. It accepted that E’s Article 9 rights were engaged and that there was a prima facie infringement. However, it considered that the infringement was justified under Article 9(2). The ECtHR was satisfied that it was ‘prescribed by law’, as Article 9(2) requires, since the French Constitution enshrines the principle of secularism, and case law from the Constitutional Court and the Conseil d’Etat (the highest court in matters of public and administrative law) has consistently held that the neutrality of public services is an important part of that principle. The ECtHR accepted that no national legislation or case law specifically prohibited hospital workers from wearing an Islamic headdress. However, it relied on a judgment of the Conseil d’Etat, decided six months before the non-renewal of E’s contract, which endorsed a similar restriction in relation to teachers. In the ECtHR’s view, this judgment should have made it clear that the same standard could be expected of all public service workers.

The ECtHR went on to hold that the infringement of E’s Article 9 rights had the legitimate aim of protecting the rights and freedoms of others, having regard to the principle of secularism and public service users’ rights to receive services free from discrimination. It also accepted that the application of the rule to E was ‘necessary in a democratic society’. While there was no suggestion that E had been proselytising or putting patients under pressure, it could reasonably be considered necessary to prevent a public hospital worker from manifesting her religious beliefs in the exercise of her functions, in the interests of ensuring the equal treatment of patients. As for whether this was a proportionate means of preserving secularism and neutrality, the ECtHR accepted that E had suffered serious consequences for manifesting her religious convictions. However, it was satisfied that, following the Conseil d’Etat’s decision in the teachers’ case, E knew that she was expected to conform to a neutral dress code while at work and that she had been asked to reconsider her decision. In these circumstances, the non-renewal of her contract for failure to comply was proportionate.

No, held the EAT in Metroline Travel v Stoute.

The Claimant argued that he was a disabled person because he had Type 2 diabetes and followed a diet which was designed to reduce blood sugar levels. The employment tribunal accepted a submission that this automatically made him a disabled person under the Equality Act, and it failed to consider the specific circumstances of the case. The EAT found that this was an error of law. More controversially, the EAT ruled that a diabetic diet does not qualify as measures taken to treat or correct the condition.

This was an academic appeal as the Claimant had already lost his substantive case on liability but the EAT allowed it to be heard because the Respondent had other employees with Type 2 diabetes who would be affected by the decision. The Claimant was ordered to repay the Respondent’s fees in full.

 

In Land Registry v Houghton and ors, the EAT has upheld a tribunal’s decision that a bonus scheme that excluded those who had received a formal warning in respect of sickness absence during the relevant financial year occasioned discrimination arising from disability under S.15 of the Equality Act 2010. The rule clearly gave rise to unfavourable treatment in consequence of disability, given that the exclusion was automatic even for disability-related absences, and it could not be objectively justified because, among other things, managers had no discretion under the scheme.

http://www.employmentappeals.gov.uk/Public/Upload/14_0149rjfhATBA.doc