Discrimination

In Chief Constable of Norfolk v Coffey the EAT has upheld the decision of an employment tribunal that a police officer, who was turned down for a transfer to the Norfolk Constabulary because her hearing loss was marginally below the medical standard for police recruitment, had suffered direct discrimination because of a perceived disability. The Constabulary’s reason for refusing the transfer was the concern that the claimant would end up on restricted duties. This indicated that it perceived her to have a progressive condition which, by virtue of paragraph 8 of Schedule 1 to the Equality Act 2010, met the statutory definition of disability.

In 2011 C applied to the Wiltshire Constabulary to become a police constable. She attended a medical, at which it was discovered that she suffers from bilateral mild sensori-neural hearing loss with tinnitus. Although C’s hearing loss was marginally outside the range set down by the Home Office for police recruitment, the Wiltshire Constabulary arranged a practical functionality test which C duly passed before going on to work on front-line duties. In 2013 C applied to transfer to the Norfolk Constabulary. C attended a pre-employment health assessment, where the medical adviser noted that her hearing was ‘just outside the standards for recruitment strictly speaking’ but that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. He recommended that C undergo an ‘at work’ test, but this recommendation was not carried through by the Assistant Chief Inspector (ACI) who dealt with the application. Instead, the ACI declined C’s request to transfer on the basis that her hearing was below the acceptable and recognised standard, and that it would not be appropriate to step outside that standard given the risk of increasing the pool of officers on restricted duties.

C brought an employment tribunal claim for direct discrimination. It was not alleged that she actually had a disability; her case was that her hearing loss did not have, and was not likely to have, a substantial adverse effect on her ability to carry out day-to-day activities, including working activities. Instead, it was argued that she had been treated less favourably because she was perceived to have a disability, in the form of a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day-to-day activities. The tribunal considered that the only way to read the ACI’s comments about the risk of C ending up on restricted duties was that she perceived that C had a potential or actual disability which could lead to the Constabulary having to make adjustments to C’s role as a front-line police officer. Since this perception was the reason for refusing C’s transfer, the tribunal upheld the discrimination claim.

On appeal to the EAT, it was argued that the tribunal had erred both in respect of its finding that the ACI perceived C to be disabled and its finding that C had been treated less favourably because of that perception. On the former point, the EAT stressed that the question of whether a putative discriminator A perceives B to be disabled will not depend on whether A perceives B to be disabled as a matter of law. It will depend on whether A perceives B to have an impairment with the features which are set out in the legislation. Paragraph 8 of Schedule 1 to the EqA makes special provision in respect of progressive conditions. Where a person has a progressive condition that results in an impairment having an effect on his or her ability to carry out day-to-day activities, but the effect is not a substantial adverse effect, it will still be treated as such if it is likely that the condition will result in a substantial adverse effect in future. Although the ACI protested that she did not consider C disabled with the meaning of the EqA, her knowledge of the law was incomplete and did not include Paragraph 8 of Schedule 1. The reference to the risk of C being on restricted duties could only be read as the ACI perceiving that C had a progressive condition which could worsen. Thus, the tribunal had been entitled to find that she perceived her to be disabled.

Turning to whether the tribunal had been correct to find that there had been direct discrimination, the EAT accepted that a genuine difference in abilities will be a material difference between claimant and comparator. However, it saw no warrant for an employer’s flawed belief in a lack of ability to be a material difference. The tribunal was entitled to conclude that a person with the same abilities as C, whose condition the employer did not perceive to be likely to deteriorate so that he or she would require restricted duties, would not have been treated as C was. C had performed an active policing role in Wiltshire; she had been accepted at the interview stage; her rejection followed when the ACI ignored advice to rely on a practical assessment of C because, as the tribunal put it, she believed the C would become a liability to the force. The tribunal did not err in law in concluding that she had been subjected to direct discrimination.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0260_16_1912.html

In Ayodele v Citylink Ltd and anor, the Court of Appeal has held that the burden of showing a prima facie case of discrimination under S.136 of the Equality Act 2010 remains on the claimant. This provision made no substantive change to the law when it came into force in October 2010 and Mrs Justice Elisabeth Laing was wrong to hold otherwise in the EAT in Efobi v Royal Mail Group Ltd.

A, a black man originally from Nigeria, brought a number of claims against his former employer, C Ltd, following the termination of his employment, including claims of race discrimination. The tribunal dismissed his discrimination claims on the basis that A had not established prima facie evidence of less favourable treatment and therefore the burden of proof had not shifted to the respondent. A’s appeal to the EAT was dismissed. Before the Court of Appeal, A raised a new ground of appeal. He submitted that there was a fundamental error in the approach taken by the employment tribunal as to the proper application of the burden of proof under S.136 EqA. He relied on Elisabeth Laing J’s decision in the EAT in Efobi v Royal Mail Group Ltd (Brief 1078), to the effect that the wording of S.136 EqA does not impose a burden of proof on a claimant at all. Instead, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are ‘facts’ from which it can conclude that discrimination occurred and, if so, it must so find unless the respondent can discharge the burden on it. A pointed to the fact that in his case the tribunal had directed itself that there was a burden of proof on him at the first stage of the enquiry and therefore it fell into error.

The Court of Appeal dismissed the appeal. It noted that the wording of S.136 EqA is different from the wording of the equivalent predecessor provisions, in that there is no longer any express reference to the claimant being required to prove facts. It rejected A’s suggestion that there was an analogy to be drawn with the assessment of fairness of a dismissal in an unfair dismissal case, where there is no burden on either party. In that context, the tribunal is required to make an assessment in which it is not apt to refer to the burden being on either party. However, in a discrimination case, before a tribunal can start making an assessment, the claimant has got to start the case, otherwise there is nothing for the respondent to address and nothing for the tribunal to assess.

The Court of Appeal could see no reason why a respondent should have to discharge the burden of proof unless and until the claimant has shown a prima facie case of discrimination that needs to be answered. Accordingly, it held that there is nothing unfair about requiring a claimant to bear the burden of proof at the first stage.

The Court also observed there was no reason to suppose that Parliament enacted S.136 to remove the burden of proof from a claimant. Furthermore, the EU Burden of Proof Directive (No.97/80), which S.136 gives effect in domestic law, does not require there to be no burden on a claimant at the first stage, and the legal community has proceeded for the last seven years on the assumption that no change of substance was made by S.136. The change in wording from the predecessor provisions simply made clear that what should be considered at the first stage is all the evidence, and not only the evidence adduced by the claimant: it should be regarded as no more than legislative ‘tidying up’. The Court concluded that previous decisions of the Court of Appeal, such as Igen Ltd and ors v Wong and other cases (Brief 777), as approved by the Supreme Court in Hewage v Grampian Health Board (Brief 958), remain good law and should continue to be followed by the courts and tribunals. It therefore held that the interpretation of S.136 by Elisabeth Laing J in the EAT in Efobi was wrong and should not be followed.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1913.html

If another person influences a decision-maker in a discriminatory way, can that person be considered a joint decision-maker?

Yes, held the EAT in Metropolitan Police v Denby. Link to Judgement

The Claimant was a male police officer. The Deputy Assistant Commissioner had concerns about a lack of gender diversity in a group led by the Claimant. She responded in a heavy-handed manner to complaints about members of that group claiming for overtime not worked but, when similar complaints were made about a group led by a female officer, she allowed them to be investigated locally.

The employment tribunal found that the Deputy Assistant Commissioner had influenced the decision by another officer to subject the Claimant to a criminal investigation.

The EAT agreed that this was a finding which it was entitled to make, and that the other officer was not “innocent”, in the sense defined in CLFIS v Reynolds, because he was fully aware of the discriminatory context. Although this context had not been put to him in cross-examination, it was sufficient that he had been questioned about the influence on him.

The employment tribunal allowed an amendment on the sixth day of the hearing, where another potential discriminator was added, in the alternative to the one originally pleaded, after the identity of the decision-maker had been thrown into doubt by witness evidence. The EAT stated that the CLFIS principle should not be allowed to become a means of escaping liability by deliberately opaque decision-making. Where it is difficult, for good reason, to identify the individual responsible, an amendment is sometimes permissible during the course of a hearing, and this did not cause any procedural unfairness on the facts of this case.

 

In Ypourgos Esoterikon and anor v Kalliri, the European Court of Justice has held that imposing a minimum height requirement of 1.7m for enrolment in Greek police schools constituted indirect sex discrimination that was not objectively justified. Far more women than men were disadvantaged by the minimum height requirement, and while the requirement sought to pursue the legitimate aim of enabling the effective accomplishment of the various functions of the police force, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of particular physical aptitude. Furthermore, it is not necessarily the case that a person’s height corresponds to his or her physical aptitude to carry out certain functions. The aim that the requirement sought to pursue could be achieved by measures that were less disadvantageous to women – for example, by carrying out pre-selection aptitude tests.

In Greece, a national law required candidates who wished to enter police school to train as officers to be a minimum height. The law required any candidate (male or female) to be at least 1.7m tall, without shoes. When K’s application to join the police school was rejected on the basis that she did not meet the minimum height requirement (since she was only 1.68m tall), she presented a complaint before the Greek Court of Appeal which held that the requirement was contrary to the constitutional principle of equality of the sexes. The Greek Interior Minister and the Minister for Education and Religious Affairs appealed against that decision. The Council of State decided to stay the proceedings to ask the ECJ whether the minimum height requirement was compatible with the EU Equal Treatment Directive (No.76/207), which prohibits, among other things, unjustified indirect sex discrimination.

The ECJ noted that the referring court itself had found that a much larger number of women than men are of a height of less than 1.7m, such that, by the application of that law, women were very clearly at a disadvantage compared with men in relation to the admission requirements to the Greek police school. It therefore followed that the law was indirectly discriminatory. As to the question of whether the requirement could be objectively justified as a proportionate means of achieving a legitimate aim, the Greek Government had submitted that the aim of the law was to enable the effective accomplishment of the task of the Greek police, and that possession of certain particular physical attributes, such as being of a minimum height, was a necessary and appropriate means of achieving that aim. The ECJ noted that previous case law had established that ensuring the operational capacity and proper functioning of the police service constituted a legitimate aim. However, the ECJ held that, while it was true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conducting of crime prevention patrols might require the use of physical force that would require a particular physical aptitude, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of significant physical force. Furthermore, even if all the functions carried out by the Greek police required a particular physical aptitude, such aptitude was not necessarily connected with being over a certain height. Equally, it was not necessarily the case that shorter people naturally lacked that aptitude. It was also worth noting that, until 2003, Greek law required different minimum heights for men and for women to enter the police: for women the minimum height was fixed at 1.65m, compared with 1.7m for men. It was also relevant that there remained different minimum height requirements for men and women to enter the Greek armed forces, port police and coast guard, where the minimum requirement for women was only 1.6m.
The ECJ concluded that the pursued aim could be achieved by measures that were less disadvantageous to women, such as a pre-selection of candidates based on specific tests allowing their physical ability to be assessed. It followed that, subject to the national court’s assessment of objective justification, the minimum height requirement breached the Equal Treatment Directive.

Link to case

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

Does the banning of a headscarf at work constitute direct religious discrimination?

No, held the CJEU in Achbita v G4S Secure Solutions (the full judgment is not available yet, only the press summary).

G4S in Belgium operated a policy of ‘neutrality’, banning all wearing of political, religious or similar signs. A Muslim employee announced she wanted to start wearing a headscarf; she was told she could not, and she was then dismissed.

The CJEU held that G4S’s policy did not amount to direct discrimination on grounds of religion because it prohibited all religious signs, so it was not treating one religion less favourably than another.

It also held that G4S’s rule introduced a difference in treatment which was indirectly based on religion, as Muslims are placed at a particular disadvantage. It held that an employer’s desire to project an image of neutrality was a legitimate aim provided it applied only to customer-facing employees, and – more interestingly – left open the question of whether it would have been possible to redeploy Ms Achbite into a non- customer facing role (rather than dismiss her).

In an accompanying case, Bougnaoui and anor -v- Micropole SA the CJEU held that if a customer asks for a Muslim employee not to wear a headscarf, that is not a ‘genuine and determining occupational requirement’.

Can a Claimant successfully claim harassment by simply asserting s/he has a disability without establishing s/he is disabled under the Equality Act 2010?

No, held the EAT in Peninsula Business Services v Baker.

The Claimant was employed as a tribunal representative by Peninsula. In January 2014, he told his advocacy manager he had dyslexia. A psychologist’s report confirmed this and an occupational health report in August 2014 suggested he may be disabled.

Peninsula’s director of legal services grew concerned the Claimant was not devoting his time to his work and instructed external consultants to conduct covert surveillance.

The Claimant complained that being subjected surveillance constituted harassment on grounds of disability. The employment tribunal found for the Claimant but, acknowledging it was not asked to determine disability, found “on the basis that the Claimant may well have been disabled” that the trigger for the decision to engage in surveillance was an assertion of disability.

Overturning the decision, the EAT held that discrimination protection is not available to those who merely assert a disability. The protection applies only to those who have a disability, to those associated with a disabled person, or to those who are wrongly perceived to be disabled.

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.