The new Equality Bill will, in addition to consolidating the diverse statutes that currently cover the area, introduce:
- A prohibition on age discrimination in providing goods and services;
- A statutory basis for positive discrimination on (apparently) gender and race;
- Staged compulsory disclosure of gender pay gaps, perhaps with forced audits.
The first of these is of limited employment law relevance, although much in the same way that disability discrimination extends to goods and services provided to workers, potentially there is some scope for claims. Some workplaces may have to examine the services they provide to see if some discriminate against older or younger workers.
The other two areas are fairly major - and it’s difficult to properly comment until the draft bill is published. Positive discrimination is rightly a touchy subject. Many in the UK feel as though it already goes on, this chap is an extreme, but spend too long in a pub, or trawl any site which has user-generated comment, and you’ll soon be thrown the opinion by someone that white males are somehow being marginalised and those from minorities have ‘an easier ride’. I don’t agree with that view, you understand, but government must realise that it’s gradually turning from an extreme point of view to a mainstream one. This is very dangerous, and must be addressed.
Harriet Harman talks about the proposals on the Today programme, here.
Nearlylegal links to (of course) a housing case, Mayor and Burgesses of the London Borough of Lewisham v Malcolm, UKHL, but there is some interesting comment on choice of comparator in discrimination. This is relevant to employment discrimination claims, as well as claims on goods and services which can also be brought against employers. Like NL, I would refer you to para 35. Read it in isolation before you read any of the rest of the case. There’s something rather wonderful about a law lord feeling he has to state that a dog is not a beneficary of the Disability Discrimination Act.
I subscribe to the feed at http://wordpress.com/tag/employment/, which I’d only recommend if you’re adept at speed-reading: the amount of content with that tag is too high, and 95% of posts are of little or no interest to the British employment law enthusiast.
It does however turn up the odd gem - such as a particularly irate blogger who tries to make a case that pay inequality between the sexes needs to be measured in light of better social benefits for women. There’s the odd cogent argument, such as a mother who has 51% of staying contact per year receiving 100% of child benefit, but when he spends over 500 words arguing that men should pay a lesser proportion of the TV licence because the programming on TV is so targeted towards women, and that speed cameras unfairly target men because it is they who like to speed, the whole thing collapses into hysterical idiocy. Read it here, and be prepared to raise your eyebrows and be glad you’re not sat in the pub with bubblyian right now.
Reading his other articles, I do wonder at whatever very sad personal story left this man feeling this way. On a quite genuine note, the family justice system (as well as sex discrimination in employment) is under attack from those who feel unjustly treated, and professionals in the system need to look at what they can do to ensure that justice is achieved, and that those who don’t or can’t get the results they want understand the rational reasons why not.
Meanwhile, those who didn’t realise the internet was populated by this sort of comment should go immediately to the spEak You’re bRanes site, for enlightenment on how the non-logical half think.
An odd situation arises from the finding in Oyarce v Cheshire County Council [2008] EWCA Civ 434. In most discrimination cases, all the Claimant need do to prove facts that would, in the absence of an adequate explanation, support his claim. The burden of proof then moves to the Respondent to disprove those facts or successfully contend that they do not constitute discrimination. This is often referred to as the Claimant creating an ‘inference’, but that word does not appear in the legislation. The Race Relations Act is older than I am, but the reversal of burden of proof was added in 2000 to comply with an EU Directive that required it.
In this case, Oyarce won at first instance because she crossed the first hurdle and created the inference, and the Respondent were unable to meet their evidential hurdle of disproving her case. Her claim however was for victimisation which, perhaps inadvertently, is not subject to the reversal of the burden of proof. This is upheld, which means that a tandem system of proof will run in cases where (as there often is) both claims of victimisation and ‘regular’ discrimination.
This is a temporary situation which applies until the discrimination statutes are consolidated into a Single Equality Act.
Croke v Leeds City Council [2008] UKEAT 0512_07_2905 is a good example of a Tribunal’s decision to strike out (without hearing evidence) a discrimination case which had no reasonable prospect of success being upheld. A strike out is a draconian step for any tribunal to take, as it effectively prevents the Claimant having a full hearing of his complaint. Here the Employment Judge was clear that the facts as pleaded by the Claimant would not engage the laws which he claims to enforce. As a result he didn’t even hear formal evidence from the Claimant, although he did engage in a “long discussion” with him to see if he could unearth even a hint of a possible claim. It’s good to see the EAT upholding both the pragmatic conduct of the hearing, and the decision itself, as in a costs free environment such as the ET meritless claims are still a huge burden on the Respondent.
An interesting study bears out what I’ve noticed myself - the suit is in decline in the British workplace. This study, by the Aziz Corporation, surveyed employers for their attitudes towards office dress. Less than one in four offices now require men to wear suits, most opting for a ’smart casual’ approach with suits reserved for business meetings (I’d guess with clients or other organisations).
This was the rule in my last employment, and my experience matches the results of the survey - when allowed to dress down, most employees still wish to appear smart and professional. 90% of employees do not believe that wearing a suit necessarily makes you look smart.
Dress codes are symbols of their times, the wigs and gowns worn in court were first donned at a time when they were simply fashionable and smart attire. The demise of the suit can perhaps (and this is only a theory) be linked to the rise of women in professional workplaces. Smart clothing is not so prescriptive for women as it is for men, and once the link between the clothing and the service is broken then the human desire for self-expression comes to the fore.
As a barrister it’s likely I’ll be required to wear a suit to work for many years to come, but at least this means I needn’t get too concerned about fashion when I get up in the morning.
The National Staff Dismissal Register will be a searchable database of employees who have been dismissed for ‘dishonesty’ or have resigned while dismissal proceedings are ongoing - see the article on Personnel Today. I’m amazed this hasn’t generated more headlines. It’s been developed in consultation with the Information Commissioner’s Office, so one assumes the data protection angle will be looked after, and I’d guess there will be a dispute resolution service to remove disputed details. I’ve not seen complete details of the scheme, but some immediate issues that spring to mind:
- If use of the database is widespread, finding another job after dismissal will be near impossible; this could seriously affect an unfairly dismissed employee’s chance of mitigating his loss pending the unfair dismissal finding (at which one assumes the dismissal will be removed from the system). This will mean higher compensatory awards, and potentially arguments over damage to reputation and so on.
- What if I’m being investigated for an allegation that constitutes dishonesty, but I resign for other reasons? What if I’ve been constructively dismissed? What if the allegations of dishonesty were victimisation following a discrimination claim? The disputes reaching the database operators could well trespass into findings best left for a tribunal - and if the procedures don’t exist then serious injustice could result.
- Will there be any compulsion for those employers signed up to the system to report their employees? A lot of investigations and disciplinary procedures end with a resignation, a cessation of the procedure, and the employer simply refusing to respond to subsequent reference requests. An employee in that situation still has reasonable chances of employment, but if his former employer is obliged to put him on the database then his chances are shot.
I can well understand why there are concerns. A TUC representative stated to the BBC:
“The TUC is seriously concerned that this register can only lead to people being shut out from the job market by an employer who falsely accuses them of misconduct or sacks them because they bear them a grudge. Individuals would be treated as criminals, even though the police have never been contacted.
“The Criminal Records Bureau was set up to assist employers to make safe appointments when recruiting staff to work with vulnerable groups. The CRB already provides appropriate and properly regulated protection for employers. Under the new register, an employee may not be aware they have been blacklisted or have any right to appeal.”
…and at the moment those very genuine concerns aren’t answered.
My earlier assurances that my blogging wouldn’t be interrupted by work have been shown to be completely hollow - over two weeks have passed since my last post.
And it’s not even as if there’s been nothing to report. Favourite case recently must be Kuzel v Roche Products Ltd which talks of the burden of proof in Unfair Dismissal cases. Generally in law the person advancing a case, eg you saying that your neighbour cut down your hedge, the state saying you murdered him in retaliation, has the burden of proving the allegation. Not so in unfair dismissal. S.98(1) ERA 1996 moves the burden on to the employer. So if I say “you sacked me for an absolutely bloody stupid reason” then my employer doesn’t have to disprove my version of events to oppose the claim, they have to come up with their own valid reason for my dismissal and prove that. The reasons I advanced don’t really come into it.
In this case however the employee had advanced whistleblowing (protected disclosure) as the reason for her dismissal. It’s obvious why she would make sure she did this if she thought she might have a shout - whistleblowing claims aren’t subject to the financial limits of normal unfair dismissal and include an award for injury to feelings. The employer ran some taking-the-piss SOSR defence about the relationship having broken down. The tribunal stuck two fingers up at everyone by finding that dismissal was for a third reason, against the pleadings of both parties. The consequence for the simple unfair dismissal claim is obvious - it succeeds as the potentially fair reason advanced by the employer was not found to be proved. The odd consequence is for the whistleblowing claim - where does the burden of proof lie? Traditionally it should be at the employee’s door, it’s her case and her allegations. The statute is largely silent on the issue, the reversal of the burden of proof only seeming to explicitly apply to the reason actually advanced by the employer to be the reason for the dismissal. Well for once we’ve some useful guidance, produced by the EAT and approved by the Court of Appeal:
- Has the employee shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?
- If so, has the employer proved his reason for dismissal? Failure to do so will render the dismissal unfair, and then coupled with a primia facie case from the employer will entitle the tribuanl to infer that the employee’s stated reasons are correct.
- Has the employer disproved the reasons advanced by the employee? Even if the employer has failed to prove it’s own reason for the dismissal it may still have disproved that of the employee.
- If not, dismissal is for the reasons stated by the employee. It is not however, at any stagae, for the employee to prove her reason.
I’ve mucked around with the above to apply generally.
The Court of Appeal seem to have taken the line that this case is one for minority interest, stating that it shows how worked up lawyers can get about something like the burden of proof. I agree, but not with their observation that this sort of case will be rare. Protected disclosures are often presented in conjunction with a general claim for unfair dismissal, and its similarity to a discrimination claim may well mean that the facts coincide with the parties having fallen out generally. The unfair dismissal might well then often succeed without the whistleblowing. The same can be said about maternity-related dismissals.
Head of Legal gives some interesting commentary on an ECJ case which states that adverse treatment of a woman undergoing IVF treatment constitutes discrimination contrary to the Equal Treatment Directive - Mayr v Flöckner.
I won’t repeat what HoL says, either about the facts or the rationale of the decision, as I think he hits the nail on the head. IVF has been differentiated from simple pregnancy-related sickness, and this must be right. IVF can nowadays be seen as an integral part of the process itself for many women - curtail an employee’s opportunity to have it and you curtail her opportunities to become pregnant at all.
Mr English went to a boarding school and lived in Brighton. This, perhaps with the odd camp mannerism, was enough to draw tired and predictable jokes from his workmates. His claim of harassment under the Employment Equality (Sexual Orientation) Regulations 2003 has failed, causing considerable embarrassment to both of us, as I wrongly suggested in a previous post that this sort of treatment was unlawful.
In this case Mr English wasn’t gay, no-one thought he was gay, and he knew they didn’t think he was really gay. This wasn’t enough to stop them shouting “bums to the wall” every time he walked past.* The regulations ban conduct on the “ground” of sexual orientation - this is what causes the difficulties. If you’re trying to show that I’m discriminating then you’ll have to show that my treatment was on the “ground” of sexual orientation. This means that my motivation to treat you in that way must have been sexual orientation (or my perception of it). This simply cannot be said of Mr English’s abusers, their slurs were baseless and they knew it. If they’d thought he was gay then the necessary motivation would have been there and the claim would have succeeded. Similarly, if his son, dad, dog or whatever else had been gay the claim would have succeeded too.
My one consolation is that the EAT grumble about the situation almost all the way through the judgment, and state their opinion that the regulations don’t properly implement the Equal Treatment Directive. They’ve packed the case off to the Court of Appeal, which in these circumstances is the same as you referring a troublesome customer to your manager so that the smackdown will have some authority behind it.
*I made up this detail of the case, although as a child it was a common enough cry at my school, directed at heterosexual yet gawkish pupils by bullying closeted ones. I’m not sure which category I fitted into.