Usefully Employed

The case of Riam Dean, an attractive 22 year old who claims that top fashion store Abercrombie & Fitch relegated her to the stock room due to her prosthetic arm, has received much news coverage. The Guardian reports that:

Dean claims that when she told A&F about her disability after getting the job, the firm agreed she could wear a white cardigan to cover the link between her prosthesis and her upper arm. But shortly afterwards, she was told she could not work on the shop floor unless she took off the cardigan as she was breaking the firm’s “look policy”. She told the tribunal that someone in the A&F head office suggested she stay in the stockroom “until the winter uniform arrives”.

Needless to say if her allegations are proved factually then putting a disabled person out of sight simply due to their disability constitutes clear disability discrimination - both direct discrimination, as she is excluded from some (and probably the best) aspects of her role because of her disability, and under the harassment provisions if a humiliating environment is created.

It’s important to note that A&F deny the allegations, and claim that Dean rejected their efforts to resolve the situation before she resigned. Nonetheless, enjoy as blogger Charon QC pokes some fun at the A&F vision of good looks as taken from their website. As is so often the case with fashion photos, no-one seems to be wearing any clothes. MSNBC reports from America that the brand is “losing its cool” in these straitened times.

This incident shows how uncomfortable some people can become when confronted with disability. You’ll remember the complaints the BBC received from a minority of TV viewers over CBBC presenter Cerrie Burnell, with some concerned that their children were distressed when they saw that she missed an arm, or that they felt unable to explain it to them. Disability only repulses or distresses the ignorant, and of course ignorance is within everyone’s power to overcome, and within everyone else’s duty to dispel in others.

Please take five minutes to watch the excellent piece below that Cerrie Burnell did for the One Show - watching her talk to children sensibly about her disability who are, of course, showing intense curiosity about it, acts as an example to us all.

The (relatively) new President of the EAT, Mr Justice Underhill, has usefully laid down guidance on harrassment provisions, in the case of Richmond Pharmacology v. Dhaliwal [2009] UKEAT. Until 2003 harassment didn’t exist as a discrete statutory claim, meaning that the courts had to adapt the normal provisions on detriments in employment to cover harassing behaviour. It simply wasn’t up to the job, as an actual detriment in the Claimant’s employment was not always easy to establish.

Following implementation of Directive 2000/43/EC harassment was defined as follows in (more or less) all areas of unlawful discrimination:

(1) A person subjects another to harassment … where, on [the unlawful grounds], he engages in unwanted conduct which has the purpose or effect of -

(a) violating that other person’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.

In Dhaliwal Underhill J helpfully breaks down this provision. He notes there is a three stage test:

1. Did the Respondent engage in unwanted conduct?
2. Did the conduct in question have either the purpose or the effect of (i) violating the Claimant’s dignity or (ii) creating an adverse environment for him or her?
3. Was that conduct on prohibited grounds? (eg sex, race, national origins, sexual orientation and so on)

It is made fairly clear that ET judgments must address these three points in their reasons.

There are four other important points made:

1. Authorities on harassment prior to the new statutory definition above are “unlikely to be helpful.” Furthermore, harassment under discrimination legislation and harassment under the Protection from Harassment Act 1997 are completely different beasts.
2. It’s either a purpose or an effect (or of course both!) that are necessary at stage 2. The practical effect of this is that a claim will be successful if the conduct had the consequence of violating the Claimant’s dignity or creating an adverse environment, even if the Respondent’s purposes were innocent. This could also work the other way round, if the Respondent for some reason intended that the conduct would have the effect, but in fact it did not. Underhill J points out that the latter claim will be rare, but it does mean that overt abuse (where the purpose is clearly meant to be abusive) can be the subject of a successful claim even where the Claimant is unaffected by the treatment.
3. Subsection 2 should not be forgotten - there is an objective test as to whether it was reasonable that the conduct had the effect complained of.
4. ‘Grounds’ - an examination into the ‘mental processes’ of the Respondent, so as to ascertain whether the treatment was on the grounds of the Claimants’ race, sex, etc, is not necessary where the abuse is overtly racist, sexist and so on.

I have been emailed the details for the following conference, which may be of interest to some. The topic of Equality, Diversity and Inclusion in times of crisis will be of particular pertinence given the Business Secretary’s recent announcement that new legislation which might create additional burdens for business will be reviewed.

EOI 2009 Conference, 15-17 July 2009, ISTANBUL, Turkey
“Equality, Diversity and Inclusion in Times of Crises”
www.eoi-conference.org
EOI 2009 Conference will take place at Bosphorus University (Istanbul), one of the foremost academic institutions in Turkey: http://www.boun.edu.tr/resimler/guney_kampus_1.html

Stream Call for Papers: Theorising Equality and Diversity in Crisis?
Track Chairs:
Hazel Conley, Queen Mary University of London: e-mail H.Conley@qmul.ac.uk
Sue Durbin, University of the West of England: e-mail Sue.Durbin@uwe.ac.uk

The subject of this stream has a dual purpose. Theorising equality and diversity has always been a controversial and contested project. The current global economic crisis, whilst adding to the complexity of the debates, makes pressing the case for equality and diversity even more vital. The mainstay of arguments for equality and diversity has been, for the last two decades, dominated by the business case that has all but evaporated along with the confidence of global business. The new global economic giants, such as China and India, have limited and questionable histories in relation to labour rights generally with rights for women and minorities particularly limited. At the same time the jaded developed economies are struggling with their commitment to the equality and diversity agenda, both economically and politically. The US faces a continuing ‘backlash’ against positive action and Europe continues to grapple with equality and migration legislation that appear to stand in direct contradiction with each other. Feminism is seen to be a thing of the past (or post!) and multiculturalism has been eclipsed by social inclusion. The only ray of hope in this bleak global landscape is the election of Barack Obama as the President of the US. However politicians of all persuasions will be lobbied hard to reduce the ‘burdens on business’. Past experience and early indications suggest that gains made in equality and diversity policy are likely to be the first casualty of recessionary measures, even though those that will suffer the most are the already vulnerable. The relationship between labour market segmentation and segregation means that disadvantaged groups are located in economically volatile sectors and insecure jobs. In addition, recession often results in protectionism at a number of different levels from the State to the workplace. Equality and Diversity are viewed as ‘risky’ issues at a time when risk is shunned.
The ensuing ideological battle between the new business logic and social justice will require a strong theoretical basis for equality and diversity and a clarity that has so far been lacking if policy makers are to be dissuaded from viewing them as luxuries we can no longer afford. This call for papers is therefore seeking to bring together academic ideas and research that will add to the debate. Both theoretical and empirical papers that inform theory are welcomed. Papers will be sought that address, but are not limited to, the following:
• Is the business case dead?
• What does corporate social responsibility mean for the equality and diversity agenda?
• Is equality and diversity reducible to economics and resources?
• Have the barriers to equality and diversity changed?
• Who is most at risk in the current economic slowdown?
• Has equality been achieved for some traditionally disadvantaged groups?
• Can legislative reform withstand the economic crisis?
• Are equality and/or diversity human rights?
• Is the equality agenda progressing for workers in the new leading economies?
• In what ways do informal practices affect equality and diversity?
• Whose jobs will the trade unions protect?
• Does the economic crisis mean that the light at the end of the equality and diversity tunnel has been switched off?

EOI Conference welcomes three forms of paper submissions to regular streams:

• Extended abstract: Customarily an extended abstract should be approximately 300 words including references. This is suitable for policy, intervention or research in its early stages of development.
• Developmental papers: These should be approximately 3000-5000 words, including references.
• Full papers: These are longer contributions less than 40 sides of A4 including references.

Abstracts and papers should be submitted electronically - the manuscript submission site will open in the first week of February, and will close on 15 May, 2009. Final session lists for each stream are due on 15 June 2009. All submissions to the EOI conference should be original pieces which are not published elsewhere in any other form.
Stream chairs may organise the sessions in different ways. However, in general, paper presentations at the conference will be a maximum of 20 minutes long, with 10 minutes for questions and discussion. Data projectors will be available in each conference room.
Important dates
Abstract or full paper submission: 15 May 2009
Response to authors: 15 June 2009
Full conference schedule will be available 1 July 2009

The main failing of the tribunal’s decision in Ladele was its failure in applying the reversal of the burden of proof, provided by the discrimination statutes and the leading case of Igen v Wong. In Ladele, the Claimant submitted that she had suffered a detriment, the tribunal found the first stage had taken effect to reverse the burden, but then treated the issue as purely one of fact as to whether the Respondent could disprove the Claimant’s factual case. It did not then go on to consider the correct hypothetical comparator and whether he would have been treated differently.

The recent successful appeal to the EAT of a case of race discrimination (alas, by a tribunal chaired by the same Employment Judge as Ladele), London Borough of Camden v Miah [2009] UKEAT, demonstrates the same problem. Per His Honour Judge Reid:

…the onus of proof does not shift simply on proof of a difference in status and a difference in treatment (save to the extent that there was evidence that no one else of any race had been required to undertake a test of the type administered by Dr Doctor). In this case there was no attempt to prove any difference of treatment. The material available was simply that the Claimant had suffered a number of unfavourable acts and that he was of Asian Bangladeshi origin. There was nothing to suggest any comparator of a different race would have been treated any differently. In our judgment the material before the Tribunal did not disclose any basis on which the Tribunal could properly have found that the onus of proof had passed. The Tribunal was entitled to find (as it did in its unappealed findings) that the Council’s dismissal of the claimant was substantively unfair, but that is very different from finding race discrimination in the events leading up to the dismissal.

Thank you to Alan Beazley of the Employers’ Forum on Age for telling me about this case. For discussion of Ladele v Islington see this link.