Equality Act: recent cases

1. Equality Act: recent cases Afshin Bemani Legal Officer & Solicitor Royal College of Nursing

2. Indirect religious discrimination Cherfi v G4 Security Service [2011]: • C not allowed time off Friday lunchtime to attend mosque, but could use prayer room. G4 argued contractually bound to have number of guards at client’s site, offered C alternative days but he declined working weekends. • Despite discriminatory effect, there was a legitimate aim of meeting G4’s operational needs. On balance their action was proportionate. • Although G4’s decision not based solely on costs, justification on costs only could have been proportionate. • [Practical tips: • Identify the policy/practice which has discriminatory effect • Member to be clear about discriminatory effect, the extent of disadvantage and why offers by employer not workable (need to be flexible in appropriate cases) • Ask employer to identify their legitimate aim and justify their action (must be objective, not based on manager’s belief). • Is employer’s action proportionate? Suggest less discriminatory alternatives]

3. Unknown racist conduct & fair dismissal Orr v Milton Keynes Council [2011]: • O acted in breach of instructions & rude to manager (M). However, M had made a racist comment, which was not disclosed at investigation & disciplinary hearing. O did not attend disciplinary and partially involved in appeal. He was dismissed. • Racist comment amounted to direct discrimination. Dismissal fair as needed to consider state of mind of employer at time of dismissal. It could not have reasonably been aware of racist remark • [Practical tips: • Encourage members to actively participate in all stages of disciplinary process • If there is a complaint of discrimination raise it before dismissal • Be mindful of 3 months time limit, discriminatory act could be separate from dismissal]

4. Disability – mental impairment J v DLA Piper [2010] • Job applicant had history of depression from a few years earlier. Job offer withdrawn due to “recruitment freeze”. • The first issue was whether she had a mental impairment and therefore regarded as disabled; • Not always essential to identify a specific impairment. Consider if can establish its existence from evidence of adverse effect on abilities • Distinction between clinical depression and a reaction to adverse circumstances, both produce symptoms of low mood and anxiety but only first one is a disability. They can be distinguished by long term effects • GP fully qualified to give evidence on depression and related disability (may have less weight than specialist) • [quality of medical evidence can be important (medical certificate simply stating “depression” or “stress” may not be sufficient)]

5. Sexual harassment Munchkins Restaurant v Karmazyn [2009] • K & colleagues were Eastern European waitresses, forced to wear short skirts and subjected to “talk of sexual nature” for up to 5 years before resignation. They had sometimes asked owner about his sex life, making him “easier to handle”. • Claims for sex discrimination & unfair dismissal successful: • Although resignation delayed for several years their circumstances (being migrant workers with no certainty of continued employment, their youth, under financial pressure) were relevant • Their evidence on tactic to cope with discriminatory conduct accepted • [Practical tips: • If incidents over long period, member to provide detailed chronology and reason for delay in making a grievance or resigning • Member’s circumstances (e.g. migration status, concern over job security) can be important]

6. Insufficiently relevant evidence HSBC v Gillespie [2010] • Claim for sex discrimination but relied on allegation of harassment taken place some years earlier. Claim listed for hearing lasting 40 days. • It was decided: • Tribunal has a discretion to exclude relevant evidence which is “unnecessarily repetitive” or “with only marginal relevance” • “notorious tendency” in discrimination claims to adduce evidence of incidents of alleged ill-treatment often extending over long periods. This risks the essential issues being obscured in a morass of detail, very long hearings and enormous burden on tribunals. • However, each case to be assessed on its own particular facts • [Practical tips: • Member’s grievance to be focused. Does every incident of unfair treatment over several months part of a discriminatory pattern or isolated and distinct? ]

7. Reason for treatment City of Edinburgh Council v Dickinson [2010] • D was diabetic, dismissed for viewing pornographic images. He claimed condition was poorly controlled due to mis-prescription of wrong dose of insulin. Employer made no real attempt to investigate • Dismissal unfair for failing to investigate effect of hypoglycaemia, but no disability discrimination as no reason to suppose management at the time of dismissal was influenced by D’s diabetes. • Practical tips: • Is member likely to be disabled? (check occ health/medical report) • If in doubt invite the employer to consider it. If employer disagrees to give reason & seek guidance from occ health • What medical/other evidence necessary (e.g. GP/own consultant)? Consider: consent to release medical records and/or postponement/adjournment of hearing

8. Age discrimination Chief Constable of West Yorkshire Police v Homer • H had over 30 years service, was required to have a law degree. Was offered fees paid but he refused as by time of qualification would have been 65. Degree was a condition for salary increments • No age discrimination as financial disadvantage resulted from being unable to complete a degree before retirement was inevitable consequence of age, not consequence of discrimination. • However, if on evidence tribunal could see an arguable discrimination claim it would have been entitled to find the condition was not justified.

9. Reasonable adjustments Chief Constable of South Yorkshire v Jelic [2010] • M suffering from a “chronic anxiety syndrome”, performed non-confrontational role. Was medically retired. M argued his role could have been swapped with a non-disabled officer doing a desk job. • Legislation provided non-exhaustive examples of reasonable adjustments. It could include requirement to consider swapping roles between employees. • Practical tips: • Duty to make reasonable adjustments not absolute, other factors can include practicality and rights of others (including non-disabled staff) • Consider possible adjustment (including advice from experts, access to work) • Consider relevant policies (equal opportunities, attendance, redeployment, etc.) Have the relevant provisions been followed?