GENDER DISCRIMINATION IER EQUALITY AND DISCRIMINATION CONFERENCE 7 TH OCTOBER 2014

1. GENDER DISCRIMINATION IER EQUALITY AND DISCRIMINATION CONFERENCE 7TH OCTOBER 2014 Laura Prince, Matrix

2. Gender Discrimination • Direct discrimination (s.13 EqA); • Indirect discrimination (s.19 EqA); • Harassment (s.26 EqA); • Victimisation (s.27 EqA); • Equal Pay (s.64-80 EqA).

3. Gender Discrimination and equal pay • First prohibited in employment by Sex Discrimination Act 1975; but • Still significant issues in workplaces across the UK; • A 2014 report by “Business Environment” found that ¼ of women surveyed had been subject to some form of discrimination in the workplace; • UK has the 6th highest gender pay gap in the EU.

4. Direct discrimination “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others” (s.13(1) EqA).

5. Comparators • To establish less favourable treatment C must refer to an actual or hypothetical comparator who has been treated more favourably than themselves; • There must be no material difference between the circumstances relating to each case (s.23 EqA).

6. Actual comparators; Nelson v Newry and Mourne DC (2009)

7. Hypothetical comparators • Shamoon v Royal Ulster Constabulary; • West Sussex County Council v Austin:- • Male manager accused of harassment by junior female colleague; • There had been previous complaints of harassment against the manager but none had been proven; • The manager brought sex discrimination claim; • The hypothetical comparator relied upon at the ET was a female manager who was accused of harassment by a junior male employee; • The EAT held this had been wrong, the appropriate hypothetical comparator was a female manager with a background similar to that of the Claimant, including previous allegations of sexual harassment”.

8. Tainted information cases • CLIFIS v Reynolds (2015) • The “composite approach” was unacceptable; • The focus must be on the mind of the decision maker not on the person who drafted the report; • Unless the decision was a joint decision.

9. Indirect discrimination, s.19 EqA • “(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s • For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- • A applies, or would apply it to persons with whom B does not share the characteristic; • It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; • It puts, or would put B at that disadvantage, and • A cannot show it to be a proportionate means of achieving a legitimate aim.

10. Indirect discrimination by association? CHEZ Razpredelenie Bulgaria AD (2015)

11. CJEU’s decision “the concept of ‘discrimination on the grounds of ethnic origin’…. Must be interpreted as being intended to apply in circumstances such as those at issue before the referring court – in which in an urban district mainly lived in by inhabitants of Roma origin, all electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less that two meters in other districts – irrespective of whether that collective measure affects persons who have a certain ethnic origin or those, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure”

12. Impact of CJEU’s decision • Potentially very significant; • If indirect discrimination by association is covered (as CHEZ suggests) the UK’s law is currently inconsistent with EU law; • UK Courts have an obligation to give effect to EU law which may mean dis-applying UK legislation.

13. Harassment (s.26 EqA) “A person (A) harasses another (B) if- • (a) A engages in unwanted conduct related to a relevant protected characteristic, and • (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B”

14. Timothy James Consulting v Wilton (2014)

15. Related to a protected characteristic “In my view, it is important in this context to give effect to the words that Parliament has used and not to substitute alternative words for them. It is also important that the statutory language should not become encrusted with a judicial gloss. The words used by Parliament are that the conduct must be “related to” the relevant protected characteristic. The Tribunal’s task was to apply those words to the facts of the particular case before it and that, in my view, is precisely what it did” Timothy James Consulting v Wilton (at paragraph 43)

16. Can trivial acts amount to harassment? • Land Registry v Grant:- “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment” • Richmond Pharmacology v Dhaliwal; • Henderson v GMB (2014); • BetsiCadwaladr University HB v Hughes (2013).

17. Constructive dismissal “The Tribunal must act in accordance with law. In my judgment, the Respondent is correct to submit that the act of constructive dismissal does not in itself fall within the meaning of harassment as defined by the Equality Act. It was therefore not open to the Tribunal as a matter of law to find that the constructive dismissal in this case was in itself an unlawful act of harassment”. Timothy James Consulting v Wilton at paragraph 58.

18. 1955, London

19. 2014, London

20. Why has pay equality not been achieved? • Deep seated problems related to discrimination, job segregation, and the impact of child caring responsibilities; • The law is weak and overly complex; relying on individual employees to bring claims in tribunals to address what is widespread and systemic underpayment; • A lack of transparency around pay.

21. The Equality Act, Equal Pay: Key Provisions Part 5, Chapter 3 (sections 64-80- mostly replicate existing system) • S. 65 – Equal work (“like work”, “work rated as equivalent” and “work of equal value”) • S. 66 – sex equality clause • S. 69 – material factor defence • S. 70 – exclusion of sex discrimination provisions • S. 71 – hypothetical comparators • S.73 – maternity equality clause • S.77 – pay secrecy clauses • S.78 – gender pay gap information • S.79 – comparators • S.129 – time limits

22. Gender pay gap reporting • “Regulations may require employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees” (s.78 EqA).

23. Government action so far • Initially Government favoured a voluntary reporting initiative; • 250 companies signed up to the voluntary reporting initiative; • Only five companies have actually published gender pay gap information under this initiative.

24. What’s next • Regulations will be in force by spring 2016; • Consultation on content of the regulations was concluded in early September 2015; • Likely content of regulations still unclear in a number of respects; • Watch this space!

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