University of Chester Forum for Research into Equality and Diversity

1. University of ChesterForum for Research into Equality and Diversity Legal Update April 2016 The domestic scene Muriel Robison

2. Outline • Associative discrimination • Indirect discrimination • Focus on disability • Focus on age • Focus on race • Compensation • Parental rights • Equality Act – in and out

3. Associative discrimination: background • Equality Act 2010 section 13 • Direct discrimination • Less favourable treatment because of a protected characteristic • Compare “old” law • Less favourable treatment on the ground of her sex, on the ground of the disabled person’s disability

4. Associative discrimination: recent cases • Companies can claim discrimination by association • EAD Solicitors v Abrams 2015 IRLR 978 EAT • Associative victimisation? • Thomson v London Bus Company 2016 IRLR 9 EAT • But not for reasonable adjustments • Hainsworth v MOD 2014 IRLR 728 • See SC note on permission to appeal

5. Indirect discrimination – s19 • (a) a PCP that applies to all; but • (b) “puts, or would put, persons with whom [the claimant] shares the characteristic at a particular disadvantage when compared with persons with whom [he] does not share it”; • (c) “puts, or would put, [the claimant] at that disadvantage”; and • (d) the employer “cannot show it to be a proportionate means of achieving a legitimate aim” • Compare the “old” law, eg PCP to the detriment of a considerably larger proportion of women than men • focus was on statistics but no longer essential

6. Indirect – recent cases • Claimants require to show why their group suffers the particular disadvantage? • Home Office v Essop 2015 IRLR 724 CA • Respondents defence if show reason why? • Naeem v S of S for Justice 2016 IRLR 118 CA • Permission to appeal to Supreme Court • cases to be heard together

7. Discrimination arising from disability: issues • Unfavourabletreatment • because of something arising in consequence of disability • Unless employer did not know or could not reasonably be expected to know the claimant was disabled; • Or where the employer shows there was a legitimate aim for the treatment • And the means were proportionate to the achievement of that aimsection 15

8. DAFD – recent cases • Treatment is not unfavourable simply because it could be more favourable • Swansea University v Williams 2016 IRLR 885 EAT • Guidance on approach to s15 cases • Pnaiser v NHS England 2016 IRLR 170 EAT • How close does the connection between the unfavourable treatment and the something arising from disability?

9. Duty to make reasonable adjustments • A policy, rule or practice (PCP) or physical feature or failure to provide an auxiliary aid • Puts a disabled person at a substantial disadvantage (more than minor or trivial) • In comparison to those who are not disabled • Where employer knows employee is disabled and will be disadvantaged • Employer to take reasonable steps which will avoid the disadvantage section 20 and 21

10. Comparative disadvantage • No requirement to identify a comparator/comparator group • rather to establish whether it is because of disability that a particular PCP disadvantages the claimant • EHRC CoP: consider situation if claimant did not have the disability • See now Griffiths v DWP 2016 IRLR 216 CA • Interplay with DAFD?

11. Age discrimination – cases with wider implications • Direct or indirect? • Chief Constable of West Midlands Police v Harrod 2015 IRLR 790 EAT • Comparisons – no material difference in circumstances • Donkor v RBS 2016 IRLR 268 EAT • Liability for discrimination • CLFIS v Reynolds 2015 IRLR 562 CA

12. Race discrimination • Establishing “detriment” • Cordant Security Ltd v Singh 2016 IRLR 4 EAT • Is caste discrimination already covered? • Tirkey v Chandock 2015 IRLR 195 EAT • Discrimination against migrant workers is not direct nationality discrimination • Onu v Akwiwu 2014 IRLR 448 CA

13. Compensation • Compensation for injury to feelings taxable on termination • Moorthy v Commissioners for HMRC 2016 IRLR 258 UKUT (Tax & Chancery Chamber) • Uplift of 10% on injury to feelings awards? • Beckford v London Borough of Southwark 2016 IRLR 178 EAT • De Souza and Sash Window to CA

14. Parental rights • Suspending childcare vouchers on maternity leave not discriminatory • Peninsula Business Services Ltd v Donaldson UKEAT/0249/15 • Extending shared parental leave to grandparents • Consultation to include review of complexity of ShPL provisions

15. Equality Act: in and out • Out: s.40(2)-(4): Third party harassment from October 2013 • See Government consultation May 2012 • Out: s.138 Questionnaires from April 2014 • See ACAS guidance • Out: s.124(3): power for Tribunals to make wider recommendations from October 2015

16. Equality Act: in and out • In: s.139A: Equal Pay Audits from October 2014 • See Equality Act 2010 (Equal Pay Audits) Regulations 2014 SI/2014/2559 • In: s.78: Draft Gender Pay Reporting Regulations consultation • See Draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 • Due to come into force from October 2016