Wednesday, February 8, 2012
PREGNANCY GOSSIP MAY CONSTITUTE DISCRIMINATION AND HARASSMENT IN THE WORKPLACE
In the recent case of Nixon v Ross Coates Solicitors and another UKEAT/0108/10, the Employment Appeal Tribunal (EAT) held that gossip relating to an employee's pregnancy is capable of amounting to discrimination and harassment under the Sex Discrimination Act 1975 (SDA).
The facts of the case are as follows:
Ms Nixon, an employee of Ross Coates Solicitors, was seen kissing another employee at the office Christmas party and accompanying him to a hotel room
A few weeks later, Ms Nixon informed the managing partner of Ross Coates Solicitors that she was pregnant. On the same day, the HR manager found out about Ms Nixon’s pregnancy and began gossiping with other employees regarding the paternity of the unborn child
Ms Nixon told her employer that she would not be able to work in the same office as the HR manager and asked to work at one of the employer’s other offices (away from the HR manager). Ms Nixon took some time off work and raised a formal grievance with her employer
The employer refused Ms Nixon’s request to transfer to another office and told Ms Nixon that it would not pay her for any time she had spent away from work
Ms Nixon resigned from her employment and brought claims for sex and pregnancy discrimination, constructive dismissal and harassment against Ross Coates Solicitors.
The Employment Tribunal held that Ross Coates Solicitors had constructively dismissed Ms Nixon, but dismissed her claims for discrimination and harassment. Further, the Employment Tribunal made a compensatory award for unfair dismissal, but reduced it by 90% in light of the employee’s contributory conduct.
Ms Nixon appealed against the finding that there had been no discrimination or harassment as well as the 90% reduction to the compensatory award.
Decision of the Employment Appeal Tribunal
The EAT held that the Employment Tribunal had been wrong in dismissing Ms Nixon’s claims for sex discrimination, pregnancy-related discrimination and harassment for the following reasons:
The gossip related to the paternity of the unborn child and therefore was clearly connected to Ms Nixon’s pregnancy
The treatment of the employee whilst she was absent from work and the employer’s refusal to pay her wages for such period constituted sex discrimination as it related to the pregnancy
Ms Nixon had felt clear discomfort in relation to the gossiping and this constituted "a course of unwanted conduct" capable of falling within the definition of harassment under the SDA
The EAT held that the Employment Tribunal had been wrong to reduce the employee’s compensatory award by 90%. The EAT found that the Employment Tribunal had not given due consideration to the issue of causation and that Ms Nixon’s behaviour following her resignation should be discounted (as any culpable conduct which took place after the dismissal could not have contributed to the dismissal).
This case highlights the protective nature of discrimination legislation in respect of pregnant employees. It was of no assistance to the employer that the employee had made details of her sex life public. It also highlights the potential risk associated with Christmas parties.
Wednesday, February 8, 2012
JOB APPLICANT WHO HAS NO INTEREST IN A JOB CANNOT SUE FOR DISCRIMINATORY ADVERT
In the recent case of Berry v Recruitment Revolution and others the EAT has held that a job applicant cannot bring a discrimination claim in respect of an advert for a job that he has no interest in taking.
Mr Berry, who was in his 50s, had sent an email to Recruitment Revolution, a recruitment agency who had advertised the role, saying that he appeared to be prevented from applying by reason of his age and that unless he heard back he would assume that there was no point in applying. Recruitment Revolution advised Mr Berry that the advertisement had been mistyped and that he should send in his CV, which would be considered with all other CVs received.
Mr Berry ultimately chose not to apply for the advertised job and brought a claim alleging that the advert was unlawfully discriminatory under regulation 7(1)(a) of the Age Regulations (which provides that it is unlawful for an employer to discriminate against a person through its recruitment arrangements) by referring to "school leavers" or "recent graduates".
Mr Berry was, in fact, a serial litigant who had brought in the region of 50 tribunal claims against recruitment agencies and employers complaining that job advertisements were unlawfully discriminatory under the Age Regulations. A number of the claims were settled. This case was struck out and Mr Berry appealed to the EAT.
The EAT dismissed his appeal holding that while a job advert could form part of "arrangements" for recruitment under regulation 7(1)(a) and could therefore in theory be the basis of a discrimination claim, a claimant had to be impacted by the "arrangements" in question. In this case the job advert had not impacted upon Mr Berry and he had not been deterred from applying for the job by the allegedly discriminatory wording. He therefore could not bring a discrimination claim.
In addition, the EAT indicated that the purpose of the Age Regulations is not to "provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies they have in fact no intention to fill." They warned that "those who try to exploit the Regulations for financial gain in such circumstances are liable… to find themselves facing a liability for costs." This is clearly a warning to serial litigants.
Ensure that your job adverts are non- discriminatory
This case could prove useful to Respondents seeking to obtain costs orders against serial litigants.
Wednesday, February 8, 2012
DISCRIMINATION LAW UPDATE
The Equality Act 2010 provides that it is unlawful for an employer to discriminate against an employee on the grounds of sex, age, disability, pregnancy or maternity, gender reassignment, marriage or civil partnership, race, religion or belief or sexual orientation.
The recent cases of Lisboa v Realpubs Limited and others  UKEAT/0224/10, O’Reilly v British Broadcasting Corporation and Another ET/2200423/10 and Hall and another v Bull and another  EW Misc 2 (CC) confirm the wide scope of discrimination law. A summary of each of these interesting cases is set out below.
Lisboa v Realpubs Limited and others  UKEAT/0224/10
A homosexual employee (L) brought a claim of direct discrimination against his employer (Realpubs) on the basis that the employer‟s policy of seeking to make a pub less attractive to gay people was discriminatory.
Realpubs‟ business was to buy failing pubs and reposition them as gastropubs so that they appealed to all sections of the community. Realpubs acquired The Coleherne Pub, a failing pub with a reputation for being London‟s first „gay pub‟ and also for housing drug dealers and male prostitutes with the intention of repositioning it in the market and making it more attractive to all members of the public.
L was employed to work as an assistant manager at the The Coleherne Pub. As part of the repositioning strategy, Realpubs planned to place a sign outside the pub stating that "this is not a gay pub", asked its staff to seat customers who did not appear to be gay in prominent areas so that they could be seen by members of the public and made the gender balance of the staff members more even.
L resigned from his employment with Realpubs. L brought claims of direct discrimination on the grounds of sexual orientation on the basis that: (a) three comments that had been made to him regarding his sexuality during his employment constituted discrimination; and that (b) Realpubs‟ policy of making the pub less attractive to homosexual people was, in itself, discriminatory. L brought an additional claim of constructive dismissal on the basis that Realpubs‟ actions left him with no choice but to resign.
The Employment Tribunal (ET) rejected L‟s claims that Realpubs‟ policy of repositioning was discriminatory and that he had been constructively dismissed. The ET held the view that Realpubs‟ strategy to reposition the pub was lawful and did not constitute direct discrimination against L. Further, the ET held the view that L had resigned as a result of Realpubs‟ strategy (rather than the remarks made to him about his sexuality) and that L had brought the constructive dismissal claim based on a "mistaken perception" that Realpubs was a homophobic organisation.
On appeal, the Employment Appeal Tribunal (EAT) held that gay customers were treated less favourably on the grounds of their sexual orientation by virtue of the employer‟s repositioning policy and that accordingly such policy constituted direct discrimination against gay customers and also L. The EAT also held that the policy gave rise to a valid constructive dismissal claim.
The EAT confirmed that the key consideration should have been whether Realpubs‟policy had been implemented in a manner which meant that homosexual people were being treated less favourably than the straight customer base on the grounds of their sexual orientation. The EAT remitted the case to the ET for a determination of quantum.
O’Reilly v British Broadcasting Corporation and Another ET/2200423/10
The employee, Miriam O‟Reilly, (R) brought claims of direct sex and age discrimination and victimisation against the British Broadcasting Corporation (BBC). R was employed as a presenter on the BBC‟s Countryfile television programme and conducted radio work for the BBC. In 2008, the BBC changed the viewing time for Countryfile from daytime television to Sunday evenings with the intention of attracting a larger audience at that time.
R (aged 51) and 2 other female presenters (aged 44 and 43) were told that they were no longer required to work on Countryfile as a result of the move. R claimed that her removal from Countryfile amounted to direct discrimination on the grounds of her age and sex. Further, R claimed that the BBC's failure to offer her any additional radio work or suitable television work and failure to offer her further work as a writer for Countryfile Magazine after she had made complaints about the discrimination was an act of victimisation.
The Employment Tribunal (ET) upheld R‟s claims of direct age discrimination and victimisation, but rejected her claim of sex discrimination. The ET considered whether R would have been retained on Countryfile if she were a man of the same age and concluded that she would not. For that reason, R had not been discriminated against on the grounds of sex.
The ET held the view that R‟s age was a significant factor in the BBC‟s decision not to retain her on the Countryfile programme when it moved to a prime television viewing time. The ET rejected the BBC‟s claim that any alleged discrimination was justified in order to appeal to a primetime audience. The ET acknowledged that the BBC‟s desire to appeal to younger viewers was a legitimate aim. However, it did not consider that choosing younger presenters was a justifiable means of achieving that aim, and even if it was, it was not proportionate to remove the older presenters on merely an assumption that younger presenters would attract younger viewers.
Hall and another v Bull and another  EW Misc 2 (CC)
The claimants, homosexual civil partners, brought a claim under the Equality Act (Sexual Orientation) Regulations 2007 ("the Regulations") of direct and indirect discrimination on the grounds of sexual orientation against the owners of the Chymorva hotel. The Regulations provide protection to the public from direct or indirect discrimination in the provision of goods and services on the grounds of sexual orientation.
The defendants were a married couple who held strong Christian beliefs. They operated a policy at the hotel to the effect that double rooms would only be let to heterosexual married couples. The defendants refused to allow the claimants to stay overnight in a double room. The hotel owners argued that their refusal to accommodate the claimants was not specifically based on the sexual orientation of the claimants, but on the defendants‟ belief that sexual relations outside marriage was a sin.
The defendants sought to justify their actions on the basis that the policy applied to unmarried heterosexual couples (as well as homosexual couples) and the alleged discrimination was justified on the basis of their right to manifest their religion under the European Convention on Human Rights (ECHR).
Bristol County Court ("the Court") held that the defendants had directly discriminated against the claimants on the grounds of their sexual orientation and that their policy, which disadvantaged homosexuals as a group, indirectly discriminated against the claimants.
The Court held that the defendants‟ right to manifest their religion (under the ECHR) was not absolute and could be limited to protect the rights and freedoms of the claimants. Furthermore, the Court held that it was not a valid defence to the indirect discrimination claim to assert that allowing homosexuals to share a room was inconsistent with their religious beliefs. The defence was only available where the justification for the policy was nothing to do with sexual orientation. The Court granted the defendants permission to appeal against the decision.
Wednesday, February 8, 2012
SCHOOL UNIFORM BANNING CORNROWS WAS DISCRIMINATORY
In the case of G v Head Teacher and Governors of St Gregory's Catholic Science College, the High Court has held that a school's uniform policy prohibiting boys from wearing their hair in cornrows resulted in indirect racial discrimination.
However, the policy was found not to amount to sex discrimination.
The law on indirect discrimination
Section 19 of the Equality Act 2010 (EqA) deals with indirect discrimination as it relates to the various protected characteristics identified in section 19(3), including race and sex. Section 19 states:
"(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.
(2) For the purpose of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) 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,
(c) A cannot show it to be a proportionate means of achieving a legitimate aim."
The court considered that, although the EqA does not use precisely the same language as the previous legislation governing race discrimination (the Race Relations Act 1976 (RRA)) there is no difference in its effect.
Section 71 of the RRA and section 76A of the Sex Discrimination Act 1975 required public authorities (including schools) to have due regard to the need to eliminate unlawful discrimination. That obligation is now contained in section 149 of the EqA.
Department for Education Guidance on uniforms
The Department for Education (DfE) has published guidance on uniforms and uniform policy for schools. When formulating a uniform or appearance policy, a school needs to consider its obligations not to discriminate unlawfully on the grounds of sex, race, disability, sexual orientation, religion or belief. Schools should also be aware of the concept of indirect discrimination.
Paragraph 23 of the guidance states:
"An example of indirect discrimination could be a school that bans cornrow hairstyles. As these are more likely to be adopted by specific racial groups, banning this type of hairstyle without justification could constitute racial discrimination."
The school's ban on cornrows for boys was stated at a school meeting which the claimant did not attend. The first the claimant knew of the ban was the school's refusal to allow him to attend unless
he removed his cornrows. The school's reasoning behind its uniform policy was to:
Keep gang culture out of the school
Avoid accompanying ethnic tension and violence
Make the school a safe environment where pupils were treated equally
Additionally, the school believed that distinctive haircuts could be badges of ethnic or gang identity, and that its otherwise zero tolerance approach to male hairstyles could not be justified if an exception was made for a particular style.
The claimant was unable to take up his place at the school since he was not prepared to comply with the school's policy on cornrows. He, therefore, lodged a claim that the school had indirectly discriminated against him on the grounds of his race and sex, even though he had already started attending another school.
A ban on braids for boys was later added to the school's uniform policy.
To prove indirect discrimination, the claimant had to show that the school's policy resulted in discrimination within the meaning of the legislation and that there had been a particular disadvantage to him in the prohibition on cornrows. If that was established, it would be for the school to justify discrimination.
In order to attempt to establish that he was a member of a group that did suffer a particular disadvantage as a result of the ban, the Claimant submitted evidence that there are a group of people of Afro-Caribbean ethnicity who, because of their culture and ethnicity, believe that cutting their hair is wrong and they therefore need it to be kept in cornrows. The court was satisfied that a group existed who could be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows.
The school submitted that the claimant's evidence fell short of establishing a cultural or ethnic need to maintain his cornrows. The school suggested that it was necessary to show that a practice had exceptional importance to the person alleging the disadvantage and that the claimant's evidence fell short of establishing this. The court rejected this submission and pointed out that the words used in the statute are "particular disadvantage". It considered that the need to show "exceptional importance" was too high a threshold. The claimant had suffered a traumatic experience in being turned away on his first day and the court was satisfied that the claimant had suffered a particular disadvantage in any event.
Based on the finding of indirect discrimination on the part of the school, the court had to consider whether the policy was capable of justification. The court felt that it was clear the school had not complied with the applicable public sector equality duty under section 149 of the EqA. However, that did not of itself mean that the policy could not be "a proportionate means of achieving a legitimate aim". The DfE guidance was taken into account in light of the fact that it specifically refers to possible discrimination arising from a prohibition on cornrows. It was submitted on behalf of the claimant that, had the school carried out the necessary exercise suggested by the guidance, it would have been able to ascertain whether there was a need to grant exception to the policy in particular cases.
The court rejected the claimant's suggestion that there was sex discrimination. The provision in the school's uniform policy required both sexes to have conventional haircuts. Cornrows for African-Caribbean girls were acceptable because they were a satisfactory means of keeping long hair neat and under control. This was an acceptable rationale. Therefore, boys were seen not to have been treated less favourably than girls.
This case supports the idea that cultural, family and social customs can form part of ethnicity and bring a person of a given ethnicity within the scope of race discrimination legislation.
The decision on sex discrimination is arguably difficult to reconcile on the basis that the court accepted the cultural belief of certain groups that men’s hair should be kept long. Arguably, if girls should be allowed cornrows as a way of keeping long hair neat, then why shouldn’t boys?
Organisations should be careful when drafting presentation and uniform policies to avoid potential discrimination and be aware that they should not apply the policy rigidly, but rather must consider making exceptions for those who contend that cultural or family practices mean they cannot conform to a policy.
Although not strictly an employment law case, the themes and considerations here are clearly relevant to employers looking to introduce or enforce dress or appearance policies.
The school believed the policy to be proportionate, since there had been no complaints from other African-Caribbean boys about the prohibition on cornrows. Although the court accepted that the absence of any complaints was a material factor, it was not determinative. Although the aim of the policy was legitimate, the court considered that the indirect discrimination which resulted from the absolute prohibition on cornrows was not justified.
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- SCHOOL UNIFORM BANNING CORNROWS WAS DISCRIMINATORY
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