Transcript Wilebore v Cable & Wireless Worldwide Services Ltd

Equality Law Case
Update
Claudia Bennett
Senior Solicitor
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ET/ EAT Statistics
• Discrimination cases in 2012 - compensation
awards
• Sex discrimination cases in 2012: highest number
of discrimination awards
- Porter v Phaze Electrical Ltd
• Disability discrimination compensation awards:
second highest number of awards
- Wilebore v Cable & Wireless Worldwide Services Ltd
Slide Number 2
What we will cover
• The Equality Act
• Protected characteristics
• Prohibited conduct
• Recent case law in relation to equality law
• The EHRC and its powers
• Our legal strategy
• Contact us
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Protected Characteristics
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Age (s 5)
Disability (s 6) slight change
Gender reassignment (s 7) slight change
Marriage and civil partnership (s 8)
Pregnancy and maternity (s18)
Race (s 9)
Religion and belief (s 10)
Sex (s 11)
Sexual orientation (s 12)
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Age (s.5)
• Where the Act refers to the protected
characteristic of age it means a person
belonging to a particular age group.
• An age group includes persons of the same age
and people of a particular range of ages
• Only protected characteristic which allows direct
discrimination to be justified.
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Case Law
• Seldon v Clarkson Wright & Jakes
- justification defence
• Homer v Chief Constable of West Yorkshire Police
Slide Number 6
Disability (s.6)
• A person has a disability for the purposes of the
Act if he or she: —
- has a physical or mental impairment, and
- the impairment has a substantial and long-term
adverse effect on his/her ability to carry out normal dayto-day activities.
• Mr Kevan Sweeney v Strathclyde Fire Board
(decided 2012)
• Walker v Sita Information Networking Computing
Ltd
• Wheeldon v Marstons plc
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Race (s.9)
• Race includes — colour; nationality;
ethnic or national origins.
• Also power to amend the definition to
include caste (s.9 (5) (6) – caste now
added to definition of race through
amendment of ERRB (now Act).
• Begraj and anor v Heer Manak
Solicitors
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Case Law
• Royal Bank of Scotland plc v Morris [2012] EqLR
406
• Redfearn v UK (2012) 47335/06
Slide Number 9
Religion or belief
(s.10)
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Covers any religion falling within Art 9 ECHR;
must have clear structure and belief system
Covers philosophical beliefs which meet
particular criteria
Includes a lack of belief/religion
A ‘philosophical belief’ must not be
incompatible with human dignity or conflict with
fundamental rights of others [see EN 52]
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Eweida and others v
the UK
• Four cases complaining UK law failed to
adequately protect their Art. 9 right
- 2 cases re wearing of cross taken together
- 2 cases complaining about sanctions imposed
as a result of religions belief taken together
• ECHR Judgment January 2013
• Commission intervened under our s. 30 powers,
with 13 others!
Slide Number 11
Impact of decision
• Confirms that a lack of state regulation of wearing of
religious symbols does not indicate lack of adequate
protection of Convention rights
• Lowers the test for interference with manifestation of
religious belief, bringing it into line with other Convention
rights = makes successful discrimination claim easier to
bring
• Confirms importance given to positive obligations on
public authorities to promote equality of opportunity and
provide services in non-discriminatory way
Slide Number 12
Pregnancy and
maternity (s.17 & 18)
• Protects a woman from discrimination during a
protected period because of:
– The pregnancy
– Pregnancy-related illness
– Taking or seeking to take maternity leave
• New: includes protection from discrimination in
education
• Ms Kate Cox v Money Station Resources LLP [2012]
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Prohibited conduct
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Direct discrimination (s 13)
Indirect discrimination (s 19)
Harassment (s 26)
Victimisation (s 27)
Disability only:
• Discrimination arising from disability (s 15)
• Duty to make reasonable adjustments (ss 20
& 21)
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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
• Preddy & Hall v Mr and Mrs Bull/ Black v Wilkinson
• Discrimination by association or perception included
• Direct discrimination can never be justified however age
discrimination remains justifiable
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Association and
perception
Discrimination by association
• Less favourable treatment because associated
with someone with a PC
• Does not need to be permanent
• Kulikauskas v Macduff Shellfish
UKEATS/0062/09/BI
Discrimination by perception
• Less favourable treatment because perceived to
have a PC
Slide Number 16
Indirect discrimination
• A applies a provision, criterion or practice (PCP) to B
• A applies, or would apply, the PCP to persons with whom
B does not share the relevant protected characteristic
• the PCP 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 the
characteristic
• the PCP puts, or would put, B at that disadvantage and
• the PCP is not a proportionate means of achieving a
legitimate aim.
• Cooper v House of Fraser (Stores) Ltd [2012]
EqLR 991
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Harassment
• a person (A) harasses another (B) if A engages
in unwanted conduct ‘related to a relevant
protected characteristic’ which has the purpose
or effect of violating B’s dignity, or creating an
intimidating, hostile, degrading, humiliating or
offensive environment for B.
• Case example: Cambers v Purcell Solicitors
• 3rd party harassment – repealed
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Victimisation
• ‘A person (A) victimises another person (B) if A
subjects B to a detriment because (a) B does a
protected act, or (b) A believes that B has done,
or may do, a protected act.’
• Removes the need for the tribunal to construct
an appropriate comparator.
• Bouabdillah v Commerzbank AG ET/2203106/12
• Woodhouse v West North West Homes Leeds Ltd.
• Rowstock Ltd and anor v Jessemay
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Reasonable
adjustments
• Where a disabled person is placed at a substantial
disadvantage to non-disabled people, there is a duty to
make changes to:
1. Provisions, criteria or practices
2. Physical features
3. And a duty to provide auxiliary aids and services (such
as a hearing loop or a special computer service)
• Roberts v North west Ambulance Service [2012]
• Wade v Sheffield Hallam University [2013]
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Discrimination arising
from disability
• A person (A) discriminates against a disabled
person (B) if A treats B unfavourably because of
something arising in consequence of B’s disability
• Burt v New Forest District Council [2012]
• McGraw v London Ambulance Service NHS
Trust [2012]
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EHRC strategic priorities
for using litigation powers
where the case would
• have a significant positive impact in terms of the
application of the law or the policies and practices of an
organisation, institution or sector
• have a positive public impact, securing greater
understanding of rights and obligations under the
equality enactments and/or human rights law
• address significant disadvantage in respect of one or
more of the protected grounds and/or major abuse or
denial of human rights
• challenge a policy or practice known to cause significant
disadvantage
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EHRC strategic priorities for
using litigation powers.....
• is a cost effective method of achieving a desired
outcome, taking into account the prospects of success
• clarifies an important point of law under the Equality Act
2010 or Human Rights Act
• will extend or strengthen protections and rights under the
Equality Act 2010 and, where it also applies, human
rights law;
• will contribute substantially to other areas of the
Commission’s work
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Further information
EHRC website information on Equality Act
http://www.equalityhumanrights.com/legal-andpolicy/equality-act/
Law Society of Scotland
http://www.lawscot.org.uk/about-us/equality--diversity
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The Commission’s legal
team in Scotland
• Strategic human rights and equality litigation
www.equalityhumanrights.com/legal-andpolicy/strategic-human-rights-and-equality-litigation/
• Legal Team Bulletin:
www.equalityhumanrights.com/scotland/legal-news-inscotland/equality-law-bulletin/
• Requests for assistance:
• [email protected]
Tel: Claudia Bennett 0141 228 5965
Email: [email protected]
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