Transcript Presentation title slide Verdana 32pt

Forum for Research into Equality and
Diversity
Hosted by the University of Chester
Discrimination Law Update
David O’Hara, Principal Associate
Eversheds LLP
5 March 2014
davido’[email protected]
Repeal of 3rd party harassment
provision
• An end to the “3 strikes” rule for acts from 1 October
2013, although other potential claims remain e.g.:
– general harassment provisions in Equality Act
– direct discrimination
– indirect discrimination
– breach of implied term of trust and confidence:
could lead to claim of unfair constructive dismissal
and/or damages for personal injury
– breach of duty of care leading to damages for
personal injury
Abolition of discrimination
questionnaires (Expected 6 April
2014)
• Change simply removes the statutory procedural
mechanism, not scope for claimants seeking preclaim information through a more informal route
• New Acas guidance on this issue published
January 2014
• Non-binding, good practice guidance on how
employers should deal with questions regarding
discrimination in the workplace
Abolition of discrimination
questionnaires (Expected 6 April
2014)
• 6 step guidance for questioners
• 3 step guidance for responders
• No legal obligation to answer but Tribunal could
look at whether have answered and, if so, what
the answer is in making overall decision on
discrimination claim
• Applies from 6 April 2014
• Claimants may apply for additional information
and Tribunal can order this
Compulsory Equal pay audits
(Expected 1 October 2014)
• EPA will have to be ordered by ET where relevant claim
succeeds
– ie claim for breach of equality clause or sex discrimination
in non contract pay
• EPA = an audit designed to identify action to be taken to
avoid equal pay breaches occurring or continuing
• Limited exceptions:
– has been audit in last 3 years
– can identify whether action needed without EPA
– no reason to think systemic problem at employer
– disadvantages of ordering EPA outweigh benefits
• Sanction for non compliance:
– financial penalty (up to £5k)
Caste discrimination (Expected 6 April
2015)
• the definition of "race" in the EqA 2010 is non-exhaustive
and includes “colour; nationality; ethnic or national
origin”. There is, therefore, scope for arguing that other
factors are covered by the definition
• The government has now committed to making
regulations outlawing discrimination on grounds of caste
as an aspect of race
• Proposed next steps:
– March 2014: consultation to be published
– Autumn 2014: publication of draft legislation and
further consultation
– April 2015: commencement of legislation
Caste discrimination (Expected 6 April
2015)
• Recent case law development in interim:
– Tirkey –v- Chandok and another ET/3400174/2013
– Employment Tribunal (1st instance) allowed a claim for
caste discrimination to proceed on the basis that the
definition of “race” in the Equality Act 2010 is wide
enough to encompass caste
– The ET also found that Article 14 of the European
Convention on Human Rights (ECHR) (Freedom from
discrimination) is also wide enough to caste
discrimination
– Upheld the Claimant’s argument based on EC Race
Directive (2000/43/EC) which outlaws descent-based
discrimination.
Public Sector Equality Duty Review
• The Government made a call for evidence for the review of
the PSED in 2013.
• Steering Group issued report in September 2013, made
general statement that it is too early to make a final
judgement about the impact of the PSED and suggested full
evaluation in 2016.
• Made some recommendations for ECHR and public bodies:
– Guidance must be clearer on minimum requirements
placed on public bodies
– Public bodies should not collect diversity data unless it is
necessary for them to do so
– Public bodies should reduce the burdens placed on small
employers who they contract with
– Enforcement by the Government of the PSED needs to be
proportionate and appropriate
Olivier v Department for Work and Pensions
ET/1701407/2013
• Claimant was a civil servant who was dismissed
and claimed discrimination on basis of his
affiliation with the Labour Party
• Held: The Claimant could bring a religion or
belief discrimination claim pursuant to the
Equality Act 2010
• Mere support of a political part not sufficient
• But his political belief in “democratic socialism”,
as enshrined in core values of the Labour Party,
qualified him for protection under the legislation
as a philosophical belief
Mba –v- Mayor and Burgesses of the
London Borough of Merton [2013] EWCA
Civ 1562
• Christian employee had refused to work Sundays
• Court of Appeal considered whether the EAT had properly
approached the issue of indirect religious discrimination
• Held
– There was a group disadvantage
– The ET had made detailed findings that there was no
“viable and practical” alternative but to require the
Employee to work on Sundays as per the terms of her
employment contract
– Employee had knowingly entered into the contract and
any reasonable tribunal would have concluded the
requirement was justified
Kemeh –v- Ministry of Defence [2014]
EWCA Civ 91
• CA decision which considered
– whether an Employer could be liable for the discriminatory act
of a subcontractor’s employee
– whether an award of £12,000 for injury to feelings resulting
from a racist insult by colleague was too high
• Held
– Whilst one party’s employee can also be another party’s
agent, there must be cogent evidence to show that the
employee’s duties were being undertaken as that other
party’s agent
– In this case, there was no evidence that a subcontractor’s
employee was acting as an agent for the Contractor’s
employer
– CA reduced award of £12,000 to £6,000 – one off incident
which falls within lower band of the injury to feeling scale
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