Sandy Adirondack: Legal update (Equality & human rights)
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Legal update for voluntary organisations
  • Employment & volunteering
  • Equality
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  • ON THIS PAGE
    Items are in order of chapters in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). Dates in red below have been updated in the past three months.


    EQUALITY
  • Resources (updated 21/4/14)
  • Equality Act repeals, delays & consultations (updated 21/4/14)
  • Changes to the Equality & Human Rights Commission (updated 3/8/13)

  • VSLH3 Chapter 28
    Equal opportunities in employment
  • Repeal of liability for harassment by third parties (updated 9/12/13)
  • Victimisation after multiple grievances or tribunal claims (added 21/4/14)
  • Post-employment victimisation (added 21/4/14)
  • Timetable for caste discrimination legislation (updated 21/4/14)
  • Employment tribunal says caste is already protected under Equality Act (added 21/4/14)
  • Caste discrimination tribunal case collapses (updated 3/8/13)
  • Redundancy during pregnancy or maternity, paternity or adoption leave (updated 3/8/13)
  • Freedom of religion & religious discrimination: Four cases at the European Court of Human Rights (updated 3/8/13)
  • Sunday working and religious discrimination (added 9/12/13)
  • Freedom of religion & religious discrimination: Guidance for employers following the ECHR decisions (added 3/8/13)
  • What is & is not a philosophical belief (updated 21/4/14)
  • Dismissal for political opinions or affiliation (updated 21/4/14)
  • Managing age in the workplace (updated 2/12/12)
  • Compulsory retirement (updated 3/8/13)
  • Indirect age discrimination (updated 3/8/13)
  • Equal pay audits (updated 3/8/13)
  • Gender pay gap reporting (updated 12/3/12)
  • Six-year time limit for equal pay claims (updated 2/12/12)
  • Archived items for this chapter

  • VSLH3 Ch.37
    Employment claims and settlement

  • Abolition of statutory discrimination questionnaire procedure: Employment (added 1/4/14)
  • Archived items for this chapter

  • VSLH3 Chapter 42
    Equal opportunities: Goods, services & facilities

  • Abolition of statutory discrimination questionnaire procedure: Goods, services and public functions (added 1/4/14)
  • Charity activities & services for specific groups (updated 9/12/13)
  • Equality Act general exceptions for services (updated 10/10/10)
  • Impact of the Equality Act on charities (added 9/12/13)
  • Public sector equality duties (updated 9/12/13)
  • Using public procurement to promote equality (updated 3/8/13)
  • Catering in multi-faith contexts (updated 21/4/14)
  • Catholic adoption agency in Leeds loses appeal on changing its objects (updated 2/12/12)
  • Catholic adoption agency in Glasgow wins case against charity regulator (updated 21/4/14)
  • OSCR to revise public benefit and equality guidance for charities (updated 21/4/14)
  • Hotel owners who refused gay couple set up not-for-profit company to get around equality law (updated 9/12/13)
  • And another hotel which restricted double rooms to married couples (updated 3/8/13)
  • Age discrimination in service delivery (updated 21/4/14)
  • Archived items for this chapter
  • LEGAL UPDATE
    FOR VOLUNTARY ORGANISATIONS:
    EQUALITY & HUMAN RIGHTS

    For information about the legal update website for voluntary organisations, disclaimers and other sources of updates, see the legal update website home page. The five pages that make up the legal update website are Employment & volunteering, Equality & human rights, Legal structures & charitable status, Risk, funding, finance & property, and Activities & services (everything else: health & safety, safeguarding, data protection, intellectual property, marketing, campaigning, events and more).

    Items about changes which took place more than a year ago are archived at www.sandy-a.co.uk/vslh.htm.

    To be notified when the legal update website is updated, click to send an email, asking to receive update notifications. Please give your name, organisation, email and postal addresses and telephone number. Your postal address and phone number are used to contact you if emails bounce. To avoid spamming, an email address is not given on screen.
    If you can't see the word 'Legalupdate' after 'click' in the first line, or have trouble sending an email by clicking on it, the address is legalupdate at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.


    EQUALITY: GENERAL


    RESOURCES

    Updated 21/4/14. This information updates chapters 28 & 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    A toolkit to make equalities work: A resource to support the voluntary and community sector to use the 2010 Equality Act was published in March 2014 by the Race Equality Foundation on behalf of Engage London. Although intended primarily for voluntary and community organisations working with children, young people and families, it is also suitable for other organisations.

    The 16-page toolkit is in six sections: understanding the Equality Act; employment and reviewing our policies; our services, volunteers and engagement; the Equality Act and education; complying with the public sector equality duty and using the duty to hold others to account; and key organisations. A separate 12-page list of key sources of information gives details of relevant organisations and links to them.

    Both publications can be accessed via tinyurl.com/lqnqlxd.

    The Equality and Human Rights Commission published on 21 March 2013 three basic level publications for small businesses on how to prevent discrimination and avoid costly legal challenges: Understanding legal definitions of discrimination and unlawful behaviour, Your role as an employer under the Equality Act and Your role as a service provider under the Equality Act. These are also relevant to voluntary organisations, except that the guidance for service providers does not include the Equality Act exceptions specifically for charities and other voluntary sector organisations.

    The ECHR publications can be accessed via tinyurl.com/mplxrjm. For the service provision exceptions for charities and other voluntary organisations, see Charity activities and services for specific groups and Equalities Act general exceptions for services, below.

    For an overview of the Equality Act 2010, with special emphasis on provisions affecting voluntary organisations, see www.sandy-a.co.uk/vslh/28equalops.htm. The act and very helpful explanatory notes are at www.legislation.gov.uk/ukpga/2010/15/contents.

    The Equality and Human Rights Commission's codes of practice explain the Equality Act 2010 in more technical detail than any of the resources below. While the codes do not have force of law, failure to comply with them can be taken into account in legal cases. The three codes, covering employment; equal pay; and services, public functions and associations, can be accessed via tinyurl.com/2fo5v3p.

    The Government Equalities Office (GEO) has a series of Equality Act 2010: What do I need to know? summary and quick-start guides, including several specifically for voluntary and community organisations. All GEO guides can be accessed via tinyurl.com/3ultyz9. Welsh language versions are available.

    ACAS's quick guide for employers can be accessed at www.acas.gov.uk/index.aspx?articleid=3017. The booklet includes a table showing which aspects of discrimination legislation have stayed the same, which have changed, which are new, and which are not covered in either previous legislation or the Act.

    The Equality and Human Rights Commission has a very basic starter kit on the act, with nine modules taking altogether less than an hour to work through. Module 1 explains the act; modules 2-5 include an overview for employers, managing staff, new starters and leavers, flexible working and time off; and modules 6-9 include an overview for service providers, day to day delivery of services, longer-term strategy and planning, and positive action. The starter kit can be accessed via tinyurl.com/38hkdg4.

    The EHRC also has more detailed guidance for employers, employees, service users, service providers and education providers, as well as guidance on the definitions of protected characteristics. The guidance can be accessed via tinyurl.com/3829vhw.

    The EHRC's guidance for service providers, at tinyurl.com/24699h2, includes a section specifically for voluntary and community sector organisations, including charities and religion or belief organisations, and another section specifically for associations, clubs and societies.

    Equality in village halls, published by Action with Communities in Rural England (ACRE) in July 2011, is a guide to the main provisions of the Equality Act with particular reference to village halls, community centres and similar facilities. It is available free of charge from ACRE advisors (see tinyurl.com/7ysx4d5), or £3 from ACRE via tinyurl.com/ckyptt6.

    Go back to contents
    Go to archived items about equality in employment (VSLH3 chapter 28) and
    equality in service delivery (VSLH3 chapter 42)


    EQUALITY ACT REPEALS, DELAYS AND CONSULTATIONS

    Updated 21/4/14. This information updates chapters 28 and 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    As well as repealing the Equality Act 2010 provision making employers liable for persistent third party harassment) and reviewing the public sector equality duties, the government announced further changes to the Equality Act on 15 May 2012, as part of its response to the equalities "red tape challenge". The ministerial announcement of the changes, including those below, is on the Home Office website via tinyurl.com/bu7po6f.

    A significant change brought in by s.124(3)(b) of the Equality Act on 1 October 2010 allows employment tribunals to make wider recommendations in discrimination cases, requiring an employer to take specific steps in relation to their wider workforce rather than just in relation to the worker who has made the complaint. Following government consultation from 15 May to 7 August 2012 on repealing this provision, it was included in s.2 of the draft Deregulation Bill in July 2013. The consultation documents and responses can be accessed via tinyurl.com/cb3mboz. The bill, which was presented to Parliament on
    23 January 2014, and up to date information about its progress is on the Parliament website via tinyurl.com/lznpnm8.

    As part of the same consultation, the government looked at repealing s.138 of the act, which from 1 October 2010 provided a statutory mechanism by which individuals could obtain information where they thought an employer or service provider had discriminated against them. This repeal was included in the Enterprise and Regulatory Reform Act 2013 s.66, and is in effect in relation to discriminatory acts taking place on or after
    6 April 2014. For more about this in relation to employment see Abolition of statutory discrimination questionnaires: Employment below, and in relati+on to goods and services see Abolition of statutory discrimination questionnaires: Goods, services and facilities below.

    The government had already announced on 18 November 2010 that it would not bring into effect the socio-economic duty in ss.1-3 of the act, which would have given government departments and key public bodies such as local authorities and NHS bodies a new duty to consider, in their strategic decisions, reducing socio-economic inequalities. It subsequently announced that these sections of the act will be repealed, but as of April 2014 this has not been done.

    The dual discrimination provision in s.14 of the Equality Act 2010 allows for claims to be brought on any combination of two protected grounds, for example both sex and race, but excluding marriage/civil partnership. The provision was criticised because it did not allow a claim to be brought on more than two grounds — but it was also criticised because it would supposedly have meant extra costs for employers, so the government announced on 23 March 2011 that it was not going to implement it (even though it is still possible for claimants to make two or more separate claims). The government subsequently announced the dual discrimination provisions were being delayed, which implies they may still be implemented rather than repealed.

    Under s.36 and schedule 4 of the Equality Act 2010, those who let premises, commonhold associations, and those who are responsible for the common parts of let or commonhold premises in England and Wales have a duty to make reasonable adjustments for disabled people. The provisions on common parts in ss.36(1)(d), 36(5) and 36(6) and in sch.4 paras.5-7 were new to the Equality Act, and allow a disabled person to be charged for adjustments to enable him or her to use common parts. Unlike the rest of s.36 and sch.4 these provisions have not yet been brought into effect, and the government has announced it intends to delay them further. S.37 of the act, containing similar provisions for Scotland, was brought into effect on 11 July 2011.

    The Equality Act 2010 is at www.legislation.gov.uk/ukpga/2010/15/contents.
    The Enterprise and Regulatory Reform Act 2013 is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.

    The government is also tackling "gold-plating" and over-compliance, by working with the British Chambers of Commerce to help small and medium sized businesses and organisations understand that they do and don't need to do in order to comply with the Equality Act. Gold-plating often refers to national governments going beyond the requirements of EU directives when implementing them into national law, but in the UK is also used to refer to government agencies recommending or expecting actions beyond what is required by law.

    Go back to contents
    Go to archived items about equality in employment (VSLH3 chapter 28) and
    equality in service delivery (VSLH3 chapter 42)


    CHANGES TO THE EQUALITY AND HUMAN RIGHTS COMMISSION

    Updated 3/8/13. This information updates chapters 28 and 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Following its consultation on the Equality and Human Rights Commission which took place from 22 March to 15 June 2011, the government announced on 15 May 2012 that it would reform the EHRC to enable it to focus on its core functions as an expert on equality and human rights and strategic enforcer of the law. It started by recruiting a new chairperson and smaller board, conducting a comprehensive review of the EHRC's budget, and implementing tighter performance and financial controls.

    One of the changes is that since 1 October 2012 the government has no longer funded the EHRC to provide information and advice on discrimination and human rights. Instead, this role was transferred to a new Equality Advisory and Support Service (EASS).

    Changes to the EHRC requiring legislation were brought in on 25 June 2013, under s.64 of the Enterprise and Regulatory Reform Act. Amendments to the Equality Act 2006:

    • repeal the EHRC's duty under the Equality Act 2010 to promote good relations between members of different groups;
    • repeal arrangements for the EHRC to provide conciliation in certain non-employment-related disputes;
    • require the EHRC to report every five years on changes and developments in society in relation to equality and diversity and human rights as set out in ss.8 and 9 of the 2006 act, rather than reporting every three years on changes in relation to its general duty under s.3.
    The Equality Act 2006 is at www.legislation.gov.uk/ukpga/2006/3/contents.
    The Enterprise and Regulatory Reform Act 2013 is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.

    The EHRC's annual report for 2012-13 was published on 16 July 2013 and can be accessed via tinyurl.com/kb7eug6.

    Go back to contents
    Go to archived items about equality in employment (VSLH3 chapter 28) and
    equality in service delivery (VSLH3 chapter 42)



    EQUAL OPPORTUNITIES IN EMPLOYMENT


    LIABILITY FOR HARASSMENT BY THIRD PARTIES

    Updated 9/12/13. This information updates s.28.1.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The government consulted in 2012 to remove what it called the "unworkable" requirement in the Equality Act 2010 s.40 for employers to take reasonable steps to prevent persistent harassment of their staff by third parties, as they have no direct control over it. The repeal, set out in s.65 of the Enterprise and Regulatory Reform Act 2013, came into effect on 1 October 2013.

    Under s.40, employers could be held liable for harassment by a third party (customer, client, contractor etc) if the harassment had occurred on at least two previous occasions, the employer was aware that it had taken place, and the employer had not taken reasonable steps to prevent it happening again. This was formerly the case for sexual harassment, but under the Equality Act 2010 it was extended to apply to age, disability, gender reassignment, race, religion/belief and sexual orientation.

    Even though the third party provisions have been repealed, a worker can still being a claim for conventional harassment or discrimination. So employers should still take harassment by third parties seriously, and take steps to minimise it.

    An example of such a case was Sheffield City Council v Mr G Norouzi, where a child in a council children's home regularly mocked the accent of Norouzi, an Iranian residential social worker, and made racially offensive comments to him. Norouzi became increasingly upset, informed the council, went on sick leave when the council did nothing, and brought a claim of racial harassment and racial discrimination against the council. The case was brought in 2009, when the Race Relations Act 1976 was still in effect, prior to the Equality Act. In its decision on 14 June 2011, the employment appeal tribunal found that because the council had done nothing to stop the behaviour, it was liable for the acts of the child. The case decision is at www.bailii.org/uk/cases/UKEAT/2011/0497_10_1406.html.

    The Enterprise and Regulatory Reform Act 2013 is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.

    Go back to contents
    Go to archived items about equality in employment (VSLH3 chapter 28)


    VICTIMISATION AFTER MULTIPLE GRIEVANCES OR TRIBUNAL CLAIMS

    Added 21/4/14. This information updates s.28.1.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In a decision on 5 June 2013, the employment appeal tribunal said that dismissing an employee who has lodged multiple grievances and employment tribunal claims alleging discrimination constitutes victimisation, even if most of the grievances and tribunal claims have been held to be unfounded.

    Under s.27 of the Equality Act 2010, it is unlawful victimisation to subject a person to a detriment because they have done or are believed to have done, or it is believed that they may do, a protected act. Protected acts are making an allegation of discrimination, bringing a claim under the Equality Act, or giving evidence or information in relation to such a claim. False information or evidence is not protected if it is given in bad faith, nor is a false allegation made in bad faith. The definition of victimisation as subjecting a person to a detriment was new; prior to the Equality Act, victimisation required a person to be treated less favourably than another person had been or would have been treated in a comparable situation; in other words there had to be a comparator.

    In a case involving West North West Homes Leeds, the EAT looked at a situation where for four years from 2005 Michael Woodhouse, a black employee, lodged 10 internal grievances alleging race discrimination or other complaints, the first two of which the organisation had found to have some basis. As well as the grievances, Woodhouse also also brought eight employment tribunal claims against the employer, claiming race discrimination, harassment and victimisation. The employment tribunal ultimately found nearly all the grievances were "ill-founded ... substantially without any significant evidential basis".

    West North West Homes Leeds dismissed Woodhouse in October 2010, citing an irretrievable breakdown in trust and confidence between the employee and employer. The employment tribunal found that the dismissal was not victimisation, because the employer would also have dismissed an employee who had made a similar number of ill-founded but non-racial grievances. The tribunal also cited the employment appeal tribunal decision in Linda Martin v Devonshires Solicitors, where the EAT said that victimisation had not occurred because the reasons for Martin's dismissal had been "sufficiently separable" from the grievances themselves.

    When Woodhouse appealed against the employment tribunal's decision, the EAT upheld his appeal, saying that his grievances and tribunal claims had been made in good faith and were therefore protected acts; the Equality Act definition of victimisation as detriment (and not requiring a comparator) was in force at the time of his dismissal so the ET's argument about how a comparator would have been treated was incorrect; and the Martin case was significantly different and did not apply here.

    The EAT said Woodhouse had been dismissed because of his previous grievances and claims and the perceived likelihood that he would continue to engage in protected acts, and this constituted victimisation as defined in the Equality Act.

    This case illustrates the importance of having good management, equality and grievance policies and procedures, and dealing with grievances in a fair and transparent manner so they do not give rise to further grievances. If allegations and grievances do escalate, employers can feel they have no option but to dismiss the worker. But where the complaints involve discrimination as defined under the Equality Act, dismissal or any other detriment is likely to be unlawful victimisation. In this situation, workplace mediation may be the only option.

    The EAT decision in Michael Woodhouse v West North West Homes Leeds Ltd is at www.bailii.org/uk/cases/UKEAT/2013/0007_12_0506.html.
    "Victimisation: A trap for the unwary", in the Bates Wells and Braithwaite autumn 2013 employment update, explains the case and its implications. This can be downloaded at tinyurl.com/m94m66t.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
    Go back to contents
    Go to archived items about equality in employment (VSLH3 chapter 28)


    POST-EMPLOYMENT VICTIMISATION

    Added 21/4/14. This information updates s.28.1.XX in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The court of appeal, in a ruling in February 2014, has cleared up confusion created by a drafting error in s.108 of the Equality Act 2014, and has confirmed that post-employment victimisation is covered by the Equality Act. Note that post-employment victimisation includes not only victimisation after employment, but also after the end of an apprenticeship or any contract where an individual has to do the work personally, and ex-employee also includes ex-apprentices and ex-contractors.

    A House of Lords decision and subsequent amendments to discrimination legislation in 2003 had made clear that ex-employees were protected if their employer victimised them because they had made, or threatened to make, a discrimination claim against the employer, or had supported another employee or ex-employee in a discrimination claim. The Equality Act 2010 was supposed to consolidate all previous discrimination legislation. S.108 specifically covers relationships that have ended, and refers to discrimination and harassment where the acts are closely connected with the previous relationship and where the conduct would have been unlawful if the relationship was ongoing. But s.108 does not say that victimisation after a relationship has ended is unlawful; indeed, s.108(7) says that "conduct is not a contravention of this section in so far as it also amounts to victimisation".

    Based on s.108(7), the employment appeal tribunal ruled in March 2013, in Rowstock Ltd & Davis v Jessemey, that the Equality Act does not prohibit post-employment victimisation, but noted that this means the act does not comply with the EU equal treatment directive, from which UK equality law is derived. In May 2013, the employment appeal tribunal ruled in Akwiwu & Akwiwu v Onu that even if the act does not comply with EU law, the tribunal is required to interpret the act in a manner consistent with EU law. This EAT said that the Equality Act must be interpreted as if it does cover post-employment victimisation.

    The first case involved Rowstock Ltd giving a negative reference for Jessemey, an ex-employee; the second case involved Mr and Ms Akwiwu, the employers, threatening ex-employee Onu.

    Jessemey, supported by the Equality and Human Rights Commission, challenged the EAT decision in his case, and the Akwiwus challenged the decision in their case. The court of appeal treated Jessemey as the lead case. In its decision on 26 February 2014 it said that the Equality Act does cover post-employment victimisation; the Equality Act's failure to include this was clearly a drafting error; and interpreting the act in accordance with the EU directive would be consistent with the fundamental principles of the act. The court said that since legislation covered victimisation of ex-employees at the time the Equality Act was drafted, Parliament could not possibly have intended the new act to exclude it. Wisely, the court did not try to analyse what s.108(7) could possibly mean.

    Commenting on the court of appeal decision, the Equality and Human Rights Commission said it is now clear that protection against victimisation applies not only to former employees, but also to former relationships in education, services, public functions and associations.

    The court of appeal decision in Mr P A Jessemey v Rowstock Ltd & J Davis is at www.bailii.org/ew/cases/EWCA/Civ/2014/185.html.
    The employment appeal decision in Mr O Akwiwu & Ms E Akwiwu v Ms P Onu is at www.bailii.org/uk/cases/UKEAT/2013/0283_12_0105.html.

    Good practice remains that references, whether written or verbal, should not refer to any claims, grievances or potential claims relating to discrimination. This applies not only to references given immediately after the end of employment, but also those given well into the future.

    Another post-employment victimisation case involves not the employee's previous employer, but a new employer. A Deutsche Bank employee, Latifa Bouabdillah, brought sex discrimination and equal pay against the bank, resigned, and obtained a new position with Commerzbank. During the recruitment process she was asked why she had left Deutsche Bank and gave several reasons why she had been unhappy there, but did not mention the tribunal claim. After she had been hired by Commerzbank the tribunal case was reported in the media and Commerzbank dismissed her, saying there was a breakdown of trust because she should have told them about the case and could not be trusted.

    Bouabdillah claimed she had been victimised because of her discrimination claim against Deutsche Bank, while Commerzbank said the reason for her dismissal was because she had not disclosed the claim. The employment tribunal agreed that she had been victimised, saying that even though she had not fully disclosed the situation to Commerzbank, she had replied to their direct questions and had not misled them or acted dishonestly. In any case, the tribunal said, the litigation was a private matter and did not affect her employment with Commerzbank. Bouabdillah agreed an out of court settlement with Commerzbank.

    TLT Solicitors have a summary of the case at tinyurl.com/kfgdxbn. The ET reference number is ET/2203106/12.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    Go to archived items about equality in employment (VSLH3 chapter 28)


    TIMETABLE FOR CASTE DISCRIMINATION LEGISLATION

    Updated 21/4/14. This information updates s.28.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Equality and Human Rights Commission published on 28 February 2014 two research reports under the title Caste in Britain. The research was undertaken at the request of the government, to help inform the introduction of new legislation on caste discrimination, probably in 2015.

    Key findings from the report include:

    • Caste is a form of identity that is used as a basis for social differentiation, distinct from class, race or religion.
    • Discrimination against an individual because of caste, including perception of caste, in education, employment, housing, business or public services cannot be tolerated and should be included in the protections against discrimination and harassment provided in the Equality Act 2010.
    • However, the state should not intervene in cultural or social usages which are a matter of private practice. Therefore, in regulating in this area particular regard should be given to individualsí rights under the European Convention on Human Rights.
    • The definition of caste should be neither too precise nor too broad. A minimum definition of caste in terms of endogamy (marriage restricted within a specific group), inherited status and social stratification would be useful.
    • Businesses and public authorities will need clear and practical information about how the prohibition of caste discrimination will affect them. The Commissionís initial view is that the impact will be small given that the straightforward message remains that employers and service providers must not make decisions on the basis of irrelevant considerations such as caste.
    The EHRC reports can be accessed via tinyurl.com/q6qstbe.

    Legislative background and campaigners' views
    The definition of race under s.9 of the Equality Act 2010 includes race, colour, nationality, and ethnic or national origins, and says in s.9(5) that caste may be added to the definition. The government said it would do this if evidence showed it is needed. A National Institute for Economic and Social Report (NIESR) report in December 2010 on caste discrimination and harassment in Great Britain showed it does exist, and a United Nations human rights review of the UK, adopted on 30 May 2012, recommended that the UK should put in place a national strategy to eliminate discrimination on grounds of caste, through immediately adopting the Equality Act provision on caste discrimination.

    Despite these reports, the government decided against legislating to make caste discrimination unlawful, saying it was not the most appropriate or effective way to tackle the issue. Its preferred option was the development of educational materials to raise awareness of caste discrimination and help tackle the problem, without legislation.

    But in a last-minute reversal, a new s.97 was added to the Enterprise and Regulatory Reform Act 2013, amending the Equality Act s.9(5) from may provide for caste to be an aspect of race to must provide.

    Although the amendment took effect on 25 June 2013, the government said that caste will not actually be added to the definition of race until there has been a full consultation on key issues, including the definition of caste itself and the need for any related exceptions.

    The Independent reported on 11 July 2013 that equalities minister Helen Grant had, in a letter dated 9 May and leaked to the newspaper, explicitly encouraged Hindu groups opposed to the legislation to submit evidence to the consultation, as "we remain convinced" the legislation is unnecessary. She also said that even if caste discrimination legislation is implemented there is a safeguard under which it could be removed from the statute book, through the Enterprise Act provision which allows for a review, after
    25 April 2018, of the caste discrimination legislation and whether it remains appropriate.

    On 29 July 2013 the government published its programme and timetable for the introduction of caste discrimination legislation. This says the government's objectives are to:
    • carry out a full public consultation in preparation for introduction of the legislation;
    • improve understanding of caste, caste discrimination and the legislation among employers, public sector organisations and others;
    • prepare and introduce legislation on caste, including any necessary exceptions;
    • develop arrangements for collecting information on caste and caste discrimination, to begin the process of determining the appropriateness of the legislation.
    The timetable announced by the government started with discussions with relevant groups for three to six months starting in September 2013, as preparation for the public consultation; and a 12-week public consultation which was supposed to start in
    February or March 2014 and end in May or June 2014. (As of mid-April, it has not started.) The government's response to the consultation and a draft order (secondary legislation) are expected to be issued in autumn 2014, followed by another 12-week consultation which is expected to close on February 2015, followed by "sector-specific engagement" with employers, public authorities and the judiciary. The final draft order is likely to be introduced into Parliament during summer 2015. Alongside the consultations, the Equality and Human Rights Commission carried out research on caste and caste discrimination which led to the research published in February 2014, and the organisation Talk for a Change was commissioned to run local workshops for individuals and organisations in the Hindu and Sikh communities.

    Campaigners against caste discrimination say the timetable represents "appalling delays" in bringing legislation into effect. And if the minister's letter in July 2013 reflects the government's position, no doubt a review of the legislation will start at the earliest possible opportunity in 2018.

    The International Dalit Solidarity Network and the National Secular Society produced briefings in April 2013 on caste discrimination in the UK, summarising the NIESR and UN reports and the struggle to get the new legislation passed. The IDSN report is at tinyurl.com/mdn4g5d and the more detailed NSS report at tinyurl.com/lf85a6v. The Dalit Solidarity Network-UK has further information at www.dsnuk.org.

    The government's programme and timetable can be accessed via tinyurl.com/kzo2dj8, with a Government Equalities Office press release at tinyurl.com/mhtdoxv. Information about the Talk for a Change workshops is at tinyurl.com/le43pqb.

    The Enterprise and Regulatory Reform Act is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.
    The Equality Act 2010 is at www.legislation.gov.uk/ukpga/2010/15/contents.

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    Go to archived items about equality in employment (VSLH3 chapter 28)
    Go to archived items about equality in service delivery (VSLH3 chapter 42)


    EMPLOYMENT TRIBUNAL SAYS CASTE IS ALREADY PROTECTED UNDER EQUALITY ACT

    Added 21/4/14. This information updates s.28.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    S.9(5) of the Equality Act 2010 as amended, requiring caste to be defined as a protected characteristic under the legislation, is not yet in force and won't be until autumn 2015 at the earliest [see article above]. Despite this, an employment tribunal ruled on 18 December 2013 that the act's provisions on race discrimination should, at least in the context of the specific case, be construed as covering caste discrimination.

    The case involved P Tirkey, a domestic servant of the Adivasi caste (known as the servant caste) who was employed in India and then in the UK by a couple who were of a higher caste. Tirkey brought claims against the couple for unfair dismissal, race discrimination, religion and belief discrimination, unpaid wages (totalling £175,000) and holiday pay, and subsequently sought to add caste discrimination as part of her claims for race discrimination and/or religion and belief discrimination. In a preliminary hearing, the tribunal judge ruled that race discrimination already covers ethnic origin and descent, and caste falls within each of these.

    Employment tribunal decisions do not set a precedent, and if the case is appealed, the employment appeal tribunal tribunal may not agree with the ET's view, especially because the Equality Act explicitly refers to caste as a separate characteristic. But in the meantime, it is an interesting decision.

    The decision in Ms P Tirkey v Mr & Mrs Chandock can be accessed via tinyurl.com/l4bnnxa. There is a good summary on the website of Bond Dickinson solicitors at tinyurl.com/p8e92ms.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    CASTE DISCRIMINATION TRIBUNAL CASE COLLAPSES

    Updated 3/8/13. This information updates s.28.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    After more than a year and a half of tribunal appearances and delays, the first claim of discrimination on grounds of caste in employment collapsed on 14 February 2013 on a technicality. Although the claimants could appeal against the reasons for stopping the case it seems unlikely they will do so, as the case has already lasted so long and been so expensive.

    The case involves a married couple, Vijay and Amardeep Begraj, who were both employed by Heer Makan Solicitors in Coventry: he as practice manager and she as a solicitor. Mr Begraj is a Hindu and belongs to the Dalit caste, seen as the lowest in India's caste system, while Mrs Begraj is a Sikh from the Jat caste, which is seen as a higher caste.

    The couple claim that they were discouraged from marrying because of their caste, including a senior manager telling Amardeep she should not marry Vijay because people of his caste were "different creatures", further hurtful remarks when they married, and Mrs Begraj being given additional work with reduced support following the marriage.

    Mr Begraj, who had worked at the firm for seven years, was dismissed in 2010, and Mrs Begraj resigned in January 2011. Mr Begraj claimed unfair dismissal and Mrs Begraj constructive unfair dismissal, and both made a number of other claims, including race discrimination, discrimination on the ground of religion or belief, and breach of contract.

    The case originally went to an employment tribunal in August 2011, returned to the tribunal in March 2012, and was postponed until September 2012. In October 2012, while the case was being heard, the judge was handed information about events involving a solicitor employed by Heer Manak. The nature of this information led the judge to recuse herself (excuse herself from the case) in February 2013 because it could appear that the tribunal, having received this information, was biased.

    There are good summaries of the case and its collapse on the Guardian website at tinyurl.com/cjzaocs and in the National Secular Society report on caste discrimination at tinyurl.com/lf85a6v.

    The collapse of the case had nothing to do with the merit (or lack of merit) of the Begraj's claims. But it means loss of the opportunity for a tribunal decision on whether caste discrimination can be treated as an aspect of race and/or religious discrimination. This issue will, of course, become irrelevant when/if caste discrimination becomes unlawful in its own right [see Timetable for caste discrimination legislation, above].

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    REDUNDANCY DURING PREGNANCY OR MATERNITY, PATERNITY OR ADOPTION LEAVE

    Updated 3/8/13. This information updates ss.28.3.1, 32.2-32.4 & 35.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). .
    Under the Maternity and Adoption Leave Regulations 1999 reg.10, an employee who is at risk of redundancy and who is pregnant or on maternity leave must be consulted in the same way as other employees. In being offered suitable alternative employment, this employee must be given priority over other employees who are being made redundant — even if this is economically disadvantageous for the employer, and even if the employee will not be able to start the new work until returning from leave. If no suitable alternative work is available, the employee can be made redundant even while on maternity leave.

    Under the same regulations a single person who is adopting, or one person in an adopting couple, is entitled to the same rights as a mother on maternity leave. And under the Additional Paternity Leave Regulations 2010 the child's father, the mother's husband or civil partner or the second person in an adopting couple is entitled to additional paternity leave (APL) and while on APL is entitled to the same rights as a woman on maternity leave. To be eligible for paternity and adoption entitlements, the employee must have at least 26 weeks' continuous employment with the employer, and an employee who is the child's father or the mother's husband or civil partner must have, or expect to have, the main responsibility for bringing up the child (apart from any responsibility of the mother).

    Redundancy selection criteria
    A judgment by the European Union court of justice (ECJ) on 20 June 2013 confirmed that it is unlawful sex discrimination to use less favourable redundancy selection criteria for women who have taken or are taking parental leave, compared with the criteria for workers who have not taken such leave. Parental leave in this context means what in the UK is called maternity leave, not the unpaid parental leave which can be taken before the child's fifth birthday.

    The court said the assessment criteria must be identical for those who are (or have been) on parental leave. In addition the worker must not be required be present for the assessment, as those who are on parental leave would not be able to meet this criterion.

    The judgment in Riezniece v Zemkopïbas Ministrija is on the InfoCuria website via tinyurl.com/kc5qlum.

    Guidance
    To help employers understand the rights of pregnant women and those on maternity leave, the Equality and Human Rights Commission and ACAS jointly published Managing redundancy for pregnant employees or those on maternity leave in July 2012. The guide outlines the law and gives advice on how to handle the situation correctly, based on four questions: Is the redundancy genuine? How do I consult employees on maternity leave? How do I decide the right selection criteria? Is there a suitable alternative vacancy?

    The guide can be accessed via www.acas.org.uk/index.aspx?articleid=3834.

    Surprisingly (in my opinion), the guide does not even mention that fathers, the mother's partner even if not the father, and adopters have comparable rights and the same basic principles apply.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    FREEDOM OF RELIGION AND RELIGIOUS DISCRIMINATION: FOUR CASES AT THE EUROPEAN COURT OF HUMAN RIGHTS

    Updated 3/8/13. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The European court of human rights (ECHR) in Strasbourg gave its decision on 15 January 2013 in four linked cases: two cases where employers banned employees from wearing crosses with their uniforms at work, and two involving employees who refused to provide services to same-sex couples. The four individuals, all practising Christians, based their cases on article 9 of the European convention on human rights (freedom of religion) and article 14 (prohibition of discrimination in the exercise of convention rights).

    Article 9 provides there is a right to freedom of thought, conscience and religion. But the right to manifest one's beliefs can be qualified (restricted) by law, if this is necessary in a democratic society in the interests of public safety, or for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. So the key issue in these cases was the restriction on the individuals' right to manifest their religious beliefs.

    The ECHR judgment in Eweida & others v the United Kingdom is at www.baillii.org/eu/cases/ECHR/2013/37.html. A press release with detailed summaries of the cases and ECHR decision is at tinyurl.com/byed69t.

    One of the cases involving staff wearing crosses at work was brought by Nadia Eweida, a British Airways employee who in 2006 refused to hide her cross necklace when she was told the uniform policy required it to be hidden from view. She was put on unpaid leave and a few weeks later was offered an administrative job where she would not have to wear a uniform. She refused this offer and remained home without pay, returning to work in 2007 when BA amended its policy to allow staff to wear a faith or charity symbol. When she claimed back pay and compensation she was refused, and claimed indirect discrimination on the basis that the uniform policy put Christians generally at a disadvantage.

    The employment tribunal found that she had not been discriminated against, because the wearing of a cross was not a requirement of the Christian faith but her personal choice, and there was no evidence that the uniform policy had put Christians at a disadvantage. When she appealed to the employment appeal tribunal it dismissed her appeal. She then appealed to the court of appeal, which also dismissed her appeal. When she sought leave to appeal to the supreme court, this was refused.

    However, the ECHR disagreed with the decisions of the UK courts, saying they had given too much weight to BA's desire to project its corporate image, and had thus not protected Eweida's right to manifest her religion. Maintaining a corporate image was a legitimate aim, but refusing to allow Eweida to wear a discreet cross was not proportionate — especially because people of other religions wore hijabs and turbans without it affecting BA's image.

    Eweida was awarded 2,000 euros for non-pecuniary damages and 30,000 euros for costs and expenses.

    This decision, overturning the decisions of the UK courts, got most of the media attention, with relatively little given to the three other cases where the decisions of the UK courts were upheld.

    The second case involving a cross on a necklace was brought by Shirley Chaplin, a nurse at the Royal Devon and Exeter NHS Trust, who was told that she could not wear her cross on a chain because it was a health and safety risk for herself and patients, but could wear it as a brooch. This complied with the hospital's uniform policy, which to minimise the risk of cross infection limited jewellery to one plain smooth ring and one paid of plain discreet earrings, with no necklaces. After refusing to stop wearing her cross on a necklace at work, she was moved to a non-nursing job.

    She claimed discrimination, lost her claim in the employment tribunal, and following the court of appeal's decision in the Eweida case, was advised that an appeal to the employment appeal tribunal would have no prospect of success. The ECHR ruled that the ban on wearing a cross on a necklace did interfere with her right to manifest her religion, but it was a proportionate response to achieving the aim of protecting health and safety on a hospital ward.

    In the first of the other two cases, Lillian Ladele, a Christian registrar at Islington Council, had requested permission not to officiate at civil partnership ceremonies as she believed that civil partnerships are against the will of God. When the Council withheld permission and she refused to carry out the work, she was disciplined for gross misconduct and brought claims of discrimination and harassment under the Employment Equality (Religion or Belief) Regulations 2003 (now included in the Equality Act 2010).

    The employment tribunal found in her favour and held that she had been directly discriminated against on the grounds of her religious belief. However the employment appeal tribunal and then the court of appeal held that she was not directly discriminated against by her employers, because the reason for the disciplinary action against her was not her religious belief but her conduct in refusing to carry out a legitimate duty as instructed. They further held that she had not been indirectly discriminated against, as the aims of Islington Council include providing non-discriminatory services and promoting equal opportunities, and the duty of registrars to officiate at civil partnerships is a means of achieving these aims.

    The court of appeal also considered whether there was a conflict of rights between the provisions of the Equality Act (Sexual Orientation) Regulations 2007 and article 9 of the European convention on human rights (freedom of thought, conscience and religion). It held that the prohibition of discrimination under the sexual orientation regulations takes precedence over the right to manifest one's religion, except where the regulations say otherwise (for example regulations allowing religious organisations, in limited circumstances, to discriminate in employment or service delivery on the basis of sexual orientation).

    In a similar case the employment appeal tribunal found that Relate Avon had not discriminated unlawfully on the basis of religion by dismissing Gary McFarlane, a counsellor who refused on religious grounds to fully commit to providing psycho-sexual counselling to same-sex couples. The court of appeal refused permission for the counsellor to appeal against the EAT decision.

    In these two cases the ECHR said the most important factor to be taken into account was that the policies of the applicants' employers — to promote equal opportunities and to require employees to act in a way which did not discriminate against others — had the legitimate aim of securing the rights of others, such as same-sex couples, which were also protected under the convention on human rights. In particular, in previous cases the ECHR had held that differences in treatment based on sexual orientation required particularly serious justification and that same-sex couples were in a relevantly similar situation to heterosexual couples with regard to their need for legal recognition and protection of their relationship.

    The ECHR said that national authorities have wide discretion when striking a balance between the employer's right to secure the rights of others, and the applicants' right to manifest their religion. The ECHR decided that the right balance had been struck in these two cases, and there had therefore been no violation of articles 9 or 14 of the convention.

    Following the ECHR decision, Chaplin, Ladele and McFarlane requested that the decision be referred to the grand chamber of the ECHR. Such requests are examined by a panel of five judges, who decide whether the case deserves further examination. Their request was refused on 28 May 2013 and at that point the ECHR decision became final.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    SUNDAY WORKING AND RELIGIOUS DISCRIMINATION

    Added 9/12/13. This information updates ss.28.4.3 & 31.2.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In relation to shop workers, specific rules apply to Sunday working [see end of this article]. Non-shop workers can be required to work on Sundays (or any other day) unless their contract says otherwise. However if an employee asks not to work on Sunday or any other day for religious reasons, and the employer unjustifiably refuses, this could constitute religious discrimination.

    This is illustrated in the case of Celestina Mba, a Christian care officer in a residential home for disabled children, who believed that Sundays should be for worship rather than work but was required to work on Sundays. The court of appeal confirmed on
    5 December 2013 that this was not unlawful indirect religious discrimination by her employer, Merton council, because the council had justifiable reasons for the requirement and the requirement was reasonable.

    Mba's contract with the council required her to work weekends and bank holidays, but for the first two years there was an informal arrangement under which she worked Saturdays but not Sundays. When the council subsequently, because of understaffing, required her to be rota'd for occasional Sundays, she refused, even though the council agreed to arrange the Sunday shifts so that she could attend church. After disciplinary action and a final written warning she resigned, claiming constructive unfair dismissal and indirect religious discrimination.

    The employment tribunal, employment appeal tribunal and court of appeal all agreed that the requirement to work Sundays had been a proportionate means of achieving the legitimate aims of ensuring an appropriate balance of staff on each shift, treating staff fairly and providing a cost effective service in the face of budgetary constraints . Because the residential home was understaffed, the council did not have a viable and practicable alternative to requiring all full-time staff to work on some Sundays if their contracts required this, as Mba's did. At the time there were only five permanent staff but nine were required, and allowing Ms Mba to continue having Sundays off would mean additional costs to hire bank or agency staff.

    Mba's appeals to the EAT and then the court of appeal primarily concerned whether the employment tribunal was right to base its decision in part on its statement that "her belief that Sunday should be a day of rest and worship upon which no paid employment was undertaken, whilst deeply held, is not a core component of the Christian faith", and many Christians are willing to work on Sundays.

    The EAT said, ""Two situations must be contrasted: first, evaluating how important the belief is, so that it may be described as 'core'; the second asking how many people who are adherent to the faith believe in that particular aspect or requirement of it. The first is qualitative, the second is quantitative. The difference between them is significant for a Tribunal when assessing proportionality. Whereas it has no right to determine matters of faith qualitatively, the weight to be given to the degree of interference with religious belief of a certain kind will inevitably differ depending on the numbers of believers who will be affected by the particular PCP [provision, criterion or practice] concerned."

    The court of appeal disagreed with this, saying that previous legal decisions had said that the number of people who believe in or exercise a particular aspect of the religion is not necessarily a significant factor. However, the court of appeal said that even though the ET and EAT had been incorrect in saying that not working on Sunday is not a core component of the Christian faith, the fact remained that requiring Mba to work on Sundays, in accordance with her contract, was a proportionate means for Merton council to achieve legitimate aims, and had not been unlawful indirect discrimination.

    The decision illustrates the importance of being clear in contracts right from the beginning which days a worker is or may be required to work. If a worker asks not to work on specific days for religious reasons, the employer's decision should be reasonable and justifiable, i.e. should be a proportionate means of achieving a legitimate aim. Issues for employers are explored in the Equality and Human Rights Commission's guidance for employers on religion or belief in the workplace [see below].

    The court of appeal decision in Mba v Mayor and Burgesses of the London Borough of Merton is at www.bailii.org/ew/cases/EWCA/Civ/2013/1562.html.

    Specific rules on Sunday working apply to shop workers. Apart from those who are employed to work only on Sundays, shop workers cannot be required to work on Sundays, and have the right not to be dismissed or subject to any detriment for refusing to work on Sundays (Employment Rights Act 1996 ss.36-43). Where the contract does not require Sunday working, a shop worker who agrees to Sunday working must sign an opt in agreement. Where the contract requires Sunday working, the shop worker may give the employer a signed and dated opt out notice, which does not come into effect until three months after its date. During the notice period the worker must work Sundays if required to do so, and cannot be dismissed or subject to any detriment because of having given an opt out notice.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    FREEDOM OF RELIGION AND RELIGIOUS DISCRIMINATION: GUIDANCE FOR EMPLOYERS

    Added 3/8/13. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    On 14 February 2013, following the European court of human rights decision in four linked cases [see above], the Equality and Human Rights Commission (EHRC — not to be confused with ECHR) published Religion or belief in the workplace: A guide for employers following recent European Court of Human Rights judgments, and Religion or belief in the workplace: An explanation of recent European Court of Human Rights judgments.

    The guide for employers includes good practice advice under six questions. The questions, with the EHRC's short answers (not the full answers!) are:

    • How will an employer know if a religion or belief is genuine? This will be obvious on most occasions, so religion or belief expertise usually will not be required; a religion or belief is more than an opinion or point of view. More scrutiny may be needed where beliefs are obscure, or appear unreasonable or insincere.

    • What kind of religion or belief requests will an employer need to consider? Common request including asking for permission to wear certain symbols or forms of dress, time off work for prayers or festivals, and adapting work duties to meet religion or belief needs.

    • What steps should an employer take to deal with a request? Think ahead where possible to review policies and practices that may cause problems, treat requests seriously, permit the request unless there are good reasons to justify refusal.

    • What questions should employers ask to ensure their approach to a religion or belief request is justified? Striking the right balance between competing considerations means looking at the impact on the business, on the individual making the request, and on other employees and customers if the request is or is not granted. Consider if there is a justifiable need to treat everyone in the same way, or whether different treatment is possible without breaking the law.

    • Do employees now have a right to promote their particular religion or belief at work? Only where it is appropriate to do so without causing harassment, imposing their views on others or otherwise abusing a position of power to the detriment of the vulnerable or less powerful.

    • Can employees refrain from work duties? Yes, if the law explicitly allows this. Otherwise, it depends on the impact on the business, on other employees and on customers. It will not be appropriate where it results in discrimination against employees or customers.
    The guide for employers and the explanation of the ECHR judgments can both be downloaded in Word or PDF from page 3 of the EHRC's publications list at tinyurl.com/kq3bwaq.

    Stonewall's guide Religion and sexual orientation: How to manage relations in the workplace, includes case studies and advice on how to prevent and respond to incidents at work. It can be downloaded at www.stonewall.org.uk/workplace/1473.asp#religion.

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    WHAT IS AND IS NOT A PROTECTED BELIEF

    Updated 21/4/14. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In a decision in December 2013, an employment tribunal said that an employee's belief in democratic socialism, as evidenced by his longstanding Labour Party activism, could be protected under the Equality Act 2010 as a philosophical belief.

    The claimant, Cornelius Olivier, did not comply with the requirement to notify his employer, the Department for Work and Pensions, before undertaking political activities which could clash with his position at a jobcentre in Cornwall. He was dismissed after being elected as a local councillor and having a letter critical of the government's benefits policies published in the local newspaper.

    Olivier claimed discrimination on the basis of philosophical belief and unfair dismissal, saying at a preliminary hearing that his 30 years or Labour Party activism have been based on the party's core beliefs, which are described by the party and recognised by the public as democratic socialism.

    The tribunal's view at the preliminary hearing was that he had been dismissed not because of his beliefs, but because he had failed to notify the DWP of his activities. However, the tribunal said that a deeply held belief in democratic socialism was capable of amounting to a philosophical belief, and the discrimination and unfair dismissal cases should therefore be heard.

    Employment tribunal cases are not currently on the internet, but the reference number for C Olivier v Department for Work and Pensions is ET/170147/2013 and CIPD has a summary at tinyurl.com/k4xtamn.

    The tribunal based its views on the 2009 employment appeal tribunal decision in Grainger plc v Nicholson, which set out the factors to be taken into account when assessing whether a belief should be protected as a religious or philosophical belief, for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (and since 1 October 2010, for the purposes of the Equality Act 2010. These factors are:

    • the belief must be genuinely held;
    • it must be a belief, and not an opinion or viewpoint based on the present state of information available;
    • it must be a belief as to a weighty and substantial aspect of human life and behaviour;
    • it must attain a certain level of cogency, seriousness, cohesion and importance;
    • it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
    The Grainger decision is at www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html.

    Some decisions that have followed Grainger are set out here.

    In Hashman v Milton Park Dorset Park Ltd (trading as Orchard Park) Hashman, a lifelong animal rights campaigner, was dismissed from his job at Orchard Park Garden Centre when his employers discovered he was an active campaigner against fox hunting. At a preliminary hearing on 10 January 2011 the employment tribunal had said that Hashman's belief in the sanctity of life extended to his fervent anti-fox hunting and anti-hare coursing beliefs, and such beliefs met the criteria in Grainger v Nicholson for a protected philosophical belief for the On 26 October 2011 the tribunal found that Hashman had been discriminated against because of these beliefs.

    An article by Bindmans solicitors, who represented Hashman, is at www.bindmans.com/index.php?id=1089.

    In another case in October 2011, Lisk v Shield Guardian Co Ltd, an ex-serviceman claimed direct discrimination and harassment on grounds of philosophical belief after being asked by Shield Guardian, his employer, to remove his poppy at work. In a pre-hearing review, the tribunal said that although Lisk's belief in the importance of showing respect by wearing a poppy was clearly serious, it could not be described as a philosophical belief because it lacked the cogency, cohesion and importance that were required by Grainger, and was too narrow to be described as a belief about a weighty and substantial aspect of human life and behaviour.

    In August 2011 an employment tribunal, in a preliminary hearing, ruled in Farrell v South Yorkshire Police Authority that Farrell's belief that the 9/11 and 7/7 terrorist attacks were authorised by the US and UK governments and were part of a conspiracy led by a world elite was not a protected belief. This case is particularly unusual because Farrell was employed by the police as a principal intelligence analyst, responsible for producing an annual strategic threat assessment covering all crimes, including terrorism. His risk analysis gave 100% scores to every aspect of internal terrorism, 1% to external terrorism, and 0% to all other crimes. He attached to his report a document saying, amongst other things, that the UK governmentís counter-terrorism strategy was a sham intended to divert attention from the government's secret scheming and the evil ways of the elite.

    Not surprisingly he was subject to disciplinary proceedings leading to dismissal, on the basis that his views were incompatible with his role and prevented him from carrying out his duties effectively. He brought claims for unfair dismissal and discrimination on the grounds of his philosophical beliefs.

    These decisions do not set a precedent, but they illustrate how "philosophical belief" is being interpreted.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    DISMISSAL FOR POLITICAL OPINIONS OR AFFILIATION

    Updated 21/4/14. This information updates ss.26.5.1 & 28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 25 June 2013, if the reason or principal reason for a dismissal relates to the employee's political opinions or affiliation, the employee can claim unfair dismissal from day one of employment instead of needing to have worked for a qualifying period of two years or in some cases one year.

    This change was made following a decision by the European court of human rights on 6 November 2012. The case involved Arthur Redfearn, who was employed by Serco as a bus driver in Bradford, West Yorkshire, providing transport services primarily for Asian adults and children with disabilities. He was summarily dismissed in 2004 when he was elected as a British National Party (BNP) councillor, because Serco was concerned about the risk of attacks on him. Until his political affiliation become public knowledge no service users or colleagues had complained about him and he was considered a "first-class employee", but after his election there were complaints from unions and employees.

    Redfearn could not bring a claim of unfair dismissal because he did not have the necessary one year's qualifying service (now increased to two years). A dismissal on the grounds of discrimination is automatically unfair and does not require a qualifying period of employment, so he brought a claim of race discrimination, which the employment tribunal dismissed. (I haven't seen anything that indicates why he didn't bring a claim under the Employment Equality (Religion or Belief) Regulations 2003, but it may be because Parliament had explicitly said during debate on the legislation that philosophical belief was not intended to include explicitly political beliefs, and no one wanted one of the first cases, in 2004, to be about BNP membership.)

    Redfearn then took his case to the European court of human rights not as a discrimination case (which would generally have gone to the European court of justice), but arguing that the UK's unfair dismissal legislation, by preventing him bringing a claim for unfair dismissal, interfered with his right to freedom of assembly under article 11 of the European convention on human rights.

    In its decision the human rights court agreed that this was the case, saying Redfearn "had been summarily dismissed following complaints about problems which had never actually occurred, without any apparent consideration being given to the possibility of transferring him to a non-customer facing role". It said governments have a positive obligation to provide protection against dismissal motivated solely by an employee's membership of a particular political party, or at least to provide a way for the proportionality of such a dismissal to be independently evaluated, for example, by the employee being able to make an unfair dismissal claim.

    The court recognised that in certain circumstances an employer may lawfully place restrictions on the freedom of association of employees where it is necessary to protect the rights of others or to maintain the political neutrality of civil servants. It accepted that given the nature of the BNP's policies and the fact that the majority of service users were vulnerable persons of Asian origin, Serco may have been in a difficult position when the applicantís candidature became public knowledge. The court said the issue was not the dismissal itself, but the fact that it was done summarily, was not based on anything Redfearn had done or failed to do during his actual employment, was based only on his BNP involvement and therefore on his right to freedom of association — and without him having any way to challenge the dismissal through the UK courts.

    The court said that the UK either had to remove the qualifying period for unfair dismissal where the dismissal is based on political opinions or affiliation, or had to create a freestanding claim for unlawful discrimination on grounds of political affiliation.

    Bringing discrimination on grounds of political affiliation or belief within the Equality Act 2010 would have meant that the law would apply not only to employees but also to a wider group of "workers"; there would be no qualifying period to claim unfair dismissal on these grounds; any dismissal on these grounds would be automatically unfair, with none of the defences available to employers in ordinary unfair dismissal claims; and there would be no limit on the compensation that could be awarded.

    Not surprisingly, the government responded to the ECHR decision by removing the qualifying period to claim unfair dismissal. This change was made by s.13 in the Enterprise and Regulatory Reform Act 2013, which amends s.108 of the Employment Rights Act 1996 (qualifying period of employment). The Enterprise and Regulatory Reform Act is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.

    The current position, that explicitly political beliefs are not protected as philosophical beliefs, thus remains unchanged. The employment tribunal decision in Olivier v Department for Work and Pension, that a deeply held belief in democratic socialism is capable of being a philosophical belief, does not set a precedent.

    The decision in Redfearn v the United Kingdom is at www.bailii.org/eu/cases/ECHR/2012/1878.html.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    MANAGING AGE IN THE WORKPLACE

    Updated 2/12/12. This information updates s.28.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Age Positive guidance and case studies on managing age in the workplace and managing without a retirement age are on the Department for Work and Pension website at www.dwp.gov.uk/age-positive.

    An updated edition of Managing Age, the joint CIPD/TUC guide, was published on 17 May 2011. It supports ACAS guidance on managing without a retirement age, and provides guidance on good age management practices. Available on the TUC website via tinyurl.com/ogkterz, the guide covers retirement; flexible retirement; recruitment, selection and promotion; pay, benefits and pensions; appraisals, performance management and training; health and safety; and redundancy and termination. Annexes provide detailed information about transitional arrangements for phasing out the default retirement age.

    TAEN — the Age and Employment Network — has a range of resources for both employers and individuals at taen.org.uk.

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    COMPULSORY RETIREMENT

    Updated 3/8/13. This information updates ss.28.6.1 & 34.2.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 1 October 2011, compulsory (or mandatory) retirement required by the employer — even if it is included in the contract of employment — is lawful only if compulsory retirement is a proportionate means of achieving a legitimate aim, and the age chosen is a proportionate means of achieving that aim.

    In a decision on 12 October 2010, the European court of justice said a compulsory retirement age in a contract of employment could be justified if the retirement age provision in the contract was collectively negotiated with a union, the employee would receive a pension so would have replacement income, and compulsory retirement has been in widespread use in the member state for a long time without having had any effect on levels of employment. However barrister Daniel Barnett said the ECJ is often more liberal than UK tribunals when justifying age discrimination, so UK employers should not necessarily depend on this or other ECJ decisions. The ECJ decision in Rosenbladt v Oellerking Gebäudereinigungsges mbH is at www.bailii.org/eu/cases/EUECJ/2010/C4509.html.

    Another ECJ decision on 21 July 2011, described by Daniel Barnett as verging on incomprehensible, indicates that a compulsory retirement age (in this case, requiring German civil servants to retire at 65) is potentially justified to provide access to employment for younger people, encourage the promotion of younger employees, and prevent possible disputes about employees' fitness to work beyond a certain age. The judgment also seems to say that the test for adopting a retirement age is whether it is 'reasonable', rather than whether it is proportionate.

    According to the Age and Employment Network (TAEN), this could "provide employers with wriggle room on possible objective justifications for compulsory retirements". However, TAEN also says employers should be cautious about using these arguments, as the facts will still have to be carefully considered in each case.

    The decision in Gerhard Fuchs v Land Hessen is at www.bailii.org/eu/cases/EUECJ/2011/C15910.html.

    European court of justice decisions are important because UK anti-discrimination law is based on the EU framework directive for equal treatment in employment and occupation.

    Closer to home, the supreme court's decision on 25 April 2012 in Seldon v Clarkson Wright and Jakes has clarified how the law is being interpreted when employers seek to justify a compulsory retirement age as a proportionate means of achieving a legitimate aim.

    Seldon's case for direct age discrimination arose from his being forced to retire, under the partnership deed, as senior partner in a law firm when he turned 65. The employment tribunal, employment appeal tribunal and court of appeal said that the retirement age was discriminatory but was a proportionate means of achieving legitimate aims. The supreme court, dismissing Seldon's appeal against the court of appeal decision, agreed that the compulsory retirement age was directly discriminatory but said that it could be justified as it was based on the legitimate social policy aims of intergenerational fairness and dignity.

    As set out in the supreme court decision, the test for justifying the age discrimination involved in setting a compulsory retirement age is that the employer must show:

    • it has an aim;
    • the aim potentially has a "public interest" aim, such as promoting access to employment for younger people, facilitating the participation of older workers in the workforce, the efficient planning for the departure and recruitment of staff, and avoiding disputes about the employee's fitness for work over a certain age — rather than purely individual aims particular to the business such as cost reduction or improving competitiveness;
    • the aim is also legitimate in the particular circumstances of the employment concerned;
    • the means chosen to achieve the aim must be both proportionate to the aim and (reasonably) necessary to achieve it.
    Following its decision that age discrimination, in the Seldon case, had legitimate aims, the supreme court sent the case back to the employment tribunal to consider whether the specific age of 65 was a proportionate means of the particular business achieving those aims. In its decision on 28 May 2013, the tribunal held that the compulsory retirement age was appropriate and necessary to achieve the aims.

    The supreme court decision and subsequent tribunal decision confirm that a compulsory retirement age may be a proportionate means of achieving a legitimate aim. But before imposing a compulsory retirement age, an employer should take legal advice to ensure its aims would be considered to be legitimate, and it would be proportionate to require retirement at a specified age to achieve those aims, and the specified age is appropriate.

    The Seldon decisions were based on the situation in 2006, when Seldon reached age 65. At that time there was still a national default retirement age of 65. The tribunal explicitly stated that since then the default retirement age had been abolished and expectations about people working beyond 65 had changed, so the case might be decided differently if it were brought now.

    The supreme court decision in Lindsey Seldon v Clarkson Wright and James (A Partnership) is at www.bailii.org/uk/cases/UKSC/2012/16.html. The tribunal decision does not appear to be online but there are many articles about the case and its implications, including one in the Russell-Cooke Solicitors employment law update at tinyurl.com/l9g5ht7.

    If compulsory retirement cannot be objectively justified, an employer can dismiss the employee only for a fair reason: capability or qualifications, conduct, redundancy, statutory requirements, or some other substantial reason. Otherwise, an employer who forces an employee to retire may face claims of unfair dismissal and/or age discrimination.

    For guidance on operating without a retirement age, see Managing age in the workplace.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    INDIRECT AGE DISCRIMINATION

    Updated 3/8/13. This information updates s.28.6.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Indirect discrimination on grounds of age occurs when an employer applies a provision, criteria or practice that has the effect of discriminating against a person on the basis of age, without such provision, criterion or practice being a proportionate means of achieving a legitimate aim.

    In Homer v West Yorkshire Police, Homer's indirect discrimination case was based on a change in Yorkshire Police Constabulary's rules which meant be could not achieve the highest pay grade because he did not have a law degree and would not be able to complete one before he had to retire (this was at a time when the default retirement age of 65 was still in place).

    The employment tribunal held that Homer had been indirectly discriminated against on grounds of age without objective justification. The employment appeal tribunal and court of appeal disagreed, saying the reason for his inability to meet the new requirement was not because of his age, but because of his impending retirement.

    Homer appealed against the court of appeal decision. In a decision given on 25 April 2012 at the same time as Seldon [see above], the supreme court upheld Homer's appeal, saying that retirement was directly related to age, and so his age was a factor in his not being able to meet the requirement.

    In its decision , the supreme court said that the aims which can justify indirect discrimination are not limited to social policy aims — as in the case of direct discrimination — but can include any real need of the business. To be a proportionate means of achieving a legitimate aim the discriminatory criterion or practice has to be both appropriate (with a correlation between the legitimate aim and how the aim is met) and reasonably necessary (balancing the impact of the criterion on the employee, against the importance of the aim to the employer). The criterion or practice is proportionate if the objective is sufficiently important to justify limiting a fundamental right; the criterion or practice is rationally connected to the objective; and the means chosen is no more than is necessary to accomplish the objective.

    As in Seldon the supreme court remitted the case to the employment tribunal, in this case to consider whether the indirectly discriminatory requirement to have a law degree in order to gain promotion was justifiable. In its decision on 13 February 2013, the tribunal said that a requirement for new recruits to have a law degree could have been justified, but the police had not shown that it was justifiable to require it for experienced advisors as well. The tribunal held that the requirement was indirect age discrimination.

    The supreme court decision in Homer v Chief Constable of West Yorkshire Police is at www.bailii.org/uk/cases/UKSC/2012/15.html. The employment tribunal decision is at tinyurl.com/qehadqu.

    TLT Solicitors have a good summary of the case at tinyurl.com/mm2wvvs.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    EQUAL PAY AUDITS

    Updated 3/8/13. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 23 May to 18 July 2013 the government carried out a second consultation on its proposal for equal pay audits. This proposal will apply only where an employment tribunal has found an employer to have breached equal pay law or to have discriminated against women or men in contractual pay, such as discretionary bonuses, and where the tribunal believes that continuing or repeated discrimination is likely. In this situation the tribunal must order the employer to conduct and publish the results of an equal pay audit, identifying action to be taken to avoid equal pay breaches occurring or continuing. An employer which does not carry out an audit as ordered will be liable to a civil penalty of up to £5,000.

    The tribunal will be obliged to order an audit unless the employer has carried out an adequate pay audit within the previous three years, or it is clear without an audit whether any action is required to avoid equal pay breaches occurring or continuing, or the tribunal has no reason to believe there may be other breaches, or the disadvantages of an equal pay audit would outweigh its benefits.

    When the legislation is implemented there will be an exemption period during which the requirement to order an equal pay audit does not apply to micro-employers (with fewer than 10 employees) and start-up businesses.

    The consultation from May to July 2013 looks at the detail and implications of the proposals. It follows the government's "modern workplaces" consultation from May to August 2011, which led to s.98 of the Employment and Regulatory Reform Act 2013. This enables regulations to be made giving employment tribunals the necessary powers to require equal pay audits in specified circumstances.

    Details of the second (2013) consultation are on the Gov.uk website via tinyurl.com/pgvzgca. The government's response to the first consultation, published on 14 June 2012, is on the Home Office website via tinyurl.com/cvv2odk.

    The Enterprise and Regulatory Reform Act is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.

    CIPD's factsheet on equal pay, most recently updated in January 2013, can be accessed via tinyurl.com/7uo4wqn (free registration required). This covers the legal position, equal pay claims, the "material factor" defence, good practice recommendations, gender pay audits, and the CIPD position.

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    GENDER PAY GAP REPORTING

    Updated 12/3/12. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    S.78 of the Equality Act 2010, which has not yet been brought into force, enables regulations to be made requiring employers with at least 250 employees in Great Britain to publish information about the differences in pay between their male and female employees. The government said on 2 December 2010 that it is encouraging public, private and voluntary sector employers with 150 or more employees to report this information on a voluntary basis, and that s.78 will not be implemented, amended or repealed while this voluntary approach is being developed.

    ACAS published in September 2011 quick start guidance on voluntary gender analysis and reporting, at tinyurl.com/678xazq, and CIPD updated its factsheet on equal pay, at tinyurl.com/7uo4wqn.

    The Equality and Human Rights Commission has issued guidance on indicators and reporting at tinyurl.com/4phfyxe. It proposes three indicators that could be used for reporting the gender pay gap: a single figure showing the overall difference between median earnings of men and women; a single figure showing the average difference between men's and women's starting salaries; or the differences between men's and women's pay by grade and job type.

    S.78 of the Equality Act 2010 is at www.legislation.gov.uk/ukpga/2010/15/section/78.

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    SIX-YEAR TIME LIMIT FOR EQUAL PAY CLAIMS

    Updated 2/12/12. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Since the Equal Pay Act was implemented in 1970, nearly all equal pay claims have been heard in the employment tribunal, where the claim must be brought while the person is still employed or within six months of last being employed by the employer. But on 24 October 2012 the supreme court confirmed that equal pay claims can also be heard as breach of contract claims in the high court, where the limitation period for bringing claims is six years.

    The decision arose from a case involving Birmingham City Council. In 2007 and 2008 compensation for long-term underpayment was paid to 174 female employers, but others who had ceased to be employed by the council more than six months before were not eligible for the compensation. They then brought their claims in the high court.

    After the high court confirmed that the claims could be heard there, Birmingham Council sought to have the claims struck out, on the basis that s.2.3 of the Equal Pay Act 1970 allows cases to be struck out if the court considers that they "could more conveniently be disposed of" in an employment tribunal. Following the court of appeal's confirmation on 29 November 2011 that the claims could be heard in the high court, the council appealed to the supreme court.

    The supreme court confirmed in October 2012 that equal pay claims could be brought in the high court, since striking out the claims would mean they were out of time and could not be brought in the tribunal, and could thus not be "conveniently disposed of" there. The court suggested that Parliament should consider relaxing the strict six-month time limit for equal pay claims in the tribunal, with safeguards to reduce the risk of claimants deliberately delaying in order to bring a claim in the high court rather than tribunal.

    The supreme court decision is likely to pave the way for large numbers of claims that were time-barred from being brought in the employment tribunal. Successful claims could have significant impact on the equal pay liabilities of local authorities and private sector employers.

    The supreme court decision in Birmingham City Council v Huda Abdulla & others is at www.bailii.org/uk/cases/UKSC/2012/47.html.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    ABOLITION OF STATUTORY DISCRIMINATION QUESTIONNAIRE PROCEDURE: EMPLOYMENT

    Added 1/4/14. This information updates s.37.3.1 in The Russell-Cooke Voluntary Sector Legal Handbook.
    For breaches of discrimination law taking place on or after 6 April 2014, the statutory discrimination questionnaire procedure which since October 2010 has enabled workers to obtain information from their employer about an alleged discriminatory act is abolished. (The procedure also covered discrimination in the provision of goods, services and public functions; for more about this, see Abolition of statutory discrimination questionnaire procedure: Goods, services and public functions on the Equality page of this website.)

    Instead of the statutory procedure for workplace discrimination, there is an informal process backed up with non-binding good practice guidance from Acas.

    Under the statutory procedure, if the employer gave evasive or equivocal answers to the questionnaire or did not respond within eight weeks, the tribunal was entitled to draw an adverse inference from this, seeing it as evidence that the employer had discriminated unlawfully.

    The abolition of the statutory procedure does not prevent those who believe they have been discriminated against from asking questions, but it means there is no longer a statutory framework for the questions, and employers need to be aware that such questions could be asked not only in a formal letter, but also in an informal letter or email. And although there is no longer a statutory requirement for the employer to respond within eight weeks, responding evasively or not at all could still lead to the tribunal drawing an adverse inference. In any case, providing a proper response could lead to resolving the dispute without a tribunal case, or if the case does go to tribunal, the employer might be ordered to provide the information anyway.

    Even without a statutory questions procedure, workers who ask in good faith for information about possible breaches of equality legislation are protected from being victimised for having done so.

    The 26-page Acas guidance, Asking and responding to questions of discrimination in the workplace, was published in January 2014. It includes guidance for both questioners and responders on questions of discrimination at work and questions related to equal pay and contractual terms and conditions. It also includes a template for questioners to help them organise their questions. It is at tinyurl.com/m93aobd.

    The provision for statutory questionnaire procedure is in the Equality Act 2010 s.138 at www.legislation.gov.uk/ukpga/2010/15/section/138. It is repealed by s.66 of the Enterprise and Regulatory Reform Act 2013.

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    EQUAL OPPORTUNITIES IN SERVICE DELIVERY


    ABOLITION OF STATUTORY DISCRIMINATION QUESTIONNAIRE PROCEDURE: GOODS, SERVICES AND PUBLIC FUNCTIONS

    Added 1/4/14. This information updates s.42.1 in The Russell-Cooke Voluntary Sector Legal Handbook.
    For breaches of discrimination law taking place on or after 6 April 2014, the statutory discrimination questionnaire procedure has been abolished. Since October 2010, this procedure has enabled a person to obtain information from someone they believe has discriminated against them in the provision of goods, services and public functions. (It also covered discrimination in employment; for more about abolition of the procedure in relation to employment, see Abolition of statutory discrimination questionnaires: Employment on the Employment page of this website.)

    Rather than the statutory procedure, from 6 April 2014 there is an informal process backed up with non-binding good practice guidance from the Department for Culture, Media and Sport.

    The 14-page DCMS guidance, Asking and responding to questions of discrimination in the provision of goods and services and public functions, was published in January 2014. It includes guidance for both questioners and responders on questions of discrimination in the provision of goods and services, and includes a template for questioners to help them organise their questions. It can be accessed via tinyurl.com/mbufvm9.

    The provision for statutory questionnaires is in the Equality Act 2010 s.138 at www.legislation.gov.uk/ukpga/2010/15/section/138. It is repealed by s.66 of the Enterprise and Regulatory Reform Act 2013.

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    equality in service delivery (VSLH3 chapter 42)


    CHARITY ACTIVITIES AND SERVICES FOR SPECIFIC GROUPS

    Updated 9/12/13. This information updates s.5.6 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under the Equality Act 2010 charities are still allowed to have charitable instruments [see below] which restrict benefits to people who share a protected characteristic, except if defined by colour. But under a new provision in ss.193-194, they may restrict their benefits in this way only if it is either a proportionate means of achieving a legitimate aim (in other words, it can be objectively justified, and is a fair, balanced and reasonable way of achieving the aim) or is intended to prevent or compensate for a disadvantage.

    A study by the University of Liverpool's Charity Law & Policy Unit, published in September 2013, shows that charities are generally unaware of the potential implications of these provisions for their service delivery or charitable objects. For more about this research, see Impact of the Equality Act on charities, below.

    In s.194 of the act, "Charitable instrument" is defined as an instrument establishing or governing a charity. This would be the charity's constitution, trust deed, articles of association or other governing document, or something like a will or conveyance which established the charity.

    At one point some commentators thought that "instrument" might also include donations for a specific purpose (restricted funds), but the Charity Commission's guidance makes clear that this is not the case. This means that a charity can accept funds for a purpose where the beneficiaries are limited on the basis of a protected characteristic only if the charity's governing document allows this restriction, and the activity or services to be provided meet the legitimate aim and/or compensating for disadvantage test — or if the restricted activities or services are allowed under other provisions of the Equality Act [see below].

    The charities exemption in ss.193-194 is a significant change from previous equality legislation, which allowed charity governing documents to limit their beneficiaries to particular groups, except when defined by colour, without having to justify this restriction. The new rule could put charities at risk of a claim if they cannot justify having objects which restrict services to people with a particular protected characteristic.

    The Charity Commission's initial summary guidance was published in September 2010, with more detailed guidance published on 31 August 2011. The detailed guidance, which can be accessed via tinyurl.com/7yy72zw, gives examples of the tackling disadvantage test, explains "legitimate aim" (an aim/object/purpose that has a reasonable social policy objective, is consistent with the charity's stated purpose, and is not in itself discriminatory), and explains when it is acceptable to discriminate in carrying out a legitimate aim (only if the restriction is appropriate and necessary to carrying out the aim, and only if it is a fair, balanced and reasonable way of doing so). It includes examples, and details of how the tests in the exemption relate to the public benefit test, to grant-making charities and to charities with restricted funds.

    If the charity's objects restrict the beneficiary group(s) on the basis of a protected characteristic or characteristics, and this cannot be justified under the disadvantage or legitimate aim tests, the restriction can be retained only if there is very strong justification for this. Otherwise, the charity would need to change its objects. Charity Commission consent would be needed for this.

    The guidance also summarises the other exemptions which apply or may apply to charities, such as the positive action provisions. These allow all charities and other voluntary organisations to provide services, activities or facilities specifically for people who share a specific protected characteristic, provided this is a proportionate way to alleviate disadvantage, reduce under-representation or meet their particular needs.

    The Commission expects charities to take action to prevent illegal discrimination. This may mean amending objects if they restrict the beneficiary group in a way that is now unlawful; ensuring services limited to specific groups fall either within the charities exemption or the positive action provisions; ensuring that funds received for a specific purpose or beneficiary group can be used in a way which is lawful; ensuring that any restrictions on membership are lawful; and for grant-making charities, ensuring any restrictions attached to grants allow them to be lawfully used by the recipient.


    Other provisions under s.193

    • Employment, contract work or vocational training cannot be restricted to people who share a particular characteristic, except where supported employment is provided to people with the same disability or disabilities.
    • Provided they have done so at all times since before 18 May 2005, charities can continue to require members, applicants for membership or people wanting to use a benefit, facility or service to confirm that they accept a religion or belief.
    • As in the previous legislation, any provision in the governing document defining beneficiaries or the right to benefits on the basis of colour is void and is treated as if it were not there. So an object to provide education to black women would be interpreted as "to provide education to women".
    • A new provision allows single-sex activities for the purpose of promoting or supporting a charity, such as a women-only fun run.

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    EQUALITY ACT GENERAL EXCEPTIONS FOR SERVICES

    Differential treatment
    Updated 10/10/10. This information updates s.28.1.7 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    S.191 and sch.22 of the Equality Act 2010 set out various situations in which there is statutory authority to treat a person less favourably because of a protected characteristic (for example, where the law allows a job to be open only to people with a particular characteristic), or services to be restricted to people with a characteristic. It also allows differential treatment of pregnant women for their own protection, and allows people of a particular religion/belief to be appointed to specified educational posts.

    Positive action to alleviate discrimination
    Updated 10/10/10. This information updates s.28.1.7 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under s.158 of the Equality Act 2010 it remains lawful for any provider of goods, services or facilities to use positive action measures, such as targeted training or health services, to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation, and meet their particular needs. Any such measures must be a proportionate way to achieve the relevant aim. Criteria to be taken into account in determining what is proportionate are set out in this section.

    Sport
    Updated 10/10/10. This information updates ss.42.3.2 & 42.4.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under s.195 of the Equality Act 2010 single-sex competitions are still allowed where one sex is generally at a disadvantage because of physical strength, stamina or physique. It remains lawful to restrict participation of transsexuals where this is necessary to uphold fair or safe competition, but not otherwise.

    Nationality, place of birth, or length of time a person has lived in a particular place can continue to be used as a basis for selection for sports, games or other competitive activities, where the person will be representing a particular place or where the rules of the competition include those eligibility criteria.

    Communal accommodation
    Updated 10/10/10. This information updates s.42.4.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    As in the previous legislation, s.196 and sch.23 of the Equality Act 2010 allow single-sex communal accommodation to be provided. Any discriminatory treatment of transsexuals must be objectively justified.

    Religion/belief
    Updated 10/10/10. This information updates s.42.5.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    As in the previous legislation, s.196 and sch.23 of the Equality Act 2010 allow non-commercial organisations based on religion/belief or set up to promote good relations between people of different religions/beliefs can restrict membership and access to activities, services or facilities on the basis of religion/belief, where this is necessary to comply with the purpose of the organisation or to avoid causing offence to members of the religion/belief.

    Such organisations also continue to be able to discriminate on the basis of sexual orientation in order to avoid conflict with the strongly held convictions of members of the religion/belief, but not in relation to any activity carried out on behalf of a public body under a contract with that body.

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    IMPACT OF THE EQUALITY ACT ON CHARITIES

    Added 9/12/13. This information updates s.5.6 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    A year-long study by the University of Liverpool's Charity Law & Policy Unit, published in September 2013, shows that even though the Equality Act provisions for services provided by charities and other voluntary organisations have been in effect since October 2010, charities are generally unaware of their potential implications for service delivery or charitable objects.

    The Equality Act provisions include an exemption for charities whose beneficiaries are restricted in the objects to people who share a particular protected characteristic. For these charities, the restriction must now be a proportionate means of achieving a legitimate aim, or be intended to prevent or compensate for a disadvantage. There are also various exceptions, including s.158 which allows any provider of goods, services or facilities (not only charities) to use positive action measures, such as targeted training or health services, to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation, and meet their particular needs. For details of the exemption and exceptions, see Charity activities and services for specific groups and Equality Act general exceptions for services, above.

    Debra Morris, director of the Charity Law & Policy Unit and lead author of The impact of the Equality Act 2010 on charities, said "Most charities have not considered that their targeted service provision might be discriminatory. ... Charities are unlikely to appreciate that non-compliance with the Act may mean that they are considered not to be acting in the public benefit, resulting in loss of charitable status."

    The research found that religious charities and higher education institutions may be most open to challenge [see, for example, the Catholic Care and St Margaret's Children and Family Care Society cases below]. Older charities may also be particularly at risk, if their objects limit their beneficiaries on the basis of a protected characteristic and this is no longer justifiable as required under the Equality Act.

    The report points out that the Catholic Care case has introduced the idea that motive could be a relevant factor when identifying a proportionate means of achieving a legitimate aim, and that this may be confusing and possibly misleading for charities struggling with the idea that discrimination even for "good" motives may well be unlawful.

    The report's recommendations include:

    • a statutory code regarding the public sector equality duty;

    • further guidance on positive action in higher education, in particular in relation to bursaries and scholarships;

    • ensuring the three "official" sets of guidance on the impact of the act on charities (published by the Charity Commission, the Equality and Human Rights Commission and the Government Equalities Office) present consistent messages and advice, with all of these official publications being reviewed together to ensure consistency;

    • each guidance document providing a comprehensive list of all potentially relevant exceptions, with cross-referencing between the different exceptions and very clear reference to the public benefit requirement that charities must satisfy, since this often links with the application of an exception;

    • inclusion of Equality Act issues in relevant Charity Commission guidance, such as Big Board Talk and the recent guidance on decision making for charity trustees.
    As well as the recommendations for government bodies, the report advises charities that they should:
    • become familiar with the charity exemption and exceptions and how any restricted service provision can be justified within these provisions — rather than focusing almost exclusively on the employment provisions of the Equality Act and on physical access to facilities for disabled people, as many charities do;

    • undertake a "legal health-check" every five years, making any necessary amendments to governing documents, including explicit reference to restricted objects where appropriate [amendments to the objects clause will need Charity Commission consent]; ensure the employment status of all charity workers is clearly spelt out; and if using positive action as a justification for restricted provision of services ensure that the original need or disadvantage still exists;

    • keep carefully minuted discussions explaining the rationale for positive action and consideration of the impact on other groups, and alternative measures considered, and ensure trustees have sufficient information in terms of evidence when deciding to use and continue to use positive action;

    • always focus on the public benefit requirement and include issues around equality within this, rather than seeing public benefit and equality as separate issues;

    • exercise caution when seeking to assess the significance of decided cases in relation to their own activities, as legal judgments are context specific and especially when deciding on proportionality, the highly specialised facts in each case are crucial;;

    • view the Equality Act more positively, in particular the positive impact that the public sector equality duty can have on public bodies;

    • not become complacent about the general lack of Equality Act enforcement — especially because individual challenges by those who have been denied a service are likely to increase as awareness of the act grows;

    • watch out for the Equality and Human Rights Framework for the Voluntary Sector, currently being coordinated by the Equality and Diversity Forum [see www.edf.org.uk/blog/?p=19647 for initial details];

    • where control of activities is decentralised, ensure monitoring mechanisms are in place to ensure that non-discriminatory policy intention is translated into practice on the ground;

    • if donations are given for restricted purposes that are not lawful under the Equality Act, discuss this sensitively with the donor so that (hopefully) the donation is not lost.
    In addition to this advice for all charities, the report also says that higher education institutions (HEIs) and other education providers should look carefully at the conditions attached to their various scholarships and bursaries to ensure compliance with the act; and HEIs and other charities that exercise public functions as defined under the act (and are therefore subject to the public sector equality duty) should keep adequate records showing they have actually considered the duty.

    The 193-page report is on the University of Liverpool website via tinyurl.com/pdes6ge.

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    PUBLIC SECTOR EQUALITY DUTIES

    Updated 9/12/13. This information updates s.42.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The failure of public sector bodies to comply with — or be able to show they have complied with — public sector equality duties (PSED) is being used as a way of challenging cuts in public sector grants and services. The general duty requires public bodies to advance equality of opportunity between people who do and do not share a characteristic that is protected under the Equality Act 2010, and to foster good relations between groups.

    Judicial reviews
    Challenges to the PSED are often through judicial review, a process by which public bodies can be challenged not on the content of a decision, but on the way the decision was made. The government consulted from 6 September to 1 November 2013 on proposals to reform judicial review, including the possibility of an alternative mechanism for resolving disputes relating to the PSED that would be quicker and more cost effective than judicial review. The consultation document can be accessed via tinyurl.com/mefoqsj.

    An example of a PSED judicial review challenge is the ruling by a high court judge on 3 March 2012 that it was unlawful for Surrey County Council to decide to replace all paid staff with volunteers at 10 community libraries, because the council had not carried out an analysis of the effects on equality (previously referred to as an equality impact assessment) and had not considered the effect of its decision on groups such as elderly and disabled people. The decision in R (on the application of Williams & another) v Surrey County Council is at www.bailii.org/ew/cases/EWHC/QB/2012/867.html.

    This decision did not overturn the public body's decision, but required the council to undertake an analysis of the effects on equality and take it and their equality duty into consideration when re-deciding the issue.

    Another judicial review case, involving a procurement decision rather than cuts, found in October 2012 that Devon County Council and Devon Primary Care Trust had not properly considered their public sector equality duties when they appointed Virgin Care Ltd as preferred bidder to provide integrated health and care services for children. The case was brought by a mother whose child used these services. However, the high court ruled that the decision to award preferred bidder status to Virgin Care should not be quashed, because the claimant had not proved that her child or any other would suffer, a delay would be detrimental to service users, and in any case the introduction of clinical commissioning groups in April 2013 would make a delay impossible.

    The decision in R (on the application of RB) v Devon County Council and Devon Primary Care Trust can be accessed, along with a summary of the case, via the Equality and Diversity Forum website at tinyurl.com/kfndleu. For some reason the transcript does not seem to be on the usual BAILII (British and Irish Legal Information Institute) website.

    A good summary of issues the courts take into account when looking at whether a public body has complied with its obligations is in newsletter 15 from Empowering the voluntary sector, on the Public Law Project website via tinyurl.com/bw6z8zt.

    The general and specific equality duties
    Prior to 5 April 2011 the public sector equality duty applied only to race, disability and gender equality, but since then the duty has been extended by ss.149-157 and sch.18-19 of the Equality Act 2010 to cover age, gender reassignment, pregnancy/maternity, religion/belief, and sexual orientation.

    This general equality duty applies to public bodies in England, Wales and Scotland (listed in sch.19 as amended), and also to other bodies that carry out public functions (as defined under the Human Rights Act 1998). Amendments to the list of bodies in sch.19 are in the Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011 and in regulations specific to Wales and Scotland, all of which can be accessed via www.legislation.gov.uk/secondary/2011?title=Equality%20Act%202010.

    Even if they are not carrying out public functions, organisations which receive public sector funding or contracts are likely to have to comply with the general duty as part of their grant or contract conditions.

    As well as the general duty, specific duties set out how the general duty is to be applied and the transparency required from public bodies about how they are applying the equality duty. The specific duties apply to public bodies in England and non-devolved bodies in Wales and Scotland, and separately for Wales and for Scotland.

    The Equality Act 2010 (Statutory Duties) Regulations 2011 came into effect on 10 September 2011 for England and non-devolved bodies in Wales and Scotland. They are at www.legislation.gov.uk/uksi/2011/2260/contents/made.

    The duties specific to Wales came into effect on 6 April 2011 and are at www.legislation.gov.uk/wsi/2011/1064/contents/made.

    The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 came into force on 27 May 2012 and are at www.legislation.gov.uk/ssi/2012/162/contents/made.

    Information about the general and specific duties is available from both the Equality and Human Rights Commission and Government Equalities Office, via links at tinyurl.com/cdesvf9.

    The Equality and Diversity Forum produced in October 2012 an equality duty support package for the voluntary sector, at www.edf.org.uk/blog/?p=17736. This covers influencing and engaging public bodies, using equality information and data to gauge performance and hold public bodies to account, and tools for analysing data.

    Review of public sector equality duty
    Following its reports on the equalities red tape challenge and the progress of its equality strategy, the government announced in May 2012 that it would review the public sector equality duty, to establish whether it is the best way to ensure public bodies consider the impact of their decisions on different groups (even though it had only come into effect in April 2011). It did not carry out a full consultation, but set up an independent steering group and issued a call for evidence in March and April 2013. The steering group's report was published on
    6 September 2013.

    The steering group's recommendations are:

    • For the Equality and Human Rights Commission: To produce clearer guidance on the minimum requirements placed on public bodies; to consider whether sector-specific guidance is required to assist sector regulators, inspectorates and relevant ombudsmen to support implementation of the PSED; and to work towards greater clarity about the diversity data that public bodies have to collect.

    • For public bodies: To adopt a proportionate approach to PSED compliance and not seek to gold-plate (require more compliance from contractors than the law requires); and to reduce the burdens placed on small employers.

    • For contractors: To challenge public bodies where their procurement processes create barriers for small businesses and charities. The recommendations say that private and voluntary sector employers in England should refer any potentially inappropriate equality requirements that have been applied to a particular procurement exercise to the Cabinet Office mystery shopper scheme.

    • For the government: To consider the effectiveness of the specific duties, and not require public bodies to publish disproportionate information; to consider whether there are quicker and more cost effective ways than judicial review to reconcile disputes relating to the LSED [see Judicial reviews, above]; and to carry out a formal evaluation of the PSED in 2016, when it will have been in effect for five years, to determine whether it is an effective means of achieving its aims.
    The report and the government's response are on the Gov.uk website via tinyurl.com/m256x3z. The government broadly accepted the recommendations.

    In the meantime David Cameron announced on 19 November 2012 that as part of the drive to get rid of "bureaucratic rubbish", government departments would no longer need to make equality impact assessments for all decisions, if they had already considered the equality implications. He appears not to have realised that from 6 April 2011 the Equality Act 2010 removed the statutory duty for public bodies in England to carry out equality impact assessments — although many continue to do so, as a way of ensuring they meet their broader public sector equality duties. There is still a duty to carry out equality impact assessments in Wales and Scotland, but this is a devolved matter over which the coalition government has no control.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    USING PUBLIC PROCUREMENT TO PROMOTE EQUALITY

    Updated 3/8/13. This information updates s.52.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under s.155 of the Equality Act 2010, there are powers for specific duties to be imposed on public bodies in relation to their public procurement functions, for example by requiring contractors bidding for public sector contracts to demonstrate how they promote equality. No specific duties have been imposed, but the Equality and Human Rights Commission issued new guidance on 25 March 2013 to help public authorities in England comply with their public sector equality duty in relation to their procurement processes.

    Buying better outcomes: Mainstreaming equality considerations in procurement provides clear advice on what the law requires and includes best practice examples. The guidance, four training modules, a PowerPoint presentation and a case study are on the EHRC website via tinyurl.com/bvl42qg.

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    CATERING IN MULTI-FAITH CONTEXTS

    Added 9/12/13; link updated 21/4/14. This information updates s.42.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Inter Faith Network's Catering and Faith Based Dietary Practice at tinyurl.com/lmpxbf4 includes a fascinating chart showing which religions do and don't allow certain foods (I never knew that some strictly observant Jews don't eat shelled nuts or cut fruit). Published in March 2013, the short booklet also includes general points on catering for a religiously diverse clientele, as well as some detailed points about particular issues. It covers the Baha'i, Buddhist, Christian, Hindu, Jain, Jewish, Muslim, Sikh and Zoroastrian traditions.

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    CATHOLIC ADOPTION AGENCY IN LEEDS LOSES APPEAL ON CHANGING ITS OBJECTS

    Updated 2/12/12. This information updates s.42.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Catholic Care (Diocese of Leeds), a charity providing, amongst its other services, an adoption service, has lost its fourth appeal against the Charity Commission's decision not to allow it to change its objects to allow it to provide this service only to heterosexual couples. Following the loss of its third appeal to the first-tier charity tribunal in April 2011, it lodged its appeal to the upper tribunal in July 2011. The appeal was heard on 12-13 September 2012 and the decision announced on 2 November 2012.

    Catholic Care argued that the first-tier tribunal had failed properly to perform the balancing act required to determine whether discrimination against gay and lesbian couples was reasonable given that, according to the charity, the alternative was closing its adoption service. The upper tribunal found that the lower tribunal had made some errors in law, but they were not serious enough to render its judgment wrong.

    Prior to being replaced by the Equality Act 2010, the Equality Act (Sexual Orientation) Regulations 2007 provided protection against discrimination on the basis of sexual orientation in the provision of goods and services. An exception (reg.14; now sch.23 in the Equality Act 2010) allowed religious and other belief-based organisations to restrict services on the basis of sexual orientation, but only if this was necessary to comply with the organisation's doctrines or to avoid conflicting with the strongly held convictions of a significant number of the religion's or belief's followers, and only if the service was not a public function or funded by a public authority.

    Another exception (reg.18; now s.193 in the Equality Act 2010 but with limitations) allowed charities to restrict services on the basis of sexual orientation if their governing document explicitly allowed this, such as a charity set up specifically to provide counselling only to lesbians.

    Catholic Care's objects require it to operate within the tenets of the Roman Catholic church, and in line with this, its adoption service was limited to heterosexual couples. Because the service is publicly funded it could not use the "compliance with the organisation's doctrines" exception in reg.14 to continue its practice of not providing an adoption service to same sex couples, so it approached the Charity Commission to request changes to its memorandum of association so it would fall within reg.18.

    The request to amend the objects clause was refused by the Charity Commission in November 2008, and this decision was upheld by the charity tribunal in June 2009. Catholic Care's subsequent appeal to the high court illustrated the complex relationship between the sexual orientation regulations, charity law, and articles 8 and 14 of the European convention on human rights, guaranteeing the rights to respect for private and family life and not to be discriminated against in relation to that right. The appeal resulted, in March 2010, in the decision about the proposed objects being referred back to the Charity Commission for reconsideration.

    The Commission announced on 19 August 2010 that it could not approve the proposed objects, because allowing the charity to provide its services only to heterosexual adopters would not be a proportionate means of achieving a legitimate aim. It would thus not be for the public benefit because of the disbenefit from unjustified discrimination on the ground of sexual orientation.

    Catholic Care went back to the charity tribunal in October 2010, with the case heard in March 2011. During the hearing the Charity Commission's barrister argued that it was right to conclude that religion was not a justification for restricting services to heterosexual couples, and that there were no substantially weighty reasons to justify the exclusion of gay and lesbian couples. Catholic Care's barrister said that Catholic Care recognised that discrimination is detrimental in itself, but that being forced to close its adoption service would be even more detrimental (it facilitates an average of five adoptions annually) and would not be a proportionate means of achieving a legitimate aim.

    The tribunal's decision, on 26 April 2011, was again that Catholic Care cannot change its objects to allow it to provide an adoption service only to heterosexual couples. Amongst the tribunal's reasons were that the charity had not demonstrated that it had explored alternatives to closing the adoption service, or that it would lose supporters if it provided the service to same-sex couples, or that if it closed fewer children would be adopted.

    The tribunal also said the requested change to the objects would not fall within s.193 of the Equality Act 2010, which allows a charity to limit its beneficiary group on the basis of a protected characteristic only if this is a proportionate means of achieving a legitimate aim. The tribunal said such this provision could be used only if there are "particularly weighty" reasons to justify the discrimination.

    This was the decision against which Catholic Care appealed to the upper tribunal. In his appeal decision, upper tribunal judge Mr Justice Sales said that "the mere fact that some people may feel upset if homosexuals are accorded equal treatment in some areas of life cannot, of itself, provide objective justification for discrimination on ground of sexual orientation". He added that there was no evidence that if Catholic Care closed its adoption service children would be left unadopted, nor had Catholic Care demonstrated that it would lose support from donors if if provided adoption services to same sex couples.

    Catholic Care said it would consider whether to appeal against the upper tribunal's decision.

    The upper tribunal decision is at www.bailii.org/uk/cases/UKUT/TCC/2012/395.html.

    The Equality Act (Sexual Orientation) Regulations 2007 are at www.opsi.gov.uk/si/si2007/uksi_20071263_en_1. The regulations have now been replaced by the Equality Act 2010.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    CATHOLIC ADOPTION AGENCY IN GLASGOW WINS CASE AGAINST CHARITY REGULATOR

    Updated 21/4/14. This information updates s.42.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Like Catholic Care (Diocese of Leeds), St Margaret's Children and Family Care Society, an adoption agency based in Glasgow, is connected to the Roman Catholic Church. But its case has played out differently. St Margaret's constitutional objects include assessing the suitability of potential adoptive parents "in accordance with the teachings of the Catholic Church". It does not explicitly refuse to accept applications from same sex couples, but at the initial enquiry stage, its preferred criteria prioritise couples who have been married for at least two years and are Catholic. Lower priority is given to enquirers who have been married less than two years, couples in civil partnerships, single people, and married couples who do not wish to adopt within the Roman Catholic faith.

    Following a complaint from the National Secular Society that St Margaret's policies discriminate against same-sex couples, the Office of the Scottish Charity Regulator (OSCR) carried out a review into the charity and found that these provisions were unlawfully discriminatory and thus did not comply with the public benefit test for charities. Its report was published in January 2013, with the conclusion that because marriage was (at the time) not available to same sex couples, prioritising married couples constituted direct discrimination. The charity's preferred criteria also include being Roman Catholic, which the OSCR report said amounts to direct discrimination "on the face of it", although it had received only limited information about how strictly this criterion is applied.

    The report was accompanied by a direction to the charity, giving it three months to change its guidance and procedures for assessing initial enquiries from potential adopters, to ensure its criteria were clear and transparent and did not discriminate unlawfully. Failure to comply with the direction would mean the charity would fail the charity test in the Charities and Trustee Investment (Scotland) Act 2005 and would be removed from the register of charities and lose its charitable status.

    On 11 February 2013, St Margaret's asked OSCR to review its decision to issue a direction. The review, carried out by the OSCR board and published on 4 March 2013, confirmed OSCR's view that the charity's procedures discriminated unlawfully. The review acknowledged the substantial benefit provided to children, prospective adoptive parents and the public in general, but said that this was outweighed by the disbenefit (harm) resulting from unlawful discrimination. It also found that the criteria for assessing enquirers unduly restricted access to the charity's benefits. The OSCR direction to the charity therefore remained in place.

    For more about the OSCR reviews and St Mary's statements in favour of their criteria and procedures, see the archived article at www.sandy-a.co.uk/vslh/42equalops.htm#adoptioncae-glasgow.

    The charity did not change its guidance and procedures, and appealed to the Scottish charity appeals panel (SCAP) against the direction. On
    31 January 2014 the SCAP quashed OSCR's direction, saying the although the direction had not been unreasonable, there had been procedural irregularity in OSCR's review of the charity's initial appeal, and in addition the effect of the direction was disproportionate.

    In relation to the procedural irregularity, the SCAP recommended that OSCR ensure its appeal reviews are carried out by a different person or persons than those who had made the original decision. In relation to the original direction itself, the SCAP said it was disproportionate because it would have meant the charity could no longer operate as a Catholic charity, would no longer have had access to Catholic church funds, and would have had to close. The SCAP accepted that there was indirect discrimination, but said that this was " allowed in terms of the Equality Act because it is a proportionate means of achieving a legitimate aim". [For more about this exception, see Equalities Act general exceptions for services, above.]

    OSCR considered appealing to the Scottish court of session against the SCAP's decision, but announced on
    14 March 2014 that it would not do so. One reason was that the SCAP had made a number of findings in fact based on evidence that was not available to OSCR when it issued the direction; OSCR felt that the court would be unlikely to reconsider these findings and an appeal would therefore be unlikely to succeed. Another reason was that an appeal would relate only the specific circumstances in the St Margaret's case and would have limited wider application. In addition, the recent Marriage and Civil Partnership (Scotland) Act 2014 had changed the legal basis on which both OSCR and the SCAP had made their decisions.

    Like the Catholic Care (Diocese of Leeds) case above, the outcome of the St Margaret's case is a decision on the charity law aspects of the organisation's operations. In neither case was the legality of their actions in relation to the Equality Act 2010 tested. Were a case under the the Equality Act to be brought against Catholic Care or St Margaret's, and the charity was found to be discriminating unlawfully, the charity law implications would have to be reconsidered, because charities are not allowed to operate unlawfully.

    Along with its decision, the SCAP issued a note of reasons for the decision. In announcing its decision not to appeal, OSCR noted that it found aspects of these reasons "difficult to follow and to accept". Because of these concerns, OSCR issued an explanatory note setting out for charities and the wider public how it would exercise its functions. In particular, the note explains that OSCR will continue to regard unlawful discrimination by a charity as a serious concern and an issue which is likely to call charitable status into question.

    The SCAP decision and its note of reasons are on the SCAP website at tinyurl.com/khstzxc. The announcement that OSCR would not appeal against the SCAP decision, with a link to its explanatory note, is at tinyurl.com/l4daqd5. OSCR will be updating its public benefit guidance for charities and will look at these issues in more detail as part of that process; for more information see below.

    On
    28 March 2014 the Equality and Human Rights Commission Scotland said it considered the SCAP decision to be wrong in relation to discrimination law. "The decision is not easy to follow", the EHRCS said, "but it is the EHRCís view that SCAP is mistaken in its understanding of the meaning of direct and indirect discrimination." It has written to St Margaret's advising it to ensure future applications from couples in civil partnerships are treated the same way as applications from married couples. The EHRCS statement can be accessed via www.equalityhumanrights.com/scotland.

    Neither the EHRCS nor the National Secular Society, which originally made the complaint about St Margaret's to OSCR, has legal standing in relation to the case, and they are therefore not able to appeal the SCAP decision. Only OSCR could appeal, and they are not going to.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    OSCR TO REVISE PUBLIC BENEFIT AND EQUALITY GUIDANCE FOR CHARITIES

    Updated 21/4/14. This information updates s.42.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Not surprisingly, in light of the St Margaret's Children and Family Care Society case, the Office of the Scottish Charity Regulator issued interim equality guidance for charities in early 2013 and revised its guidance on public benefit, Meeting the charity test, in August 2013. Following the decision of the Scottish Charity Appeals Panel in January 2014, OSCR is again revising the public benefit guidance, taking into account the SCAP's reasons for its decision, and OSCR's detailed consideration of the issues.

    In particular OSCR will be looking at how any disbenefit (detriment or harm) caused by restricting a charity's services is assessed in determining whether the organisation is operating for the benefit of the public. It will also make clear that even though any action taken by OSCR in relation to a charity must be proportionate, there may be circumstances where such action may involve removing a charity from the Scottish charity register, even if this affects the organisation's ability to continue in existence.

    The current (August 2013) version of Meeting the charity test can be accessed via tinyurl.com/o639hej, and the summary version via tinyurl.com/p7mpz4n.

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    HOTEL OWNERS WHO REFUSED GAY COUPLE SET UP A NOT-FOR-PROFIT COMPANY TO GET AROUND EQUALITY LAW

    Updated 9/12/13. This information updates s.42.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The supreme court confirmed on 27 November 2013 that the owners of the Chymorvah Private Hotel in Marazion, Cornwall, Peter and Hazelmary Bull, discriminated on grounds of sexual orientation by not allowing civil partners to occupy a double bedded room. The Bulls are devout Christians and allowed only married couples to occupy double bedded rooms. The supreme court decision confirms earlier decisions by the county court and court of appeal.

    Interestingly, none of the hotel's publicity says anything about who can and can't occupy double bedded rooms. This was not the case in September 2008, when Martyn Hall, a gay man in a civil partnership, booked a double room. At that time the website made clear that unmarried couples would not be allowed to occupy rooms with double beds, but could occupy twin bedded rooms. But Hall booked by telephone, and so was unaware of the booking conditions. When he and his partner, Steven Preddy, arrived they were told about the conditions and were turned away, with their booking deposit refunded a few days later.

    Hall and Preddy brought a claim for discrimination on grounds of sexual orientation, which they won in Bristol county court in January 2011. When Mr and Mrs Bull appealed, the court of appeal confirmed on 10 February 2012 that Hall and Preddy had suffered direct discrimination and awarded them £3,600 damages.

    In court the Bulls said they believed that if they permitted unmarried individuals to share a double bed, they would be promoting sin. Their policy on double beds was not about sexual orientation, but about sexual practice. They said they were willing to permit homosexual and unmarried heterosexual couples to stay in the hotel in double rooms with single beds, and had applied this policy consistently for many years.

    Hall and Preddy's response was that only heterosexual couples could be married, so a requirement to be married had the effect of discriminating against gay couples. In any case, the Equality Act (Sexual Orientation) Regulations 2007 (now replaced by the Equality Act 2010) made clear that for the purposes of the legislation civil partnership is not materially different from marriage. Since being in a civil partnership has to be treated as equivalent to marriage, the reason for Hall and Preddy's treatment could only be the fact that they are gay.

    In acknowledging the conflict between the Bulls' right to practice their religion and Hall and Preddy's right to access services, the courts have consistently said that the Bulls are free to manifest their religious beliefs in their personal life, but in owning and managing the hotel they are obliged to comply with legislation prohibiting discrimination in the provision of services. Although their right to manifest their religious beliefs is thus restricted, this restriction is justifiable as a proportionate means of achieving the legitimate aim of protecting the rights of people not to be discriminated against on the basis of sexual orientation.

    The supreme court decision in Bull & Bull v Hall & Preddy is at www.bailii.org/uk/cases/UKSC/2013/73.html. The supreme court held with a 3-2 majority that the Bulls' action had been direct discrimination, and held unanimously that it was unjustified indirect discrimination.

    In September and October 2013 various newspapers reported that low bookings had forced the Bulls to put the hotel on the market, but a quick Google search at the end of November for hotels for sale in Cornwall did not show any listings.

    The Cornishman, Pink News, Huffington Post and the Daily Mail — but, as far as I can tell, no one else — reported in March 2013 that the Bulls had set up a company limited by guarantee so they could "now legally turn away unmarried straight and gay couples". The Chymorvah House Christian Hotel (as opposed to the Chymorvah Private Hotel, against which the legal case was brought), was registered as a company limited by guarantee, company number 07780359, in September 2011.

    According to the news reports, the Bulls changed the status of their unincorporated guest house (the Private Hotel) to a company limited by guarantee so they could say that anyone staying with them must must abide by their Bible-based beliefs. Clearly they intended to take advantage of exceptions in s.196 and schedule 23 of the Equality Act 2010, allowing non-commercial organisations based on religion/belief to restrict access to activities, services or facilities on the basis of religion/belief, where this is necessary to comply with the purpose of the organisation or to avoid causing offence to members of the religion/belief. The exceptions also allow such organisations to discriminate on the basis of sexual orientation in order to avoid conflict with the strongly held convictions of members of the religion/belief (but not in relation to any activity carried out on behalf of a public body under a contract with that body). For more about this exception, see Equalities Act general exceptions for services, above.

    In the newspaper articles, the Bulls refer to the Christian Hotel company as not for profit. But they may not be aware that it is almost certainly legally a charity and if so, is required to register with the Charity Commission if its annual income in its previous financial year reaches £5,000.

    Its most recent annual accounts filed at Companies House, for 20 September 2011 to 30 September 2012, are abbreviated accounts so do not show income and expenditure. But its balance sheet shows debtors (money owing to the company) of £14,590 and creditors (money owed by the company) of £13,629. Company accounts are prepared on an accrual basis, which means that all money relating to a specific year are accounted for in that year, even if they have not actually been received or spent in the year. So if the company ended the year with £14,590, its income for the year was at least that amount.

    The company's articles of association follow the Charity Commission model for a charitable company, and refer throughout to "the charity". (Company articles and annual accounts are public documents, and anyone can obtain copies from Companies House for £1.) The Christian Hotel's object is "to advance the Christian faith for the benefit of the public in accordance with the statement of belief appearing in the schedule", which is a charitable object. The company's powers are the standard Charity Commission model powers, plus five additional powers specifically related to running a Christian conference and retreat centre, providing a range of services and activities for the purpose of outreach and evangelism, and similar. Whether the Bulls intended it or not, the company is likely to be legally charitable.

    A spokesman for the Christian Institute, a charity which funded the Bulls' defence in the discrimination cases and which advised the Bulls on how to set up the company limited by guarantee, was reported in The Cornishman as saying, "They had to find a way of still running a business so they can pay their mortgage without compromising their beliefs. The advice they got was that they should set up a not for profit company that only provides a service to Christians."

    However, the Bulls are directors of the company, and the company's articles allow payment to directors only with the Charity Commission's approval. This means that any direct or indirect payment made to them without Commission consent would be unlawful.

    There is no internet evidence that the Christian Hotel is operating, but the fact that its annual accounts show several thousand pounds owing to it and by it implies some sort of activity. At the moment the Private Hotel still has an active website, recent reviews on Tripadvisor, and even a two-minute YouTube video.

    The Equality Act (Sexual Orientation) Regulations 2007 are at www.legislation.gov.uk/uksi/2007/1263/contents/made. The regulations have now been replaced by the Equality Act 2010, which is at www.legislation.gov.uk/ukpga/2010/15/contents.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    ANOTHER HOTEL WHICH RESTRICTED DOUBLE ROOMS TO MARRIED COUPLES

    Updated 3/8/13. This information updates s.42.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In a similar case to the one above (but which has not, as far as I know, led to the creation of a charitable company to circumvent equality law), Michael Black and John Morgan won their case in Slough county court on 18 October 2012 against Susan Wilkinson, owner of the Swiss Bed and Breakfast in Cookham, Berkshire. This decision was upheld by the court of appeal on 9 July 2013.

    Wilkinson refused on the basis of her religious beliefs to allow Black and Morgan to occupy a double room in March 2010, even though they had booked and paid a deposit. She said in court that she did not realise until they arrived that they were both men, and it would be against her core religious beliefs and conscience to allow a same sex couple, or a heterosexual couple who she knew were unmarried, to share a double room in her home. The judge said that although the b&b was at her home, it was operated as a commercial business for financial purposes, with a significant number of guests, and had to comply with equality legislation.

    This case gained publicity when Nick Griffin, leader of the British National Party (BNP), tweeted Black and Morgan's address and said "a British Justice team" would come to their home and give them a "bit of drama by way of reminding you that an English couple's home is their castle". He later said he believes discrimination is a fundamental human right. There was a police presence outside the couple's house for several days but the Crown Prosecution Service said on 29 November 2012 it would not prosecute as no criminal offence had been identified.

    Wilkinson appealed against the county court decision. In its decision, the court of appeal said the policy of offering double rooms only to married couples directly discriminates against homosexual couples on the ground of their sexual orientation. Even if it is not direct discrimination, it is indirect discrimination because it puts homosexual couples at a disadvantage as compared with heterosexual couples, and this cannot reasonably be justified by reference to matters other than their sexual orientation.

    The court also said that Wilkinson's treatment of homosexual couples could not be justified by her right to manifest her religious beliefs, as priority is only given to religious beliefs in specific, narrow circumstances, and in any case she had not shown that she would suffer serious damage if she were not allowed to refuse rooms to homosexual couples.

    The court of appeal decision in Black and Morgan v Wilkinson is at www.bailii.org/ew/cases/EWCA/Civ/2013/820.html.

    The Equality Act (Sexual Orientation) Regulations 2007 are at www.legislation.gov.uk/uksi/2007/1263/contents/made. The regulations have now been replaced by the Equality Act 2010, which is at www.legislation.gov.uk/ukpga/2010/15/contents.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    AGE DISCRIMINATION IN SERVICE DELIVERY

    Updated 21/4/14. This information updates s.42.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Equality and Human Rights Commission is consulting from 24 March to 2 May 2014 on its draft guidance on age discrimination in the provision of goods, services, facilities and public functions. The guidance will form a new supplement to the existing statutory code of practice on services, public functions and associations. The new supplementary code is due to be laid before Parliament for approval later in the year and courts will be able to take it into account when determining cases before them.

    The consultation documents can be accessed via tinyurl.com/ndfyob5. The code of practice is at tinyurl.com/bdx224d.

    Provisions in the Equality Act 2010 banning age discrimination in the provision of goods, services, facilities or public functions (generally referred to collectively as services) to people aged 18 or older came into effect on 1 October 2012.

    Exceptions to the general ban on age discrimination are set out in the Equality Act 2010 (Age Exceptions) Order 2012 at www.legislation.gov.uk/uksi/2012/2466/contents/made.

    Service providers are able to provide different treatment based on people's age:

    • if they can show a sufficient reason (objective justification) if challenged — this means the different treatment would have to be shown to be a proportionate means of meeting a legitimate aim;
    • or they can justify extra help to an age group with particular needs (often referred to as positive action);
    • or the different treatment is provided for by law, such as free prescriptions and eyesight tests for older people, or free bus passes for pensioners;
    • or the different treatment is allowed by the Equality Act or by an order made under the act. For Equality Act provisions relating to charities set up to provide services specifically for people of a specified age (18 or over), see Charity activities and services for specific groups.
    In drawing up the exceptions the government said its intention was to outlaw only harmful or unjustifiable treatment that results in genuinely unfair discrimination, without outlawing different treatment that is justifiable or does not give rise to harm.

    The exceptions apply only to discrimination (less favourable treatment). Harassment and victimisation are always unlawful — there are no exceptions.

    The exceptions order includes amendments to schedule 3 of the Equality Act 2010, in relation to:
    • immigration, allowing age to be taken into account in decisions about eligibility to enter or remain in the UK;
    • financial services, allowing age to be taken into account when assessing risk for banking, credit, insurance, personal pensions, investment or payments;
    • age-based concessions, allowing preferential benefits, rights or privileges for people of a particular age group;
    • age related holidays, allowing group package holidays to be provided for people of a particular age group;
    • age verification schemes, allowing retailers to ask customers for proof of age before agreeing to sell products subject to an age restriction;
    • residential mobile homes, allowing mobile home parks to include age restrictions in their admission rules.
    In addition there are amendments to:
    • s.195 of the act, to allow sporting and similar competitions to be restricted to people of a particular age group where this is necessary to secure fair competition or the safety of competitors, comply with the rules of a national or international competition, or increase participation in that activity;
    • schedule 16 of the act, allowing clubs and associations to provide membership concessions or preferential services to people of a particular age group. Under s.107 of the act, an association is defined as a body with 25 or more members, where access to membership is controlled by rules and involves a selection process. An association may be incorporated or unincorporated, and may operate for profit or on a not for profit basis. Associations with fewer than 25 members are not covered by the ban on discrimination in membership or service delivery. An exception to s.101 allows all associations to limit their membership to people of a particular age group.
    There are no specific exceptions to the ban on age discrimination for health or social care services, so age-based practices by health and social care providers would, if challenged, need to be objectively justified.

    The government's response to its consultation, which explains the rationale for allowing or not allowing specific exceptions to the ban on discrimination, is on the Home Office website via tinyurl.com/bo44wl5. A Government Equalities Office overview guide for service providers and customers, and specific guides for small businesses, private clubs, and holiday providers, hotels and those letting holiday properties, can be accessed via tinyurl.com/3ultyz9.

    Go back to contents
    Go to archived items about equality in service delivery (VSLH3 chapter 42)


     

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