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.

This page provides information of a general nature for boards/management committees and staff of voluntary organisations about legal changes over the past year, and forthcoming changes, relating to equality in employment and the provision of services, goods and facilities. It also includes information about changes in human rights law.

There are three other legal update pages.
EMPLOYMENT covers employment, volunteering, safeguarding children and vulnerable adults, and health and safety. Information about equality was previously on the employment page, but it was moved to this separate page in January 2012.
FINANCE covers fundraising, funding, accounts, tax, VAT and property.
MANAGING THE ORGANISATION covers charity law, company and related law, data protection, electronic communications, the internet, intellectual property, events, licensing, publicity, marketing, etc.

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

The information and commentary on this website cover the law applicable to England, and may not apply in Wales, Northern Ireland and/or Scotland. It is provided free of charge for information purposes only, and is not a full or definitive statement of the law. Reasonable efforts are made to keep the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by Sandy Adirondack. The information and commentary do not, and are not intended to, amount to legal advice to any person or organisation on a specific case or matter and are not intended as a substitute for professional advice.

EQUALITY

VSLH3 Chapter 28: Equal opportunities in employment

LIABILITY FOR HARASSMENT BY THIRD PARTIES

Updated 25/9/12. This information updates s.28.1.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In March 2011 the government said it would consult to remove 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. This consultation took place from 15 May to 7 August 2012.

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

A recent example of such a case is 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. 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.

S.40 of the Equality Act 2010 is at www.legislation.gov.uk/ukpga/2010/15/section/40. The consultation documents are on the Home Office website via tinyurl.com/cymurvr.

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PREFERENCE IN RECRUITMENT AND PROMOTION

Updated 13/3/11, links updated 18/4/12. This information updates s.28.1.7.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 6 April 2011, a controversial new provision in s.159 of the Equality Act 2010 redefines positive action to allow preference to be given in recruitment or promotion to a person from a protected group which is under-represented in the workforce, where there are two equally well suited applicants/candidates. This does not allow preference to be given to a person from an under-represented group who is less qualified, and where two people are equally well qualified it does not require preference to be given to the person from the under-represented group.

The Government Equality Office has two publications for employers considering using this provision: Equality Act 2010: Step-by-step practical guide to using positive action when making appointments, which can be accessed via tinyurl.com/s3q (6 pages), and Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion at tinyurl.com/cdvo5bq (12 pages).

Among the points made by the GEO are that this positive action can be used at any stage of recruitment or promotion, but the action must be proportionate; the employer must reasonably believe the candidate has a protected characteristic; the employer must reasonably think there is disadvantage or under-representation, but do not need to have statistics to back this up; and this positive action can be used only where the two candidates are of "equal merit" and are "as qualified" as each other.

Because of the risk of a discrimination claim by unsuccessful candidates, employers should be cautious about using this provision, and should carefully document their reasons for doing so and the criteria on which they assessed the candidates.

S.159 of the Equality Act 2010 is at www.legislation.gov.uk/ukpga/2010/15/section/159.

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CASTE DISCRIMINATION

Updated 25/9/12. This information updates s.28.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The definition of race under s.9 of the Equality Act 2010 includes race, colour, nationality, and ethnic or national origins, with provision under s.9(5) for caste to be added to the definition if evidence shows this is needed. The government is currently considering a report on caste discrimination and harassment in Great Britain which was published in December 2010, showing that caste discrimination does exist. The report and a summary can be accessed on the Government Equalities Office website via tinyurl.com/4gaq5vg.

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 against caste, through immediately adopting the Equality Act provision on caste discrimination. Press releases and other reports about this are on the website of the Dalit Solidarity Network-UK at www.dsnuk.org. A DSN-UK petition calling on Home Secretary Theresa May to activate s.9(5) and ensure caste discrimination is outlawed in the UK can be accessed on the Change.org website via tinyurl.com/8dhpe7h.

The issue is timely because the first claim of caste discrimination in employment went to an employment tribunal in August 2011, returned to the tribunal in March 2012, and was postponed until 24 September 2012 and postponed again until 27 September. 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 is claiming unfair dismissal and Mrs Begraj constructive unfair dismissal, and both are making a number of other claims, including race discrimination, discrimination on the ground of religion or belief, and breach of contract.

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DISMISSAL ON GROUNDS OF PREGNANCY

Added 2/12/12. This information updates ss.28.3.1, 32,2 & 34.7.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). .
Under the Equality Act 2010 and previously the Sex Discrimination Act 1975, less favourable treatment on the grounds of pregnancy and maternity leave is direct sex discrimination. Women have the right not to be subjected to any detriment for a reason due to their pregnancy, childbirth or maternity leave, and under the Employment Rights Act 1999, dismissal on the basis of pregnancy or childbirth is automatically unfair.

You would think that an independent school for girls would be aware of this. But when Rebecca Raven, a teacher at Howell's School in Denbigh, North Wales, applied for maternity leave in May 2011, to start at the end of November, the school told her a few days later that she would have to leave at the end of the summer term. She was then told she could apply for a part-time post starting in September, which she did. When she was not appointed she appealed and issued a grievance but there was no response from the school. Not surprisingly, the employment tribunal found she had been unfairly dismissed and discriminated against, and in September 2012 awarded her nearly £34,000 compensation.

Dr Philip Dixon, director of the Association of Teachers and Lecturers, said, "The supreme irony of a girls' school dismissing a teacher when she became pregnant almost beggars belief. This is an appalling example to give to pupils who are, hopefully, being educated to be young, independent women with fulfilling careers and lives."

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

Added 2/12/12. 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, are 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).

To help employers understand the rights of pregnant women and those on maternity leave, the Commission for Equality and Human Rights 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.

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REQUIRING PAID WORK EXPERIENCE MAY DISCRIMINATE AGAINST WOMEN

Added 2/12/12. This information updates ss.28.3.4 & 29.2.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). .
Ballymagroarty Hazelbank Community Partnership (BHCP), a charitable organisation in Northern Ireland, advertised for two neighbourhood regeneration officers, with a person specification requirement for "two years' relevant experience in a community development capacity (paid) gained within the last five years".

During a six-year break from paid work to look after children, Nuala Crilly was involved in extensive unpaid community development and neighbourhood regeneration work. Although she had had paid jobs in the field before her career break, her work in the five years before applying for the post was all voluntary, and she was therefore not shortlisted. She brought a claim in the industrial tribunal (as employment tribunals are still called in Northern Ireland) on the ground that the requirement for relevant experience to have been paid discriminated indirectly against women.

The tribunal said it was settled law, backed up by statistics, that women are more likely to have caring responsibilities for family members and to take breaks from employment. A recruitment provision, criterion or practice that does not take this into account can therefore, unless it is a proportionate means of meeting a legitimate aim, be discriminatory.

BHCP said the requirement was necessary because they had recently lost key staff, and needed someone who could take on the full responsibilities of the post immediately, with minimal supervision and without needing extensive training.

The tribunal said the requirement for experience to have been paid was not appropriate and necessary to meet this aim, because relevant experience could have been obtained through voluntary work. In any case, the tribunal said, BHCP was to provide a two-month induction for the new staff members which could have covered gaps in Crilly's experience. In December 2011 the tribunal awarded Crilly £14,667 for injury to feelings and loss of earnings and interest.

The case transcript is on the Equality Commission for Northern Ireland website via tinyurl.com/cheub9w.

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FREEDOM OF RELIGION AND RELIGIOUS DISCRIMINATION: FOUR CASES AT EUROPEAN COURT OF HUMAN RIGHTS

Updated 26/9/12. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Two cases involving employees who refused to provide services to same-sex couples, and two cases where employers banned employees from wearing crosses with their uniforms at work, are being heard at the European court of human rights (ECHR) in Strasbourg starting on 4 September 2012. The four individuals, all practising Christians, are basing 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). The ECHR judgment is not expected for several months.

In one case, both the employment appeal tribunal and the court of appeal ruled that Islington Council did not unlawfully discriminate against Lillian Ladele, a Christian registrar, on the grounds of her religious beliefs by requiring her to officiate at civil partnership ceremonies. Ladele had requested permission not to conduct the 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 EAT (in December 2008) and then the court of appeal (in December 2009) 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 in November 2009 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. On 29 April 2010 the court of appeal refused permission for the counsellor to appeal against the EAT decision.

The application to the ECHR in Lillian Ladele and Gary McFarlane v the United Kingdom, summarising both cases, is at www.bailii.org/eu/cases/ECHR/2011/737.html.

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.

One of the cases involving Christian staff wearing crosses at work is being brought by Nadia Eweida, a British Airways employee who in 2006 refused to hide her cross necklace when she was told it must be hidden from view. She was put on unpaid leave but returned 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 the employment tribunal found that BA had not treated her less favourably than it would have treated a person of another faith, or no faith, displaying visible jewellery.

The other case involves Shirley Chaplin, a nurse at the Royal Devon and Exeter NHS Trust, who was moved to a non-nursing job after refusing to stop wearing her cross at work. She lost a discrimination claim against the trust.

In the Chaplin case, the Equality and Human Rights Commission has acknowledged that health and safety considerations might justify a ban on all visible jewellery. But in the Eweida case, the EHRC has argued that the UK courts did not give enough consideration to freedom of religion. The government was expected to argue at Strasbourg that wearing a cross is not a requirement for Christians, so a prohibition on wearing a visible cross does not breach religious freedom.

The application to the ECHR in Nadia Eweida and Shirley Chaplin v the United Kingdom, summarising both cases, is at www.bailii.org/eu/cases/ECHR/2011/738.html.

An employment specialist at solicitors Erwin Leighton Paisner was quoted in the Guardian as saying, "If these [four] employees win, effectively the judgment will give employers more pause before banning the wearing of religious signs and clothing at work... In addition, employers may well be required to do more to manage competing and conflicting views, such as in the Ladele and McFarlane cases."

For summaries and articles about cases, do a Google search on key words in the case name or content.
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WHAT IS AND IS NOT A PROTECTED BELIEF

Added 26/9/12. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The cases below show how courts are interpreting the 2009 employment appeal tribunal decision in Grainger plc v Nicholson, setting 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. (The regulations have since been replaced by 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.

For summaries and articles about cases, do a Google search on key words in the case name or content.
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ARE POLITICAL BELIEFS PROTECTED BELIEFS?

Added 2/12/12. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The article above shows how courts are interpreting 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 Equality Act 2010. A decision by the European Court of Human Rights on 6 November 2012 may mean that explicitly political beliefs could come to be treated as philosophical beliefs under equality legislation.

Arthur Redfearn 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, and 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 applicant’s candidature became public knowledge. 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 decision could mean that party political affiliation or belief will need to be included within the interpretation of philosophical belief under the Equality Act 2010.

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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INADVERTENT COMMENTS ABOUT SEXUAL ORIENTATION

Added 18/4/12. This information updates ss.28.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The court of appeal has ruled that where a person has made their sexual orientation known at their workplace, a casual comment about it by a colleague or manager does not, in itself, constitute discrimination.

The case concerned Mr Grant, a Land Registry employee who had made it known at the Lytham office that he was gay, but did not reveal this when he was transferred to the Coventry office, preferring to wait and do so at a time of his choosing. A number of differences with his new manager — including that she had mentioned his sexual orientation to a colleague before he had taken up his post — resulted in him bringing several claims of sexual orientation discrimination and harassment.

In relation to being outed by his manager the court of appeal found that even though Grant was upset by the disclosure, the facts that he had made his sexual orientation known at the Lytham office and that his new manager did not intend any ill purpose meant that it did not constitute direct discrimination or harassment. But the judge added that in other circumstances, outing someone could be direct discrimination and harassment.

The decision in Grant v HM Land Registry is at www.bailii.org/ew/cases/EWCA/Civ/2011/769.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.

The 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 at www.tuc.org.uk/extras/ManagingAgeGuide.pdf, 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 25/9/12. 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. 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.

As set out in Seldon, 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.

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

Added 25/9/12. This information updates s.28.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
As with other forms of discrimination, ageist remarks can constitute unlawful discrimination. In the case of James v Gina Shoes, James was a manager in the employer's shoe factory. The managing director, as part of company's performance management process, made clear he was not happy with the James' work, asked whether his poor performance was because of his age (58), and said that if James had been younger he could have been given training. James resigned, claiming constructive unfair dismissal and age discrimination. At a subsequent grievance meeting the managing director said "you can't teach an old dog new tricks" or words to that effect.

In discrimination cases, the claimant has to establish sufficient facts that on the face of it show that he or she has been treated less favourably than another person without the protected characteristic (age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex, sexual orientation) was or would have been treated. The burden of proof then shifts to the respondent (the employer) to provide a credible, non-discriminatory reason for the treatment. If the respondent cannot provide an acceptable explanation, the tribunal or court must find that discrimination was the reason for the treatment.

In this case the employment tribunal said the comments were just "fleeting thoughts" that did not in themselves show James had been treated less favourably than another person would have been. The employment appeal tribunal, in its decision on 18 January 2012, disagreed, saying the comments clearly suggested discrimination. The EAT sent the case back to the employment tribunal for consideration of the employer's reasons for the treatment.

The EAT decision in R C James v Gina Shoes Ltd & others is at www.bailii.org/uk/cases/UKEAT/2012/0384_11_1801.html.

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 25/9/12. 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. But 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 , 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.

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

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EQUAL PAY

Updated 25/9/12. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Former equalities minister Lynne Featherstone announced on 14 June 2012 that the government will proceed with proposals under which an employment tribunal that has found an employer to have discriminated on the basis of gender in relation to pay and believes that continuing or repeated discrimination is likely, will order the employer to conduct a pay audit and publish the results.

The tribunal will be obliged to order the audit unless the employer has carried out a pay audit within the past three years, has transparent pay practices or can show good reason why a pay audit would not be useful. Micro-employers (likely to be defined as employers with fewer than 10 employees) will initially be exempt from the pay audit requirement, but this provision will be reviewed in due course.

The government's response to the equal pay aspects of its "modern workplaces" consultation, which took place from May to August 2011, was also published on 14 June 2012. This is on the Home Office website via tinyurl.com/cvv2odk, and the ministerial statement can be accessed via tinyurl.com/dyeotlv.

The full "modern workplaces" consultation documents are on the BIS website at tinyurl.com/896ojpt. A response to the other aspects of the consultation has not yet been published.

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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.

For organisations that want to get it right before they are forced to do so, 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 held 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.

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COMPROMISE AGREEMENTS AND DISCRIMINATION CLAIMS

Updated 17/2/12. This information updates s.37.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Very strict rules apply to settlement agreements (arranged through ACAS) and compromise agreements (not involving ACAS) under which an employee agrees not to pursue a claim arising from the employer's breach of anti-discrimination or employment legislation. Such settlements also frequently include provision for related issues such as contractual rights, confidentiality and references.

One of the rules relating to compromise agreements is that the employee must receive independent advice on the agreement from a qualified lawyer, certified trade union official or certified advice centre worker, and the advisor must have appropriate indemnity insurance. But due to a drafting error, s.147 of the Equality Act 2010 states that a person cannot be an independent advisor on a compromise agreement if they are already acting for the employee.

From 6 April 2012 this drafting error is amended by the Equality Act (Amendment) Order 2012 to make clear that a solicitor, authorised trade union official or member or authorised advice centre worker already acting for the employee can be an independent advisor.

S.147 of the Equality Act 2010 is at www.legislation.gov.uk/ukpga/2010/15/section/147. The amendment order is at www.legislation.gov.uk/uksi/2012/334/made.

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EQUAL OPPORTUNITIES IN SERVICE DELIVERY

CHARITY ACTIVITIES AND SERVICES FOR SPECIFIC GROUPS

Updated 11/1/12. 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 next paragraph] 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.

"Charitable instrument" is defined in s.194 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 most recent 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 — of 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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EQUALITIES 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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PUBLIC SECTOR EQUALITY DUTIES

Updated 2/12/12. 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 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.

For example, a high court judge ruled 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.

Such judicial decisions do not overturn the public body's decision, but they do require the public body to undertake an analysis of the effects on equality and take it and their equality duty into consideration when re-deciding the issue. 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.

Prior to 5 April 2011 the 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.

As part of its reports on the equalities red tape challenge and the progress of its equality strategy, the government announced on 15 May and confirmed on 22 May 2012 that the public sector equality duty is to be reviewed to establish whether it is the best way to ensure public bodies consider the impact of their decisions on different groups. The review will be completed by April 2013. The ministerial statement on the red tape challenge and the equality strategy progress report are on the Home Office website via tinyurl.com/bu7po6f and tinyurl.com/cqm82gw.

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.

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CATHOLIC ADOPTION AGENCY 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) 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) 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 is considering whether to appeal 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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HOTEL OWNERS WHO REFUSED GAY COUPLE TO APPEAL TO SUPREME COURT

Updated 2/12/12. This information updates s.42.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Hotel owners who allowed only married couples to occupy double-bedded rooms, and who refused to allow a gay couple who are civil partners to stay in a double room, won permission on 14 August 2012 to take their case to the supreme court.

The website for the Chymorvah Private Hotel in Cornwall made clear that unmarried couples would not be allowed to occupy rooms with double beds, but could occupy twin-bedded rooms. In September 2008 Martyn Hall, a gay man in a civil partnership, booked a double room 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, the hotel owners, appealed, the court of appeal confirmed on 10 February 2012 that Hall and Preddy had suffered direct discrimination.

In court the Bulls said they believed that if they permitted unmarried individuals, heterosexual or homosexual, 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 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.

The counter-argument 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 being 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 were gay.

In acknowledging the conflict between the Bulls' right to practice their religion and Hall and Preddy's right to access services, the court said that the Bulls were free to manifest their religious beliefs in their personal life, but in owning and managing the hotel they were obliged to comply with legislation prohibiting discrimination on the basis of sexual orientation.

The court of appeal decision in Bull & Bull v Hall & Preddy is at www.bailii.org/ew/cases/EWCA/Civ/2012/83.html. No date has been set for the supreme court to hear the case against this decision.

In a similar case, Michael Black and John Morgan won their case in the crown court on 18 October 2012 against Susan Wilkinson, owner of the Swiss Bed and Breakfast in Cookham, Berkshire. Wilkinson refused on the basis of her religious beliefs to allow them to occupy a double room in March 2010, even though they had booked and paid a deposit.

She said in court that it would be against her core religious beliefs and conscience to allow a same sex couple 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.

Wilkinson has said she is considering an appeal.

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.

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.

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AGE DISCRIMINATION IN SERVICE DELIVERY

Updated 16/10/12. This information updates s.42.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Following consultation in 2011 on Equality Act 2010 provisions banning age discrimination in the provision of goods, services, facilities or public functions to people aged 18 or older, the ban 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.