This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

Chapter 28
EQUAL OPPORTUNITIES
IN EMPLOYMENT

RESOURCES

Equality Advisory and Support Service
Updated 16/10/12. This information updates chapters 28 & 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 1 October 2012 information, advice and support on discrimination and human rights are being provided by a new Equality Advisory and Support Service (EASS) rather than the Equality and Human Rights Commission. Funded by the government (as the EHRC service was), EASS is aimed at individuals in England, Wales and Scotland who need more expert advice and support on discrimination and human rights than advice agencies and other local organisations can provide. It will explain options for informal resolution, conciliation or mediation services, and for those who want to take legal action will help to establish eligibility for legal aid and if they are not eligible, will help find an accessible legal service to prepare and lodge a claim themselves.

The EASS website is at www.equalityadvisoryservice.com.

The service is being run by Sitel, working with Disability Rights UK, the Law Centres Federation, Voiceability, the British Institute of Human Rights and the Royal Association for Deaf People.

Sitel is a global company with 57,000 employees, "delivering telephony based customer relationship management solutions and project management". According to its website, "For over 15 years, Sitel has been a leading provider of Business Process Outsourcing (BPO) solutions in the UK, offering clients unprecedented partnership value in the delivery of multi-channel customer contact interactions across all stages of the customer relationship lifecycle." If I knew what it meant, I might be impressed that they are running a discrimination and human rights advice and support centre. On the other hand, I probably would not. .

Other resources
Added 18/4/12. This information updates chapters 28 & 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Improving equality and diversity: A guide for third sector CEOs was published on 1 December 2011 by ACEVO, the Association of Chief Executives of Voluntary Organisations. It is intended to offer practical advice on how CEOs, staff and governing bodies of small and medium sized third sector organisations can tailor action on diversity to their particular organisation. It can be downloaded free of charge via tinyurl.com/crutpyu.

EQUALITY ACT

This information updates chapters 28 and 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
About 90% of the provisions of the Equality Act 2010 came into force on 1 October 2010, with more on 6 April 2011, and some still in the pipeline or not going to be implemented.

The Act replaces all of the previous equality legislation and covers the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, race (which includes race, colour, nationality, and ethnic or national origins), religion or belief, sex, and sexual orientation (ss.4-12), as well as pregnancy and maternity (ss.17-18). The Act was intended to simplify the law, sort out the disparities between the different discrimination "strands", extend some previous protections, and introduce new protections.

RESOURCES

Updated 13/3/11. This information updates s.28.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Equality and Human Rights Commission's codes of practice explain the legislation 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 published 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/36dgn7o. Welsh language versions are available.

ACAS has produced a quick guide for employers, which 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. You can print out the table on its own from the same website - it's very pretty when printed out in colour.

The Equality and Human Rights Commission has a very basic starter guide to 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 pack 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 will in due course produce statutory codes of practice.

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.

THE ACT

Updated 28/5/11. This information updates s.28.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Act is divided into the following sections and schedules:

Equality Act Part 8: PROHIBITED CONDUCT: ANCILLARY

• Relationships that have ended (s.108).
  Updated 10/10/10. This information updates s.28.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  It was previously unlawful to discriminate against or harass a person after an employment relationship had ended, or to discriminate against or harass a person on the basis of sexual orientation or religion/belief after a relationship involving the provision of goods, services or facilities had ended. This protection has been extended to all protected characteristics, including age when the provisions on age discrimination in service delivery come into effect.
  
  Where a disabled person continues to be at a substantial disadvantage even after a relationship has ended, there is now a duty to make reasonable adjustments. The explanatory notes to the Act give the example of an employer who gives ex-employees lifetime use of in-house gym facilities, having to make adjustments to allow a disabled ex-employee to use the facilities.



• Liability of employers and principals, employees and agents; instructing, causing, inducing or aiding contraventions (ss.109-112). These sections replace and extend similar provisions in previous legislation, making clear that both the person carrying out an unlawful act, and any person on whose behalf or under whose instruction they were acting, can be held liable for the act.

Equality Act Part 9: ENFORCEMENT

• Tribunal recommendations in employment cases (s.124).
  Updated 10/10/10. This information updates s.37.4.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  Employment tribunals are now allowed to make wider recommendations in discrimination cases, requiring an employer to take specific steps in relation to the wider workforce rather than just in relation to the worker who has made the complaint.



• Burden of proof (s.136).
  Updated 10/10/10. This information updates s.28.9.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  In discrimination, harassment and victimisation cases the claimant must initially establish sufficient facts which point to a breach of the Act having occurred. The burden of proof then shifts to the respondent to show that he or she did not breach the provisions of the Act. This principle previously applied to most protected characteristics, but the Act has extended it to all of them.

Equality Act Part 10: CONTRACTS etc

This part (ss.142-148) mostly restates previous legislation about the unenforceability of contract conditions which would lead to conduct prohibited by the Act. It is not summarised here.

Equality Act Part 11: ADVANCEMENT OF EQUALITY

• Public sector equality duty (ss.149-157 & sch.18-19).
  Updated 28/5/11. This information updates s.42.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  From 5 April 2011 the previous race, disability and gender equality duties, which required public bodies to reduce inequality and foster good relations, have been extended to cover age, gender reassignment, pregnancy/maternity, religion/belief, and sexual orientation. It does not apply to marriage/civil partnership.
  
  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). 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 duty as part of their grant or contract conditions. 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.
  
  As well as the general duty, specific duties set out how the general duty is to be applied for England and non-devolved bodies in Wales and Scotland, and separately for Wales and for Scotland. 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 government announced on 18 March 2011 that the draft Equality Act 2010 (Statutory Duties) Regulations 2011, which were due to come into effect on 6 April 2011 for England and non-devolved bodies in Wales and Scotland, were being reconsidered. The consultation documents can be accessed via tinyurl.com/5r423up. The Scottish government is also reconsidering its proposals. No implementation dates have been set for England or Scotland.
  
  Information about the general and proposed specific duties is available from the Equality and Human Rights Commission via tinyurl.com/3repekb. This includes the detailed Essential guide to the public sector equality duty (58 pages) tinyurl.com/4gmxw33, with a range of specific guides at tinyurl.com/6zrbdd8.
  The Government Equalities Office's Equality Act 2010: Public sector equality duty: What do I need to know? (10 pages), updated in April 2011, is at tinyurl.com/3hd5jch.



• Using public procurement to promote equality (s.155) — not yet in force.
  Updated 13/3/11. This information updates s.52.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  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 date has been set for implementation.



• Positive action to alleviate disadvantage (s.158).
  Updated 10/10/10. This information updates s.28.1.7 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  It remains lawful 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.



• Preference in recruitment and promotion (s.159).
  Updated 13/3/11. 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 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 issued 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/49ebudr (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/6fqmlrb (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.

Equality Act Part 12: DISABLED PERSONS: TRANSPORT

This part (ss.160-188) applies to taxis and to private hire, public service and rail vehicles. It is not summarised here. The government is still considering the provisions about taxi accessibility.

Equality Act Part 13: DISABILITY: MISCELLANEOUS

• Reasonable adjustments (s.189 & sch.21). The schedule sets out procedures where consent must be obtained from a landlord before reasonable adjustments to premises or physical features can be made, and consent is refused or not provided.
  
  Regs.11-14 of the Equality Act 2010 (Disability) Regulations 2010 (www.legislation.gov.uk/uksi/2010/2128/contents/made) include additional provisions about landlord consent.



• Disability-related improvements to residential premises (s.190). This replaces similar provisions in the DDA on disabled tenants or occupiers getting their landlord's consent to make disability-related improvements to their homes.

Equality Act Part 14: GENERAL EXCEPTIONS

• Differential treatment (s.191 & sch.22).
  Updated 10/10/10. This information updates s.28.1.7 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  Schedule 22 sets 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.



• IMPORTANT: Charities (ss.193-194).
  Updated 11/1/12. This information updates s.5.6 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  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 the Equality Act, 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 charities exemption 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.



• 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.



• Sport (s.195).
  Updated 10/10/10. This information updates ss.42.3.2 & 42.4.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  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.



• Religion/belief (s.196 & sch.23).
  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, 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.



• Communal accommodation (s.196 & sch.23).
  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, single-sex communal accommodation continues to be able to be provided. Any discriminatory treatment of transsexuals must be objectively justified.



• Age (s.197).
  Updated 11/3/12. This information updates s.42.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
  A new provision allows regulations to be made setting out exceptions to the prohibition on age discrimination. For details, see Age discrimination in service delivery.

Equality Act Part 16: GENERAL AND MISCELLANEOUS

• Civil partnerships on religious premises (s.202).
  Updated 13/3/11.
  The prohibition on civil partnership registrations being held on religious premises will be removed. Religious organisations in England and Wales which wish to do so will be able to hold civil partnership registrations on their premises, but will not have to do so.
  
  This change will require amendments to the Approved Premises (Marriage and Civil Partnership) Regulations 2005. The Government Equalities Office consulted on these changes until 23 June 2011. Consultation details are at www.equalities.gov.uk/news/civil_partnership.aspx.



• The remainder of this part (ss.203-218 & sch.24-28) is not summarised here. Sch.28 sets out where expressions are defined in the Act.

DISCRIMINATION BY ASSOCIATION

Updated 10/10/10. This information is included in s.28.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Discrimination or harassment because of association with a person who has any 'protected characteristic' is now unlawful (see the Key concepts section under Equality Act, above).

The background to this change is that the Disability Discrimination Act 1995, as originally worded, applied only to discrimination against a disabled person (as defined in the Act and subsequent legislation). But in a decision on 17 July 2008 the European Court of Justice confirmed that the EU Directive for Equal Treatment in Employment and Occupation makes it unlawful to directly discriminate against or harass a non-disabled worker because of their association with a disabled person — in this case, a non-disabled mother looking after her disabled child.

Following this decision, the employment tribunal confirmed on 27 November 2009 that all relevant sections of the Disability Discrimination Act 1995 should be read as applying not only to a disabled person but also to a person associated with a disabled person.

The case was brought by Sharon Coleman, who had asked for flexible working to look after her four-year-old disabled son. Her employer, Attridge Law Solicitors, had granted flexible working to other mothers whose children were not disabled, but did not allow it for Coleman. She resigned, claiming unlawful discrimination on the basis of her son's disability. This kind of discrimination by association is called associative discrimination and was recognised as applying in some types of discrimination cases, but was not covered by the DDA as worded. Coleman eventually, in May 2010, received £12,000 in an out of court settlement.

Parents of children under age 17 (or under 18 if the child is disabled) and carers of adults are entitled to request flexible working. However the employer can, for a variety of reasons, refuse the request. Now that associative discrimination is unlawful, employers will need to consider whether flexible working to care for a disabled person is a reasonable adjustment.

DISCRIMINATION IS UNLAWFUL REGARDLESS OF MOTIVE

Added 14/1/10. This information updates s.28.1.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In a case involving Amnesty International, the employment appeal tribunal said in August 2009 that discrimination on the basis of ethnic origin is unlawful even if there is a benign reason for it. The case involved a Sudanese woman who was not hired as a researcher on Sudan, because she came from the north of Sudan and could have been perceived as being associated with ethnic groups linked with the Sudanese government. This, Amnesty argued, could compromise its perceived impartiality, and could put the researcher at risk to her health, safety and security.

The EAT expressed unease at having to decide that Amnesty's action was unlawful, saying it could have implications for employers whose employees work in situations of acute political or ethnic tension. However, it said, race discrimination law does not allow for a defence of justification even in situations like this.

The decision in Amnesty International v Ahmed is at www.bailii.org/uk/cases/UKEAT/2009/0447_08_1308.html.

FOLLOW-UP ON HOMOPHOBIC BANTER CASE

Added 28/5/11. This information updates s.28.1.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Under the Employment Equality (Sexual Orientation) Regulations 2003, harassment was defined as unwanted conduct on the grounds of sexual orientation that had the purpose or effect of violating a worker's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.

The court of appeal's landmark decision in English v Thomas Sanderson Ltd in 2008 made clear that harassment could occur if a person who does not have a characteristic is treated as if he or she does — a principle that is now part of the Equality Act 2010. In this case, the court said it could be harassment for a man known to be heterosexual to be called "faggot" and be subjected to homophobic "banter" because he lived in Brighton and had gone to boarding school.

However when the case was referred back to the employment tribunal to decide whether English had actually suffered harassment on the basis of sexual orientation, the tribunal said he had not because he had taken part in the banter, his own behaviour had been "extremely offensive", and he had remained friends with his alleged tormentors. The tribunal said English's treatment had not, in his eyes, had the effect of creating an intimidating, offensive etc environment. This decision was upheld by the employment appeal tribunal on 21 February 2011.

The EAT decision in Thomas Sanderson Blinds Ltd v English is at www.bailii.org/uk/cases/UKEAT/2011/0316_10_2102.html.

A DEROGATORY REMARK MAY BE HARASSMENT

Added 14/1/10. This information updates s.28.1.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
While working out her resignation notice, a woman of Indian origin was told by her manager, "We will probably bump into each other in future, unless you are married off in India." The employee was upset by this remark and after taking out a grievance which was not satisfactorily resolved, she claimed harassment on racial grounds.

Under the Race Relations Act 1976 s.3A as amended in 2003, harassment is defined as unwanted conduct which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. In its decision on 12 February 2009, the employment appeal tribunal said that earlier definitions of harassment, from before the statutory definition, should be largely disregarded.

The EAT accepted that the purpose of the comment had not been to harass the employee, but it had had that effect and therefore fell within the statutory definition — although it was close to the borderline. At the end of its decision the EAT said that employers and tribunals need to be sensitive to the hurt that can be caused by racially (and other) offensive comments or conduct, but it is also important "not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase".

The decision in Richmond Pharmacology v Dhaliwal is at www.bailii.org/uk/cases/UKEAT/2009/0458_08_1202.html.

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.

HAIR LENGTH AND SEX DISCRIMINATION

Added 14/1/10. This information updates s.28.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Requiring a male employee to cut his shoulder length hair is not sex discrimination if it is part of a dress code that overall is "gender neutral", an employment tribunal ruled on 4 January 2010. A Metropolitan Police trainee claimed he was treated unfairly because he was required to cut his hair when a woman would not have to. But the EAT said the dress code, which requires employees' standard of dress to be "smart, fit for purpose, and portray a favourable impression of the service", was gender neutral, because a woman who breached the code in another way would be treated the same as the man had been.

The decision in Dansie v The Commissioner of Police for The Metropolis is at www.bailii.org/uk/cases/UKEAT/2009/0234_09_2010.html.

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.

PREGNANCY GOSSIP CAN BE DISCRIMINATION AND HARASSMENT

Added 28/5/11. This information updates s.28.3.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From banter [see item above] to gossip ... another case illustrates the employer's obligation to take steps to ensure employees and others do not act in ways which are or could be discriminatory or could constitute harassment, and to take action when such behaviour occurs.

In Nixon v Ross Coates Solicitors & another, the employee, Ms Nixon, was seen at the work Christmas party kissing and going into a hotel room with another employee. When she subsequently informed the firm's managing partner that she was pregnant, the HR manager was within an hour gossiping with other employees about who the father might be. This gossip continued and was spread around the office, even though Ms Nixon made it clear she found it distressing, took time off from work because of the gossip and asked to be transferred to another office.

When she was refused the transfer and was not paid for the time she took off she resigned, claiming constructive unfair dismissal, sex discrimination, pregnancy-related discrimination and harassment.

The employment tribunal initially found she had been constructively dismissed but reduced her compensation by 90% because of her behaviour "in acting so publicly, so foolishly and so irresponsibly". The tribunal found she had not been discriminated against or harassed.

On appeal, the employment appeal tribunal said the award could only be reduced if Ms Nixon's conduct was a cause of or contributed to her resigning and claiming constructive dismissal. In this case it was the gossip, rather than her conduct, which led to the resignation, and the tribunal had been wrong to reduce the compensation for unfair dismissal.

And because the gossip related directly to her pregnancy, the EAT upheld her claims of sex discrimination, pregnancy-related discrimination and harassment.

The EAT decision in this case illustrates the importance of employers taking seriously employees' complaints or formal grievances about the way they are being treated by workmates and by third parties such as clients/service users, customers, suppliers and contractors, and taking reasonable steps to prevent inappropriate behaviour. It also illustrates just how widely the tribunals and courts interpret discrimination and harassment.

The EAT decision is at www.bailii.org/uk/cases/UKEAT/2010/0108_10_0608.html.

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.

BELIEF IN ANIMAL RIGHTS AND IN PUBLIC SERVICE BROADCASTING AS PROTECTED BELIEFS

Updated 13/6/11. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In Grainger plc v Nicholson (www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html), the employment appeal tribunal said in November 2009 that factors to be taken into account when assessing whether a belief should be protected as a religious or philosophical belief are:

BELIEF IN CLIMATE CHANGE AS A PROTECTED BELIEF

Added 1/5/10. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Employment Equality (Religion or Belief) Regulations 2003, now replaced by the Equality Act 2010, cover religion, religious or philosophical belief, and lack of belief. In a widely publicised case in November 2009, the employment appeal tribunal confirmed that philosophical beliefs based on science, including strongly held beliefs about environmental issues and man-made climate change — or indeed, a belief that climate change is not man-made and that resources should be developed — could be protected under the regulations.

The EAT said that factors to be taken into account when assessing whether a belief should be protected are:

EMPLOYEES REFUSING ON RELIGIOUS GROUNDS TO PROVIDE SERVICES TO SAME-SEX COUPLES

Added 1/5/10. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Overturning an earlier decision by the employment tribunal, both the employment appeal tribunal and the court of appeal have ruled that Islington Council did not unlawfully discriminate against a Christian registrar on the grounds of her religious beliefs by requiring her to officiate at civil partnership ceremonies.

The registrar 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. 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 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.

Ladele v London Borough of Islington is at www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html.
McFarlane v Relate Avon Ltd is at www.bailii.org/uk/cases/UKEAT/2009/0106_09_3011.html.

In these cases, as in other cases such as those involving employees wanting to wear a crucifix or other religious symbols where the employer has a policy prohibiting this, the tribunals and courts made a distinction between an employee holding a belief, and manifesting that belief in the workplace.

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.

TIME OFF TO ATTEND FRIDAY PRAYERS

Added 5/6/11. This information updates s.28.4.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In Cherfi v G4S Security Services Ltd, the employment appeal tribunal confirmed that the company's refusal to allow Mr Cherfi, a security guard, to take time off to attend Friday lunchtime prayers put him at a disadvantage as a Muslim and could therefore have been indirect discrimination, but that it was a proportionate means of achieving a legitimate aim and was therefore not unlawful.

G4S was required to have a specified number of guards on site at all times, and would face substantial financial penalties or potentially lose the contract if they did not. This included the guards being on site during their lunch break, for which they were paid. The EAT confirmed that avoiding the penalties or loss of contract was a legitimate aim for the company. The company offered options which would have enabled the employee to take part in Friday prayers, including using an on-site prayer room and a change in work pattern to work Monday-Thursday and a weekend day. The employee refused these options, and the tribunal and EAT said it was therefore proportionate for G4S to require him to have to remain at work, as he was contracted to do, during Friday lunchtimes.

The EAT decision is at www.bailii.org/uk/cases/UKEAT/2011/0379_10_2405.html.

MANAGING TIME OFF FOR RELIGIOUS HOLIDAYS AND OBSERVANCE

Added 15/2/10. This information updates s.28.4.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
It can be difficult to weigh up the needs of workers who want or need time off for religious observance, versus the business needs of the organisation, versus the desire to avoid the risk of claims of discrimination on the basis of the worker's religion/belief or not being religious. Can a worker whose religion says they must not work on Saturday (or any other day) be required to work on that day, if there is a genuine need for the work to be done and there is no proportionate alternative to that particular worker doing it? Can non-Christian workers complain about having to take compulsory annual leave if the organisation closes over the Christmas period, or complain if the employer requires them to take annual leave for their own religious holidays?

These and similar issues are summarised in "Managing employee leave for religious holidays and festivals" in the autumn 2009 issue of the Bates Wells & Braithwaite employment law update, via tinyurl.com/yazwrzr. The article looks at the issues, the legislation on religious discrimination, case law decisions, and good practice.

INADVERTENT COMMENTS ABOUT SEXUAL ORIENTATION

Added 18/4/12. This information updates s.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.

ABOLITION OF DEFAULT RETIREMENT AGE

Updated 18/4/12. This information updates ss.28.6.1 & 34.2.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The default retirement age of 65, the statutory retirement procedure and the right to request working beyond retirement age were abolished from 1 October 2011.

From that date, compulsory retirement is lawful only if such a requirement is a proportionate means of achieving a legitimate aim [see article below].

Under transitional arrangements which were in effect from 6 April 2011, employers could issue notification of compulsory retirement under the previous default retirement age procedure only until 5 April 2011, and only for employees who would be 65 or older on 30 September 2011.

Under the Employment Equality (Age) Regulations 2006 which were in effect until 30 September 2011, the maximum notice of retirement the employer could give was 12 months, and the last date on which the employee could exercise his/her right to request to work beyond retirement was three months before the employer's notice runs out. So if the employer gave 12 months' notice of retirement on 5 April 2011 (the last possible day), the employee had until 5 January 2012 to exercise his or her right to request to work beyond retirement (discounting the day on which notice was given). If the employer gave on 5 April 2011 six months' notice (the minimum that could be given), the employee's deadline for requesting would have been 5 October 2011.

In theory, an employer could agree a fixed or indefinite period of working beyond retirement if an employee made a request. But under the 2006 regulations if the employer agreed an extension of more than six months, it would have had to issue a fresh notice of intention to retire — which it could not do after 5 April 2011. So in practice, the last possible date for retirement of an employee under the existing law is 5 October 2012. This assumes the employee was given 12 months' notice of intention to retire on 5 April 2011 (the last day possible), taking him or her to 5 April 2012, and the employee requested and was given the maximum six month agreed extension which could be given without a fresh notice of intention to retire (going to 5 October 2012).

ACAS guidance on the transitional arrangements is at www.acas.gov.uk/index.aspx?articleid=3203.

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.

RECURRENCE OF AN INTERMITTENT DISABILITY

Added 1/5/10. This information is included in s.28.7.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Under the Disability Discrimination Act 1995 sch.1, disability is defined as a physical (including sensory) or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out at least one normal day to day activity. An effect is long-term if it has lasted or is likely to last for at least one year, and/or is likely to last for the rest of the person’s life if this is likely to be less than a year.

If an impairment ceases to have a substantial adverse effect or the effect is intermittent, the Act defines the effect as continuing if it "is likely to recur". Case law previously interpreted "likely to recur" as "more likely than not", but in a decision in July 2009, the House of Lords said it should be interpreted as "could well happen".

This decision increases legal protection for people with conditions such as diabetes, epilepsy, rheumatoid arthritis, multiple sclerosis and others which are controlled by treatment or medication or may fluctuate for other reasons.

The decision in SCA Packaging Ltd v Boyle (Northern Ireland) is at www.bailii.org/uk/cases/UKHL/2009/37.html.

COMPARATOR FOR DISABILITY DISCRIMINATION

Updated 10/10/10. This information is included in s.28.7.3 and 42.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Under the Disability Discrimination Act 1995 disability discrimination could be direct ("We won't let you in the restaurant because you are blind", or "We are dismissing you because you have an a severe back injury") or disability-related ("We won't let you in because you have a dog", where the reason for the dog is related to the disability, or "We are dismissing you because you have been off work for a year", where the absence is because of the injury).

Following the Clark v Novacold case in 1999, the comparator in disability-related discrimination cases was a non-disabled person to whom the disability-related reason does not apply (because they are not disabled). The type of questions to be asked in the above examples would be "Would a person who is not blind, and who therefore does not bring a dog to a restaurant, be denied entry the restaurant? Would a person who does not have a serious injury, and has therefore not been off work for a year, be dismissed?" If the answer is no, a disabled person who is refused admission or is dismissed is being treated less favourably than the non-disabled person.

In the case of London Borough of Lewisham v Malcolm and another on 25 June 2008, the House of Lords controversially said that Clark v Novacold had been wrongly decided, and the correct comparator should be a non-disabled person to whom the reason for the treatment does apply. The questions would be "Would a person who is not blind and brings a dog to a restaurant be denied entry? Would a person who does not have a serious injury or other disability, but has been off work for a year, be dismissed?" If the answer is yes, the disabled person is not being treated less favourably.

The Malcolm case involved service delivery (the provision of housing) and it was unclear whether it would also apply to employment cases. On 5 February 2009, in Child Support Agency v Truman, the employment appeal tribunal confirmed that the Malcolm decision did apply in employment cases, and this was confirmed in subsequent cases.

These decisions made it much easier for a service provider or employer to show that the reason for their allegedly discriminatory action was not for a disability-related reason — because they could say, for example, that anyone with a dog, or anyone with a long-term absence, would have been treated the same. Similarly it became more difficult for a disabled person to show that the reason for their treatment was related to their disability. This outcome was contrary to the purpose of the Disability Discrimination Act, which was to protect disabled people in situations such as these — not to make it harder for them to show that they had been treated less favourably.

Now, under s.15 of the Equality Act 2010 which came into effect on 1 October 2010, the situation has reverted to what it was pre-Malcolm.

DISABILITY ACCESS RESOURCES

Added 6/9/10. This information updates s.28.7.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Trades Union Congress (TUC) has produced a short but useful list of disability access resources used by the TUC or individual trade unions. These are divided into audio transcriptions; BSL/sign language interpreters; suppliers of furniture etc; mobility scooter hire; speech to text or palantype (a verbatim reporting machine); braille, audio and large print transcriptions; disability equality training; meeting venues; and access consultant accreditation.

The list can be accessed via tinyurl.com/2g34a2h.

EMPLOYER'S KNOWLEDGE OF A WORKER'S DISABILITY

Added 1/5/10. This information updates s.28.7.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Employers are obliged to make reasonable adjustments where a provision, criterion, or practice operated by or on behalf of the employer, or any physical feature of the premises occupied by the employer, places a disabled worker at a substantial disadvantage compared with workers who are not disabled.

Under s.4A(3) of the Disability Discrimination Act 1995, an employer does not have to make adjustments if it does not know, and could not reasonably be expected to know, that a disabled worker, applicant or potential applicant has a disability and is likely to be placed at a substantial disadvantage compared to persons who are not disabled.

In Eastern & Coastal Kent PCT v Grey, the employment appeal tribunal said in 2009 that the duty to make reasonable adjustments does not apply if an employer does not know the person has a disability; does not know the person is likely to be substantially disadvantaged compared to others who are not disabled; could not reasonably be expected to know that the person had a disability; and could not reasonably be expected to know that the person is likely to be substantially disadvantaged.

But in Department for Work and Pensions v Alam in November 2009, the employment appeal tribunal said that two questions arise in deciding whether the employer's duty arises:

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

SANDY ADIRONDACK
Governance and legal training and consultancy
for the voluntary sector
39 Gabriel House, 10 Odessa Street, London SE16 7HQ
Tel 020 7232 0726; fax 020 7237 8117
Email:
Web: www.sandy-a.co.uk