Discrimination Law Conference 2019

This year marked the 25th Discrimination Law Conference, hosted by the TUC and Michael Rubenstein. It’s become a high profile conference for trade unions, and other voluntary organisations alike, as it offers the chance to hear from leading barristers on the latest developments in equality legislation and landmark equality cases.

Opening the conference, Paul Nowak, TUC Deputy General Secretary, talked about the current political environment — we’re at a defining moment for working people, trade unions & the country. Highlighting growing inequality he said the average difference of pay between CEOs and ordinary workers has reached a ratio of 133:1 and drew attention to an alarming upsurge in racial discrimination which he attributed to a rise in the far right with a nasty political discourse focused on migration. His message was that we need to work towards closing these pay gaps and building stronger rights for the most vulnerable workers whilst improving penalties to prevent discrimination occurring.

Throughout the rest of this article, I’ve picked out some of the important or more interesting cases that have been shaping equality legislation over the last year.

Family policies
A flagship government policy — Shared Parental Leave (SPL) — is currently being tested in an important case (Hextall v Chief Constable of Leicestershire Police) which progressed to appeal in May 2018 . The issue is around the practice of fathers being denied the opportunity to take enhanced rates of pay that would be offered to mothers by way of occupational maternity pay. The question is whether this amounts to direct or indirect discrimination on the grounds of sex. The Employment Appeal Tribunal (EAT) decision says that the original tribunal was wrong in its analysis of the claim and that an employer who enhances maternity pay, but pays only statutory rate for SPL is potentially applying an indirectly discriminatory practice that puts men at a disadvantage.

It’s worth noting that the take up rate for SPL is extremely low and unless employers offer enhanced rates that make it financially viable for working parents, then this is unlikely to change. For the majority of Accord members employed by Lloyds Banking Group (LBG) or TSB, there are policies that provide enhanced rates of SPL. More recently we reached agreement with LBG to implement a significant change to their family policies: extending maternity pay to 20 weeks at full pay. This rate is also available for those who decide to share their leave with their partner.

In the case of Guisado v Bankia SA heard at the European Court of Justice, the court was asked to examine whether protection from dismissal by way of collective redundancy applied to pregnant workers. The decision reached in this case maintains the status quo and does not extend protections beyond workers on maternity leave — unless the dismissal is solely because of pregnancy which would automatically be discriminatory under existing EU law. The court, however, does not prevent EU member states from extending this protection by design in domestic legislation.

The UK government made a commitment to review protections for pregnant workers, but has yet to move forward with this, and it’s worth trade unions taking up the issue with their members’ employers. Although Accord has been unable to gain additional protections as yet, we were able to get LBG to include the following statement in their HR guidance:

Business areas should take care not to discriminate against pregnant colleagues in any redundancy selection process. Whilst not afforded preferential treatment until on a period of leave, managers involved must be mindful of their rationale for any selection decisions and not risk breaching discrimination legislation.

Disability
The Equality Act 2010 [schedule 1, paragraph 6] sets out certain medical conditions that are automatically classed as disability from the moment of diagnosis, and therefore the consideration of reasonable adjustments is applicable. Cancer is listed as one of these conditions.

In Lofty v Hamis t/a First Café the claimant was dismissed due to absence which related to treatment for ‘in situ’ cancer (a state described as precancerous due to the fact that it had not spread). A tribunal dismissed the claim of unlawful disability discrimination, determining that the condition was not cancer and therefore not considered a disability. The EAT, however, determined that the purpose of the inclusion of cancer as a single condition in the legislation was to avoid unnecessary complexity and uncertainty (as this would require a great deal of medical evaluation and could be open to differing opinions of experts). It was, therefore, not relevant to determine the severity or impact of the condition, so discrimination had in fact occurred.

As a reminder, we reported in 2018 that both TSB & LBG signed up to the Dying to Work Charter which commits employers to supporting workers with terminal illnesses. Although the Lofty case did not involve terminal illness, we would expect both employers to provide relevant support in any cases where cancer is diagnosed.

This next case is important as it highlights that it’s not merely enough for an employer to show they did not discriminate directly because of someone’s disability, they must also consider the consequences of a disability.

Sheikholeslami v University of Edinburgh tested another part of the Equality Act 2010 [Section 15 — discrimination arising from disability]. This case is an interesting one, but also a more complicated aspect of the law because it requires businesses to consider a looser connection between treatment and disability. In this case, Sheikholeslami was dismissed due to her refusal to return to work (she was suffering with work related stress and anxiety because of treatment by her workplace, and this had satisfied the definition of disability). The question considered was whether the treatment (dismissal) was because of something that arose as a consequence of disability. The EAT concluded that her disability caused her to experience anxiety, stress and an inability to return to the place where she perceived the mistreatment and hostility to be located, leading to her refusal — and therefore discrimination had occurred.

Victimisation
This next case highlights that raising allegations as a means to deflect criticism during a disciplinary process does not automatically mean it is done in bad faith where the allegations are not substantively proven. Employers should look beyond the motive for the allegation and consider the actual belief of the employee making the allegation.

In the case Saad v Southampton University Hospitals NHS Trust, Saad raised a grievance as a result of some racial comments that were directed at him in the past, however these allegations were dismissed and the employer decided that he had acted in ‘bad faith’ as the motive behind the grievance was to delay a performance assessment that he was likely to fail. The EAT ruled that ‘bad faith’ could not be assumed as Saad reasonably believed the allegations to be true, regardless of his motive for raising them at that time, and therefore he had been unfairly dismissed.

Gender pay reporting
Gender pay reporting requirements came into effect for big employers in April 2017, with the first reports due in April 2018. The reportings show that all sectors of the economy have a gender pay gap, however there are wide variations. The finance and insurance sector as a whole reported a 22% gap (the mean pay gap within TSB is 31% and LBG is 32.8%). Only half of submitting employers produced a narrative to explain the difference, and one in five produced an identifiable action plan with time-limited targets to address the gaps.

A Department for Business, Energy & Industrial Strategy (BEIS) Committee conducted an inquiry into the reporting regime and concluded that although this was a step forwards there was much more the government needed to do including expanding reporting to smaller employers and requiring businesses to report on gaps in relation to disability and ethnicity.

Sexual Orientation
The next case to highlight is Coman and Others v Romania which is a landmark decision by the European Court of Justice relating to same-sex marriage in states where this is currently not recognised. In essence, the issue involved residency rights which would have been extended to heterosexual couples, but were denied to same-sex couples as Romania has not legalised same-sex marriage. The judgement says that freedom of movement laws require the residency rights to be afforded to same-sex couples.

Although the case focused on free movement rather than discrimination, it does have reaching consequences that EU member states that don’t currently legally recognise same-sex marriage can’t ignore. It may create some problems as they grapple with this decision as it somewhat restricts the ability of states to exclude recognition of same-sex marriages. What the judgment also creates is a difference in treatment between married and unmarried same-sex couples (which is likely to end up being further tested in the courts in coming years).

My final words from the day
It’s unavoidable to talk about discrimination law without noting the impact and direction that we have relied upon over the years from the European courts in advancing UK legislation (workers rely on the Equality Act 2010 for protection, this was the result of a number of EU directives).

At present, the UK government has been so preoccupied with Brexit, that our domestic legislation has suffered. There are many areas that need to be examined that have simply been ignored or ‘parked’ such as implementing recommendations from the Fawcett Review which include extending paternity leave or making eligibility for parental policies ‘day 1’ rights.

There are a number of cases that are due to be heard in the European Court of Justice but because issues relating to Brexit are by no means ‘solved’, we have no idea what the impact of these judgements will have on the UK, and there is a nervousness within the legal profession over where this will leave us.

Whatever your view on Brexit, trade unions have an unparalleled track record when it comes to ensuring dignity for all, and we may just have to work even harder in a post-Brexit world to ensure domestic equality legislation keeps pace in the future.

You can also contact us at equality@accordhq.org