Overview of UK discrimination cases 2014-2016 NI Employment Lawyers’ Group Geraldine Scullion Discrimination Law Association Editor, DLA Briefings November 30, 2016 geraldinescullion@hotmail.co.uk

outline direct discrimination indirect discrimination race discrimination disability discrimination reasonable adjustments knowledge of disability right to a fair hearing age discrimination definitions upcoming CJEU judgments

direct discrimination CLFIS(UK) Ltd v Dr Mary Reynolds OBE [2015] IRLR 562 CA; [2015] EWCA Civ 439 decision-maker’s own reasons which count unknowingly being provided with ‘tainted information’ is not enough motivation for earlier act cannot be transferred to final decision-maker claim against the discriminator re earlier act time limit problems? joint decision-making may be contaminated by discriminatory motivation of one party

indirect discrimination Naeem v The Secretary of State for Justice  [2015] EWCA Civ 1264; UKSC 2016/0005 Home Office (UK Border Agency) v Essop [2015] ICR 1063;[2015] EWCA Civ 609; UKSC 2015/0161 Chez Razpredelenie Bulgaria AD v Komisia za zashtita ot disckriminatsia CJEU Case C- 83/14; [2015] All ER (EC) 1083; [2015] IRLR 746

Equality Act 2010 ss19 & 23 on indirect discrimination S19 (1) A person (A) discriminates against another (B) if A applies to B a PCP which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a PCP is discriminatory in relation to a relevant protected characteristic of B’s if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. S23. Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section…19 there must be no material difference between the circumstances relating to each case.

Naeem v The Secretary of State for Justice complaint of indirect religious and race discrimination comparison with Christian chaplains reason for the difference in treatment? more recent start dates of Muslim chaplains (as no need for their services prior to 2002) no discrimination

Home Office (UK Border Agency) v Essop indirect race, age discrimination complaint claimant must show that the reason for his individual disadvantage is the same as the reason for the group disadvantage statistical evidence of disadvantage may be sufficient to shift the burden of proof

Chez Razpredelenie Bulgaria AD v Komisia za zashtita ot disckriminatsia direct discrimination complaint on grounds of nationality CJEU held directive 2000/43/EU applies to indirect discrimination where claimant not a member of racial group concerned: principle of equal treatment … applies not to a particular category of person but by reference to the grounds mentioned in Article 1 … [intention is] to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds’

race Taiwo v Olaigbe and another; Onu v Akwiwu and another [2016] UKSC 31; June 22, 2016 Hounga v Allen [2014] UKSC 47; [2014] Equality Law Reports 559, July 30, 2014

Taiwo v Olaigbe; Onu v Akwiwu direct/indirect race discrimination complaints on ground of nationality/national origin reason for mistreatment was their status as migrant workers immigration not a ‘proxy’ for nationality/national origin gap in protection SC recommended tribunals have power to award compensation

Hounga v Allen breach of contract and race discrimination complaint defence of illegality not permitted to defeat a discrimination claim UK public policy to combat human trafficking and protect victims

freedom of religion (dress code)(ECtHR) Ebrahimian v France, ECtHR app no. 64846/1; November 26, 2015 no violation of A9 ECHR when contract with Muslim social worker who refused to remove her religious dress was not renewed. SAS v France, ECtHR app no. 43835/11; July 1, 2014 ECtHR upholds French burqa ban – interference with right to freedom of religion is legitimate in terms of ‘respect for the minimum requirements of life in society’ or ‘living together’

religious discrimination (dress code)(CJEU) conflicting AG opinions: Achbita v G4S Secure Solutions NV; Case C- 157/15; May 31, 2016 not direct discrimination indirect discrimination - could be justified to enforce a policy of religious and ideological neutrality Bougnaoui and ADDH v Micropole SA Case C- 188/15; July 13, 2016 direct discrimination ban on wearing headscarves is not a GOR

religious discrimination (dress code)(UK courts) Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montesorri Day Nursery UKEAT/0309/13/RN, May 22, 2015 health and safety justification accepted in indirect discrimination claim

disability Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265 Hainsworth v Ministry of Defence [2014] EWCA Civ 763; Gallop v Newport City Council [2014] IRLR 211; Gallop v Newport City Council (No.2) UKEAT/0118/15/DM; [2016] IRLR 395 Galo v Bombardier Aerospace UK [2016] NICA 25; [2016] IRLR 703

Griffiths v SSWP comparison is with those who were less likely to suffer periods of sickness absence and therefore less likely to incur sanctions or risk losing their jobs as a result

Hainsworth v Ministry of Defence no duty on employer to make reasonable adjustments for a non-disabled employee whose daughter was disabled Article 5 of directive 2000/78/EC: Employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer

Gallop v Newport City Council single decision-maker alleged to have discriminated against an employee must have actual or constructive knowledge of his/her disability imputed knowledge is insufficient

Galo v Bombardier Aerospace UK IT dismissed G’s disability discrimination and breach of contract claim G argued no fair hearing/reasonable adjustment NICA confirmed tribunal’s duty of fairness right to a fair hearing enshrined in law ensure disabled claimant’s effective participation focus on the impact of a mental health disability on litigation importance of Equal Treatment Benchbook

recent EAT disability judgments Banaszczyk v Booker Ltd UKEAT/0132/15; [2016] IRLR 273; February 1, 2016 day-to-day activity was manually lifting and moving cases not the employer’s ‘pick up rate’ G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15/RN; August 26, 2016 pay protection can be a reasonable adjustment Buchanan v The Commissioner of Police of the Metropolis UKEAT/0112/16; September 9, 2016 justify the treatment, not the policy

age discrimination Dansk Industri v Estate of Karsten Eigil Rasmussen [2016] CJEU C-441/14 [2016]; April 19, 2016 age discrimination arose in private sector employment relationship/in line with national law CJEU held that right to protection against age discrimination is fundamental national court must disapply the offending national provision and provide compensation

definitions Fag og Arbejde, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund; Case C-354/13, December 18, 2014 obesity not, of itself, a disability may be a disability, if it hinders full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity

definitions – belief/caste discrimination Harron v Dorset Police UKEAT/0234/15/DA; January 12, 2016 ‘in the proper and efficient use of public money in the public sector’ Henderson v GMB UKEAT/0073/14/DM, UKEAT/0075/14/DM & UKEAT/0314/14/DM, March 13, 2015 ‘left-wing democratic socialism’ Chandhok & anor v Tirkey UKEAT/0190/14/KN; December 2, 2014 caste discrimination included within the meaning of ‘race’

upcoming CJEU judgments Daouidi v Bootes Plus SL C-395/15 direct disability discrimination? dismissal because of temporary incapacity   Parris v Trinity College, Dublin C-443/15 direct discrimination on grounds of sexual orientation? survivors’ benefits from an occupational pension