Implications of remedies for discrimination in the DIFC Courts Update on discrimination law concepts Peter Linstead

Discrimination Concepts DIFCL 4 Art Discrimination Concepts DIFCL 4 Art.58(2)(a) “an employee is treated less favourably than others would be treated in the same circumstances on one of the prohibited grounds in Article 58(1)” EqA s.13 “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”

Hana Al Herz v The Dubai International Financial Centre Authority [2013] DIFC CA 004 “it must be proved that…the employer was relying either exclusively upon, or was influenced by, one or more grounds from (a) to (f), or was relying upon, or was influenced as much by, one of those grounds as by any other grounds”

Causation in the UK courts Essop v Home Office / Naeem [2017] UKSC 27 “even if the protected characteristic is not the overt criterion, there will still be direct discrimination if the criterion used … exactly corresponds with a protected characteristic … and is thus a proxy for it.” cf Marwan Lutfi v The Dubai International Financial Centre Authority [2013] DIFC CA 003

The reversing burden of proof under s.136 EqA Approach of the DIFC courts Hana Al Hertz Does reversing the burden matter? (i) Inferring discrimination: Geller & Another v Yeshurun Hebrew Congregation EAT 0190/15

(ii) Reversing the burden in the UK – the latest Take all the evidence into account at the first stage, before the burden shifts, including that of the respondent/employer Efobi v Royal Mail Group Ltd UKEAT/023/16 St Christopher’s Fellowship v Walters-Ennis [2010] EWCA Civ 921 Saying “you prove it” doesn’t work EB v BA [2006] EWCA Civ 132

DIFC Court Law Art 50 provides: Application of Evidence Where proceedings are instituted in the DIFC Court, the rules of evidence to be applied in the proceeding will be the rules that: (a) are prescribed in DIFC Law; or (b) are applied in the courts of England and Wales; or the DIFC Court considers appropriate to be applied in the circumstances. (DIFC Law No 10 of 2004)

A questionnaire procedure in the DIFC?

Practical tips on discrimination claims: Claimant’s perspective The burden is on you, the claimant Essential to get disclosure (there will be emails…) through well directed and proportionate disclosure requests Use requests for information in addition, for example about how others not sharing the characteristic were treated Use questionnaire? Creating the case – keep it simple, avoiding multiple allegations if possible The classic detriment or dismissal claim - hypothetical comparators and subconscious motivation is poor treatment and lack of proper explanation enough? The elusive “something more”…

Practical tips on discrimination claims: Employer’s perspective Make disclosure – inferences can be drawn if you don’t Make proportionate disclosure Get the issues clearly defined at the earliest opportunity – agree a list and be clear what each detriment is Collecting the evidence and witnesses - focus on non-discriminatory reasons for the treatment, including bad reasons (Glasgow CC v Zafar [1998] ICR 120) Claims against individual respondents in their personal capacity, common in UK law, unlikely to arise as liability under Art 58 is that of employer Think about using the “reasonable steps” defence in Art 51

Harassment Art 58(2)(c) versus s. 27 EqA s Harassment Art 58(2)(c) versus s.27 EqA s.27 EqA refers to engaging in unwanted conduct “related to a relevant protected characteristic”. The wording under Art 58(2)(c) is “on grounds of one of the prohibited grounds… an employee is subjected to unwanted conduct which has the purpose or effect of…”. Art 58(2)(c) Greater emphasis on subjecting an individual to unwanted treatment?

Disability discrimination and reasonable adjustments Art 58(5)(b) the reasonable adjustment must enable the employee to meet the GOR cf s.20 EqA G4S Cash Solutions (UK) Ltd v Powell UKEAT 0243/15

Indirect Discrimination Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice [2017] UKSC 27 establishing group and individual disadvantage; not necessary to show the reason for the disadvantage was related to the protected characteristic the pool for comparison should be all the workers affected by the PCP

Indirect discrimination claims in the DIFC? Women and modified working arrangements? PCP put or would put women at a particular disadvantage when compared with men: Shackletons v Lowe UKEAT/0161/10/JOJ Justification: “The requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents. Nor should it be seen as casting some sort of shadow or stigma upon them. There is no shame in it. There may well be very good reasons for the PCP in question.” Essop para 29

Compensation for injury to feelings: the latest UK position Can be awarded for direct and indirect discrimination New “Vento” bands with effect from 11.9.17 lower band of £800 to £8,400 for less serious cases middle band of £8,400 to £25,200 for cases that do not merit an award in the upper band upper band of £25,200 to £42,000 for the most serious cases Presidents of the Employment Tribunals in England and Wales and in Scotland: Presidential Guidance

Some thoughts on discrimination damages in the context of dismissal…

Practical effects of claims for Discrimination remedies in the DIFC Opportunity for employers to review policies and procedures Includes disproportionate impact and indirect discrimination Introduction of time limits for discrimination claims? SCT versus CFI for employment claims SCT claims capped at 500,000 AED or (agreed) uncapped Lower filing fees for employment disputes in the SCT to encourage use of that jurisdiction? Limitations of SCT powers re disclosure restrictions on appearance by lawyers – discrimination claims are complex Costs v no costs awards Capped discrimination compensation – number of employees who might lose out as a result potentially small

Peter Linstead pjl@outertemple Peter Linstead pjl@outertemple.com Outer Temple Chambers Level 15, The Gate Building, East Wing, Dubai International Financial Centre Dubai, UAE. +971 4 401 9583