RELIGION, BELIEF & DISABILITY An Update

Part 1: Religion & Belief – an update Part 2: Disability Discrimination – where are we now? Part 3: Disability Discrimination – does the Equality Bill help or hinder? 3 Contents

PART 1 RELIGION & BELIEF – AN UPDATE

What beliefs are covered? - Test for philosophical belief - McClintock v Department of Constitutional Affairs [2008] IRLR 29 -Removal of the word “similar”- Hansard debate -Climate Change – the new religion? The PHR in Nicholson v Grainger plc

On grounds of what? Chondol v Liverpool City Council UKEAT/0298/08/JOJ -It is not religious discrimination to treat someone in a particular way because they try to persuade others of their belief. -- In such a case the action taken would be on the grounds that Mr Chondol was improperly foisting his beliefs on others and not on grounds of his religion or belief. -Position if proselytizing is a requirement of that religion? DIRECT DISCRIMINATION

INDIRECT DISCRIMINATION Eweida v British Airways Plc [2009] IRLR 78 Covers subjective beliefs Covers practical disadvantages Covers those who reluctantly comply and should as such still regarded as suffering from a disadvantage BUT An arguably odd view in respect of group disadvantage

A DIFFERENT APPROACH IN RESPECT OF INDIRECT DISCRIMINATION ? London Borough of Islington v Ladele (with Liberty acting as intervener) [2009] IRLR 154 -Cannot be direct discrimination to treat someone in the same way as everyone else is treated -Can, by definition, be indirect discrimination but in this case was justified -There was no claim under Article 9 ECHR because the right is limited to exercising one’s religious beliefs in a way which is compatible with the rights and interests of others

HARASSMENT Saini v All Saints Haque Centre(1), Bungay (2) & Paul (3) [2009] IRLR 74 - Harassment not limited to harassment on the grounds of the religious belief of the person being harassed

PART 2 DISABILITY DISCRIMINATION WHERE ARE WE NOW?

London Borough of Lewisham v Malcolm [2008] IRLR 700 -Comparator -Knowledge -Confirmation on numerous occasions by the EAT that it applies in the employment context THE END OF DISABILITY RELATED DISCRIMINATION

Attempts by the courts to bridge the gap / emphasise the existing position -Stockton on Tees BC v Aylott UKEAT/0401/08/CEA -Fareham College v Walters UKEAT/0396/08/DM REASONABLE ADJUSTMENTS TO THE RESCUE?

PART 3 DISABILITY DISCRIMINATION THE EQUALITY BILL

Broadly similar BUT Removal of the requirement to consider the existing eight capabilities DEFINITION OF DISABILITY

Clause 13 Unlawful discrimination when A treats B less favourably “because of a protected characteristic”. Allows for associative discrimination Removes, at least for direct discrimination, the need to read into the legislation in order to protect careers – see the decision of the ECJ in Coleman v Attridge Law Cf position with disability related discrimination and indirect discrimination DIRECT DISCRIMINATION

Clause 13 Positive discrimination permitted Wording clear enough? POSITIVE DISCRIMINATION

Clause 15 ‘(1) A person (A) discriminates against a disabled person (B) if – A treats B in a particular way, because of B’s disability, the treatment amounts to a detriment, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.’ -Designed to deal with the problems posed by Lewisham v Malcolm -Comparator provisions of Clause 23 do not apply to this clause -Risk of courts implying a comparator? -“Because of” meaning that a higher degree of causation required than under the pre-Malcolm position? Possible amendment. DISCRIMINATION ARISING FROM DISABILITY

Clause 19 – the harmonised clause re indirect discrimination – applies equally to disability Issues with identifying the relevant group? INDIRECT DISCRIMINATION

Clause 20 Essentially the same as in the DDA BUT Arguably less beneficial than the existing position because of how the comparator is defined REASONABLE ADJUSTMENTS

There is still some way to go with aspects of the Equality Bill relating to disability. CONCLUSION?

London Bedford Row London WC1R 4BU DX 1046 London / Chancery Lane T+44 (0) F+44 (0) Bristol 3 Orchard Court, St Augustines Yard Bristol BS1 5DP DX Bristol 1 T+44 (0) F+44 (0) Wwww.oldsquare.co.uk Contact