Equality Law Case Update Claudia Bennett Senior Solicitor

ET/ EAT Statistics Discrimination cases in 2012 - compensation awards Sex discrimination cases in 2012: highest number of discrimination awards - Porter v Phaze Electrical Ltd Disability discrimination compensation awards: second highest number of awards - Wilebore v Cable & Wireless Worldwide Services Ltd

What we will cover Protected characteristics Prohibited conduct The Equality Act Protected characteristics Prohibited conduct Recent case law in relation to equality law The EHRC and its powers Our legal strategy Contact us

Protected Characteristics Age (s 5) Disability (s 6) slight change Gender reassignment (s 7) slight change Marriage and civil partnership (s 8) Pregnancy and maternity (s18) Race (s 9) Religion and belief (s 10) Sex (s 11) Sexual orientation (s 12)

Age (s.5) Where the Act refers to the protected characteristic of age it means a person belonging to a particular age group. An age group includes persons of the same age and people of a particular range of ages Only protected characteristic which allows direct discrimination to be justified.

Case Law Seldon v Clarkson Wright & Jakes - justification defence Homer v Chief Constable of West Yorkshire Police

Disability (s.6) A person has a disability for the purposes of the Act if he or she: — - has a physical or mental impairment, and - the impairment has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities. Mr Kevan Sweeney v Strathclyde Fire Board (decided 2012) Walker v Sita Information Networking Computing Ltd Wheeldon v Marstons plc  

Race (s.9) Race includes — colour; nationality; ethnic or national origins. Also power to amend the definition to include caste (s.9 (5) (6) – caste now added to definition of race through amendment of ERRB (now Act). Begraj and anor v Heer Manak Solicitors

Case Law Royal Bank of Scotland plc v Morris [2012] EqLR 406 Redfearn v UK (2012) 47335/06

Religion or belief (s.10) Covers any religion falling within Art 9 ECHR; must have clear structure and belief system Covers philosophical beliefs which meet particular criteria Includes a lack of belief/religion A ‘philosophical belief’ must not be incompatible with human dignity or conflict with fundamental rights of others [see EN 52]

Eweida and others v the UK Four cases complaining UK law failed to adequately protect their Art. 9 right - 2 cases re wearing of cross taken together - 2 cases complaining about sanctions imposed as a result of religions belief taken together ECHR Judgment January 2013 Commission intervened under our s. 30 powers, with 13 others!

Impact of decision Confirms that a lack of state regulation of wearing of religious symbols does not indicate lack of adequate protection of Convention rights Lowers the test for interference with manifestation of religious belief, bringing it into line with other Convention rights = makes successful discrimination claim easier to bring Confirms importance given to positive obligations on public authorities to promote equality of opportunity and provide services in non-discriminatory way

Pregnancy and maternity (s.17 & 18) Protects a woman from discrimination during a protected period because of: The pregnancy Pregnancy-related illness Taking or seeking to take maternity leave New: includes protection from discrimination in education Ms Kate Cox v Money Station Resources LLP [2012]

Prohibited conduct Direct discrimination (s 13) Indirect discrimination (s 19) Harassment (s 26) Victimisation (s 27) Disability only: Discrimination arising from disability (s 15) Duty to make reasonable adjustments (ss 20 & 21)

Direct discrimination 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 Preddy & Hall v Mr and Mrs Bull/ Black v Wilkinson Discrimination by association or perception included Direct discrimination can never be justified however age discrimination remains justifiable

Association and perception Discrimination by association Less favourable treatment because associated with someone with a PC Does not need to be permanent Kulikauskas v Macduff Shellfish UKEATS/0062/09/BI Discrimination by perception Less favourable treatment because perceived to have a PC

Indirect discrimination A applies a provision, criterion or practice (PCP) to B A applies, or would apply, the PCP to persons with whom B does not share the relevant protected characteristic the PCP 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 the characteristic the PCP puts, or would put, B at that disadvantage and the PCP is not a proportionate means of achieving a legitimate aim. Cooper v House of Fraser (Stores) Ltd [2012] EqLR 991

Harassment a person (A) harasses another (B) if A engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Case example: Cambers v Purcell Solicitors 3rd party harassment – repealed

Victimisation ‘A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’ Removes the need for the tribunal to construct an appropriate comparator. Bouabdillah v Commerzbank AG ET/2203106/12 Woodhouse v West North West Homes Leeds Ltd. Rowstock Ltd and anor v Jessemay

Reasonable adjustments Where a disabled person is placed at a substantial disadvantage to non-disabled people, there is a duty to make changes to: Provisions, criteria or practices Physical features And a duty to provide auxiliary aids and services (such as a hearing loop or a special computer service) Roberts v North west Ambulance Service [2012] Wade v Sheffield Hallam University [2013]

Discrimination arising from disability A person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability Burt v New Forest District Council [2012] McGraw v London Ambulance Service NHS Trust [2012]

EHRC strategic priorities for using litigation powers where the case would have a significant positive impact in terms of the application of the law or the policies and practices of an organisation, institution or sector have a positive public impact, securing greater understanding of rights and obligations under the equality enactments and/or human rights law address significant disadvantage in respect of one or more of the protected grounds and/or major abuse or denial of human rights challenge a policy or practice known to cause significant disadvantage

EHRC strategic priorities for using litigation powers..... is a cost effective method of achieving a desired outcome, taking into account the prospects of success clarifies an important point of law under the Equality Act 2010 or Human Rights Act will extend or strengthen protections and rights under the Equality Act 2010 and, where it also applies, human rights law; will contribute substantially to other areas of the Commission’s work

Further information EHRC website information on Equality Act http://www.equalityhumanrights.com/legal-and-policy/equality-act/ Law Society of Scotland http://www.lawscot.org.uk/about-us/equality--diversity

The Commission’s legal team in Scotland Strategic human rights and equality litigation www.equalityhumanrights.com/legal-and-policy/strategic-human-rights-and-equality-litigation/ Legal Team Bulletin: www.equalityhumanrights.com/scotland/legal-news-in-scotland/equality-law-bulletin/ Requests for assistance: legalrequestscotland@equalityhumanrights.com Tel: Claudia Bennett 0141 228 5965 Email: Claudia.Bennett@equalityhumanrights.com