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

2. 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

3. 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

4. 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

5. 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.

6. 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

7. 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

8. 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’

9. 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

10. 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

11. 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

12. freedom of religion (dress code)(ECtHR)
Ebrahimian v France, ECtHR app no /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 /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’

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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’

24. 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