1. Equality Law Case Update Claudia Bennett Senior Solicitor

2. 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

3. 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

4. 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)

5. 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.

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

7. 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

8. 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

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

10. 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]

11. 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!

12. 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

13. 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]

14. 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)

15. 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

16. 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

17. 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

18. 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

19. 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/ /12
Woodhouse v West North West Homes Leeds Ltd.
Rowstock Ltd and anor v Jessemay

20. 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]

21. 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]

22. 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

23. 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

24. Further information
EHRC website information on Equality Act
Law Society of Scotland

25. The Commission’s legal team in Scotland
Strategic human rights and equality litigation
Legal Team Bulletin:
Requests for assistance:
Tel: Claudia Bennett