Forum for Research into Equality and Diversity Hosted by the University of Chester

Discrimination Law Update

David O’Hara, Principal Associate Eversheds LLP5 March 2014davido’hara@eversheds.com

Repeal of 3rd party harassment provision• An end to the “3 strikes” rule for acts from 1 October

2013, although other potential claims remain e.g.:– general harassment provisions in Equality Act– direct discrimination– indirect discrimination– breach of implied term of trust and confidence:

could lead to claim of unfair constructive dismissal and/or damages for personal injury

– breach of duty of care leading to damages for personal injury

Abolition of discrimination questionnaires (Expected 6 April 2014)• Change simply removes the statutory procedural

mechanism, not scope for claimants seeking pre-claim information through a more informal route

• New Acas guidance on this issue published January 2014

• Non-binding, good practice guidance on how employers should deal with questions regarding discrimination in the workplace

Abolition of discrimination questionnaires (Expected 6 April 2014)• 6 step guidance for questioners • 3 step guidance for responders• No legal obligation to answer but Tribunal could

look at whether have answered and, if so, what the answer is in making overall decision on discrimination claim

• Applies from 6 April 2014• Claimants may apply for additional information

and Tribunal can order this

Compulsory Equal pay audits (Expected 1 October 2014) • EPA will have to be ordered by ET where relevant claim

succeeds– ie claim for breach of equality clause or sex discrimination

in non contract pay• EPA = an audit designed to identify action to be taken to

avoid equal pay breaches occurring or continuing• Limited exceptions:

– has been audit in last 3 years– can identify whether action needed without EPA– no reason to think systemic problem at employer– disadvantages of ordering EPA outweigh benefits

• Sanction for non compliance:– financial penalty (up to £5k)

Caste discrimination (Expected 6 April 2015)• the definition of "race" in the EqA 2010 is non-exhaustive

and includes “colour; nationality; ethnic or national origin”. There is, therefore, scope for arguing that other factors are covered by the definition

• The government has now committed to making regulations outlawing discrimination on grounds of caste as an aspect of race

• Proposed next steps:– March 2014: consultation to be published– Autumn 2014: publication of draft legislation and

further consultation– April 2015: commencement of legislation

Caste discrimination (Expected 6 April 2015)• Recent case law development in interim:

– Tirkey –v- Chandok and another ET/3400174/2013– Employment Tribunal (1st instance) allowed a claim for

caste discrimination to proceed on the basis that the definition of “race” in the Equality Act 2010 is wide enough to encompass caste

– The ET also found that Article 14 of the European Convention on Human Rights (ECHR) (Freedom from discrimination) is also wide enough to caste discrimination

– Upheld the Claimant’s argument based on EC Race Directive (2000/43/EC) which outlaws descent-based discrimination.

Public Sector Equality Duty Review• The Government made a call for evidence for the review of the

PSED in 2013.• Steering Group issued report in September 2013, made general

statement that it is too early to make a final judgement about the impact of the PSED and suggested full evaluation in 2016.

• Made some recommendations for ECHR and public bodies:– Guidance must be clearer on minimum requirements placed

on public bodies– Public bodies should not collect diversity data unless it is

necessary for them to do so– Public bodies should reduce the burdens placed on small

employers who they contract with– Enforcement by the Government of the PSED needs to be

proportionate and appropriate

Olivier v Department for Work and PensionsET/1701407/2013

• Claimant was a civil servant who was dismissed and claimed discrimination on basis of his affiliation with the Labour Party

• Held: The Claimant could bring a religion or belief discrimination claim pursuant to the Equality Act 2010

• Mere support of a political part not sufficient • But his political belief in “democratic socialism”, as

enshrined in core values of the Labour Party, qualified him for protection under the legislation as a philosophical belief

Mba –v- Mayor and Burgesses of the London Borough of Merton [2013] EWCA Civ 1562

• Christian employee had refused to work Sundays• Court of Appeal considered whether the EAT had properly

approached the issue of indirect religious discrimination• Held

– There was a group disadvantage– The ET had made detailed findings that there was no

“viable and practical” alternative but to require the Employee to work on Sundays as per the terms of her employment contract

– Employee had knowingly entered into the contract and any reasonable tribunal would have concluded the requirement was justified

Kemeh –v- Ministry of Defence [2014] EWCA Civ 91

• CA decision which considered – whether an Employer could be liable for the discriminatory act

of a subcontractor’s employee– whether an award of £12,000 for injury to feelings resulting

from a racist insult by colleague was too high• Held

– Whilst one party’s employee can also be another party’s agent, there must be cogent evidence to show that the employee’s duties were being undertaken as that other party’s agent

– In this case, there was no evidence that a subcontractor’s employee was acting as an agent for the Contractor’s employer

– CA reduced award of £12,000 to £6,000 – one off incident which falls within lower band of the injury to feeling scale

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