Labour Party to promise new flexible working rights

The whole strategy of political parties briefing on what a politician ‘will say’ and the media reporting on what is just a PR exercise is something that infuriates me rather than, you know, wait until the politician has made their speech and then reporting on that.

With that in mind what follows will strike readers as somewhat hypocritical – guilty as charged!

It is reported that Dawn Butler, Shadow Minister for Women and Equalities, will commit that a Labour Government will reform current flexible working rights. Under current legislation any employee  who has worked for an employer for 26 weeks can make a statutory request and have the right for that request to be reasonably considered (although it can, and often is, refused), and only one request may be made per year.

Much reporting of Labour’s legislative commitment focuses on the pledge that instead of the qualifying period of 26 weeks the right will be a ‘day one’ right. This emphasis has drawn some kneejerk criticism that it is a tinkering around the edge and does nothing to address the core issue that there is no right to work flexibly, just the right to request it. The criticism of Stefan Cross QC is indicative of this trend.

I am very conscious that I am relying on press briefings and have seen nothing but the BBC report suggests there will be at least three aspects of the policy, some of which point towards Labour having a substantive right to work flexibly in mind and having this much more accessible without needing the recourse to the law.

First,  there is the the suggestion that the right to request becomes a day one right. If this were all that was proposed then I can see some merit in the pusillanimous allegation, although it would be churlish not to recognise that attaining a right – even if not an especially valuable right – at the very beginning of one’s employment is a step forward. In itself though this is not a major step forward as unless backed up with significant anti-avoidance mechanism (I am think here of punitive compensations awards for breaches) it is not hard to see that most employees will be dissuaded from exercising that right given they are in a new job and potentially not secure since still subject to a probationary period.

Second, we are told that Labour would create a “presumption in favour of flexible working,” presumably a statutory presumption. It is unclear precisely what this would mean, it may mean that every employer would be under a statutory duty to ensure that, unless unfeasable, every post was actually available to be worked flexibly. Alternatively, it could mean that in the event of a flexible working request there is a statutory presumption that the request should be accepted unless that presumption was rebutted and so make the enforcement of flexible working working rights in the employment tribunal more effective. Or both.

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The signs are that this is a positive move that if implemented will be positive for all employees. What is not clear yet is whether, as the current rights are, the right to flexible working will remain the preserve of employees only and whether Labour will retain the thoroughly iniquitous employee/worker distinction that would prevent many workers exercising these rights.

Third, another interesting aspect of this the focus on women’s equality in the workplace. Butler is reported to say that “this change to the law is essential to closing the gender pay gap and dismantling the structural barriers that hold women back from promotion and progression.”

The reason I say this is interesting is because in terms of enforcing rights to flexible working women will often find themselves able – because of systemic sex bias in society towards women caring for children and disabled relatives – to pursue flexible working refusals not only under the pretty ineffective remedies under flexible working legislation but also as a indirect sex discrimination claim that is often less likely to apply to men seeking to enforce flexible working rights. This means that insofar as enforcing flexible working rights (and in this respect only) many women who do need flexible working for caring reasons are at an advantage.

My assumption is that Labour think that, if enacted, then women will not need to enforce these sex discrimination rights as far more requests will be granted at first instance so they will no longer be at a particular disadvantage – this certainly seems the thrust of the very bold assertion of Butler’s that under “Labour’s plans, no woman will be shut out of the workplace because they’re a mum or they care for a parent or a disabled loved one, or both.” If that proves to be the case then it will be a success.

The related consequence and one that deserves more emphasis is, as Butler says, that the policy “may also result in more men taking on caring responsibilities themselves, finally lightening the load that women bear.” Of course, if that is a policy aim – and I see no reason why it shouldn’t be – then the next appropriate policy to be looked at is whether there should be equality of rights in respect of may be enhanced pay for both maternity and paternity leave.

Still, with all the recent acrimony it is good to see some coverage of the work Labour is doing to improve the lot of working people and their families.

What is an email address?

Nearly all persons wanting to make an employment tribunal claim must first have received an Earl conciliation certificate from ACAS to enable them to lodge their claim. This applies even if a claimant does not wish to undertake conciliation.

Paragraph 9 of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 detail when a certificate is ‘received’: 

9. – (1) Where ACAS issues an early conciliation certificate, it must send a copy to the prospective claimant and, if ACAS has had contact with the prospective respondent during the period for early conciliation, to the prospective respondent.

(2)  If the prospective claimant or prospective respondent has provided an email address to ACAS, ACAS must send the early conciliation certificate by email and in any other case must send the early conciliation certificate by post.

(3)  An early conciliation certificate will be deemed received—

(a)  if sent by email, on the day it is sent; or

(b)  if sent by post, on the day on which it would be delivered in the ordinary course of the post.

It follows therefore that if a claimant has provided ACAS an email address then ACAS must send the certificate to that email address and that the certificate will be deemed to be received by the claimant on the day that the email was sent. Certainty as to the date of reception is important because at the suspension of time limits that apply whilst ACAS early conciliation processes are ongoing cease to apply when the certificate is issued meaning that a claimant will have a fixed period of time to make an employment tribunal claim and, if they make a claim outside of that time limit they risk their claim being struck out as being out of time.

So far, so simple? Unfortunately, the recent case at the Employment Appeal Tribunal Galloway v Wood Group UK Ltd  shows that there is scope for confusion.

The relevant facts of the case are simple. The claimant wanted to make an employment tribunal claim (the nature of the claim is explicitly stated) and he submitted the required early notification form and gave the email address of his Unite Union rep. Or so he thought. The claimant actually made a typographical error and missed a “.” from the email address. In due course ACAS issued a certificate but the claimant was none the wiser of this fact, since the email was not delivered to his union rep.

In due course the lack of ACAS response was noted but by then the claim was out of time and the ET refused jurisdiction, it is this decision that was challenged at the EAT.

The issue before the EAT was limited to one issue what does the reference to “an email address” in Paragraph 9 of schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014/254 actually mean?

If, as the employer submitted “the information supplied had the appearance of an email address then it should be treated as an email address for the purpose of regulation 9” was accepted then the claim was certainly out of time. If however, it was a requirement that the email address be valid email address then ACAS had failed to deliver the conciliation certificate which would mean it still needed to do this.

The EAT preferred the latter approach:

I have come to the view that the expression “an email address” means an actual email address and not, as here, an address that has never been set up or registered to any user or users.   Since the object of the Form is to enable communication, the intention must have been to solicit an email address that could be used to send the certificate. If so the phrase must mean an actual email address.  That is what the request on the form sought. I find it difficult to accept that Parliament intended the words “an email address” to include invalid addresses that could not be recognised as an email address by a server and forwarded.  It seems to me in that situation the sequence of characters supplied is no different in principle from a quotation from Shakespeare or a meaningless sequence of characters.  If a computer sever cannot recognise the data as an address then I do not consider that it can be “an email address” no matter how closely (or not) it resembles one. A quite different situation would present itself if a wrong email address was supplied. It could be argued that the hapless claimant would have to rely on the statutory dispensing powers (111(2) of the Employment Rights Act 1996) if that were to occur.

The judgement is a helpful one that means that where there is an incorrect email address provided to ACAS then if that is an email address to which correspondence could not be sent and received then the service of a conciliation certificate is not effective.

Cases Cited:

Galloway v Wood Group UK Ltd [2019] UKEAT 0017_18_1801

All’s Fair?

Being ‘fair’ is, according to to Cambridge Online dictionary, the act of treating someone in a way that is right or reasonable.’ That being the case when the Employment Rights Act 1996 boldly asserts that every  employee “has the right not to be unfairly dismissed by his employer” it looks like Parliament made an expansive and meaningful law in defence of workplace justice.

A closer look will show that by a series of ‘ifs and buts’ the expansive right against unfair dismissal has been whittled down to a much smaller proportion of the UK workforce applying only to employees and not workers, excluding major public service workers like the armed forces and police, only those who have been employed for two years or more, etc. In the interests of plain English section 94 of the Employment Relations Act should perhaps read “some employees have the right not to be unfairly dismissed by her employer.”

However, one of the more important lessons I have learned representing employees and applying employment law to their situations is that even for those who do have this right not to be ‘unfairly’ dismissed the concept of fairness really is not the focus of unfair dismissal law. If it were, the focus of the unfair dismissal decision would be on whether the decision to dismiss was justified but, instead it is on whether in the mind of the decision maker acted reasonably by making a decision that was within a ‘range’ of allegedly reasonable decisions they could have made.

And so, as it has been applied by the courts there is nothing intrinsically unfair in an employee being dismissed from a job for misconduct even if the tribunal can categorically see that the employee was not guilty of the alleged infraction so long as at the time (perhaps before the evidence was available) the employer acted reasonably at the time of dismissal. Or, to use a real life example (Parr v Whitbread [1990] IRLR 39), there is nothing intrinsically unfair in an employer dismissing four employees because the employer thinks one has probably stolen from them but they cannot tell which one (if any). It is ‘fair’, so says the EAT, for the employer to dismiss all four employees, potentially placing four or more families into poverty, despite knowing three are innocent and the other may be as well.

Such a scenario is, far from being fair, actually fairness’ antithesis. What an employee has is not the right not to be unfairly dismissed but the right to be dismissed for a ‘potentially fair reason’ so long as some imprecise procedural formalities are adhered to by the employer. I cannot help but think the UK population have been sold a dud, they either don’t join a union or if they do, only do so on a insurance basis believing if their employers treat them unfairly there is an adequate redress in unfair dismissal law when there isn’t.

I recall one case in which an employee was unfairly dismissed, victimised on the basis of trade union activities in fact. The union, rightly, adopted an industrial response and strike ballot in response alongside legal challenge. The employer’s inevitable response in dissuading workers from voting to take industrial action was to say that if said employee felt he had been treated unfairly he could complain to a tribunal that he had been unfairly dismissed. In the rare cases of an industrial response to a dismissal this is I am sure a common response depending on workers not looking too closely what ‘fairness’ really means.

Of course a major impetus for the establishment of the employment tribunal system was to move disputes from the industrial to the tribunal arena and there is no doubting that has happened. In view of the inadequacy of employment law to deliver on the grand claims that there is a right not to be unfairly dismissed perhaps it is time to start making industrial responses to unfair dismissals a more central plank of union organising alongside lobbying for laws that protect workers from dismissal and warnings that actually place fairness at their core.

Plato, Pay and PCS’ Independent Left

The PCS Assistant General Secretary elections are now in progress with each candidate on the search of branch nominations, the magic number being fifteen at which a candidate guarantees a place on the ballot of all members. I do not think  any candidate is likely to struggle to meet this number.

Jon Moloney, the candidate for the Independent Left faction is making a great play on the promise that he will, if he wins, be paid a worker’s wage and reject the approximate £90,000 per year the AGS post pays.

This promise got me thinking about the tax implications and practicalities of this approach and came across the 1933 High Court decision in Reade v Brearley (1933) that set out the general position that:

It is, I think, equally clear that–I will not say in every case, because these cases, I think, have to be judged upon their own facts–but, I think, it is clear that at least in a large number of cases the voluntary foregoing of a salary due to a person ought to be regarded by the Court, and would be regarded, simply as being an application of the income

It seems to me then that upon appointment a candidate could not – bar a contract agreement of a salary much lower than the going rate – actually voluntarily only take only a ‘workers wage’, if he did so then Jon Moloney would nevertheless be responsible the tax due on the entire £90,000 salary, including the majority he had ‘given up.’ What the candidate would need to to is take the net working pay, but pay the full tax at the salaried level to HMRC. Which brings us to Plato and his observation on the current PCS election that “When there is an income tax, the just man will pay more and the unjust less on the same amount of income.”

Direct Discrimination: Burden of Proof

In this third post on direct discrimination I am going to comment on the role of section 136(2) of the Equality Act which provides that when considering a discrimination complaint that

If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

Section 136 is meant to simplify the process by which discrimination claims are considered in recognition of the difficulty proving these. The Explanatory notes on this section refer to this section ‘shifting the burden of proof’ to a respondent: “This section provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act.”

The idea of shifting the burden has its roots in equality legislation that predated the Equality Act 2010 as with so much positive employment protection in the UK it was a creation of EU law (Council Directive 97/80/EC). In the domestic context the definitive explanation is found in the House of Lords Decision in Igen v Wong. Although interpreting the Sex Discrimination Act the House of Lords set out a two stage approach an employment tribunal must follow when considering a discrimination complaint.

Stage one – When bringing a discrimination claim the complainant is the one who is under a burden of proof to demonstrate to the tribunal that there are facts from which the tribunal could conclude in the absence of an adequate explanation to the contrary  that the Respondent treated the complainant less favourably because of a protected characteristic. Colloquially this is often referred to as the prima facie test (because nothing makes law more accessible than throwing in some latin!)

Stage two – If the complainant is successful in meeting the test in stage one the n the respondent (usually the employer) that there is an alternative and preferable explanation for the conduct complaint of. For example, ‘my client did not dismiss Mr X because he is 68 years old,  they dismissed him because he was shit at his job and spent the whole working week staring at his smartphone!; although perhaps using more lawyerly language to put their case.

The significance of stage one is that, excluding for the moment the alternative explanation the respondent may advance (except insofar as it helps the complainant), if the claimant puts forward a convincing case based on facts in evidence the burden shifts from them to the employer. In other words, it is no longer for the complainant to prove they were discriminated against but for the employer to positively prove they did not discriminate against the worker. If they can’t do that then  then the tribunal must find there is discrimination.

Enter the Equality Act 2010 

This two stage process still applies in the tribunal following the enactment of the Equality Act 2010, and specifically section 136(2) of the Act. Broadly speaking it was assumed that although not worded the same the burden of proof provisions in the Equality Act 2010 were the same as set out in Igen v Wong (in fact that assumption was correct, as well shall see).

equality
Efobi v Royal Mail: A false dawn for race discrimination law. 

In 2017 the Employment Appeal Tribunal in Efobi v Royal Mail Group Ltd [2017] IRLR 956 challenged that view and, in the process potentially easier made it for a short while for complainants to win discrimination complaints.

Mr Efobi was a black male from Nigeria, he was employed by Royal Mail as a postman but had graduate and postgraduate degrees in Information Systems and Forensic Computing. Mr Efobi had made over 22 applications for posts working for Royal Mail in the computing field but he was unsuccessful in each and every application. He contended that the reason for this was due to race. In the Employment Tribunal the two stage test in Igen v Wong was applied and the tribunal determined that Mr Efobi had not met the first stage of the test in that he did not show facts that satisfied the tribunal that the reason for his treatment was race; a key factor in this was the varied personnel who were independently involved in the case.

In the EAT the applicability of Igen v Wong to the new wording of section 136(2) was challenged, specifically it was argued that a discrimination complainant does not have a burden to proof discrimination occurred. Although the explanatory notes to the Equality Act 2010 (cited above) do make reference to a burden when it states that in “any claim where a person alleges discrimination … under the Act, the burden of proving his or her case starts with the claimant” this was not in the text of the Act itself which states (emphasis added) only that if “there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

The EAT accepted this argument finding that

Section 136(2) does not put any burden on a Claimant.  It requires the ET, instead, to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not “there are facts etc” … .  Its effect is that if there are such facts, and no explanation from A, the ET must find the contravention proved.

And

It may therefore be misleading to refer to a shifting of the burden of proof, as this implies, contrary to the language of section 136(2), that Parliament has required a Claimant to prove something.  It does not appear to me that it has done.

This removal of the burden from the claimant would, especially where an employer does not put forward relevant evidence or witnesses simplify the two stage process, make succeeding in a discrimination case easier. The amended test at which the presumption of discrimination ours would also seem to be somewhat lower than a prima facie one (at least on my reading).

Unfortunately, in late 2018 and last month the decision of the EAT was first overruled and then reversed in Ayodele v Citylink Ltd & Anor [2018] IRLR 114 and Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18 and the Igen v Wong status quo was reversed.

It is now again the case that a claimant has to prove, often as a litigant in person , without legal advice, without necessarily having access to relevant evidence (as was the case in Efobi because of their defence strategy), without recourse to pre-claim enquiries as was allowed in section 138 of the Act that their employer (who of course has the benefits of all the things the claimant is without) treated them less favourably because of a protected characteristic.   Is it any wonder that direct discrimination employment tribunal success rates are so low!

Time will tell whether Ayodele or Efobi will be appealed to the Supreme Court.

 

Direct Discrimination: Causation

In this second post I want to give some thoughts on causation. As explained in the last post, direct discrimination occurs when a person is treated worse than another person because of a protected characteristic. It is not, therefore, enough that a black worker has been treated less favourably than a white worker by being refused a promotion that the white worker achieved. The reason for the treatment must be because of she is black (a protected characteristic) not because, for example, she has a lot less experience in the role that she applied for compared to the worker who was promoted.

That is not controversial but, in practice, things get much more difficult. I have a hunch that while unquestionably a good thing equality law has made spotting directly discriminatory conduct more difficult as it has led to the conduct becoming more disguised. In 1963 the Bristol Bus Boycott took place  (which certainly cast elements of the TGWU union movement in a regrettably discriminatory light). Speaking to the BBC the Chairman of the Bristol Bus Company explained why the company recruited white workers only “We have quite a number of female conductresses who are very proud of their jobs here and I am afraid if we did start engaging coloured people while we could still get white people, then a lot of these white females would be leaving their jobs for other work in the city.” The racial reason refusal to recruit is clear and is of the undisguised type seen in the case of James (see previous post).

The Bristol Bus boycott was a key reason for the passing of the Race Relations Act 1965 and outlawed direct race discrimination in “places of public resort”.  The 1965 Act was intended not so much to punish bigots but to deter discriminatory conduct. It is difficult to imagine such overt racism that caused the Bristol bus boycott being openly discussed, nowadays when this does occur it tends to be accidental. However, recent research shows that although it may be more disguised discrimination and prejudice remains rife. In that sense discrimination has no so much been deterred but disguised; no longer will a worker be told they are being dismissed because they are gay but will now still be dismissed because they are gay but told it is because of performance or misconduct concerns.

In the context of race discrimination claims Lord Justice Mummery noted over 20 years ago that direct discrimination claims are the “most difficult kind of case which Industrial Tribunals have to decide” and that

The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The complainant alleges that he has been unfairly or unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing ( in Qureshi v Victoria University Of Manchester & Anor [1996] UKEAT 484_95_2305)

Which brings us again to causation. Sometimes the reason for the treatment and that it is because of a protected characteristic is obvious, for example where a candidate is told they have been refused a job because they are Irish or, as in James v Eastleigh Borough Council (discussed in the last post). In James it is clear the reason for his treatment was his sex.  This is rare, however. The central question in a direct discrimination case is whether the reason a person has been treated worse than a comparator is because of race? Although it is not necessary for a successful direct discrimination complaint in most cases there is not a great distance between saying a person directly discriminated against the person because of race and saying that the conduct of that person was racist.

It is here that the making a finding that the treatment was because of race is difficult because multiple alternative reasons for the treatment will be brought into play because, as LJ Mummery continued in Qureshi, “accusations may not only be hurtful to him as a person but may also be damaging to his employment, his prospects and his relationships with others.”

Sometimes there will be evidence that the purported reason an employer gives for the treatment of a person is a sham and the finding that the treatment was solely because of the protected characteristic is possible. However, much more often there are genuine issues with the complainant alleges they are being manipulated to justify treating them less favourably for a hidden reason.

Lord Nicholls in the House of Lords provided a helpful explanation of how this problem can be tackled in Swiggs and Others v. Nagarajan [1999] UKHL 36 when it is noted that

Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.

What this means is that simple correlation is not sufficient but an employment tribunal should find treatment is ‘because’ of a protected characteristic is it has evidence that the protected characteristic had a more than trivial part to play in the decision making process. So, to give a hypothetical example, if a tribunal were to find that in the minds of the decision maker a female worker who had committed gross misconduct would have been less likely to be dismissed had she been male then they should make a finding  her dismissal was directly discriminatory even though having committed gross misconduct and absent any discrimination issues a dismissal may have been a reasonable response in any case.

 

 

Direct Discrimination: Reason and Intention

Over the next couple of days I will be posting a four part series on direct discrimination, specifically on the role of intent, causation, proving discrimination and what defences are available. It is not a detailed explanation but an introduction to these four aspects.

To someone who has not had personal experience of the legal system or training then there is a good chance that if one were to ask to give an example of discrimination means in a workplace setting they would give examples of a person being refused a promotion because they are black, being dismissed because they are too old or  being given all the early shifts because they Polish and  other similar examples. Although not described as such these are all instances of direct discrimination. It is unlikely that the other types of discrimination in the Equality Act 2010 would be mentioned (Harassment, Victimisation, Indirect Discrimination and, for disability claims only, Failure to make adjustments and Discrimination Arising from Disability).

So, what is direct discrimination?

Whilst no-one who has ever dealt with a direct discrimination complaint will say that the law is simple (it most definitely is not) in terms of the underlying moral principle it is easy to understand and accords with common sense principles of fairness. It is not right, for example, to post an job advert saying no disabled persons or gays can apply, to dismiss a worker from a job just because they happen to be a Muslim and it is these types of wrongs which direct discrimination is focused on eradicating.

The technical definition of direct discrimination is found in section 13 of the Equality Act 2010 and sets out that no employer can treat a worker less favourably because of a protected characteristic than they would treat another person who did not share that protected characteristic. A protected characteristic is one of the following: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

Unlike most types of discrimination direct discrimination has the distinction of, once being found, not having a defence available with which to justify the act (with one exception which will be covered in a later post). This has I suspect led to it being viewed as a much more serious type of discrimination compared to others in the Equality Act. In its crudest forms  it offers little room for doubt that the perpetrator is simply bigoted, such as the ‘no coloured, no irish’ housing adverts of the 1960s for which race relations  legislation was expanded in the 1960s and 70s to counteract.

Certainly as a union representative and I am not sure this is not something for which I should not be criticised for, I am quite loathe to make an accusation of direct discrimination in a case  since doing so is often taken as an accusation of outright intentional prejudice whereas I would have no concerns of alleging a breach of a duty to make reasonable adjustments or indirect discrimination which does not have the same emotive of accusatory connotations, for example.

In fact I can probably count on on two hands the number of occasions where I have suspected and had some evidence to corroborate that there was potentially direct discrimination in play.

Whilst direct discrimination is (along with harassment) the type of discrimination claim where one is more likely to see bigotry in operation the assumption that direct discrimination is a more prejudicial type of discrimination is not always fair. It is not necessary in order to win a case that the person directly discriminating against the Bangladeshi, gay or female worker be a racist, homophobe or sexism. In the remainder of this post I want to consider two examples to demonstrate this.

In James v Eastleigh Borough Council [1990] IRLR 288 a local council had a policy of giving persons of pensionable age free swimming lessons. At that time the state retirement age for men was 65, but for women it was 60. The claimant in the case was a male aged 61 years of age and, because he was not of retirement age he was discriminated. There is no suggestion of any bad faith on the part of Eastleigh Borough Council but the courts accepted that a 61 year old female would have been given free swimming sessions and that Mr James had been treated less favourably because of his sex and, therefore, he was directly discriminated against.

Within the last few weeks another similar decision was issued by the Court of Appeal in The Lord Chancellor & Anor v McCloud & Ors [2018] EWCA Civ 2844. The essence of the case was the UK government introduced pension changes that resulted in workers needing to pay substantially more into their pensions. Workers who were aged 55 years of age or more were exempt from the change because they felt that to impose this on persons closest to retirement to be retirement would be unfair. The reason for treating older workers more favourably was not malicious but for good general reason (albeit too vague to constitute a legitimate aim) but, despite this the court of appeal found the UK Government  discriminated against its own workers who were aged less than 55 years of age.

There is no rule therefore that direct discrimination is always malicious and can sometimes occur even when the discriminator believes they are doing the right thing.