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.”
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).
In 2017 the Employment Appeal Tribunal in Efobi v Royal Mail Group Ltd  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.
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).
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.
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  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  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.
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  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  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.
Just over a year ago the Employment Appeal Tribunal issued its decision in Lofty v Hamis t/a First Café and in its wake there was a lot of online discussions about whether precancerous conditions come within the deemed disability provisions of the Equality Act 2010.
Normally, in order to be a disability for the purposes of the Act a worker must show that the physical or mental impairment substantially affects their normal day to day activities and that it has or is likely to last for 12 months or more. However, the Act recognises three conditions, Cancer, HIV and Multiple Sclerosis, that are automatically a disability regardless of whether at that time the other elements of the disability definition are met.
From a worker representative’s point of view this this will mean that so long as the diagnosis can be demonstrated then the employer will have no basis for disputing disability and so the task of moving to the question of whether discrimination occurred or reasonable adjustments are required is less problematic.
The case of Lofty concerned whether a precancerous condition came amounted to a cancer. In 2014 the claimant became aware of a skin blemish on her cheek. This was diagnosed as lentigo maligna. The advice of her medical practitioners variously descried this as precancerous lesion or a non malignant in situ cancer. In other words, the examination identified that there were cancer cells resent but this was not at the time at risk of spreading although they may develop into a lesion malignant melanoma (a skin cancer). The Employment Tribunal that heard the case determined that since her condition is precancerous it was not yet cancer and so not a deemed disability.
It was this decision that was challenged in the EAT. In overturning the employment tribunal’s decision the EAT note that paragraph 6 of schedule one of the Equality Act (which lists cancer as a deemed disability) does not distinguish between invasive and noninvasive cancer. The fact that the claimant had cancer cells present was sufficient to mean this was cancer, regardless of whether oncologists referred to these as precancerous because they were not invasive.
However, a reading of the judgement makes the suggestions of many law firms headlines that precancerous conditions are deemed disabilities is false, there are many precancerous conditions and it is not clear all will satisfy the standard set out in Lofty. Nonetheless, I think it can confidently be stated that if there are cancer cells present then that person will be disabled under the Equality Act.
What does this mean for workers and representatives?
There are I think a couple of points worth commenting on.
First, where there are cancer cells present then the person will (at the relevant time) be disabled and so any sickness or performance issues associated with this such as sickness leave flowing from surgery are likely to require reasonable adjustments (for example, treating post operative convalescence as disability leave).
Second, while not every precancerous condition is cancer this is a difficult area relying on specialist reports of biopsies and similar reports and it is probably helpful to argue the point, as many employers will reasonably take a cautious approach and consider disability likely.
This morning the results of the election to determine who would be Left Unity’s nominee as PCS’ Assistant General Secretary were released, with Chris Baugh being the elected candidate (subject to any appeals, etc).
Those who have followed the election will know this follows a protracted and strongly contested process. Chris Baugh, the current AGS post holder was challenged by PCS President Janice Godrich. Godrich in fact won that election late last year but for personal reasons withdrew her candidature. A new Left Unity candidate, Stella Dennis, put herself forward and this morning it was confirmed that Chris Baugh won the Left Unity nomination by a small margin.
Therefore, there are now three declared candidates the election later this year, although there is of course time for additional candidates to put themselves forward.
Chris Baugh, the current PCS Assistant General Secretary will be running on the Left Unity slate. Chris’ statement released when his candidacy was first announced is here.
Lynn Henderson, currently a National Officer of the union and President of the Scottish TUC is the only candidate not running a slate. There is a launch video and statement available here.
John Moloney, is a lay activist and running on the PCS Independent Left slate. John’s election platform is set out here.
Occupational Health advice is a means by which an employer can seek medical advice from qualified persons (usually a Dr or nurse) on what a medical issue is likely to mean for an employee in respect to their work. For example, how it the medical condition will affect attendance, how it will impact performance or the ability to perform certain job aspects, and whether there are likely to be any adjustments the that would help both the employer and employee to reduce disadvantage and increase productivity.
To give a typical situation an employee is on long term sickness absence and the employer requests advice to help them make a decision as to the reason for absence, whether it is linked to work, and estimated timescales in which the employee can be expected to be fit to return to work, or, if not, whether ill health retirement is occupational pension scheme that allows this.
In my experience most of the time employers are keen to make a request for advice since it provides independent advice on factors managers are not qualified on that allow them to make informed choices. Push back to the suggestion is more likely to come from employees concerned they need to disclose confidential information, that they are being set up to fail, or that they don’t like the questions that are being proposed. By and large my role has been to convince the employee that the OH referral is also in their as well as their employee’s interests.
However, more recently I have encountered a few occasions in which an employer has been resistant to making an OH advice request. I find this reluctance perplexing as, if nothing else, an OH advice request provides a manager with evidence they are taking an issue seriously and also, if they follow any advice, a likely defense to any future allegations of bad faith decisions and it is hard to think that the reticence is anything other than a penny-pinching measure.
Most reasonable HR sickness or disability policies will recommend that where there are health issues engaged that may affect attendance, performance or discipline then advice should be requested. But aside from potentially being evidence an employee could use in an appeal that an employer did not follow its own guidance the recent decision of DL Insurance Services Ltd v O’Connor  UKEAT 0230_17_2302 also shows that when a disability is involved it can be useful evidence in a discrimination arising from disability claim.
In O’Connor the claimant was absent for 65 days in a calendar year, understandably this level of absence was a concern for the employer. The employer’s policy required that before a decision on whether to issue a warning was taken the employer should either obtain medical advice from the GP or seek OH advice. The employer issued the warning but did not seek any advice from OH before doing so and this failure to follow the employer’s own policy was a key factor in its determination that the issue of a warning amounted to discrimination arising from disability.
On appeal the EAT did make clear that there is no checklist in operation and that a failure to follow a policy will not always lead to a finding of discrimination:
In my judgment, the correct summary of the ET’s reasoning in relation to the procedural failure is that the ET were not saying that the Respondent had failed to show the treatment was a proportionate way of achieving a legitimate aim because it breached its Policy. Rather, what the ET were saying was that the Respondent could not show that the treatment was a proportionate means of achieving a legitimate aim because the Respondent has not produced specific evidence to show that, and that that failure to produce specific evidence might have been because it breached its Policy.
The EAT went on to consider, as the ET had done previously, paragraph 5.12 of the EHRC Employment Code, which says that in showing that the treatment was a proportionate means of achieving a legitimate aim
It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.
For the ET, and affirmed by the EAT, it was not so much the fact that the employer had failed to follow its policy that rendered the employer’s actions disproportionate but that there was no specific enquiries and just reliance on generalisations. This failure meant possible adjustments or other solutions were simply not explored.
O’Connor does strike me as a useful case to use to remind employers that knee-jerk resorts to warnings without serious examination of alternatives can result in findings against employers of discriminatory conduct.