Veganism and discrimination

Last year the BBC ran a story on what it described as a ‘landmark’ case on whether veganism, or more specifically, ethical veganism was a religion or belief for the purposes of the Equality Act 2010.

The factual background to the case is that the Mr Casamitjana was dismissed by his employer, the League Against Cruel Sports, for what the employer deemed to be gross misconduct. Mr Casamitjana however has (I assume) alleged that the dismissal was discriminatory, the exact label upon which the discrimination is alleged to occur is unclear but I would imagine it is a complaint of direct discrimination given the employer’s statement to the press that “Mr Casamitjana is seeking to use his veganism as the reason for his dismissal.”

Landmark?

Whilst the BBC (and Mr Casamitjana for that matter) seem to promote the case as landmark I really do not see it as such.  The protected characteristic of religion of belief in the Equality Act is broad and includes philosophical beliefs of which ethical veganism is potentially surely one whether there has been a case considering this or not.  The test for whether a philosophical belief is covered by the protected characteristic of religion or belief is set out in the EAT’s decision in Grainger PLC v Nicholson [2009]. Grainger, which itself concerned the alleged protected belief of climate change and the environment, sets out that five questions need to be answered affirmatively, and if they are then the belief is protected:

(i) The belief must be genuinely held.
(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

What is noteworthy is that it appears likely that the EAT’s decision takes the scope of religion and belief discrimination much further than the then New Labour government that introduced it intended – for example, in 2010 after the EHRC issued guidance that veganism was probably a protected belief the Government Equality Office objected to this expansion saying

the government did not share the view that climate change or veganism were religious beliefs; however, the interpretation was a matter for courts. The spokesman said: “The Equality Bill does not change the existing definition of religion or belief and the Government does not think that views or opinions based on scientific – or indeed on political – theories can be considered to be akin to religious beliefs or philosophical beliefs. Nor was it the intention in introducing the legislation that such beliefs should be covered (source).

Be that as it may the broader approach has indeed been accepted by the courts and it is not hard to see that ethical veganism is quite capable of meeting these five Grainger tests. Indeed, the EHRC in its Religion and belief guidance is explicit that “Beliefs such as humanism, pacifism, vegetarianism and the belief in man-made climate change are all protected.” There is no sensible reason why vegetarianism should be a protected belief and veganism is not.

Again, quoting from the BBC’s piece, Peter Daly the solicitor for Mr Casamitjana explains that if his client is “successful, we will achieve a judgment which formally recognises the protected status of ethical veganism and which could then be used as the basis to combat discrimination against vegans in employment, in the provision of goods and services, and in education. This is therefore a landmark case.”

Frankly, whether a tribunal has ever formally recognised ethical veganism as a protected belief or not it is little more than PR to describe this as ‘landmark’ the fact that according to Mr Casamitjana’s own crowdfunding appeal this apparently ‘contentious’ issue has now been conceded by the employer.

What seems more likely is that the real battle will be not on whether the treatment was because of the protected belief itself or because of conduct that arguably grew out of that belief similar to the recent Court of Appeal judgement in Kuteh upholding the fairness of the dismissal of a Christian nurse for inappropriate proselytism during work hours.

Protected Belief

To continue with the vegan theme I note that the Daily Mirror is reporting today on demands to outlaw vegan discrimination, with Alex Monaco a solicitor being quoted as saying:

If you were Jewish or Muslim and told to get a round of bacon sandwiches in, no one would bat an eyelid if you refused. But if you’re vegan and refused to buy a pint of milk to make tea because you believe the dairy industry is torturing cows, then you would be laughed out of the kitchen. Employers should have a duty to ensure vegans are protected at work and are offered options. The ultimate aim is to get the law changed so that the Equality Act includes vegans.”

I have to confess it does strike me as a strange demand since, as should be clear, there is no reason that claims of discrimination at work on the basis of veganism cannot already, on the current law, be pursued meaning there is no need to “get the law changed” at all. The mission is already accomplished!

Banter?

Section 26(1) of the Equality Act 2010 makes it unlawful for a person to subject another person to unwanted conduct that is related to a protected characteristic so long as that conduct has the purpose or effect  of violating the recipient’s dignity or creating an offensive, humiliating, hostile or degrading environment.

Whether conduct has that effect is an objective decision on the part of the employment tribunal but one, under section 26(4) of the 2010 Act, in which three factors must be considered: i) how the recipient perceived the conduct, ii) other circumstances of the case, and iii) whether it is reasonable for the conduct to have that effect.

This was the issue in the recent case of  Evans v Xactly Corporation Ltd [2018] UKEAT 0128_18_1508. The claimant, who had links with the travelling community, brought a claim of harassment related to race on the basis of comments directed to him whilst at work that he was “a fat ginger pikey.” Pikey is a pejorative term term related to the Irish traveller community (some background from the BBC website is here).

In the judgement (which relates just to a permission to appeal application) the EAT notes that the employment tribunal “entirely understood that on the face of it the “fat ginger pikey” comment is a derogatory, demeaning, unpleasant and a potentially discriminatory and harassing comment to make.” Indeed, exactly the same type of language in other contexts has been found to be racially aggravated criminal conduct.

However, despite this, the ET found that in the circumstances, including that the comment was made by a friend of the claimant’s and in a context of frequent other insulting comments by multiple comments from other parties that the comments did not amount to harassment.   It is a decision the EAT endorsed. This is because, applying the previous EAT decision in Richmond Pharmacology v Dhaliwal [2009] UKEAT_0458_08 that set out that “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly where it should have been clear that any offence was unintended.”

On that basis given the facts it is perhaps understandable on the application of section 26(4) of the 2010 Act that the tribunal reached the view that the conduct vis a vis the claimant was reciprocated and ‘friendly’ and so not undermining of dignity (although perhaps it would have been different if another employee had complained) even though in most cases such conduct clearly would be.

Still, I find the decision troublesome. The notion that ostensibly racist comments should not (on a liability basis) be deemed to be unwanted because there was no complaint seems to unjustly shift the burden to the victim to prove they were unwanted and injurious to one’s dignity. Elsewhere this same issue was addressed in respect of alleged sexualised banter/harassment in Munchkins Restaurant Ltd & Anor v. Karmazyn & Ors [2010] UKEAT 0359_09_2801. In that case a number of complainants alleged they had been subject to sexual harassment at work in the form of discussion about their sex lives, with which it was acknowledged they had participated in.

The employer in that case adopted a defence that the claimant’s non-complaint and participation showed this was not unwanted conduct. It was a defence the EAT entirely disregarded (para 23):

One of the lay members of this Tribunal has observed that there are many situations in life where people will put up with unwanted or even criminal conduct which violates their personal dignity because they are constrained by social circumstances to do so. A classic example, she points out, is that of the battered wife who for the sake of the children may remain at home permitting herself to be subject to violence, none of which she wishes, but all of which she endures because there is a greater benefit in what takes place. But it does not make the violence right. Putting up with it does not make it welcome, or less criminal. It is therefore not completely beyond the scope of reason to think that women in this particular situation should behave as they did. As to initiating conversation it is explained in the passages we have cited by the Tribunal as being a defensive move on behalf of the Claimants, enabling them to divert much of the intentions of Mr Moss from the intrusive personal questioning which otherwise would have taken place as to their own sexual preferences, habits and contacts.

There is certainly some evidence that the claimant in Evans was in a vulnerable situation with respect to the security of his employment that is in some sense analogous to the situation in Munchkins in which the claimants’ participation in offensive conduct was seen as a defence mechanism.

More pertinently however the Equality Act is legislation aimed as a social as well as legal purpose. What Evans case shows is that that conduct that will widely, and rightly, be held to be offensive and derogatory conduct related to race can, because of an ingrained workplace culture of prejudice, is thereby deemed to be lawful conduct. Can that be right? I wonder if a preferable approach would be to mark out such conduct as unlawful whilst allowing the question of what is just and equitable in terms of remedy very much open such that if, as the tribunal appeared to decide in Evans, there was no significant offence caused and ‘he gave as good as he got’ then only nominal damages should be awarded?

Direct Discrimination: Defences

It is a couple of months since I promised the last post in my brief series on direct discrimination with a summary on an employer’s defence to direct discrimination claims. Life got in the way, etc.

But first a recap,  section 13 of the Equality Act 2010 sets out that 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. When they do so they directly discriminate the employee.

It is commonly said that with the exception of direct age discrimination there is no defence to direct discrimination. With the exception of the statutory defence which is only rarely successful (and is summarised below) and the special defence available in age discrimination complaints (also summarised below) this is strictly correct but it is also misleading. The fact is direct discrimination cases are hard to prove and the absence of any proportionality defence means that the battleground is on whether the elements of direct discrimination are met. What in fact is meant by the claim of there being no defence is that where direct discrimination is found there is no justification defence (as there is on most other types of discrimination claim. In no particular order, the 10 defenses I have thought of (there may well be more) are:

1. Proportionality

Unlike indirect discrimination claims an employer has no defence that their conduct was a proportionate means of achieving a legitimate aim. This is not a legal definition but I often view this as a ‘this is not an ideal situation but it is the least bad one we could implement’ type scenario. That is, however, unless the protected characteristic engaged is that of age. In which case, section 13(2) of the Equality Act 2010 specifies that treating an employee less favourably because of age is in fact lawful so long as the conduct is a proportionate means of achieving a legitimate aim.

Whilst the language used is the same as used in elsewhere in the Equality Act decisions of the European Court of Justice (ECJ) have severely limited the scope of this defence. A legitimate aim for the purposes will now be a social policy objective and therefore, especially for private employers, this will be a difficult defence to mount. The Supreme Court has confirmed the somewhat niche nature of this defence in Seldon v Clarkson Wright & Jakes [2012]. In fact, even in the case of public employers this has been a difficult test to meet. Earlier this year the Court of Appeal (the decision is expected to be appealed to the Supreme Court) decided in  The Lord Chancellor & Anor v McCloud & Ors [2018] that a government implemented pension change that treated older workers more favourably (in order to soften the blow of the changes of those nearing retirement following a TUC recommendation) was indeed directly discriminatory.

2. Unconnected reason 

A common misconception is that the Equality Act is designed to create fairness in the workplace. I would certainly be in favour of such legislation but the Equality Act does not meet this need. The Equality Act only protects an employee from unwanted conduct by an employer or its agents  that is related to a protected characteristic. The next defences is rooted in this misconception.

The unconnected reason defence is possibly the most common defence. In an direct discrimination complaint an employee will need to show that there is a protected characteristic engaged and that there has been less favourable treatment compared to a comparator.

If a female employee and male colleague each apply for a promotion but the male colleague is successful in being offered the job then the unsuccessful candidate may well feel she has been directly discriminated against. In this case the protected characteristic (sex) and the less favourable treatment (the refusal of promotion) are clear. But there is a third step the employee would need to meet, namely that the reason for the unfavourable treatment was because of the her sex.

An employer faced with such a claim would likely want to argue that while the employee certainly was treated less favourably this had nothing to do with her sex. Instead, it is because the male candidate was simply better suited to the job for reasons unconnected with the protected characteristic, for example he has performed the same role for a competitor and so has better experience. If they can persuade a tribunal that this different reason was the reason for the treatment then the complaint will be unfounded.

This defence can also have a more sinister side. Even if an employee is treated less favourably for an unreasonable  reason this will not be actionable so long as that reason is connected to a protected characteristic. So, to return to the hypothetical example above, if while driving to the interview the unsuccessful candidate unknowingly cut up the interviewing manager causing an accident, and the manager recognised the employee as the culprit and decided to appoint the other candidate in a pique of revenge then that too would be a defence and make the claim unactionable if a tribunal were to accept that account.

In either scenario if the reason for the treatment is unconnected to the protected characteristic then the employer will be able to defeat any direct discrimination claim.

3. Equally Bad

The second way unfairness is beside the point in a direct discrimination defence is by way of what is colloquially called the bastard defence.

Remember, one of the components of a direct discrimination complaint is that because of a protected characteristic an employee has been treated less favourably (i.e., worse) because of that protected characteristic.

Consider the following hypothetical defence statement:

“The truth of the matter is that we are very bad employers. We work our workers to the bone, disregard all health and safety regulations, we always pay our workers late as that delay generates extra income for the company and we will dismiss anyone who talks about raising a complaint or of unionising; we accept unreservedly that our treatment of the claimant has been reprehensible and even unlawful. However, that treatment has no relation whatsoever to the claimed protected characteristic – the reality is we are an equal opportunities employer in that we treat every worker, whatever their background, equally poorly.”

The defence is certainly not going to win the employer any Public Relations awards and may well leave an employer open to other legal claims but insofar as a direct discrimination claim goes if the tribunal accepts that the employer really does treat everyone equally poorly then (with the exception of certain maternity/pregnancy complaint) the employer is likely to successfully defeat any direct discrimination complaint.

It is arguable that this applies even when the conduct complained of does relate to a protected characteristic. For example, to slightly alter the facts of a 2001 Employment Tribunal  case, suppose a Jewish employee was required (with other colleagues who did not share the same protected characteristic) to wear a Nazi uniform. This is manifestly offensive, unfair, and derogatory conduct that has no basis in any workplace but, on a direct discrimination front, it is arguable that the employer’s defence that this was applied to everyone equally may well be successful because the employee was treated the same as the other employees who did not share that protected characteristic.

Thankfully, were such a situation to arise again the fact there is now no need for a comparator in harassment cases mean if direct discrimination is not available a claim could be pursued on harassment grounds under section 26 of the Equality Act 2010, or even fashioned as an indirect discrimination complaint.

4. Occupationally required

This is not common but Schedule 9, part 1(1) of the Equality Act allows the discrimination to occur where a job holder needs to be of a certain protected characteristic. In such case the proportionate means of achieving a legitimate aim test is used to assess whether this requirement is reasonable. This is rarely appropriate but could be seen as reasonable in situations such as where a rape victim advisory role is required to be female or where a church’s outreach worker must share the faith of the employer (i.e a Methodist outreach worker should be a Methodist).

5. Disability

In a similar manner the Equality Act places an obligation to make adjustments for disabled workers to avoid or mitigate any disadvantage arising from their disability. This requirement has been found to include, in certain circumstances, an obligation to treat the employee more favourably than their peers.

Because in direct discrimination there is now no need to show that the reason for the treatment being applied for was because of their protected characteristic but simply because of a protected characteristic an enterprising employee who had not been given, for example, a reduced caseload when his disabled colleague had as a reasonable adjustment could claim he was being directly discriminated. The argument would be that he was being treated less favourable (higher workload) than his colleague because of disability (namely his colleague’s disability) .

Fortunately section 13(3) of the Equality Act 2010 specifies that if “the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.” The result of someone who is not disabled is being treated less favourably than a disabled person because of disability then that will mean the employee will have no claim.

6. No Shifting Burden

Along with the unconnected reason defense this is the most important and common defence. In an earlier post I outlined the burden of proof test in direct discrimination cases that is found in section 136 of the Equality Act. If a claimant cannot satisfy this test then, simply put, the employer will successfully defend the case and there will be no finding of discrimination.

In practice this means that the employee must be able to bring to the tribunal evidence that, in the absence of any other explanation, the less favourable treatment was because of the protected characteristic.  For the employee this is frequently a very difficult task as employers are unlikely to want to volunteer information that would show that the reason for their treatment is related to a protected characteristic.

It will very often be that the employer’s best chance of defeating a claim is to argue that the employee has not shown evidence that points to the reason for the conduct complained of being because of the protected characteristic and so the employer has no case to answer.

7. No material causation

The seventh reason is not common but is a strategy that minimises the significance of conduct that is related to a protected characteristic. In an earlier post causation in direct discrimination was discussed and the case of Nagarajan was considered.  In Nagarajan the House of Lords recognised that decisions are often made for multiple rather than just one reason and that in terms of direct discrimination claims the fact that, for example, a decision was made for one reasonable reason and one prohibited reason caused by a protected characteristic is sufficient to establish that the decision was because of a protected characteristic. This is a helpful decision that makes it more difficult for employers to cover discriminatory conduct under a blanket of reasonable business reasons.

However,  Nagarajan still allowed a decision that is tainted by discrimination to avoid liability for direct discrimination. To recall, the relevant passage of the decision in Nagarajan (which was a race discrimination case) is “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.”

If a protected characteristic were established as a reason for less favourable treatment but not as one that had a significant influence on the outcome then the appear may have a defence on this basis. For example, a racist manager would have dismissed a worker for proven misconduct but, the fact that the employee is black, meant that the manager found this a much easier decision than would otherwise have been the case even though the outcome is the same. This is in effect a different angle on the bastard defence.

Given the purpose of the legislation is to combat discriminatory conduct in UK workplaces it is an interesting question whether this approach, which effectively does not prohibit prejudicial conduct in employment situations so long as they have limited practical effect, is the right course of action rather than, as is the case in indirect discrimination cases (see Lady Hale’s judgement in Essop v Home Office) allowing nominal or no damages in cases where the the discriminatory conduct had no affect on the claimant. The latter having the advantage of at least marking out discrimination as an unlawful act.

8. Isolated occurrences

It is frequently the case that in direct discrimination cases an employee will complain of a series of issues whereby they allege they have been treated less favourably.

For example, a claimant may allege that

  • On 5 January 2019 she was given a poor performance review by her manager and this was because she was disabled
  • On 6 February 2019 she was given accused of misconduct by a company director and he initiated a misconduct investigation. She does not believe the misconduct investigation would have happened if she were not Black.
  • On 30 April 2019 she is dismissed for misconduct by the company director. She does not believe the misconduct investigation would have happened if she were not Black.
  • On 5 May 2019 HR refused her an employment reference, again she believes this is because  she is black.

As in most employment tribunal claims a claim for must be initiated within three months of the think being complained of. If on 6 May 2019 the claimant begins Employment Tribunal  proceedings only two of the four claims would be within three months and it is likely the employer would seek to strike out the first two claims (because they occurred before 7 February 2019). This is of course a frequent and in my view perverse consequence of UK employment law in that an employee, even if they are trying to resolve issues with the employer, must initiate a claim within three months to guarantee their claim will be considered.

An employee can of course argue that it is just and equitable for all the claims to be heard but this is at the discretion of the employment judge and is far from guaranteed. In this scenario an employee would be likely to argue that section 123(3) comes to their aid. This provides that when conduct continues over a period of time all the issues can be raised so long as the last incidence was within three months. However, the law on continuing act is complex and will consider the extent to which all the events are related, who was involved, whether they are all related to the same claim type.

For the employer this often be a major battleground to argue that if not all then as much of the claim is out if time and not part of a continuing act and by doing so exclude as much of the claim as possible from being considered. To return to the example above, since the misconduct investigation and dismissal are clearly related  and involve both the same claim and same managers there is a good chance that that will be a continuing act meaning that even though the event occurred 3 months or more before the dismissal it is under section 123(3) treated as still being in time (as was the case recently in Hale v Brighton & Sussex NHS Trust). However, the poor performance review  by a different person for performance issues and because of a different characteristic is likely to be excluded, even if this is a case whereby there is very strong evidence that the claim would succeed.

9. Not Responsible

Sometimes an employee can be subject to outrageous and manifestly discriminatory behaviour even at work or in other contexts that would not have arisen but for their work and yet still find the employer defending a claim against them. This can occur in two types of context.

First, there may be cases where an employee is subject to, for example, racist abuse from a customer or some other person with whom the employer does not have any sort of formal or contractual relationship.  The fact that that conduct occurred at work does not mean that the employer will be liable (although it might be, depending on the circumstances).  This can be seen in the deeply unfair case of Kemeh v MOD [2014]. In a place of work the claimant was subjected to racial abuse by a kitchen worker. However, the kitchen worker was not employed by the MOD but by a subcontractor, Sodexo. The MOD accepted that the abuse had happened, that it was indeed racial, but nevertheless denied liability since they were only liable for their own employees, not other employees even if they provided services to the employer.

Second, Section 109 of the Equality places a significant burden on employer that they will be liable for anything discriminatory done by an employee “in the course of employment”  – effectively this means that anything done by an employee which is discriminatory the employer will be responsible for. Section 109(3) even goes so far as to say that it “does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.” In practice this means nearly everything done by a manager at work will mean as well as they individually being responsible (section 110 of the Equality Act) the employer will also be liable. This has been found to apply even to conduct that occurs outside the workplace in work related social gatherings – see Chief Constable of the Lincolnshire Police v Stubbs [1999].

However, it remains the case that there is a limit and that it is possible for discriminatory issues to arise that would not have occurred but for employment to nevertheless be outside  the course of employment.

10. All reasonable steps

Finally, what the claims about there being no defence to direct discrimination miss is that section 109(4) does in fact provide a complete statutory defence to employers. In Canniffe v East Riding of Yorkshire Council [2000] the EAT set out that an employer relying on this defence must show that they took all steps to prevent their employees engaging in the conduct complained of (for example, publicising equality policies, investigating concerns, and disciplining prior acts of discrimination) and that there were no other reasonable actions the employer could have taken. For the employee facing such a defence it is important to identify where the employer’s conduct feel short of expectations to resist the argument that they did everything reasonable to stop the conduct and, by doing so, ensure the employer will remain liable (important as the employer is more likely to pay any financial remedy than a private individual).

Any more defences, then please let me know.

The Data Protection Act and Victimisation

The Data Protection Act 2018 has broadly been described as a positive re-inforcement of the data rights of individuals, including workers. This is a fair summary but it is not a completely positive development in that the Act has actually curtailed the rights of an worker to see what their employers and former employers have written about them and provides cover for unscrupulous employers to evade their accountability for discriminatory conduct.

Before explaining why it is helpful to recap on how one category of victimisation claim presents itself, by means of a hypothetical scenario. A worker has been subject to discriminatory behaviour by an employer, perhaps complaining about how a colleague sexually harassed them. After the employer conducts and whitewashes an internal investigation the worker resigns in disgust at the employer’s failure to confront endemic sexual harassment in their organisation. The worker is not however keen to pursue a sexual harassment case and just ones a fresh start at a new employer.

She applies for many positions, for which she is well qualified, but despite performing well at interview is never offered a job. She suspects that her former employer has provided an unfair reference, perhaps alleging performance or misconduct issues that have put off potential employers in retaliation at her for having made a complaint of sexual harassment. In fact, that is precisely what the former employer was done.

Under the old Data Protection Act (1998) if this worker made a subject access request for a copy of any references the former employer could (I think unreasonably) refuse to provide these but this get out did not apply to the employer’s a worker made an application to so that a copy of the reference and the retaliatory negative reference could be obtained. With that evidence in hand the worker’s suspicion of unlawful and discriminatory victimisation has a solid basis in evidence and she can be more comfortable that she has a good case of victimisation against her former employer under the Equality Act 2010.

However, under the Data Protection Act 2018 – paragraph 24 of Schedule 2 to be precise – both former and prospective employers are explicitly told they can refuse to provide a worker a copy of a confidential employment reference without any other proportionality considerations needing to be considered. So now a worker who thinks their former employer has unlawfully discriminated against them by providing an inaccurate and vindictive reference to a former employer on the basis of that employee having had the temerity to challenge for employer about how it discriminated its staff finds themselves hamstrung.

While they can of course still claim discrimination they will be much less likely to be confident bringing such a claim when their only evidence is their gut feeling that something is amiss which will inevitably mean good cases are not brought and bad employers will evade scrutiny. For workers subject to post-employment victimisation from former employers at least the Data Protection Act’s plaudits of advancing employee’s data protection acts ring hollow.

To date there has been no reported decisions (that I have been able to find) on the compatibility of  the reference caveat to subject access requests with human rights or the GDPR itself. Hopefully the harshness will in due course be mitigated or Parliament will see sense and repeal paragraph 24 of Schedule 2 of the DPA 2018.

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.