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?

Tell Me the Reason Why

whyIt is not often there is an appeal judgement of genuine assistance to employees, but the EAT’s decision last year in Essop v Home Office is one such case in which my union, PCS, assisted the claimants in appealing.

The background is that the Respondent had a Provision, Criterion or Practice that an employee wishing to be promoted within the organisation must pass a Skills Assessment. Anyone who failed this assessment was barred from proceeding to the next stage of the recruitment process (i.e., interview). There was statistical evidence (that does not appear to be disputed) that BME candidates aged over 35 years of age were more likely to fail the assessment and, therefore, be excluded from promotion opportunities. The claimed disadvantage then was not just the failure of the test but the disadvantage in passing the test (which, in theory, would suggest a BME applicant aged over 35 who passed the test could still be at the particular disadvantage).

The claimants lodged employment tribunal proceedings alleging indirect discrimination on race and age grounds. At a preliminary hearing the disparate performance in  skills assessments was accepted but the employment judge ordered that the “[i]t will be necessary for each of the Claimants to prove the reason for his/her failing of the CSA test.”

Indirect discrimination occurs when

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of sub-section (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

On the basis of this legislative language one can drill down the basic components of a indirect discrimination claim:

  1. The employer must apply a provision, criterion or practice (PCP); and
  2. That PCP must place (or would place) a particular protected characteristic (e.g., disabled staff) at a particular disadvantage; and
  3. The claimant must share that characteristic (e.g., must be disabled); and
  4. The complained of conduct cannot be a proportionate means of achieving a legitimate aim.

The central issue before the EAT is summarised succinctly in paragraph 12 of the judgement:

12. EJ Baron found that the “particular disadvantage” within Section 19 which had been suffered in the present case was that there was an increased likelihood of an older BME candidate failing the CSA test. He accepted the Respondent’s case that it was not simply sufficient for the purposes of section 19(2)(b) and/or (c) to identify that this was the effect: he held the statute required the Claimants to prove on the balance of probabilities what was the reason for the lower pass rate. The Claimants disputed that they needed to show this.

The EAT ruled that in that direction the ET had made an error of law. In making the direction that he did the employment judge had gone beyond the statutory language.  The claimant had (by the Respondent’s concession) met the first three of the above requirements and all that was left was for the the employment tribunal to judge whether the Respondent’s conduct was a proportionate means of achieving a legitimate aim.

Had it been allowed to go unchallenged the approach to indirect discrimination the first tier tribunal took would have significantly impeded the ability of claimants to challenge the discriminatory effect of employer practices that evidence showed to be discriminatory but with no clear rationale why. That the EAT has put paid to those arguments (for the time being at least) is good news for claimants. The case however has been appealed to the Court of Appeal.

Cases Cited: Essop v Home Office [2014] UKEAT 0480_13_1605

Institutional Racism Lives On

PoliceIf UKIP are to be believed there is no longer a problem with racism in UK society, let alone in employment. On that basis the ‘we’re not racist but …’ UKIP are keen on the scrapping of race discrimination laws that provide some (marginal) legal protections for minority groups in the UK.

Over recent months the Police in the UK have appeared to be on a mission to prove UKIP wrong.

On the receiving end, there it is incontrovertible that the exercise of stop and search powers are disproportionately applied to BME citizens. This despite the recognition following the MacPherson Report that the Metropolitan Police were institutionally racist and the enactment of the Public Sector Equality Act.

A decade on and there have been attempts by the Conservative led government to scale back on these protections with the government encouraging public authorities that it should not complete equality impact assessments, removing the ability of Employment Tribunals to make recommendations to employers to eliminate future discrimination, and the attempted repeal of section 3 of the Equality Act 2006 against which PCS campaigned.

It was the racism of the Police revealed in the Stephen Lawrence case that provided such an impetus to the development of equality law. Over the last year we have seen that despite these advances there remain significant problems of racism within the Police; even within the way it treats its own employees there have been clear pockets of racism.

In a highly publicised judgement last September the former PC Carol Howard found the Met Police and racially discriminated against her and then proceeded to victimise her for challenging that behaviour. In their award of compensation the Tribunal also made the rare step of awarding aggravated damages which can be given only where an employer has acted “in a high-handed, malicious, insulting or oppressive way“. Predictably, in the aftermath there were claims that this was ‘an isolated instance’. Similar claims were made months later when PC Ricky Haruna won another tribunal for Racism of senior officers.

Less than a year later another Police force has again been found to discriminated against a PC on the ground of race. Ronnie Lungu is a PC in the Wiltshire Police Service – a Tribunal found last week that senior officers had intentionally downgraded internal appraisals to ensure he would not gain a promotion. The Tribunal found

The reduction in the scoring has the very significant effect in terms of making it appear reasonable that the one black applicant for promotion was scoring lower than the 19 white applicants and should therefore not be promoted … This behaviour is so extreme that the tribunal cannot think of any apparent motive other than one that is directly related to [the] claimant’s race.”

Bad_Egg
The ‘bad egg’ defense discriminatory employers invariably use just will not wash in the case of the Police.

In short, because Mr Lungu was black senior officers blocked his promotion and, as the tribunal also found, failed to take adequate action when colleagues had made racist remarks.

As the principal organ through which the rules of the land are upheld it is right that the public should expect the Police to perform their duties diligently irrespective of race. Over 20 years after the murder of the Stephen Lawrence and the  light the ensuing inquiry shone on the dark recesses of police prejudice it appears the institutional racism of the UK police lives on, at least when it concerns how our custodians of law and order treat its own black and minority ethnic employees.

As any trade union rep knows for every one employee willing to take a discrimination employment tribunal against their employer there are at least 10 who are too scared, and that is not inclusive of those put off by employment tribunal fees. These cases then, are just the tip of an iceberg.

And so, at the time that Conservatives desire cutting anti-discrimination safeguards in employment in the name of cutting red tape, and UKIP want to scrap race discrimination laws themselves the evidence in the Police service – the racism of which prompted these safeguards in the first place – strongly suggests that while there may have been improvements the work is a long, long way from completion. In parts at least, racism lives on in the UK’s police forces; the UK needs more safeguards and meaningful protections, not less.

No action on Caste Discrimination

A couple of weeks ago I posted a comment on Race and Caste Discrimination in reference to the Employment Appeal Tribunal decision in Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912.

A couple of days later the issue was raised in the House of Lords (with thanks to Law and Religion for highlighting this:

Lord Avebury: To ask Her Majesty’s Government what is the timetable for implementing the legislation to incorporate caste as a protected characteristic under the Equality Act 2010.

Baroness Garden of Frognal (LD): My Lords, we have no immediate plans to incorporate caste into legislation. We are aware of the recent Tirkey v Chandok Employment Appeal Tribunal judgment and are considering its implications for discrimination law. The judgment opens the possibility of a legal remedy for claims of caste-associated discrimination under existing legislation, in the ethnic origins element of Section 9 of the Equality Act 2010. We note this potential protection and have always stated that we completely oppose caste discrimination.

Lord Avebury (LD): My Lords, can my noble friend give an undertaking on behalf of the Government that, if they are re-elected in May, they will pursue this matter to completion, as recommended by the UN Committee on the Elimination of Racial Discrimination? As regards the tribunal case of Tirkey that she mentioned, have the Government considered the opinion of the EHRC that it is not binding on all future cases of caste discrimination and that an express provision in the Equality Act, which has already been decided by Parliament, is necessary for reasons of legal clarity?

Baroness Garden of Frognal: My Lords, I cannot make promises on behalf of a future Government not yet elected, but post-election, of course, the incoming Administration will need to consider how to discharge their legal obligations in respect of the outstanding duty to legislate. On my noble friend’s second question, we of course take note of what the EHRC says, but I should make it clear to the House that this view was expressed by the commission in its submission on the Tirkey case and not part of the judicial decision.

Baroness Thornton (Lab): My Lords, it is almost two years since this House voted by a very large majority that caste should be considered for inclusion in the Equality Act 2010. As the noble Lord, Lord Avebury, has said, the recent employment tribunal judgment reinforces the point that caste discrimination is an issue coming before the courts and that clarity of the law is required. This issue cannot be ignored or sidelined, so what exactly is the Government’s timetable for taking this forward after this terrible delay?

Baroness Garden of Frognal: My Lords, we are conscious of the delay in this matter. During the passage of the Enterprise and Regulatory Reform Act 2013, when the need for explicit caste legislation was debated extensively, it was generally acknowledged that a full public consultation should be undertaken, not least because there was no general consensus on even basic concepts, such as a workable definition of caste itself. Because of a number of delays, there is no longer sufficient time before the election to put it through.

Lord Deben (Con): My Lords, my noble friend will remember that in those debates this House specifically refused to support the Government’s position and refused to accept the delay. We voted for a change in the law. We are now two years later and that change has not been implemented. The Government owe it to this House to say that they will implement it, and that any future Government made up of the two parties of this Government will also implement it.

Baroness Garden of Frognal: My Lords, I recognise the frustration around the Chamber over this matter. However, the debates during the final stages of the then Enterprise and Regulatory Reform Bill made clear that caste is a controversial and difficult issue, and that the Government would need to proceed carefully, involving public consultation. I believe that the Tirkey v Chandok case, which was unknown at the time those debates took place but which has potentially significant implications for the law in respect of caste and race discrimination, clearly illustrates the need for caution.

Lord Harries of Pentregarth (CB): Does the Minister agree that it would be quite inadequate to leave issues of racial and gender equality to employment tribunals? What is different about caste discrimination, when the judge in the Tirkey v Chandok case said that his judgment applied only to the facts of that particular case, and did not make any ruling about caste in general?

Baroness Garden of Frognal: Indeed, my Lords, but the Employment Appeal Tribunal is an authoritative court and, for the time being at least, its judgment in that case is the law of the land. The EHRC intervened in the appeal and I imagine would wish to consider another intervention, if it thought that was necessary.

Lord Cashman (Lab): My Lords, all discrimination is difficult to deal with, but such procrastination is entirely unacceptable when more than 200 million people experience caste discrimination every single day. Therefore, will the Minister please report back the strength of feeling in this House that the procrastination is entirely unacceptable?

Baroness Garden of Frognal: I will, indeed, report back the frustration of this House but I come back to one of the difficulties, which is that there is no agreed definition of caste. Many cases which are in the pipeline could be brought under the ethnic origins discrimination legislation.

To translate that into plain language: we’ve said we would do something, had a lot of time to to something, but decided not to do anything after all.

Race and Caste Discrimination

DalitImagine you work in a company with two employees, both Indian, and an employer who is also Indian. You come from the Dalit caste in the caste system, meanwhile your employer and a fellow employee performing the same role as both share a higher caste. You notice that despite having exactly the same job as your co-worker your manager  is imposing all the degrading tasks to you, you believe that is because of your lower caste.

Back in 2010 when the Equality Act 2010 was enacted a provision was passed that made clear that caste was to be part of the protected characteristic of Race:

5)A Minister of the Crown

(a) Must amend this section so as to provide for caste to be an aspect of race;

(b)may amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to caste in specified circumstances.

However, the Conservative led government failed to do this, a decision that was, rightly, a point of criticism alleging “appalling delays” in applying the provision. The result is that for this Indian Dalit who believes they have been the subject of caste discrimination is uncertain she has a legal redress against her employer on race discrimination grounds.

Thankfully, in despite the appalling prevarication of this government there is now some clarity for the many South Asian employees from lower castes, who reports suggest are subject to discrimination but are likely to be afraid of speaking out. A similar situation to that set out above was faced by the claimant in Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912.

In Chandhok the claimant believed the regressive terms and conditions of employment employed were a direct result of her lower caste and made a claim that her employer had directly discriminated her on the grounds of her race. The Respondent sought to strike out the claim on the basis that caste was not constitutive of the protected characteristic of race and that, therefore, the claimant had no legal claim. The first tier tribunal found that the claimant’s caste, although not expressly covered by the characteristics set out in section 9(1) of the Equality Act 2010 could be protected. The employer appealed.

Although the EAT did not find that caste discrimination is always covered by the Race provision of the Equality Act it did find that it may be, on a case by case basis, come within section 9(1)(c) of the 2010 Act, namely “ethnic origins”. The relevant comments are in paragraphs 51 and 52 of the judgement:

51.          It follows that with the omission of the bold assertion from paragraph 54 that “caste discrimination” is prohibited by the Equality Act – as to which the answer must be there is as yet no formal definition of “caste” for those purposes – there may be factual circumstances in which the application of the label “caste” is appropriate, many of which are capable – depending on their facts – of falling within the scope of section 9(1),  particularly coming within “ethnic origins”, as portraying a group with characteristics determined in part by descent, and of a sufficient quality to be described as “ethnic”.  As the Judge put it, caste “is an integral part of the picture” in the present case.

52.          I am particularly happy to have reached this conclusion upon the effect of the wording in the current domestic statute, given its interpretation as expressed in Mandla and in JFS, albeit by reference to the earlier statute.  I do not accept that the effect of section 9(5) of the Equality Act is to limit the scope to which the statutory definition of race extends.  The decisions in those two leading cases remain fully applicable.  Such an interpretation is consistent with the UK’s international obligations, including that derived from ICERD.  On this basis, section 9(5) contains a power to supplement or clarify section 9(1), not to restrict it.  The ERRA leaves open the possibility that there may yet be no formal introduction of “caste” as a separate, and separately defined, species of the genus which is “race”.  The interpretation which I favour is compatible with EU Law.  These are additional reasons for thinking the conclusion to which I had come to be correct.

The working conditions in which members of a lower caste work will often be precarious and low paid. Without a right to seek legal remedy on discrimination grounds such employees are really in a precarious place – and a claim of constructive dismissal would not be open to many of them. In that sense the EAT’s judgement in Chandhok is certainly welcome in that there is now at least some certainty that there is a discrimination claim open to them, if the facts (and ethnic descent) warrant it.

But it is still too vulnerable a position. While the Enterprise and Regulatory Reform Act 2013 made clear that the Government understood that caste was necessarily included in the protected characteristic of race it has failed to make changes to the law to give effect to that view, preferring instead to kick the issue into the long grass of post-general election legislative intent. And the response of the Labour, Conservative and Liberal Democrats to this continuing imprecision is, as the responses to the Dalit Solidarity Network correspondence show, still not good enough.