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: 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: 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.

Pre-Cancer

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.

 

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.

Indirect Discrimination and Fixed Term Workers

whitehallA few weeks ago I made reference to the preamble of European Council Directive 1999/70/EC on fixed term appointments which states that the “parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers.”

Likewise, the Civil Service Management Code, set out at para 1.2.3 that “Fixed-term appointments are temporary appointments to meet short term needs. Such appointments may be made only where there is a genuine need to employ people for a short period, and must be compliant with the Recruitment Principles.”

However, as is often the nature of things despite such words the reality is less clear-cut. Whereas fixed term appointments were once reserved for specialist roles there has been a definite increase in such appointments at more junior levels of the civil service and for jobs that are indistinguishable from their permanent peers. The UCU in Lancaster University v UCU [2010] UKEAT/0278/10/2710 won an important judgement that required collective consultation when an employers planned not to renew a large number of contracts. However, just when the climate looked a little more rosy for those in more vulnerable employment the government promptly amended the Trade Union and Labour Relations Act 1992 to make clear that the non-renewal of a fixed term appointment no longer counts as a dismissal for the purposes of statutory redundancy consultation thereby pulling back the extra protection the judgement had afforded FTA employees.  And so, the position is now that a fixed term appointee who is dismissed for redundancy reasons when the reason they are dismissed is that they are a fixed term appointee will now find it very hard to argue they have been treated less favourably as a fixed term appointee.

And so now, as we are faced with government desperate to find further staffing ‘efficiencies’ it is not a surprise to find that it is its fixed term appointees who are being targeted for dismissal. Which raises the prospect that such a course of action may itself amount to indirect discrimination if employees identifying with certain protected characteristics are disproportionately affected. It appears there is precedent for this argument.

In Whiffen v Milham Ford Girls’ School & Anor [2001] EWCA Civ 385 a teacher had been on a series of fixed term appointments for five and a half years. The school had to make job cuts and had a policy of letting its fixed term appointees go before considering the redundancy of permanent staff; women were much more likely to be fixed term appointees. In this case which was brought under the then extant Sex Discrimination Act, the Court of Appeal had to consider whether the treatment, which they accepted put female employees at a disadvantage, could be objectively justified. The Court found that the treatment was not objectively justified and that the employer had indirectly discriminated against the claimant on the basis of sex.

I do not see any reason, in principle, why the same situation could not apply here when Civil Service begin their purge of fixed term appointments and reps would be wise to interrogate equality data on who has been affected by planned job losses. It seems to be not only are there sex discrimination possibilities but also potential age discrimination concerns (in my experience many FTA employees are aged 30 or under).

Changes of Contract and the Equality Act

ContractClaims under sections 19 and 20 of the Equality Act 2010 require that a provision, criterion or practice place (or in s.19 would place if applied) an individual with a protected characteristic at a substantial (in the case of section 20) or a particular (in the case of section 19) disadvantage.

In Edie & 15 Ors v HCL Insurance BPO Services Ltd  [2015] UKEAT 0152_14_0502 the Employment Tribunal asked the question as to whether the imposition of new – and detrimental – contractual terms could amount to a PCP with reference to section 19(1) of the 2010 Act. I don’t see why this would not equally apply to the PCP in section 20(3) of the Act.

In many ways this is a commonsense decision but the clear authority that a change of contract situation does not just raise prospects of a common law/constructive dismissal remedy but also (especially) protection on indirect discrimination grounds is a welcome one. This is because it gives a more tangible protection to workers than the theoretical option of constructive dismissal arguments (if you’re on the breadline walking away from an income even if a breach is grievous and fundamental it is not often a realistic option and this gives employers a license impose inequitable changes).

Certainly in my experience members in the PCS Union  are seeing a raft of changes in the workplace, changes that in my view are likely to amount to contractual variations. Many of these do place particular groups (expecially on age and disability grounds) at a disadvantage. So, for example, changes to a contractual grievance procedure that applies to all employees and make it harder to have grievances heard may still place disabled employees at a disadvantage if disabled staff are five times more likely to submit a grievance than non-disabled staff.

This doesn’t change much but at least it makes it a bit easier to force employers to objectively justify their discriminatory conduct since it is less easy to evade the issue by denying contract changes are a PCP.

A PDF of the judgement.