NASUWT Equality Officers’ Training and Development Day – 9 July 2019

1. NASUWT Equality Officers’ Training and Development Day – 9 July 2019 Legal briefing and casework update

2. The Equality Act 2010 legally protects individuals from unfair treatment and discrimination in the workplace. The Equality Act covers all employers, and all employees and agency workers, regardless of the size of the business. It also covers job applicants and former staff. The characteristics that are protected by the Equality Act 2010 are: • age • disability • gender reassignment • marriage or civil partnership • pregnancy and maternity • race • religion or belief • sex • sexual orientation It is unlawful to be discriminated against because of those characteristics. If you believe someone in your Local Association or school is being discriminated against on any of the above characteristics, refer the matter to your NASUWT Regional Centre as soon as possible. We only have three months (less one day( from the date of the incident to lodge a claim.

3. Age Discrimination Under the Equality Act 2010, it is unlawful for an employer to: • Discriminate directly by treating a job applicant or employee less favourably than others because of age without objective justification. • Discriminate indirectly by applying a provision, criterion or practice (PCP) that disadvantages job applicants or employees of a particular age group without objective justification. Direct age discrimination occurs where, because of age, A treats B less favourably than A treats or would treat others (section 13(1), EqA 2010). For example, in carrying out job performance reviews with employees, manager Aleksander discusses career ambitions and opportunities for training with most staff. But he doesn’t discuss them with staff over 55, as he thinks this a waste of time. His reasoning is that the over 55s are past their best and merely want to coast towards retirement. Aleksander’s age-biased actions are likely to be discriminatory. Can you think of a PCP in the school setting that puts a particular age group at a disadvantage?

4. Caselaw ruling:Heskett v Secretary of State for Justice The Employment Appeals Tribunal found that ‘the absence of financial means’ is capable of justifying indirect age discrimination. The Respondent (Secretary of State for Justice) operated a policy limiting pay increases across the public sector. This was because of budgetary constraints imposed by central government. While the policy was prima facie indirectly discriminatory against younger workers, it was held to be objectively justified on the facts. The aim of seeking to break even year-on-year by making decisions about the allocation of resources is capable of justifying indirect age discrimination. • Worth considering this ruling in the teaching sector – in terms of litigation it’s a ruling that will make pursuing any similar pay policy claims in law difficult. However, the parallels between the above case and what is going on in school sector is clear. We should do all we can to question, inform and challenge employers on their policies (whilst acknowledging that legal recourse will be difficult).

5. Disability Discrimination The Equality Act provides the following definition of a disability: "A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". (Section 6(1), EqA 2010.) An impairment will have a long-term effect only if: • It has lasted at least 12 months; • The period for which it lasts is likely to be 12 months; or • It is likely to last for the rest of the life of the person affected. • (Paragraph 2(1), Schedule 1, EqA 2010.) The activities affected by the impairment must be "normal". EqA2010 Guidance states: • "In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities." (Paragraph D3) Direct disability discrimination occurs where, because of disability, a person (A) treats another (B) less favourably than A treats or would treat others (section 13(1), EqA 2010). Discrimination arising from disability (section 15, EqA 2010) occurs where both: • A treats B unfavourably because of something arising in consequence of B's disability. • A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

6. Disability Discrimination: ‘Normal Day to Day Activities’ Was it unlawful disability discrimination to refuse employment because of a perception of a risk of future inability to work in a particular role? Yes, held the Court of Appeal in Chief Constable of Norfolk v Coffey. Lisa Coffey was a police officer with the Wiltshire Constabulary. She suffered from a degree of hearing loss that never caused her any problems in doing her job and did not constitute a disability within the meaning of the Equality Act 2010. She was able to carry out ‘normal day-to-day activities’. In 2013 she applied for a transfer to Norfolk but it was refused because during a medical test her hearing fell “just outside the standards for recruitment, strictly speaking”. However, guidance made clear that this ‘standard’ was not binding. Her hearing level was the same when she joined Wiltshire Constabulary and she successfully worked for them with no issues. She brought a disability discrimination claim, asserting that she had been discriminated against because of a perceived disability. Perception discrimination is where A acts because he or she thinks B has a particular protected characteristic even if they in fact do not.

7. The EAT said that the phrase ‘normal day-to-day activities’ should be given “an interpretation which encompasses the activities which are relevant to participation in professional life”. Norfolk’s belief that Lisa Coffey hearing loss would currently or in the future render her unable to perform the duties of a front line police officer was a perception that it would have an effect on her ability to carry out normal day to day activities. They perceived her to be disabled and refused her employment on those grounds. The Court of Appeal held that if a Claimant is perceived to have a progressive condition he or she is to be treated as disabled within the meaning of the Equality Act. Possible examples of similar behaviour in teaching sector? • Removal of TLRs from teachers with mental impairments based on the belief that they will not be able to cope with the demands of the role. • Unsuccessful job interviews.

8. Recent cases within the NASUWT’s Legal & Casework Team In May 2019, the NASUWT Legal & Casework Team successfully pursued a claim for direct race discrimination on behalf of one of our members. The case is currently listed for a remedy hearing. Our member was an NQT within the school, the only British Asian NQT in a cohort of five – the others were white British. The pupils at the school were 90% BME; the teachers at the school were 20% BME. The NASUWT had previously held industrial action at the school under a trade dispute of adverse management practices and discrimination, with evidence that BME teaching staff had been disproportionately affected by issues surrounding management. To succeed in a claim for direct discrimination, the claimant must prove that he was subjected to certain treatment, that he was treated less favourably than a comparator was or would have been treated in the same circumstances. In the absence that of any explanation from the Respondent, he must show that the less favourable treatment was because of his race. The Tribunal itself noted in the Judgment that it is very unusual to find direct evidence of discrimination.

9. Our member was being held to a higher standard by management at the school and was expected to reach higher attainments than the rest of his cohort. DfE statutory guidance provides that NQTs must demonstrate ‘that their performance is satisfactory by the end of [that] period’. The member’s school used formal NQT lesson observations with particular grading bands ie. 1 to 4 meant that an ‘action plan’ was required; 5 to 8 indicated that development is occurring and progress is taking place across various levels of teaching; a score of 9 or 10 meant that the NQT was a well developed and consistent teacher. The school expected the member to be scoring 8. He was regularly scoring between 5 to 8, though on the lower end of that band. This grade would still be deemed to be ‘satisfactory’ in line with statutory guidance. The member eventually went off work with stress in January 2018 and didn’t return after the employer intimated he was at risk of failing his NQT year. The school could not offer a non discriminatory reason for the treatment that member had been subject to. The Tribunal found their evidence to be contradictory and confused with a poor disclosure of documents. The Tribunal found that the school unconsciously held its BME permanent teaching staff to a higher standard and therefore their actions were tainted with unconscious discrimination.

10. NASUWT claim: maternity and pregnancy discrimination (North East) One of our members had a difficult pregnancy and a number of pregnancy related absences during it. Upon return from maternity leave, she applied for a new job at a different school. The interview went well and she was offered the job. The job offer was withdrawn upon receipt of a reference from her original school which, it turns out, included all of her pregnancy related absences. A Subject Access Request [SAR] was submitted to the employer that had revoked the job offer. The SAR provided definitive explicit evidence [email correspondence] that the reason the job offer was revoked was due to our member having too much time off when pregnant. They mentioned a lack of ‘resilience’. ACAS guidance is wishy washy on the topic of inclusion of pregnancy related absences within a reference. Legal proceedings were brought against the current employer for disclosing the pregnancy related absences and the potential employer for revoking the job on discriminatory grounds. The potential employer looked to reach an out of court settlement fairly rapidly. The old employer put forward the argument that the pregnancy related absences they recorded were factual and therefore they had an obligation to disclose them. In reality, they were not factual as they had recorded her absences as 33 days off rather than the 3 that she had actually had. However, the claim was for discriminatory behaviour, not incompetence! Eventually settled with that employer out of court.