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Changes in discrimination law and implications for practice

Changes in discrimination law and implications for practice. Catherine Casserley cc@cloisters.com. This session. Changes introduced by the Enterprise and Regulatory Reform Act 2013 (ERRA) How they can be ameliorated using existing caselaw and European Directive Other changes proposed

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Changes in discrimination law and implications for practice

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  1. Changes in discrimination law and implications for practice Catherine Casserley cc@cloisters.com

  2. This session • Changes introduced by the Enterprise and Regulatory Reform Act 2013 (ERRA) • How they can be ameliorated using existing caselaw and European Directive • Other changes proposed • Future?

  3. ERRA • Changes to the Equality Act 2006 • Amendments to the duties of the Equality and Human Rights Commission in relation to: • - measurement of progress towards equality and human rights and equality and diversity • - giving of information and advice and grants so that their scope no longer applies in relation to good relations • - no longer possible to make arrangements for the provision of conciliation services

  4. ERRA • Changes to the Equality Act 2010 • Third party harassment repealed – s.40(2) – (4) (s.65 ERRA) • However, see Sheffield City Council v Norouzi [2011] IRLR 897 – EAT held that employer liable for racial harassment of claimant social worker by a resident in a care home where employee worked • No longer a “three strikes” rule?

  5. ERRA • Questionnaires – section 66 of the ERRA will repeal section 138 Equality Act 2010 which makes provision for questionnaires • serve requests for information, and ask for adverse inferences from a failure to respond or inadequate or untruthful responses – failures still of evidential value • Use Meister v Speech Design Carier Systems BmBH(Case C-415/10) [2012] EqLR 602 • Use also FOI requests as well as DSAR

  6. ERRA • Changes to the Equality Act 2010 • Caste: ERRA modifies the provision addressing caste • An amendment can be made to “race” so as to make “caste” an aspect of “race”

  7. ERRA • Section 98 of the ERRA has amended the Equality Act 2010 (new s.139A) to give employment tribunals the power to order than an employer undertake an equal pay audit in certain circumstances. Gives effect to govt policy to allow employment tribunals to direct that equal pay audits be undertaken after a finding of a violation of an equality clause, rule or of sex discrimination

  8. Deregulation Bill • Govt prposing to repeal tribunal’s power to make broad recommendations, though there is much opposition….

  9. Public Sector Equality Duty • Govt has undertaken a review of Public Sector Equality Duty • Govt consulting on judicial review and public sector equality duty • Likely to be changes to both, though not clear what…..

  10. Other selected developments • Disability: • Definition – see Sobhi v Commissioner of Police of the Metropolis [2013] EqLR 785 • Mansfield v Fundraising Innovations Ltd [2013] EqLR 1137

  11. Post-relationship victimisation • Onu v Akwiwu[2013] IRLR 523 • Rowstock Ltd v Jessemy

  12. Balancing Rights • Bull and Bull v Preddy and Hall [2013] UKSC 73 • Eweida and Ors v UK (2013) 48420/10

  13. And finally…. • Questions?? • Discussion…..

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