Stewards’ conference – discrimination law update (2007)

1. Stewards’ conference – discrimination law update (2007) Chris Cox Assistant Director of Legal Services Royal College of Nursing

2. Tribunal statistics • 15% rise in number of claims brought to the employment tribunal in year to March 2007 • Sharp increase in discrimination claims, including a 155% rise in equal pay claims and doubling of sex discrimination claims • 1000 cases of age discrimination between October 2006 and March 2007 • Unfair dismissal the most common type of claim • Average awards: £15,059 (disability), £14,049 (race), £10,052 (sex) and £8,000 (unfair dismissal)

3. Some developments • New Commission for Equality and Human Rights replacing EOC, CRE, DRC • Union did not discriminate in GMB v Allen (2007) • Challenge to retirement age discrimination following European Court of Justice judgment in Palacios de la Villa (2007) • Repeal of statutory dispute resolution procedures likely in next 2 years • Enforcement of statutory equality duties (CRE formal investigation of DoH; DRC naming and shaming 65 public authorities including health trusts; EOC’s Gender Equality duty: code of practice for England and Wales)

4. Key discrimination cases in 2007 (1) • Reaney v Hereford Diocesan Board of Finance – Cardiff ET ruled that Bishop of Hereford unlawfully discriminated on grounds of sexual orientation by refusing to employ a gay man as a diocesan youth worker, even though he had committed himself to being celibate if he obtained the job. GOQ not available to Bishop • Faulkner v Chief Constable of Hampshire Constabulary – policy of preventing police officers in a partnership from working together in a supervisor/subordinate role had an adverse impact on women, but force met test of justification on basis of need to ensure actual and apparent correctness in working relationships

5. Key discrimination cases in 2007 (2) • B v A – male employer in relationship with female member of staff dismissed her when he saw her with another man. Not sex discrimination according to EAT. Dismissal occurred because of relationship breakdown, not because claimant was a woman. Case decided before freestanding definition of unlawful harassment came into force • Royal Mail Group plc v Jan – ill-health retirement of employee following heart attack. Appeal against termination upheld but not offered previous post because filled by permanent replacement. Held reinstatement not a reasonable adjustment

6. Key discrimination cases in 2007 (3) • Queenscourt Ltd v Nyateka – employee not disqualified from bringing a claim that she was subjected to a racially offensive remark from her manager merely because she engages in racial banter with other employees • Kettle Produce Ltd v Ward – A woman complained that she was discriminated against on the grounds of sex because a male manager entered the female toilets and shouted at her because he believed that she was skiving. The correct comparator was a female manager, with the same ‘robust’ style, and whether she would treat a male employee believed to be skiving in the male toilets in the same way

7. Key discrimination cases in 2007 (4) • Cosgrove v Northern Ireland Ambulance Service – claimant turned down for an ambulance post on the grounds that he had severe psoriasis, amounting to a severe disfigurement under the DDA 85. Held not discrimination because reason for not employing was perceived risk of infection • Azmi v Kirklees Metropolitan Borough Council and R (on the application of X) v Headteachers of Y School and Governors of Y School – teacher’s suspension for refusing an instruction not to wear a veil covering her face when in class with pupils was neither direct nor indirect discrimination on grounds of religion or belief; & school’s refusal to allow a pupil to wear the niqab at school did not infringe her rights under article 9 European Convention on Human Rights