Equality Law Case Update Claudia Bennett Senior Solicitor

1. Equality Law Case Update Claudia Bennett Senior Solicitor

2. ET/ EAT Statistics • Discrimination cases in 2012 - compensation awards • Sex discrimination cases in 2012: highest number of discrimination awards - Porter v Phaze Electrical Ltd • Disability discrimination compensation awards: second highest number of awards - Wilebore v Cable & Wireless Worldwide Services Ltd

3. What we will cover • The Equality Act • Protected characteristics • Prohibited conduct • Recent case law in relation to equality law • The EHRC and its powers • Our legal strategy • Contact us

4. Protected Characteristics • Age (s 5) • Disability (s 6) slight change • Gender reassignment (s 7) slight change • Marriage and civil partnership (s 8) • Pregnancy and maternity (s18) • Race (s 9) • Religion and belief (s 10) • Sex (s 11) • Sexual orientation (s 12)

5. Age (s.5) • Where the Act refers to the protected characteristic of age it means a person belonging to a particular age group. • An age group includes persons of the same age and people of a particular range of ages • Only protected characteristic which allows direct discrimination to be justified.

6. Case Law • Seldon v Clarkson Wright & Jakes - justification defence • Homer v Chief Constable of West Yorkshire Police

7. Disability (s.6) • A person has a disability for the purposes of the Act if he or she: — - has a physical or mental impairment, and - the impairment has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities. • Mr Kevan Sweeney v Strathclyde Fire Board (decided 2012) • Walker v Sita Information Networking Computing Ltd • Wheeldon v Marstons plc

8. Race (s.9) • Race includes — colour; nationality; ethnic or national origins. • Also power to amend the definition to include caste (s.9 (5) (6) – caste now added to definition of race through amendment of ERRB (now Act). • Begraj and anor v Heer Manak Solicitors

9. Case Law • Royal Bank of Scotland plc v Morris [2012] EqLR 406 • Redfearn v UK (2012) 47335/06

10. Religion or belief (s.10) • Covers any religion falling within Art 9 ECHR; must have clear structure and belief system • Covers philosophical beliefs which meet particular criteria • Includes a lack of belief/religion • A ‘philosophical belief’ must not be incompatible with human dignity or conflict with fundamental rights of others [see EN 52]

11. Eweida and others v the UK • Four cases complaining UK law failed to adequately protect their Art. 9 right - 2 cases re wearing of cross taken together - 2 cases complaining about sanctions imposed as a result of religions belief taken together • ECHR Judgment January 2013 • Commission intervened under our s. 30 powers, with 13 others!

12. Impact of decision • Confirms that a lack of state regulation of wearing of religious symbols does not indicate lack of adequate protection of Convention rights • Lowers the test for interference with manifestation of religious belief, bringing it into line with other Convention rights = makes successful discrimination claim easier to bring • Confirms importance given to positive obligations on public authorities to promote equality of opportunity and provide services in non-discriminatory way

13. Pregnancy and maternity (s.17 & 18) • Protects a woman from discrimination during a protected period because of: • The pregnancy • Pregnancy-related illness • Taking or seeking to take maternity leave • New: includes protection from discrimination in education • Ms Kate Cox v Money Station Resources LLP [2012]

14. Prohibited conduct • Direct discrimination (s 13) • Indirect discrimination (s 19) • Harassment (s 26) • Victimisation (s 27) • Disability only: • Discrimination arising from disability (s 15) • Duty to make reasonable adjustments (ss 20 & 21)

15. Direct discrimination A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others • Preddy & Hall v Mr and Mrs Bull/ Black v Wilkinson • Discrimination by association or perception included • Direct discrimination can never be justified however age discrimination remains justifiable

16. Association and perception Discrimination by association • Less favourable treatment because associated with someone with a PC • Does not need to be permanent • Kulikauskas v Macduff Shellfish UKEATS/0062/09/BI Discrimination by perception • Less favourable treatment because perceived to have a PC

17. Indirect discrimination • A applies a provision, criterion or practice (PCP) to B • A applies, or would apply, the PCP to persons with whom B does not share the relevant protected characteristic • the PCP 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 the characteristic • the PCP puts, or would put, B at that disadvantage and • the PCP is not a proportionate means of achieving a legitimate aim. • Cooper v House of Fraser (Stores) Ltd [2012] EqLR 991

18. Harassment • a person (A) harasses another (B) if A engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. • Case example: Cambers v Purcell Solicitors • 3rd party harassment – repealed

19. Victimisation • ‘A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’ • Removes the need for the tribunal to construct an appropriate comparator. • Bouabdillah v Commerzbank AG ET/2203106/12 • Woodhouse v West North West Homes Leeds Ltd. • Rowstock Ltd and anor v Jessemay

20. Reasonable adjustments • Where a disabled person is placed at a substantial disadvantage to non-disabled people, there is a duty to make changes to: • Provisions, criteria or practices • Physical features • And a duty to provide auxiliary aids and services (such as a hearing loop or a special computer service) • Roberts v North west Ambulance Service [2012] • Wade v Sheffield Hallam University [2013]

21. Discrimination arising from disability • A person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability • Burt v New Forest District Council [2012] • McGraw v London Ambulance Service NHS Trust [2012]

22. EHRC strategic priorities for using litigation powers where the case would • have a significant positive impact in terms of the application of the law or the policies and practices of an organisation, institution or sector • have a positive public impact, securing greater understanding of rights and obligations under the equality enactments and/or human rights law • address significant disadvantage in respect of one or more of the protected grounds and/or major abuse or denial of human rights • challenge a policy or practice known to cause significant disadvantage

23. EHRC strategic priorities for using litigation powers..... • is a cost effective method of achieving a desired outcome, taking into account the prospects of success • clarifies an important point of law under the Equality Act 2010 or Human Rights Act • will extend or strengthen protections and rights under the Equality Act 2010 and, where it also applies, human rights law; • will contribute substantially to other areas of the Commission’s work

24. Further information EHRC website information on Equality Act http://www.equalityhumanrights.com/legal-and-policy/equality-act/ Law Society of Scotland http://www.lawscot.org.uk/about-us/equality--diversity

25. The Commission’s legal team in Scotland • Strategic human rights and equality litigation www.equalityhumanrights.com/legal-and-policy/strategic-human-rights-and-equality-litigation/ • Legal Team Bulletin: www.equalityhumanrights.com/scotland/legal-news-in-scotland/equality-law-bulletin/ • Requests for assistance: • legalrequestscotland@equalityhumanrights.com Tel: Claudia Bennett 0141 228 5965 Email: Claudia.Bennett@equalityhumanrights.com