Equality and Diversity Peter Byrne Partner Taylors Solicitors

2. Equality and Diversity Peter Byrne Partner Taylors Solicitors

3. Equality and Diversity Today’s Agenda • Legal issues • Wider objectives • Exploring stereotypes • Identify the benefit of people’s differences

4. Equality and Diversity • Current “in” expression for Equal Opportunities • Represents the legal obligation to protect against discrimination. • Equality Act 2010 • How would you define “Equality and Diversity”?

5. Equality and Diversity • Equality – “Equal rights and treatment of all individuals” • Diversity – “difference from what is considered normal or expected”

6. Equality and Diversity • The journey to today • Equal Pay Act 1970 • Rehabilitation of Offenders 1974 • Sex Discrimination Act 1975 • Race Relations act 1976 • Gender Reassignment 1999 • Disability 1995

7. Equality and Diversity • Religion or Belief 2003 • Sexual Orientation 2003 • Age 2006

8. Equality and Diversity • Part Time Workers 2000 • Fixed Term Workers 2002 • Agency Workers 2010 • The Equality Act 2010

9. Equality and Diversity • Overview • Pay gap still exists • Disabled people more than twice as likely to be out of work • 13% more likely to be out of work if from a Black and Minority Ethnic Background

10. Equality and Diversity • Overview • One in five older people are unsuccessful in getting insurance quotes for car hire, motor insurance and travel insurance • Six out of ten lesbian and gay school children experience homophobic bullying

11. Equality and Diversity • Protected characteristics • Age • Disability • Gender Reassignment • Marriage and civil partnership • Maternity and pregnancy • Race, colour, ethnic background • Religion • Sex • Sexual orientation

12. Equality and Diversity • Prohibited conduct • Direct discrimination • Discrimination by association • Discrimination by Perception • Indirect discrimination • Harassment • Victimisation

13. Equality and Diversity • Direct discrimination • Less favourable treatment because of a protected characteristic • Justifiable only if there is a genuine occupational requirement

14. Equality and Diversity • Discrimination by Association • When a person is treated badly because of their association with somebody who has a protected characteristic

15. Equality and Diversity • Discrimination by perception • Less favourable treatment because somebody is perceived to possess a protected characteristic, even if incorrect

16. Equality and Diversity • Indirect discrimination • A provision, criterion or practice applied equally which puts or would put a person at a disadvantage owing to a protected characteristic • Indirect discrimination may be lawful if objectively justified

17. Equality and Diversity • Indirect discrimination examples • Promotion based on seniority • Full time requirement to do work • Part timers out first in redundancy • Height requirements • Dress appearance requirements

18. Equality and Diversity • Harassment • Unwanted conduct because of a protected characteristic • Intended to violate a person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment • Or reasonably considered to do so in all the circumstances including, in particular, the person’s perception

19. Equality and Diversity • Victimisation • When somebody is treated less favourably because they have made, or intend to make a complaint or allegation based upon a protected characteristic • Intent to give evidence in relation to a complaint of discrimination on one of the protected characteristics.

20. Equality and Diversity • Wider objectives • Why do we do this? • What tools do we need? • Promotion of EO • Equal pay policy • Harassment and bullying policy • Workforce monitoring • Grievance and Disciplinary

21. Equality and Diversity • Who are you? • Which daily paper do they read? • Do they have children, and if so, how many? • In which city/country do you think they were born? • Where do they go on holiday? • What do you think will be their favourite food?

22. Equality and Diversity • Assumptions • Can give rise to prejudice • Pre judging with no or little information • Inherent beliefs

23. Equality and Diversity • Stereotyping • Prejudice • Discrimination • Oppression • Internalised oppression • The power of reflective thinking.

24. Equality and Diversity • Questions to consider awareness • What is meant by the term BME? • What is the main workplace issue for people who are transgender? • How long must a medical condition affect your normal day to day activities before it is considered a disability? • Do you think people can significantly change their behaviours between home and work? • Who is liable for their actions if an employee harasses another member of staff? • What might be the effect of harassment on the workplace or individuals?

25. Equality and Diversity • An exercise in stereotypes. • Discuss the characteristics of one of the following:- • A model • A footballer • An Athlete • Doctor’s Receptionist • Construction Worker • Engineer • Beauty Therapist

26. Stereotypes – A model

27. Stereotypes – A model

28. Stereotypes – A model

29. Stereotypes – A footballer

30. Stereotypes – A footballer

31. Stereotypes – A footballer

32. Stereotypes – An Athlete

33. Stereotypes – A Doctors’ Receptionist

34. Stereotypes – A Construction Worker

35. Stereotypes – A Engineer

36. Stereotypes – A Beauty therapist

37. Overview • What assumptions do we make about people? • Why do we come to the conclusions that we do? • When do we tend to make those assumptions? • Where does this cause problems? • How do we stop ourselves doing this? • Who does this and who does it affect?

38. Overview • Diversity is about respecting individuals • Think outside the box • Acknowledge that differences can contribute to a richer, more creative and more productive working environment.

39. Employment Law Update

40. Gross Misconduct Adesokan v Sainsbury’s Supermarkets Limited • Claimant was regional manager • Became aware that a HR Manager had issued an email to attempt to interfere in an important management consultation exercise • Claimant did nothing despite this knowledge • Inaction was gross negligence and tantamount to gross misconduct and he was dismissed.

41. Gross Misconduct Adesokan v Sainsbury’s Supermarkets Limited • Claimant claimed breach of contract in High Court • Decided that action not deliberate • However, his negligence was so serious that it resulted in a loss of trust and confidence • Justified dismissal • Upheld by Court of Appeal • Mere failure to act not enough but seniority justified dismissal.

42. Vicarious Liability Bellman v Northampton Recruitment • Assault of a manager by a director • After a work Christmas party, they, along with others, went on to a hotel and continued drinking • Assault took place around 3am • Assault caused serious brain damage to the manager • Decided to sue the company rather than the director

43. Vicarious Liability Bellman v Northampton Recruitment • Was the director acting in the scope of his employment when he struck the blow? • Company could have been liable if the blow had been struck at the party itself • However, the assault took place during a private drinking session so the company were not liable • Emphasises that companies can be liable for improper behaviour at work events, especially if alcohol is provided.

44. Fairness Bandara v BBC • Claimant was senior producer with BBC • Disciplinary action taken and final written warning issued • Further investigation resulted in more disciplinary action • Claimant was dismissed • Conclusion does not mention final written warning, but mentioned earlier in the letter • Tribunal considered that Final written warning was too severe

45. Fairness Bandara v BBC • Decided whether he would have been dismissed if a hypothetical written warning had been issued • Should have focussed on what a reasonable employer would have done • Tribunal found final written warning inappropriate but dismissal fair • Remitted to consider the extent that final written warning played part in the decision to dismiss.

46. TUPE Salvation Army v Bahi and others • Claimant employed by charity to provide support for the homeless. • Held there was a service provision change • Although the way in which the service was delivered was different, a sensible and pragmatic approach had to be taken • Generalisation v pedantic • Fundamentally same service provided.

47. Disability Herry v Dudley MBC • Claimant alleged 2 disabilities dyslexia and stress • Made 90 allegations of race and disability discrimination • Repeatedly told had no prospects of success • Unhappiness with decisions is not stress • Presented little or no evidence that his stress had any impact on day to day activities • Conducting litigation and giving evidence are not normal day to day activities.

48. Disability Herry v Dudley MBC • Tribunal issued cost order • Failed to explain why they considered he had the ability to pay order in excess of £10,000 • If party applies for costs based upon future earning capacity, it ought to say if bankruptcy is contemplated

49. Disability Taylor v Ladbrokes Betting and Gaming Ltd • Class 2 diabetes can be a disability • Type 2 diabetes is a progressive condition • Could amount to a disability even if it did not have substantial adverse impact on day to day activities at that time • If more than likely in the future, then disabled.

50. Disability First Group PLC v Paulley • Wheelchair user boarded bus • Disabled space occupied by baby sleeping in pushchair • Mother asked to vacate the space but refused • Driver took no further action. • Driver needed to do more than simply make the request.