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University of Chester Forum for Research into Equality and Diversity

Explore key legal updates in equality & diversity, such as associative discrimination, indirect discrimination, and parental rights. Stay informed on recent cases and changes under the Equality Act 2010.

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University of Chester Forum for Research into Equality and Diversity

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  1. University of ChesterForum for Research into Equality and Diversity Legal Update April 2016 The domestic scene Muriel Robison

  2. Outline • Associative discrimination • Indirect discrimination • Focus on disability • Focus on age • Focus on race • Compensation • Parental rights • Equality Act – in and out

  3. Associative discrimination: background • Equality Act 2010 section 13 • Direct discrimination • Less favourable treatment because of a protected characteristic • Compare “old” law • Less favourable treatment on the ground of her sex, on the ground of the disabled person’s disability

  4. Associative discrimination: recent cases • Companies can claim discrimination by association • EAD Solicitors v Abrams 2015 IRLR 978 EAT • Associative victimisation? • Thomson v London Bus Company 2016 IRLR 9 EAT • But not for reasonable adjustments • Hainsworth v MOD 2014 IRLR 728 • See SC note on permission to appeal

  5. Indirect discrimination – s19 • (a) a PCP that applies to all; but • (b) “puts, or would put, persons with whom [the claimant] shares the characteristic at a particular disadvantage when compared with persons with whom [he] does not share it”; • (c) “puts, or would put, [the claimant] at that disadvantage”; and • (d) the employer “cannot show it to be a proportionate means of achieving a legitimate aim” • Compare the “old” law, eg PCP to the detriment of a considerably larger proportion of women than men • focus was on statistics but no longer essential

  6. Indirect – recent cases • Claimants require to show why their group suffers the particular disadvantage? • Home Office v Essop 2015 IRLR 724 CA • Respondents defence if show reason why? • Naeem v S of S for Justice 2016 IRLR 118 CA • Permission to appeal to Supreme Court • cases to be heard together

  7. Discrimination arising from disability: issues • Unfavourabletreatment • because of something arising in consequence of disability • Unless employer did not know or could not reasonably be expected to know the claimant was disabled; • Or where the employer shows there was a legitimate aim for the treatment • And the means were proportionate to the achievement of that aimsection 15

  8. DAFD – recent cases • Treatment is not unfavourable simply because it could be more favourable • Swansea University v Williams 2016 IRLR 885 EAT • Guidance on approach to s15 cases • Pnaiser v NHS England 2016 IRLR 170 EAT • How close does the connection between the unfavourable treatment and the something arising from disability?

  9. Duty to make reasonable adjustments • A policy, rule or practice (PCP) or physical feature or failure to provide an auxiliary aid • Puts a disabled person at a substantial disadvantage (more than minor or trivial) • In comparison to those who are not disabled • Where employer knows employee is disabled and will be disadvantaged • Employer to take reasonable steps which will avoid the disadvantage section 20 and 21

  10. Comparative disadvantage • No requirement to identify a comparator/comparator group • rather to establish whether it is because of disability that a particular PCP disadvantages the claimant • EHRC CoP: consider situation if claimant did not have the disability • See now Griffiths v DWP 2016 IRLR 216 CA • Interplay with DAFD?

  11. Age discrimination – cases with wider implications • Direct or indirect? • Chief Constable of West Midlands Police v Harrod 2015 IRLR 790 EAT • Comparisons – no material difference in circumstances • Donkor v RBS 2016 IRLR 268 EAT • Liability for discrimination • CLFIS v Reynolds 2015 IRLR 562 CA

  12. Race discrimination • Establishing “detriment” • Cordant Security Ltd v Singh 2016 IRLR 4 EAT • Is caste discrimination already covered? • Tirkey v Chandock 2015 IRLR 195 EAT • Discrimination against migrant workers is not direct nationality discrimination • Onu v Akwiwu 2014 IRLR 448 CA

  13. Compensation • Compensation for injury to feelings taxable on termination • Moorthy v Commissioners for HMRC 2016 IRLR 258 UKUT (Tax & Chancery Chamber) • Uplift of 10% on injury to feelings awards? • Beckford v London Borough of Southwark 2016 IRLR 178 EAT • De Souza and Sash Window to CA

  14. Parental rights • Suspending childcare vouchers on maternity leave not discriminatory • Peninsula Business Services Ltd v Donaldson UKEAT/0249/15 • Extending shared parental leave to grandparents • Consultation to include review of complexity of ShPL provisions

  15. Equality Act: in and out • Out: s.40(2)-(4): Third party harassment from October 2013 • See Government consultation May 2012 • Out: s.138 Questionnaires from April 2014 • See ACAS guidance • Out: s.124(3): power for Tribunals to make wider recommendations from October 2015

  16. Equality Act: in and out • In: s.139A: Equal Pay Audits from October 2014 • See Equality Act 2010 (Equal Pay Audits) Regulations 2014 SI/2014/2559 • In: s.78: Draft Gender Pay Reporting Regulations consultation • See Draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 • Due to come into force from October 2016

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