The holiday season is a good time to sit down and relax in front of the telly. In doing so, perhaps you would like to consider:

The 'Xtra' factor

Back in 2005 the so-called 'cost plus' rule was born: an employer seeking to justify a discriminatory act cannot rely solely on considerations of cost. The employer can, however, put cost into the balance, together with other justifications if there are any. In 2010 the Employment Appeal Tribunal (EAT) in Woodcock v Cumbria Primary Care Trust, while applying the costs-plus rule went on to point out that this approach "tends to involve parties and tribunals in artificial game playing - 'find the other factor' - of a kind which is likely to produce arbitrary and complicated reasoning".

This year the Court of Appeal had its turn in Woodcock to consider the 'costs plus' arguments and agreed that there was "some degree of artificiality about such an approach to the question of justification". The key is whether the treatment is a proportionate means of achieving a legitimate aim. It remains the case that an employer cannot justify discriminatory treatment 'solely' because it would be more expensive not to. However, where a legitimate aim is established, just because a decision is substantially driven by costs considerations, this doesn't prevent it from being objectively justified. The question is whether the treatment complained of is a proportionate means of achieving a legitimate aim.

On the unusual facts in Woodcock, the Court of Appeal agreed that it was legitimate to cut short a formal consultation procedure, where lengthy and comprehensive informal consultation had already taken place. Mr Woodcock was genuinely redundant. Formal consultation had not begun earlier due to an HR error. In the circumstances, the timing of serving his dismissal notice was not solely aimed at avoiding costs, but also prevention of a windfall.

The cost plus rule also arose this year in HM Land Registry v Benson The EAT held an employer was justified in basing its selection for voluntary redundancy primarily on who it would cost least to dismiss, despite the fact this gave rise to indirect age discrimination against employees aged 50-54. Central to the EAT's decision was the tribunal's finding that there was no real alternative to using 'the cheapness criterion'. Further, an Xtra factor could be pointed to in a need to balance skills/experience of staff retained.

Public interest

The eagerly awaited Supreme Court judgment in Seldon v Clarkson Wright and Jakes confirmed, as many of us had always suspected, there is a distinction in what may constitute a legitimate aim for direct, as opposed to indirect, age discrimination. While employers and partnerships have flexibility in the legitimate aims they may wish to pursue, for direct age discrimination the legitimate aim must be an objective of a public interest nature consistent with social policy aims of the relevant State.

While narrowing the potential scope of the defence, the Supreme Court accepted that the aims of staff retention and workforce planning fell within the social policy aim of sharing professional employment opportunities fairly across generations. The fact that facilitating 'workforce planning', for example, may be in an employer's/firm's best interests, did not discount it as relevant to a legitimate social policy. More reluctantly, the court also accepted the aim of "wishing to limit the need to expel partners by way of performance management" fell within the social policy objective of preserving the dignity of older workers.

So, the hurdle of establishing a legitimate aim still remains relatively low. The tricky bit is the ability to justify the impact of the measure introduced to achieve the aim. Proportionality is key! For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if a business in fact has no problem recruiting the young, then it may not be able to rely on that particular legitimate aim.

However, the good news for employers is that the Supreme Court held that where a general rule is justified, the employer will not need to specifically justify the application of that aim to the employee in question. This is helpful guidance. If an employer feels it can objectively justify a practice in broad terms across the workforce, it doesn't need to be justified again for each affected individual.

A 'Generation Game'

Since last year's abolition of the default retirement age and statutory retirement procedures, some employers have been nervous about handling retirements. The early signs are that tribunals are not finding discussions about retirement plans in and of themselves to be age discriminatory. For instance, in Quick v Cornwall Council, the tribunal rejected this sort of claim by a school head. She was asked about her retirement plans during the course of her employment. However, this was found to be reasonable in the context of succession planning, and the management of that process, and did not constitute age discrimination.

A talk show

The importance of 'language' has been a prominent theme in many discrimination cases in 2012.

"Context is everything" in determining whether or not the use of certain words which become the subject of complaint constitute unlawful harassment.

In Warby v Wunda Group, an 'extremely acrimonious' meeting occurred between a pregnant employee and her male line manager over pay and commission calculations. Accusations of 'lying' were freely flying about. One particular accusation flung was why Ms Warby lied about an earlier miscarriage. This accusation arose from office gossip regarding the dates of her miscarriage and her current pregnancy. Did this accusation amount to unlawful harassment?

The tribunal found that the accusation created an 'intimidating, hostile, degrading, humiliating or offensive' environment. However, it considered that the accusation was not made on the grounds of her pregnancy but because of a belief that she was lying more generally. While such an accusation may be unreasonable, it was not harassment on the grounds of pregnancy. Upholding the tribunal's decision, the EAT agreed that in ascertaining whether or not words that reference a protected characteristic constitute unlawful discrimination, the words must be considered in context.

In Heafield v Times Newspaper Ltd, the phrase "can anybody tell me what's happening to the [expletive] Pope?" was shouted across a busy newsroom. Could this amount to harassment of a Catholic sub-editor in the room at the time? In this case 'no'. The comment was made by a colleague facing a fast approaching print deadline waiting for the delivery of a story regarding the Pope. It was a common and well known practice for stories to be given a one word tag. When examined in context, it was a reference to a late story rather than to the Head of the Catholic Church made on grounds of religion.

A complaint of religious discrimination or a racist comment?

In Pasab Ltd v Woods, a Muslim employee was reprimanded for time keeping by a Sikh employer. A 'heated discussion' followed in which the employee is alleged to have said that the company was "a little Sikh club that only looked after Sikhs". The employer later dismissed the employee for having made a racist comment. The employee denied she had made such a comment.

At tribunal, the employee succeeded in her unfair dismissal claim on the basis that the comment was not a racist remark, but a complaint of direct religious discrimination about her treatment as a Muslim working day-to-day with two Sikhs.

On appeal, the EAT and Court of Appeal, overturned the tribunal's decision. The reason why an alleged discriminator acted as it did is a question of subjective fact. The Muslim employee was dismissed because her employer believed she had made an offensive racist comment, not because she had done a protected act. The irony in the tribunal's original finding was that it found the Muslim employee had made a protected complaint of religious discrimination and awarded compensation, based on a comment she claimed never to have uttered!

A medical drama Reasonable adjustments

Employers have a duty to make reasonable adjustments to premises or working practices to help disabled employees. From this year's crop of reasonable adjustments cases we have:

  1. A provision criterion or practice (PCP) may affect a disabled person without it being directly applied to them. While the PCP needs to be linked to the disadvantage suffered, it does not equate to meaning the PCP has been applied to him.

In Roberts v North West Ambulance Service, the employer operated a hot-desking policy in a busy control room. The policy was not applied to a medical dispatcher who suffered from social anxiety disorder. However, he could still be affected by it as his designated desk was not always immediately free when he arrived due to overlapping shifts.

  1. A disabled employee's refusal to co-operate in the process of applying for Access to Work assistance may frustrate the employer's attempt to make a reasonable adjustment.

In Bishun v Hertfordshire Probation Service the employer proposed the use of the Access to Work scheme to obtain assistive technology. Despite chasing on the part of the employer, the employee repeatedly failed to complete the necessary form, frustrating the making of the adjustment.  

  1. The purpose of the disability discrimination legislation is to enable disabled people to play a full part in the world of work, not a general duty to support them through their difficulties.

Last year we had a reminder that only in exceptional cases would the withholding of sick pay, in accordance with a sickness absence policy, amount to a failure to make a reasonable adjustment (RBS v Ashton). This year in Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagely, the EAT held that the duty to make reasonable adjustments did not require an employer to top up an employee's part-time earnings during a phased return to work.

Of course neither of those cases affects the principle that sick pay policies may need to be adjusted where it is the employer's failure to make reasonable adjustments that results in the disabled employee being off sick (Meikle).  

Mr & Mrs

While marital status discrimination is rare these days, we have another case which asked: "can a woman bring a claim of unfavourable treatment due to marital status not simply due to the fact that she was married, but due to the fact that she was married to a particular man?". Last year the EAT said 'yes' (Dunn). However, this year the President of the EAT has said 'no'.

Marital status discrimination is established only if the treatment complained of is motivated, in whole or in part, by the fact that the employee's relationship with the particular person is one of marriage. If the employer would have acted in the same way if the employee were not married, but had a similar close personal relationship with the person in question, then marriage is not the reason for treatment. Therefore, there is no marital status discrimination (Hawkins v Atex Group Ltd).

Believe it or not

Views may be considered a philosophical belief if they have 'sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society' (McClintock). Potential protected beliefs include a belief in man-made climate change (Grainger), a spiritualist belief in the power of psychics (Power), a fervent anti-hunting belief (Hashman) and a belief that 'public service broadcasting has a higher purpose of promoting cultural interchange and social cohesion' (Maistry).

This year we can add two more:

  • Humanism (Streatfield v London Philharmonic Orchestra Ltd).
  • A belief about the relationship between humans and animals, including a commitment to vegetarianism (Alexander v Farmtastic Valley Ltd).

'Auf Wiedersehen Pet'

Episode 1: A supervisor on a construction site imposes a ban on two agency contract workers for alleged misconduct. The workers allege the ban was imposed for discriminatory reasons. Is the ban a one-off decision with continuing consequences, or a continuing act of discrimination? For end users the distinction has important consequences. If a one-off decision, then the three-month time limit to bring a claim runs from the date the ban was imposed. If a continuing act, the time would continue to run for as long as the ban remained in force - potentially years!

End users will be relieved that the Court of Appeal has confirmed that the imposition of a ban is a one-off act. In essence, the mechanism of 'ban' is used to terminate the services of the casual/agency worker in the same way as a dismissal is for directly employed staff (Okoro and Okenwa v Taylor Woodrow Construction Ltd & ors).

Episode 2: A trade union official telephones a recruitment manager to insist he recruit three named individuals with a view to their acting as shop stewards on an oil depot shut down project. The manager takes umbrage at being dictated to about recruitment decisions and considers the union official's manner akin to bullying. As a result, the manager will not now recruit any of the named individuals for the site in question or at other sites. Is the refusal to recruit the shop stewards unlawful as on the grounds of their union membership?

In Miller v Interserve Industrial Services, the EAT said 'no'. The manager's motivation was not due to the individual shop stewards' union membership or activities. Instead, it was motivated by his resentment at being "bullied" by the union official and not wishing to be dictated to about whom to employ. In this case there was evidence that other trade union shop stewards were regularly recruited.

Volunteers

Discrimination law applies to a broader category of individuals than that of employees for unfair dismissal purposes. It protects those who are in employment or applying for employment, not only under a 'contract of employment' but also those under a 'contract personally to do work'. Generally, a signed volunteer agreement setting out the nature of the volunteer's role and what was expected will not be legally binding and will not amount to a 'contract personally to do work'.

Nevertheless, the question of whether volunteers have protection under discrimination legislation has been the subject of a number of recent cases. The Supreme Court has now confirmed in X v Mid Sussex Citizens Advice Bureau held that an unpaid volunteer was not covered by the discrimination legislation. In particular, the Supreme Court held that voluntary activities do not constitute an 'occupation' under the underlying European Framework Directive.