• Indirect discrimination: no need to establish the reason for the particular disadvantage: in the joined cases of Essop and ors v Home Office (UKBA) and Naeem v SoS for Justice the Supreme Court held that, in the context of an indirect discrimination claim, it was not necessary to be able to explain why a provision, criterion or practice (a PCP) disadvantages a particular group. However, an individual claimant must still be able to show that there is a causal link between the PCP and their own disadvantage, which is the same as the disadvantage caused to the group. Helpfully, the judgment emphasised that it is always open to an employer to show that a PCP is justified, noting: “The requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents. Nor should it be seen as casting some sort of shadow or stigma upon them. There is no shame in it. There may well be very good reasons for the PCP in question.” The Supreme Court also highlighted that employers would be wise to monitor how its policies and practices impact on various groups, and try to modify them if they do have a disparate impact.
  • Discriminatory motives: where a decision-maker's decision is strongly influenced by someone acting with discriminatory motives, the decision may be viewed as a joint decision and may be discriminatory: in the case of Commissioner of Police of the Metropolis v Denby the EAT upheld an Employment Tribunal's decision that individuals who had heavily influenced the decisions of an official decision-maker should properly be regarded as joint-decision makers. That being the case, the motivations of all the joint decision-makers could be taken into account to determine whether the decisions were tainted by discrimination. In this case, the influencers were acting from discriminatory motives, meaning the decisions were discriminatory. The EAT noted that Employment Tribunals can assist claimants on the receiving end of opaque decisions by allowing them to amend their claims to identify any hidden joint decision-makers once their involvement is exposed. Employers should ensure that their decision-making processes are transparent and that those providing information or evidence to a decision maker do not stray into the territory of lobbying for a particular outcome. This should ensure that only the motivations of the official decision-maker will be taken into account when assessing whether the decision in question was discriminatory. You can read our full report on the decision here.
  • Disability discrimination: a reduction in workload was a reasonable adjustment: in the case of Home Office (UK Visas & Immigration) v Kuranchie the EAT decided that an employer had breached the duty to make reasonable adjustments by not reducing a claimant's workload of its own volition to accommodate her dyslexia. The fact that this solution had not been suggested by the claimant was irrelevant when the adjustment had a real prospect of removing the disadvantage. This decision demonstrates that employers must apply a broad approach to the duty to make reasonable adjustments, having regard to the primary objective of the legislation which is to facilitate the employment of disabled employees on equal terms to non-disabled employees. The employer cannot discharge its duty to make reasonable adjustments by merely relying on suggestions made by an employee and/or Occupational Health. The duty to make reasonable adjustments rests with the employer and they must consider carefully what steps might be taken to remove the relevant disadvantage. The case did not address whether, had the employer reduced claimant's workload, it would have been required to maintain her salary at the same level as her colleagues. However, pay protection may be appropriate as part of a package of adjustments to encourage the full participation of disabled employees in the workplace. In the case of G4S Cash Solutions (UK) Limited v. Powell, the EAT found that pay protection to allow an employee to return to work in a less skilled role could be a reasonable adjustment in an appropriate case. You can read our full report on the decision here.
  • Sex discrimination: failure to match shared parental pay with enhanced maternity pay was directly discriminatory against male employee: in the case of Ali v Capita Customer Management Ltd an Employment Tribunal held that an employer directly discriminated against a male employee by paying enhanced pay to women on maternity leave and statutory pay only to men on shared parental leave. The Employment Tribunal took the controversial step of allowing the claimant to compare himself to a woman on maternity leave, rather than confine him to a comparison with a woman on shared parental leave. They also held that, aside from the compulsory initial two-week period, the purpose of maternity leave was detached from pregnancy and childbirth and so the special treatment derogation did not apply. This decision conflicts with a previous Employment Tribunal decision on the same issue - Hextall v Chief Constable of Leicestershire Police. However, both Hextalland Ali are to be appealed and the EAT's decision will be binding. Ali will be heard by the EAT on 20 and 21 December 2017 and Hextall on 16 January 2018. Employers offering differential pay for maternity leave and shared parental leave should follow these appeals and give consideration to their response if the EAT upholds this decision. You can read our full report on the Ali decision here.
  • Sex discrimination: an employer must conduct a specific risk assessment for a breastfeeding mother or risk a sex discrimination claim: in the case of Ramos v Servicio Galego de Saude the ECJ ruled that conducting a general risk assessment of the health and safety risks to pregnant workers and new and breastfeeding mothers was not sufficient to comply with the Pregnant Workers Directive. On top of this, the employer must conduct specific risk assessments for individual workers to identify any particular health and safety risks they may face. These risks will change at different stages of pregnancy and motherhood and may be different for different women performing the same job. A failure by an employer to conduct such a bespoke risk assessment may give rise to a direct sex discrimination claim. Where does this leave employers? Firstly, it is important to ensure that health and safety policies are appropriately drafted and clarify that specific risk assessments will be conducted for pregnant workers and new and breastfeeding mothers. Secondly, employers must ensure that those specific risk assessments are actually carried out - both upon notification of pregnancy and on the return to work (and at appropriate intervals thereafter if they continue to breastfeed for some time). You can read our full report on the decision here.
  • Pregnancy and maternity discrimination: protection against dismissal crystallises from conception and before the employer is notified: in the case of Porras Guisado v Bankia SA and others the Advocate General considered the dismissal of a pregnant worker in line with the provisions in the Collective Redundancies Directive (CRD) and the Pregnant Workers Directive 92/85/EEC (PWD). The Advocate General concluded that a collective redundancy situation is not necessarily an "exceptional case" which can be used to justify the dismissal of a pregnant worker. Further, the PWD should protect workers against dismissal from the moment they are pregnant, even if they have not yet informed their employer of their pregnancy. It is important to note that this opinion may not be followed by the ECJ in their final judgment. Nonetheless, the AG's view that the PWD will be interpreted to protect workers against dismissal from the moment they are pregnant, even before they have notified their employer of their pregnancy, is significant. This clearly strikes a balance in favour of the pregnant worker. Employers may be concerned, therefore, that they could fall into the trap of unwittingly dismissing a pregnant worker. However, in this scenario, the employer would still have the opportunity to undo the damage provided they are made aware of the error soon after the dismissal occurs. For example, if the employer re-hired and/or reassigned the worker, they would be acting in accordance with Article 10 of the PWD. It may also be reassuring for employers to know that the dismissed worker has a duty to notify her employer about her pregnancy without unreasonable delay. You can read our full report on the decision here. The ECJ's decision on the case is expected shortly.
  • Equal pay: female retail employees permitted to compare themselves to male distribution depot employees: in the case of Asda Stores Ltd v Brierley and others the EAT upheld a decision of the Employment Tribunal that 7,000 female retail workers working at supermarkets were entitled to compare themselves to male distribution workers working at depots. This comparison was permitted under the Equality Act 2010 as the workers could be said to have common terms. It was also permitted under Article 157 of the Treaty on the Functioning of the European Union given the presence of a single source responsible for the terms and conditions and any pay inequality. As the biggest equal pay claim in the private sector to date, it is likely to be in the minds of unions and employees, particularly those operating within the retail sector. However, it is important to remember that this decision is limited to one specific preliminary issue about appropriate comparators in equal value claims. It does not address the issue of whether the work of a female supermarket worker at Asda is of equal value to the work of a male distribution depot worker at Asda. Instead, it says that the female supermarket worker can use the male distribution depot worker as her comparator in an equal value claim. The complex question of whether their work is, in fact, of equal value is yet to be determined by an Employment Tribunal. However, Asda has appealed this preliminary issue to the Court of Appeal and the appeal due to be heard on 10 October 2018. Therefore, it is likely to be some time before we have final decision on the substantive claims. You can read our full report on the decision here.