The courts and tribunals have been busy as ever, delivering decisions in discrimination cases. With the potential cost and reputational implications, this remains an area that employers need to be aware of. Here are a few of the highlights.
Careless talk loses case - public statements can be direct discrimination
The European Court of Justice (ECJ) has been asked to decide whether a public statement can amount to direct discrimination even where there is no individual victim complaining about it. In Centrum voor Gelijkheid van Kansen en voor Racismebestrijding (the Belgian anti-racism body) (CGKR) v Firma Feryn NV the ECJ held that a company's statement in the media that it would not employ Moroccans was an act of direct discrimination in breach of the EC Race Directive.
The CGKR, asked the Belgian courts to declare that the firm had breached Belgian anti-discrimination legislation. The ECJ stated that a public statement from an employer that it will not recruit employees from a certain ethnic group would clearly dissuade them from applying for a job with that employer and, would hinder their access to the labour market. The ECJ found that type of recruitment practice is direct discrimination. The onus is then on the employer to demonstrate that this is not how it actually recruits in practice – probably a very high hurdle in the circumstances!
The ECJ was untroubled by the fact that the CGKR was not supporting any particular complainant. The ECJ decided that it was for national governments to give bodies the power to act in such circumstances. Such action by an employer in the UK would be direct discrimination, but currently there would only be a claim if a 'victim' were to come forward. The Equality and Human Rights Commission has the power to issue proceedings under Section 28 of the Race Relations Act 1976 in respect of indirectly discriminatory practices. But does not have the power to bring claims over directly discriminatory practices where there is no victim.
However according to the recent White Paper, Framework for a Fairer Future: The Equality Bill, the Government is currently considering introducing representative actions in discrimination cases. This would allow bodies such as trade unions or the Equality and Human Rights Commission to take cases to court. The Government's proposals do not currently envisage giving such bodies the right to take action in direct discrimination cases where they are not supporting a claimant or claimants.
For now, watch this space.
Make Heyday while the sun shines
"Tomorrow, tomorrow … it's only a day away." That song should be ringing in the ears of the employer in Plewes v Adams Pork Produce Limited. The company retired Mr Plewes on the day before his 65th birthday. The tribunal found that the default retirement exemption only applies where the employee retires on or after their 65 birthday. The employee's dismissal on the day before their 65 birthday was too early to rely on the retirement exemption, nor was the company able to objectively justify the retirement. Mr Plewes was awarded over £36,000, despite being employed through an agency within two weeks of his retirement.
This case serves to emphasise how important it is that employers strictly follow the requirements of the default retirement exemption in retiring employees. We are still awaiting the decision in the Heyday case in which Age Concern is challenging whether the default retirement age of 65 is even lawful. In the meantime anyone who wants to be singing "So long, farewell, auf wiedersehen, goodbye" to reluctant retirees at 65 needs to double check their birthdays.
All publicity is good publicity (except when it's about discrimination)
Discrimination cases continue to attract press interest, with articles appearing on the Christian registrar who refused to perform same-sex unions and the hairdressing interviewee who wore a headscarf and won compensation after being turned down for a position. In Ladele v London Borough of Islington the registrar successfully claimed that her employer had subjected her to direct discrimination, indirect discrimination and harassment on the grounds of her religion by requiring her to participate in civil partnership services against her orthodox Christian beliefs. This case serves to highlight the potential for conflict between different areas of discrimination. Employers will have to continue to tread carefully in trying to strike this balance where there is the potential for such conflict.
In Noah v Sarah Desrosiers trading as Wedge, the tribunal found that a Muslim hairdresser who was refused a job after insisting she would wear a headscarf had been indirectly discriminated against on the basis of her religion. While the tribunal sympathised with the salon owner's argument that stylists would have to display hair to showcase the salon's look, it held that a ban on women with headscarves was not a proportionate means of achieving this aim.
Wide public interest in such cases demonstrates how important reputational issues are in such cases. Applying best practice throughout your organisation is the best way to avoid expensive claims and damaging press attention.
Opening the floodgates?
The discrimination case of greatest current media interest is Coleman v Attridge Law. The case was brought by Mrs Coleman, who claimed she had been discriminated against on grounds of disability. This was not because of her own disability, but because her son was disabled. However, it is a landmark case in its eventual finding that the Disability Discrimination Act includes associated discrimination. The Employment Appeal Tribunal which originally looked at the issue suggested that it was possible to interpret the existing statute in light of the ECJ decision. However, this remains to be seen. It is quite possible that the legislation will have to be amended to reflect the ECJ's position on "associated discrimination".
This could extend protection to carers, other associative disability claims and other areas in which associative discrimination is not covered by UK legislation, in particular in relation to age discrimination. Has Europe opened the floodgates for further claims in the UK? We will watch with interest and will update as soon as more information is available.
Sisters are doing it for themselves
The Court of Appeal has made a landmark decision in Allen and others v GMB which holds that the GMB indirectly discriminated against its female members in recommending settlement of equal pay claims against Middlesbrough City Council. While the union had been pursuing a legitimate aim (that of striking a balance for all its members between back pay, future pay and pay protection for its members) the court found it had manipulated female members into settling equal pay claims to achieve this. The court agreed with the tribunal that this had not been a proportionate means of achieving that aim and therefore was not justified.
While many unions will be faced with conflicts between members, it was only the manipulation of female members that caused the case to go against the GMB. The extent to which this will rein in union bargaining power, provided the reasons for a deal are fairly communicated to members, should be limited. However experience suggests unions may take a more cautious approach.