The Public Sector Equality
Duty: minimising the risk of
judicial review
Bevan Brittan LLP
Tuesday 24 February 2015
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Introduction
• Speedy reminder of JR grounds
• Public Sector Equality Duty:
– What is it?
– How is it engaged?
– How is it properly discharged?
• Messages from recent case law
• Top tips for avoiding judicial review
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Judicial review
• Grounds:
– Substantive grounds: e.g. illegality, irrationality,
fettering discretion, abuse of power, etc.
– Procedural grounds: e.g. failure to comply with
statutory rules for decision making (such as
compliance with the Public Sector Equality
Duty), compliance with legitimate expectation,
etc.
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S.149 Equality Act 2010
“A public authority must, in the exercise of its functions, have
due regard to the need to:
a)eliminate discrimination, harassment, victimisation and any
other conduct that is prohibited by or under this Act;
b)advance equality of opportunity between persons who
share a relevant protected characteristic and persons who do
not share it; and
c)foster good relations between persons who share a relevant
protected characteristic and persons who do not share it."
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“Advance equality of
opportunity”
Advancing equality of opportunity involves:
• Removing or minimising disadvantages suffered by
people due to their protected characteristics.
• Taking steps to meet the needs of people with certain
protected characteristics where these are different
from the needs of other people.
• Encouraging people with certain protected
characteristics to participate in public life or in other
activities where their participation is disproportionately
low.
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“Foster good relations”
Fostering good relations involves having due
regard to the need to:
• tackle prejudice; and
• promote understanding
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Protected characteristics
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Disability
Race
Religion and belief
Sex
Gender reassignment
Sexual orientation
Pregnancy and maternity
Age
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When?
• “In the exercise of its functions” –
equates to all powers and duties.
• Decision-making is a critical point.
• Private sector providers – are they
exercising a public function on your
behalf? – s.149(2)
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R (RB) v Devon County Council and
Devon PCT (the Virgin Care case)
• Lengthy procurement process to identify a
provider for the outsourcing of integrated
children’s services.
• PSED engaged throughout the process, and
at every decision within that process.
• Challenge successful on the basis of failure to
have due regard at the point of appointment of
preferred bidder.
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How is the PSED properly
discharged?
• The key principles have been established by case
law – “the Brown principles” (see next slide).
• Note that the duty is not to achieve the specified
objectives but rather to “bring these important
objectives relating to discrimination into
consideration when carrying out […] public
functions”.
• These aims must be actively considered when
making decisions.
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The Brown principles
• The decision maker(s) must be aware of the duty to
have due regard to the identified goals.
• The due regard must be fulfilled before and at the time
that a particular decision is being considered.
• The duty must be exercised “in substance, with rigour
and with an open mind”.
• The duty cannot be delegated.
• The duty is a continuing one.
• It is good practice to keep an adequate record
demonstrating consideration of the duty.
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Due regard
• “Due regard” is the regard that is appropriate
in all the circumstances.
• This will depend on the specific facts.
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Equality Impact Assessment
(EIA)
• An EIA is not necessary but it is highly recommended.
• No prescribed form.
• R(Domb) v London Borough of Hammersmith [2009]
EWCA Civ 941 at para 52: “the test of whether a decisionmaker has had due regard is a test of the substance of the
matter, not of mere form or box-ticking and that the duty
must be performed with vigour and with an open mind”.
• Finding a negative impact does not mean authority
prevented from making the decision but must demonstrate
that have considered how to avoid impact prior to
proceeding – mitigation.
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Timing of EIA
• Brown at para 19: due regard must be given
“before and at the time that a particular policy is
being considered by the public authority”.
• R (Luton LBC and others) v Secretary of State for
Education [2012]: Secretary of State sought to
rely on an EIA which was carried out after the
decision which showed no impact. This was not
accepted and the decision was quashed.
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Timing of EIA (cont)
• R (JG & MB) v Lancashire County Council [2011] EWHC 2295
(admin) at para 50:
“What in fact, has happened in this case is that the decisionmaker has taken a preliminary decision in relation to its budget,
fully aware that the implementation of proposed policies would be
likely to have an impact on the affected users, in particular,
disabled persons, but not committing itself to the implementation
of specific policies within the budget framework until it had
carried out a full and detailed assessment of the likely impact. In
my view, there is nothing wrong in principle with such an
approach and nothing inconsistent with the duties under the
[Disability Discrimination Act]”.
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Does this amount to a duty to
consult?
• Think about what information you have.
• Do you understand how the decision will
impact on people with protected
characteristics?
• If information is lacking, consider the
need to engage with the public/
representative groups
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Recent case law
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R (Aaron Hunt) v North Somerset Council
[2013] EWCA Civ 1483
• Council’s decision to approve financial
plan following consultation.
• Decision-makers provided with summary
EIA and not guided to full version.
• No inference that any “responsible
councillor” would have read the full EIA
as standard.
• Decision unlawful.
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Stuart Bracking and others v Secretary of State
for Work and Pensions [2013] EWCA Civ 1345
• Challenge to closure of ILF.
• Lack of evidence - information in EIA did not give
decision-maker an “adequate flavour” of responses
from consultation and thus the impact of decision.
• Lack of focus on precise provisions of the Act.
• Decision unlawful.
• Follow on case – R (on the application of Aspinall v
Secretary of State for Work and Pensions) [2014]
EWHC 4134 found PSED was met second time
round.
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Blake and others v London Borough of Waltham
Forest [2014] EWHC 1027 (Admin)
• Revocation of licence for soup kitchen.
• Council failed to identify most likely impact of
decision (closure).
• Failure to gather sufficient evidence to assess
the impact.
• Substance of points of mitigation flawed.
• Decision unlawful.
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R (on the application of LH) v Shropshire Council
[2014] EWCA Civ 404 (April 2014)
• Shropshire conducted a wide-ranging consultation
regarding the reconfiguration of adult day care for
the disabled and the application of personalised
budgets.
• Court of Appeal found a failure to consult the
service users and relatives of a specific day care
centre regarding its closure.
• This gave rise to breach of public sector equality
duty.
• Decision unlawful but not quashed.
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Top tips to avoid judicial
review
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Bevan Brittan LLP – speaker profiles
•
Laura Brealey is a Senior Associate specialising in judicial review and
procurement challenges. She has acted on multi-party judicial reviews
and on the Virgin Care judicial review.
laura.brealey@bevanbrittan.com
•
0870 194 3070
Fran Mussellwhite is an Associate who specialises in judicial review and
has acted for a number of local authorities in connection with challenges
arising from failure to adequately consult or to discharge the Public
Sector Equality Duty. She acted on the Building Schools for the Future
litigation for Sandwell MBC involving the first legal challenge to the
government's funding cuts and on the Virgin Care judicial review for
Devon County Council.
fran.mussellwhite@bevanbrittan.com
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0870 194 3055
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A Practical Employer’s Guide
to Religion and Belief in the
Workplace
Weightmans LLP
Tuesday 24 February 2015
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An interactive session looking at the definition of
religion or belief and practical examples of
problems and issues that may arise with
employees’ religion or belief from recruitment
to dismissal.
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The session
1. Religion or belief – an introduction
2. Religion or belief – a definition
3. Religion or belief – practical scenarios
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1. Religion or belief – an introduction
• The Equality Act 2010 (EqA 2010) makes it unlawful to
discriminate against employees on the grounds of religion
or belief
• EHRC Code of Practice and EqA 2010’s explanatory notes
• Applies to all facets of employment: recruitment, terms and
conditions, training, promotions, transfers and dismissals,
religious observance
• Standard definitions of direct, indirect, victimisation and
harassment
• Exceptions in very limited circumstances
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Types of discrimination
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Direct discrimination – less favourable treatment
Indirect discrimination – A applies a provision, criteria or practice (PCP),
to persons not of the same religion or belief to B, which puts or would
put B at a disadvantage and A cannot justify the PCP by showing it to be
a proportionate means of achieving a legitimate aim
Harassment – A engages in unwanted conduct which has the purpose
or effect of violating B’s dignity, or creating an intimidating, hostile,
degrading, humiliating or offensive environment for B
Victimisation – A subjects B to detriment because B has done, intends to
do, or is suspected of doing or intending to do one of the protected acts.
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2. Religion or belief – a definition
“Religion” means any religion and a reference to
religion includes a reference to a lack of religion.
“Belief” means any religious or philosophical belief
and a reference to belief includes a reference to a
lack of belief.
(Section 10 EqA 2010)
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Religious belief
• The belief must be genuinely held.
• It must be a belief, not an opinion or viewpoint based on
the present state of information available.
• It must be a belief as to a weighty and substantial aspect of
human life and behaviour.
• It must attain a certain level of cogency, seriousness,
cohesion and importance.
• It must be worthy of respect in a democratic society, not be
incompatible with human dignity and not conflict with the
fundamental rights of others.
Grainger plc and others v Nicholson [2010] IRLR 4 (EAT)
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Philosophical belief
• It must have “a similar status or cogency to a religious
belief”. However it need not “allude to a fully-fledged
system of thought”.
• It need not be shared by others.
• While “support of a political party” does not of itself amount
to a philosophical belief, a belief in a political philosophy or
doctrine might qualify.
• A philosophical belief may be based on science.
Grainger plc and others v Nicholson [2010] IRLR 4 (EAT)
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Examples – would these beliefs attract
protection?
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Environmentalism and climate change
Anti fox hunting and the sanctity of life
The higher purpose of public service broadcasting
That 9/11 and 7/7 were ‘false flag’ operations
That a poppy should be worn in early November
Membership of the British National Party (BNP)
That mediums can communicate with the dead
That lying is wrong
In Wicca
Veganism
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3. Religion or belief – practical scenarios
• We’re now going to look at some practical, real-life scenarios
where an employee’s religion or beliefs might be at odds with an
employer’s desire to run their business.
• Not all of these scenarios have straightforward answers, but most
come from existing case law so you will be able to see the sorts
of situations that employers (and Tribunals) regularly have to
deal with.
• We’d love to hear your views on these, particularly if you have
your own examples to share – and audience participation is
positively encouraged!
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Scenario 1
At a job interview it becomes apparent that an
applicant is an orthodox Jew. The organisation
decides not to offer him the job mainly because he
would be the only Jewish worker at the
predominantly-Muslim site and the employer was
worried that there might be a clash of cultures and
some friction in the workplace.
Should the employer have taken this into account?
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Scenario 2
An airline company operates a policy for its
uniformed staff that prohibits the wearing of visible
jewellery. A Christian woman wants to wear a twoinch high cross on a necklace visibly as a symbol of
her faith but her employer refuses to allow it.
Can an employer ban religious symbols or dress in
its uniform policy?
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Scenario 3
A Christian residential care worker at a children’s care
home strongly believes that Sunday should be a day of
rest and refuses to work on that day because it clashes
with a Sunday church service. However, her employer
introduced a requirement that all care workers work
some Sunday shifts.
Can an employer require a Christian to work during a
rest day?
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Scenario 4
A Muslim man is working as a security guard at a client site
and would like to leave the site at lunch time to attend
prayers. His employer refuses, however, on the basis that it
will face financial penalties and be at risk of losing the
contract if it fails to ensure the requisite number of security
guards are on site throughout operational hours.
Can the employer require the employee to miss prayers?
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Scenario 5
Mr A is continually teased about his wife’s beliefs as a
Jehovah’s Witness. He does not share his wife’s faith,
but finds being subjected to such teasing offensive and
complains to his manager. His manager tells him not to
be silly and that the teasing is only harmless workplace
banter and is nothing to do with the organisation.
How should an employer deal with this sort of
behaviour?
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Scenario 6
It’s Christmas and an employer awards alcoholic drinks as
incentives to improve sales performance over the festive
period. At the same time, a Christian worker demands to have
Christmas day as annual leave – in priority over everyone
else – in order to attend a church service
Can an employer offer alcohol as an incentive?
How should employers handle annual leave around religious
holidays?
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Scenario 7
An orthodox Jewish worker tells her manager that
the food she brings in for lunch cannot come into
direct contact with other staff’s food in the workplace
fridge as their food may contain pork, which is not
kosher.
What steps does the employer need to take to
respond to this?
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Scenario 8
An employee is dismissed by her employer at the end of
a redundancy process. The scoring was very close, but
this employee was ultimately chosen over and above her
other at-risk colleagues because she was felt not to be a
“team player” after she had previously given evidence in
support of a Hindu co-worker who had brought a claim
against the employer for religious discrimination.
Has the employer made the right decision?
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Scenario 9
A police trainer who believed in spiritualism and the ability of
mediums to communicate with the dead was dismissed after
for distributing spiritualist posters and CD ROMS at work.
Has the employer committed an act of direct discrimination?
What about a situation where a Christian registrar is
dismissed after she refuses to carry out civil partnership
duties on the basis that same-sex relationships were against
her religious beliefs?
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Scenario 10
A manager finds out that someone on his team is a member
of the British National Party (BNP) following complaints from
his co-workers that he has been leaving BNP leaflets in the
canteen; has been getting into arguments during shifts about
his politics; and has been posting pro-BNP messages on his
personal Facebook page. When questioned, the employee
accepts all of these allegations and the manager wants to
dismiss.
How should the employer respond to these allegations?
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Religion or belief
Any questions?
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Weightmans LLP - Speaker profiles
•
Faye Reynolds is an experienced solicitor in the Birmingham office
employment team. Faye has extensive experience of advising public
sector organisations on all aspects of employment law and has a
particular specialism in disability discrimination. She spent several years
working in-house at a local authority. Faye’s experience enables her to
provide quick and practical advice that balance legal and client
requirements efficiently. Faye appears as an advocate before
Employment Tribunals nationwide. She has run many training sessions
for clients and had various articles published.
faye.reynolds@weightmans.com 0121 200 5754
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