Equality Law Round Up
2014
Claudia Bennett
Senior Solicitor
1
Equality Quiz
1.How many people in Scotland have a
disability?
2. What percentage of people are born
with their disability?
3. Women still earn 5% less than men for
work of equal value. Yes/No
Slide Number 2
What we will cover
• The Equality Act
• Recent case law in relation to:
o Protected characteristics
o Prohibited conduct
• The EHRC
• Our legal strategy
• Contact us
3
Age (s.5)
• Where the Act refers to the protected
characteristic of age it means a person
belonging to a particular age group.
• An age group includes persons of the same age
and people of a particular range of ages
• Only protected characteristic which allows direct
discrimination to be justified.
4
Age
McCririck v Channel 4 (application of Seldon)
Age discrimination but C4’s drive for a wider
audience for horse racing justified his dismissal
Age
• Lockwood v Department for Work and Pensions
[2013]EqLR 1190 CA
• Specht v Land Berlin
Slide Number 6
Disability (s.6)
• A person has a disability for the purposes of the
Act if he or she: —
- has a physical or mental impairment, and
- the impairment has a substantial and long-term
adverse effect on his/her ability to carry out normal dayto-day activities.
• Schedule 1 and Regulations on meaning of
disability
• Interpretation in line with UNCRPD
7
Disability (s.6)
Knowledge
• Gallop v Newport City Council [2013]
o Employer needs to have knowledge of certain facts
o NCC could not rely on unreasoned assertions by adviser
about what was really a legal question = an employer
cannot ‘rubber stamp’ a health adviser’s opinion
• McCubbin v Perth and Kinross Council [2013] EAT
Slide Number 8
Disability (s.6)
• Walker v SITA UKEAT/0097/12
• Kaltoft v Municipality of Billund (C-354/13)
9
Prohibited conduct
•
•
•
•
•
Direct discrimination (s 13)
Indirect discrimination (s 19)
Harassment (s 26)
Victimisation (s 27)
Disability only:
• Discrimination arising from disability (s 15)
• Duty to make reasonable adjustments (ss 20
& 21)
10
Direct discrimination
A person (A) discriminates against another (B) if,
because of a protected characteristic, A treats
B less favourably than A treats or would treat
others
• Preddy & Hall v Mr and Mrs Bull
• Discrimination by association or perception
included
• Direct discrimination can never be justified
however age discrimination remains justifiable
11
Indirect discrimination
• A applies a provision, criterion or practice (PCP) to B
• A applies, or would apply, the PCP to persons with whom
B does not share the relevant protected characteristic
• the PCP puts, or would put, persons with whom B shares
the characteristic at a particular disadvantage when
compared with persons with whom B does not share the
characteristic
• the PCP puts, or would put, B at that disadvantage and
• the PCP is not a proportionate means of achieving a
legitimate aim.
• Azmi v Kirklees Metropolitan Borough Council
12
Association and
perception
Discrimination by association
• Less favourable treatment because associated
with someone with a PC
• Does not need to be permanent
• Mr and Mrs Gyenes v Highland Welcome (UK) Ltd
• Peaden v Methodist Church
Discrimination by perception
• Less favourable treatment because perceived to
have a PC
Slide Number 13
Victimisation
‘A person (A) victimises another person (B) if A
subjects B to a detriment because (a) B does a
protected act, or (b) A believes that B has done, or
may do, a protected act.’
Removes the need for the tribunal to construct an
appropriate comparator.
• Rowstock Ltd v Jessemey [2013] IRLR439
• Onu v Akwiwu [2013] EqLR577; [2013 IRLR523
14
Harassment
• a person (A) harasses another (B) if A engages in
unwanted conduct ‘related to a relevant protected
characteristic’ which has the purpose or effect of
violating B’s dignity, or creating an intimidating,
hostile, degrading, humiliating or offensive
environment for B.
• Case example: Wijesundera v Heathrow 3PL
Logistics Ltd and Another UKEAT/0222/13
Slide Number 15
Reasonable
adjustments
• Where a disabled person is placed at a substantial
disadvantage to non-disabled people, there is a duty to
make changes to:
1. Provisions, criteria or practices
2. Physical features
3. And a duty to provide auxiliary aids and services (such
as a hearing loop or a special computer service)
Johnson v Topshop/Topman Ltd [2014] EqLR 480
16
The Commission’s powers
• Intervene in Commission’s name (s30) [equality or
human rights or both]
• Judicial Review proceedings in Commission’s name
(s30) [equality or human rights or both]
• Provide legal assistance to an individual bringing
proceedings under the EA (s28) [equality or both, but not
human rights alone]
• Also other enforcement powers eg inquiries,
investigations
17
EHRC strategic priorities
for using litigation powers
• Consultation on Commission’s Strategic Litigation
Strategy
18
Further information
EHRC website information on Equality Act
http://www.equalityhumanrights.com/legal-andpolicy/equality-act/
Law Society of Scotland
http://www.lawscot.org.uk/about-us/equality-and-diversity
19
The Commission’s legal
team in Scotland
• Legal Team Bulletin:
www.equalityhumanrights.com/scotland/legal-news-inscotland/equality-law-bulletin/
• Requests for assistance:
• legalrequestscotland@equalityhumanrights.com
Tel: Claudia Bennett 0141 228 5965
Email: Claudia.Bennett@equalityhumanrights.com
20
In the state of nature...all men are
born equal, but they cannot
continue in this equality. Society
makes them lose it, and they
recover it only by the protection of
the law.
Charles de MontesquieuFrench lawyer & philosopher
(1689 - 1755)
Slide Number 21