Equality Law Round Up 2015 Laura Hutchison Senior

Equality Law Round Up 2015 Laura Hutchison Senior Enforcement Officer 1

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 2

Disability (s. 6) (1) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. Slide Number 3

Disability Does obesity amount to a disability? • Kaltoft v Municipality of Billund [December 2014] CJEU Case C-354/13 A long-term physical, mental or psychological impairment that may hinder the full and effective participation of that person in professional life on an equal basis with others (UNCRPD Article 1; Ring v Dansk almennyttigt Boligselskab (C-335/11)) Slide Number 4

Disability Dissociative amnesia • Sobhi v Commissioner of Police of the Metropolis [2013] Eq. LR 785 Obesity • Walker v Sita Information Networking Computing Ltd [2013] Eq. LR 476 • Bickerstaff v Butcher [January 2015] NI Industrial Tribunal case ref 92/14 Slide Number 5

Disability Type 2 diabetes • Metroline Travel Ltd v Stoute [January 2015] EAT/0302/14/JOJ • Dawson v Qdos Training Ltd [April 2015] ET case no 2601012/14 Heart disease • Mr J Byghan v Hightrees Ltd t/a Closeburn House [July 2015] Scottish ET case no S/4105555 Slide Number 6

Race (s. 9) (1) Race includes – (a) Colour (b) Nationality (c) Ethnic or national origins (5) A Minister of the Crown (a) Must by order amend this section so as to provide for caste to be an aspect of race Slide Number 7

Race: caste and ethnic origin Relevance of caste status in determining discrimination on grounds of ethnic origin • Chandhok and anor v Tirkey [December 2014] (UKEAT/ 0190/14/KN) No free-standing protection from ‘caste discrimination’ but many of the facts relevant to caste can fall within the definition of ethnic origins and be part of discrimination claim Slide Number 8

Indirect discrimination (s. 19) (2) For the purposes of subsection (1) a PCP is discriminatory in relation to a relevant protected characteristic if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic (b) It 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 it (c) It puts or would put B at that disadvantage and (d) A cannot show it to be a proportionate means of achieving a legitimate aim Slide Number 9

Indirect discrimination Must establish the reason why the policy, criterion or practice (PCP) causes substantial disadvantage to those sharing PC and that the claimant suffered the same disadvantage • Home Office (UK Border Agency) v Essop [2015] EWCA Civ 609 Slide Number 10

Indirect discrimination s. 136 EA 2010 – discrimination can be inferred if there are facts from which ET could decide, in absence of other explanation, that claimant put at particular disadvantage. Open to respondent to disprove inference of discrimination. Slide Number 11

Associative indirect discrimination Associative direct discrimination established • Coleman v Attridge Law – prohibited under EU law • s. 13(1) 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 • Truman v Bibby Distribution Ltd [2015] Case no. 2404176/2014 • J v Hogarth Worldwide Ltd and Ogilvy Advertising Ltd [2015] Case no. 3201919/2013 & 3202817/2013 Slide Number 12

Associative indirect discrimination • Chez Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia [July 2015] CJEU (C 83/14) EU Race Directive (No. 2000/43) extends to people who, although not a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on ground of that race or ethnic origin Slide Number 13

Associative indirect discrimination EU Race Directive (No. 2000/43) Indirect discrimination will be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with others unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Slide Number 14

Associative indirect discrimination • EA 2010 s. 19 – requires complainant share the relevant protected characteristic as the disadvantaged group • Requirement to interpret EA 2010 consistently with underlying EU Directives • Does the requirement to share the same protected characteristic apply? Slide Number 15

Duty to make reasonable adjustments (s. 20) (3) Where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a matter in comparison with persons who are not disabled, to take such steps as it is reasonably to have to take to avoid the disadvantage Slide Number 16

Duty to make reasonable adjustments Griffiths v The Secretary of State for Work and Pensions [2014] UKEAT/0372/13/JOJ • Whether put at a substantial disadvantage by attendance management policy compared to nondisabled employees. • COA, 22 -23 September 2015 17

Duty to make reasonable adjustments Correct comparators • Archibald v Fife Council [2004] UKHL 32, Lady Hale para 63 & 64 Correct PCP • Firstgroup PLC v Paulley [2014] EWCA Civ 1573, LJ Underhill para 61 Scottish ET case • Franks v DWP [August 2015] S/4107198/13

Associative discrimination duty to make reasonable adjustments Whethere is a duty to make reasonable adjustments for workers closely associated with disabled dependents • Hainsworth v MOD [2014] EWCA Civ 763 • Equal Treatment Framework is limited to disabled employees and not to disabled people who are associated with an employee. • Supreme Court hearing 14 July on permission to appeal to CJEU Slide Number 19

The Commission’s powers • Intervene in Commission’s name (s 30) [equality or human rights or both] • Judicial Review proceedings in Commission’s name (s 30) [equality or human rights or both] • Provide legal assistance to an individual bringing proceedings under the EA (s 28) [equality or both, but not human rights alone] • Also other enforcement powers eg inquiries, investigations 20

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 • EHRC website information on Equality Act http: //www. equalityhumanrights. com/legal-andpolicy/equality-act/ 21