Employment Law

Eighth edition

by Deborah Lockton

Update for Chapter 5

Discrimination

This update was last revised in October 2012
5.2.9 Sexual Orientation

At the end of the section please note

In Bull and Bull v Hall and Preddy [2012] EWCA Civ 83 the Court of Appeal upheld a decision of the EAT that Christian hotel owners had discriminated against two civil partners by not allowing them to share a double bed. The hotel had a strict policy of refusing double beds to unmarried couples. The court held that as the claimants had gone through a civil partnership ceremony they should have been treated in the same way as a married couple and that the only reason they had been refused was because they were gay. The court rejected the argument that the no unmarried couples policy was a manifestation of their religious belief.

In Grant v HM Land Registry [2011] EWCA Civ 769 the Court of Appeal held that a conversation about someone being gay, when he had not made that fact public, was not, on its own, enough to constitute discrimination.
5.3 Prohibited Conduct

After Leighton v Michael please note
However, where the contract itself is illegal, for example a person working illegally in the UK, then a claim cannot be made (Hounga v Allen [2012] EWCA Civ 609)
5.3.1 Burden of Proof

At the end of the section please note

The Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37 has said that tribunals can draw inferences of discrimination by considering how a claimant was treated compared to others even where the circumstances are not precisely the same. The claimant was a dentist at Aberdeen Royal Infirmary who alleged bullying and harassment because she was a Sri Lankan woman. She claimed she had been bullied by a colleague. Another colleague, Professor Forrester, also had issues with the same individual and so the Infirmary changed his role so that they no longer came into contact. Mrs Hewage also alleged that she had received no assistance or co-operation from the Infirmary when Mr Larmour, who eventually replaced her, did. The tribunal inferred discrimination by comparing the treatment of Hewage with that of Forester and Larmour, even though their circumstances were not exactly the same as those of Hewage. The Supreme Court held that there was sufficient similarity, given the stark differences in treatment, to justify the tribunal's inference of discrimination.

Note that the EAT in Dziedziak v Future Electronics Ltd [2012] UKEAT 0271/11 has held that the reversal of the burden of proof only applies once disparate impact has been shown.
5.4 Direct discrimination

After the discussion about Sidhu v Aerospace Composite Technology please note

In Cordell v Foreign and Commonwealth Service [2011] UKEAT 0016/11 Cordell was an employee who was deaf and needed the support of lipspeakers. A posting was withdrawn when a report estimated £30,000 p.a. to provide such support. Cordell argued direct discrimination on the grounds of disability as the service paid school fees of up to £25,000 p.a. per child. The EAT held that there was no direct discrimination as the job had been withdrawn because of cost and not because of Cordell's disability given the service's overall budget.
5.4.1 Exceptions

After Rolls Royce plc v UNITE please note

In Seldon v Clarkson, Wright and Jakes (a Partnership) [2012] UKSC 15 the Supreme Court have stated that the test for justifying direct discrimination on the grounds of age is different and narrower than the test for justifying indirect discrimination. The case involved a partner in a firm of solicitors who was forced to retire at 65. The Supreme Court found that a compulsory retirement age was directly discriminatory but that it could be justified as it was founded on legitimate social policy grounds two of which the ECJ has  broadly stated are  intergenerational fairness and dignity. As such the court remitted the case back to the tribunal to decide whether the selection of the age of 65 was a proportionate means of achieving those aims. The court also laid down the test for justifying direct age discrimination. An employer must show:
  1. It has an aim
  2. The aim is potentially legitimate in that it is capable of being specified as a public interest aim as laid down in the Framework Directive. Such aims are different to ones which are specific to an individual business
  3. The aim must also be legitimate in relation to the particular business. Lady Hale gave examples so for instance avoiding the need for performance management is an aim related to dignity, but if a business already has sophisticated performance management procedures in place it may not be legitimate to disapply them for one group of the workforce
  4. The means chosen to achieve the aim must be both appropriate and necessary and will involve considering whether there are less discriminatory measures which could be taken to achieve the aim. It is this which shows that the test is narrower than the test in indirect discrimination.
5.4.2 Dual Characteristics

Please note the present government has decided not to enact this provision.
5.5.1 Provision, criterion or practice

Please delete the EAT citation in Homer and insert [2012] UKSC 15 after the discussion please note

The Court of Appeal upheld the decision of the EAT. However, the Supreme Court disagreed with the view of the EAT and the Court of Appeal that Homer's impending retirement was what put him at a disadvantage and not his age. The court held that Homer was disadvantaged by retirement which was directly related to his age and therefore he had been indirectly discriminated against on the grounds of his age. However the employer could justify the discriminatory requirement and the case was remitted back to the tribunal.
5.5.3 Proportionate means of achieving a legitimate aim
 
Please note that Seldon v Clarkson Wright and Jakes has now been heard by the Supreme Court [2012] UKSC 15 and is considered in detail in 5.4.1
After Kucukdeveci v Sweden GmbH & Co please note

In Prigge v Lufthansa [2011] All ER(D) 102 the ECJ held that a state retirement age for pilots of 65 was justified where established to stop human failure causing aeronautical accidents. As such, a compulsory retirement age of 60 in a collective agreement to which Lufthansa was a party was not proportionate means of achieving that aim.

At the end of the section please note

In Hornfeldt v Posten Meddelande AB (2012) Case c 141/11 the ECJ upheld a Swedish retirement age of 67 and held that national law was not required to take into account the pension a person would receive at that age. (In the case Hornfeldt was arguing that if he had been allowed to carry on working for two or three years his pension would have been considerably higher.) However, a member state still had to show that a compulsory retirement age was a proportionate means of achieving a legitimate aim.

There have been a number of cases where a respondent has argued that cost justifies indirect discrimination. In Hill & Stapleton v Revenue Commissioners [1998] IRLR 466  it was stated that an employer could not justify discrimination solely on the grounds of cost. However in Cross v British Airways [2005] IRLR 423 it was held that an employer could not rely on costs alone to justify indirect discrimination but could if it argued costs plus something else.  In Woodcock v Cumbria Primary Care Trust Woodcock was a displaced Chief Executive whose post became redundant after a restructure of the NHS.  His employment transferred to Cumbria as the successor of his former employer. Cumbria gave Woodcock 12 months notice of dismissal on the grounds of redundancy shortly before his 49th birthday and before any formal consultation had taken place between the parties and the tribunal found that this had been done to ensure that the notice expired before his 50th birthday when he would have been entitled to a greatly enhanced pension at a substantial cost to the Trust. The tribunal found that the serving of the notice was less favourable treatment on the grounds of Woodcock's age but that there was a legitimate aim of dismissing him in a cost effective manner and it was only due to a number of incidents that the notice had not been given earlier. Hence Cumbria had satisfied the costs plus test. On appeal, the EAT  stated that it thought that the costs plus test was difficult to justify, Underhill P stating that it resulted in what he called artificial game playing resulting in complicated and arbitrary reasoning. The EAT allowed Woodcock's appeal but substituting a finding of unfair dismissal but awarded no compensation on the grounds that the consultation would have achieved nothing, hence any comments on indirect discrimination were obiter. Leave was given to appeal. In Cherfi v G4S Security Services [2011] UKEAT 0379/10 the EAT followed Woodcock rather than Cross. Woodcock has now been heard by the Court of Appeal [[2012] EWCA Civ 330. The court rejected Woodcock's appeal. Rimer LJ rejected as artificial a submission that cost alone cannot be a legitimate aim noting that every decision taken by an employer will involve a consideration of cost. The treatment of Woodcock was not just about saving or avoiding cost it was a legitimate part of that aim to ensure that the dismissal also saved additional costs. He felt that the means undertaken by the Trust was proportionate. In future, therefore costs can justify indirect discrimination as long as the means of saving costs is proportionate.
5.6 Duty to make reasonable adjustments

After the discussion about Spence v Intype Libra Ltd please note

In Leeds Teaching Hospital NHS Trust v Foster [2011] All ER(D) 57 the EAT held that there does not have to be a good or real prospect of an adjustment alleviating the disadvantage suffered by the disabled employee for the adjustment to be reasonable. In the case Foster suffered from stress by working in the security department. A reasonable adjustment would have been to place him on the redeployment register. It was not necessary to show that there was a real prospect of another post being available that Foster could do. Further, in Olenloa v North West London Hospitals [2012] UKEAT 0599-11-2906 Olenloa claimed that his employer had failed to make reasonable adjustments. He went on sick leave in September 2010 and presented a claim in January 2011. The tribunal dismissed his claim as out of time because the duty to make reasonable adjustments ceased when the claimant was on sick leave and not at work. The EAT held that the tribunal had erred. Olenloa's claim was that reasonable adjustments would have prevented him from going on sick leave and the duty continued because such adjustments may have enabled him to return to work. The tribunal had to look at the facts and determine whether such was the case.
5.14.1 Enforcement by an individual

After the discussion of D'Souza please note

The Court of Appeal in Wardle v Credit Agricole Corporate and Investment Bank[2011] EWCA Civ 770 have stated that when calculating future losses tribunals should assess the loss up to when an employee would be likely to obtain another job on similar terms and not award compensation up to the point when there is acertainty he would. Note, however the case of Debique v Ministry of Defence[2011] UKEAT 0075/11/SM where a woman who worked for the British Army struggled to combine motherhood and being a serving soldier after she gave birth to a daughter. After a dispute she gave notice and left and successfully claimed unlawful sex and race discrimination. ([2010] IRLR 471). At the remedies hearing she was awarded £15,000 for injury to feelings but nothing for loss of earnings as she had been offered another posting during her notice period, which would have dealt with her child care issues and which she had refused. As such she had unreasonably failed to mitigate her loss.

After the discussion of Scott v Commissioners of Inland Revenue please note

Thus in Bungay v All Saints Haque Centre [2011] UKEAT 0331-10-2709 members of a board of a religious centre were liable for race discrimination and unfair dismissal when they had discriminated against employees because of their faith (they were Hindu). Further, aggravated damages were awarded in respect of their post employment conduct in taking a high handed approach to disciplinary proceedings and making unfounded allegations to the police which caused the claimants a great deal of distress.