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The Employment Equality
(Sexual Orientation) Regulations 2003 outlawed discrimination on the
ground of sexual orientation in employment, vocational training, goods,
facilities and services.
There are potentially four
ways in which employers can discriminate - directly, indirectly, by
harassment and victimisation. We provide an overview of some of the more
important cases that have been decided since the regulations came into
force.
Direct discrimination
is the most easily recognisable form of discrimination. It occurs
when a person makes assumptions or judgments about another person based
on inappropriate and bigoted factors (e.g. race,religion or sexual
orientation) and, on such grounds, treats that person less favourably
than others.
Victimisation and
harassment are specific forms of direct discrimination.
Indirect discrimination
occurs when a person applies a policy, provision, criterion or working
practice which, although on the face of it, is neutral and applies
equally to all, in fact inadvertently puts a certain group of people
(e.g. women, gays or lesbians, followers of religious groups) at a
disadvantage in comparison to others.
Religion and belief
vs sexual orientation
Some of the best known
cases actually involve claimants who alleged that they had been
discriminated against on the ground of their religion or belief, when
they refused to provide certain services to gay and lesbian clients.
So, for instance, the Court
of Appeal has just decided in the case of McFarlane v Relate
Avon Ltd that a counsellor could not claim discrimination on
the ground of his religion or belief when he was dismissed for refusing
to provide counselling to same-sex couples. It also refused Mr McFarlane
the right to appeal this decision.
Likewise, the Court of
Appeal said in Ladele v London Borough of Islington
that a registrar was not discriminated against because of her religious
beliefs when she was threatened with dismissal for refusing to carry out
civil partnership ceremonies.
These decisions have
prompted the observation from some quarters that sexual orientation
rights have “trumped” those of religion and belief.
The Court made the position
plain in Ladele. It said that “however much sympathy
one may have with someone such as Ms Ladele, who is faced with choosing
between giving up a post she plainly appreciates or officiating at
events which she considers to be contrary to her religious beliefs, the
legislature has decided that the requirements of a modern liberal
democracy, such as the United Kingdom, include outlawing discrimination
in the provision of goods, facilities and services on grounds of sexual
orientation, subject only to very limited exceptions."
And in McFarlane,
the Court actively refuted the allegation by a senior representative of
the church that Christians were being likened to bigots because their
approach was described as “discriminatory”. Instead the Court said that
it was not concerned with the motivation of the person in cases of
indirect discrimination, but simply with whether the act or omission in
question had had a discriminatory effect.
Harassment
The other major - and well
known - development in sexual orientation case law has been the case of English
v Thomas Sanderson Blinds Ltd. This established that
heterosexuals can rely on the regulations for protection if they are the
subject of homophobic banter.
In this case, Mr English
alleged that he had been subject to endless “homophobic banter” which
eventually drove him to leave his job. He argued that this amounted to
harassment and was contrary to the sexual orientation regulations
although he himself was not homosexual, nor did any of his colleagues
actually think he was. Mr English himself was aware that his colleagues
did not think he was gay.
The Court of Appeal said
that it was irrelevant whether Mr English was gay or not: "The
calculated insult to his dignity, which depended not at all on his
actual sexuality, and the consequently intolerable working environment
were sufficient to bring his case …". The fact that Mr English’s
colleagues knew he was not gay "has just as much to do with sexual
orientation – his own, as it happens – as if he were gay".
And if it was unlawful
harassment to torment a man whom others believed to be gay, “the
distance from there to tormenting a man who is being treated as if he
were gay when he is not is barely perceptible”. In both cases the man's
(imaginary) sexual orientation formed the basis of the harassment.
The Court said it was also
important for policy reasons why the Court should not make a distinction
between a scenario in which someone was believed to be gay and someone
who was being treated as though they were gay.
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Under contract law,
employers cannot usually change the terms of a contract unilaterally. In
Bateman and ors v Asda Stores Ltd, however, the
Employment Appeal Tribunal (EAT) accepted that employers can reserve the
right to vary employees' contracts unilaterally as long as the term is
clear and they do not exercise the power in such an unreasonable way
that they breach the term of mutual trust and confidence.
What happened?
Asda wanted to move some
members of staff onto a new, up to date pay structure. After an
extensive consultation process, about 9,300 staff agreed to move onto
the new structure voluntarily but about 8,700 refused.
Relying on an express term
in the staff handbook, Asda imposed the new regime on these employees.
This stated that the company reserved the right to “review, revise,
amend or replace” what was in the handbook “to reflect the changing
needs of the business”.
About 700 employees lodged
claims for unlawful deduction of wages under section 13 of the
Employment Rights Act 1996.
Relying on the 1998 case of
Wandsworth London Borough Council v D'Silva, the
employment tribunal said that although employers normally need consent
to vary their employees’ contracts, they could reserve the right to
unilaterally vary them as long as the language of the term was
clear.
However, such a term did
not give employers an unqualified right to introduce changes. And the
term would be unenforceable if the employer had acted so unreasonably or
arbitrarily that they ended up in breach of the implied term of mutual
trust and confidence. For instance, if they introduced the change
without any notice or warning.
In this case, the tribunal
said Asda was able to vary the contracts unilaterally as it had given
several months notice of the change, and its aim of having one pay
structure fell within “the changing needs of the business”.
The EAT agreed with the
tribunal. It said there was no argument that Asda had acted so
unreasonably or arbitrarily as to breach the duty of mutual trust and
confidence.
Furthermore, the provision
in the handbook was clear and unambiguous, giving Asda the right to
amend the handbook unilaterally. It rejected the argument that the
employees, most of whom were “not well-educated or even literate or
numerate” would not have understood that it meant the company could
change their pay rates unilaterally. The claimants had not put any
evidence to the tribunal in support of this argument and did not appeal
on the ground that the tribunal should have made such a finding.
It also rejected the
argument that, under the duty of mutual trust and confidence, Asda
should have spelt out to the employees what the provisions in the
handbook really meant, as “there was no issue in relation to the trust
and confidence duty”.
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Under section 32 of the
1976 Race Relations Act (RRA), employers are liable for the acts of
their employees (or agents) and are also liable under section 33 if they
knowingly “aid” an employee in carrying out an unlawful act. In May
& Baker Ltd t/a Sanofi-Aventis Pharma v Okerago, the
Employment Appeal Tribunal (EAT) said that an employer cannot be held
liable for “aiding” someone to do something after the incident has taken
place.
What happened?
Mrs Okerago worked for
Aventis as a pharmacy inspector. In June 2006, a white agency worker
(Terri Dower) swore at her and told her to go back to her “own fucking
country”, when she said that she would not be supporting England in the
World Cup.
Although she did not
complain about this at the time, Mrs Okerago raised the matter as part
of a general grievance that she lodged in December 2006. The company did
not investigate this claim and made no specific findings about it in
its overall investigation.
When she was dismissed in
March 2007, Mrs Okerago claimed direct race discrimination and
harassment, among other things. The company argued that it could not be
liable for Ms Dower’s actions as she was not an employee.
The tribunal decided that
the World Cup incident had happened as Mrs Okerago had described it and
that the company had failed to promptly and adequately investigate her
complaint. Instead it had been complicit in allowing an environment to
continue where such conduct could take place.
It said the company was
liable for Ms Dower’s actions as the company had treated her as though
she was an employee and were therefore caught by section 32 of the RRA.
As it had failed to investigate Mrs Okerago’s complaint properly, it had
by its subsequent conduct condoned Ms Dower’s acts and were therefore
liable under 33 RRA as well.
The EAT upheld the
company’s appeal. It said:
- There were no findings
of fact from which the tribunal could conclude that Ms Dower was either
an employee or an agent of the company
- Under section 33, a person cannot “aid” someone else to do something
they have already done. Given that everything the company did took
place after the alleged discrimination, it could not have “aided” an
incident after it had happened.
- “Allowing an environment where particular conduct could take place”
did not amount to “knowingly aiding the conduct” as required under
section 33
- Even if the company had “aided” Ms Dower to do the alleged act, the
EAT said that the act would not have been unlawful in itself as she was
not an employee. If the act was not unlawful in itself then the company
could not be liable for knowingly aiding an unlawful act
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The House of Commons
recently approved the amendments made by the House of Lords to the
Equality Bill and it subsequently received Royal Assent. The Act will
come into force in stages, starting in October this year with other
provisions coming into force next year.
The Act will impose the
following obligations on employers:
- Introduce a new public
sector duty to consider reducing socioeconomic inequalities
- Impose a new integrated Equality Duty on public bodies to cover
race, gender, disability, age, sexual orientation, religion or belief,
pregnancy and maternity, gender reassignment
- Use public procurement to improve equality with the result that
private sector firms bidding for government contracts publish details of
their diversity policies
- Ban age discrimination outside the workplace
- Encourage employers with 250 or more employees to publish pay
statistics. This will become obligatory from 2013 if insufficient
progress has been made in the interim
- Ban secrecy clauses in employment contracts
- Extend the scope to use positive action so that employers can favour
under-represented groups during their recruitment process
- Strengthen the powers of employment tribunals so that they can order
organisations found guilty of discrimination to change their
recruitment and pay policies
- Protect carers from discrimination
- Clarify the protection for breastfeeding mothers
- Ban discrimination in private members’ clubs
- Strengthen protection from discrimination for disabled people
- Protect people from dual discrimination - direct discrimination
because of a combination of two protected characteristics.
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