Key discrimination cases for 2008
This article is an expanded version of the sections relating to discrimination and equal opportunities issues of a lecture by Michael Rubenstein on “Key employment and discrimination cases for 2008”, given to the Industrial Law Society on 29 January 2008 in London, 5 February in Newcastle upon Tyne, 6 February in Leeds, and 7 February in Manchester.
Register (external website) to obtain the full text of the lecture, including sections dealing with non-discrimination issues – such as forthcoming cases on unfair dismissal, employment status, TUPE and working time.
On this page
Equal pay
Part-time workers
Pregnancy and maternity
Sex and race discrimination
Sexual orientation discrimination
Disability discrimination
Age discrimination
In this article, I highlight my predictions for some of the key discrimination cases you will be hearing about in 2008. Some of the cases have already been argued, some will be argued later in the year, but judgments had not been issued in any of the cases at the time of writing, in the third week of January.
Equal pay
During 2006–07, some 44,000 equal pay claims were brought. This represented 18% of all tribunal claims. The great majority consisted of the big multiple claims against local authorities and in the National Health Service. Equal pay claims are also featuring prominently in the list of key cases for 2008.
In order to bring an equal pay claim, the claimant has to comply with the statutory grievance procedure before presenting their tribunal claim. Step one requires the claimant to “set out the grievance in writing” and send it to the employer. The issue in Highland Council v TGWU/Unison is whether this means that equal pay claimants have to specify a comparator at step one in order to present a complaint, and whether they are prevented from presenting complaints if their ET1 specifies different comparator posts from those, if any, specified in their grievance statement. The claimants pointed out that they did not know the relevant details of potential comparators at the grievance stage, and that there is no right to obtain discovery of information from the tribunal prior to commencing proceedings. However, the EAT has now held that it is not enough for the grievance to say that it is about equal pay, leaving the specification of comparators until the claim is presented to the tribunal. According to Lady Smith: “The exercise of comparison is so fundamental to a complaint that an employer has failed in his equal pay obligations, that there must be some specification of comparator, at least by reference to job or job type, in the grievance document. Without that, the employer cannot be expected to appreciate that a relevant complaint is being made. It cannot be enough to state that an equal pay claim is being made without saying more.” Moreover, if a claimant has communicated a grievance and then discovers a materially different comparator the EAT holds that, if tribunal proceedings have not commenced, they must put in a further grievance document. The general principle is that an employment tribunal must satisfy itself that the comparators in the complaint it receives were substantially the same as or not materially different from those in the claimant’s grievance document. Leave is being sought to appeal to the Court of Session.
Slack v Cumbria County Council is the name that will be used in the Court of Appeal for Cumbria County Council v Dow (No.2) , which was reported in the February 2008 IRLR. The issue is the circumstances in which the six-month time limit for bringing an equal pay claim, which runs from “the last day on which the woman was employed in the employment”, operates where there has been a change to the employee’s terms of employment in respect of their status, hours or duties. The EAT held that the time limit is triggered in circumstances in which the parties have agreed to effect the changes by termination of the existing contract of employment and issuing of a fresh one – in this case via the mechanism of a document that expressly stated “this contract of employment supersedes any previous contract of employment” – even though there is no interruption in continuity of employment, no break between contracts and the only change was that the claimant agreed to a change in hours from 37 to 30.
According to Mr Justice Elias, the form of the change is crucial in determining whether the contract was terminated or merely varied: “Where it is clear from the contractual documents that the parties have agreed to effect changes by a fresh contract, that must be decisive. The courts must give effect to their chosen mechanism.” On appeal, it will be argued that the employees did not terminate their contracts of employment and enter into a new contract. There was simply a variation of their existing contracts of employment.
There are important issues currently being litigated as to whether a claimant whose work has been contracted out under a TUPE transfer continues to have a right to equal pay with a comparator who did not transfer even though they are no longer in common employment. The key questions are whether the equality clause transfers under TUPE, whether employees who were transferred continue to gain the benefit of collective agreements negotiated by the transferor and the time limits for bringing claims in such a case.
Does the equality clause transfer? In Gutridge v Sodhexo Ltd, female cleaners at Hartlepool General Hospital were transferred from North Tees and Hartlepool NHS Trust to Sodhexo. They sought to compare themselves with male maintenance assistants, who did not transfer. A Newcastle tribunal has held that such a claim can be brought where the equality clause was contravened during the employment of the transferor and is continued by the transferee after the transfer. The tribunal took the view that such a finding was not precluded by the Powerhouse litigation, which covered pension entitlements. It ruled that: “If there is at the date of a transfer, inequality of pay between a claimant and a comparator in the employment of the transferor, which is not an inequality related to pensions … and the transferee continues after the transfer to pay the claimant a sum less than that due to her as wages under the pay term in her contract as modified by the equality clause, that transferee itself is ‘contravening’ … the term of the contract. A complaint may then be presented to the employment tribunal on or before the qualifying date which is six months after the last day on which she was employed in the employment to which her claim relates, which is the employment by the transferee.”
Hughes v Aramark Ltd raises similar issues in respect of local government. In this case, however, the Newcastle tribunal went further and held that school meals workers whose work was contracted out by Cumbria County Council to private contractors were not only entitled to back pay for breach of the equality clause relying on comparators who were in common employment before the TUPE transfer, but, applying Whent v Cartlege , that they were also entitled to any pay increases arising under the local government collective agreement that was incorporated in the claimants’ contracts of employment by virtue of the equality clause.
Both Gutridge and Hughes have been appealed to the EAT and are expected to be heard together.
Leave to appeal has been given by the EAT in two cases brought against Littlewoods involving part-time pension claims. Both appeals raise issues of proof. In Abbott v Littlewoods plc, the tribunal ruled that the claimants had not established a prima facie case of indirect sex discrimination as regards the exclusion of part-time workers from the pension scheme because, the tribunal said, “no statistical evidence has been provided … concerning the composition of the advantaged and disadvantaged groups.” On appeal, it will be argued that the tribunal erred in applying authorities such as Nelson v Carillion Services which pre-date implementation of the Burden of Proof Directive and the amendments to the definition of indirect discrimination in the Sex Discrimination Act.
In Forbister v Littlewoods Home Shopping, the issue is whether, in light of the changes to the burden of proof, a tribunal should continue to impose a rebuttable legal presumption that there was no breach of the Equal Pay Act where the claimant did not join their pension scheme upon becoming eligible to do so.
The EAT will be hearing North Cumbria Acute Hospitals NHS Trust v Potteron 30 January. One of the key issues in the public sector equal pay claims has been the scope of permissible comparisons under the Equal Pay Act and under EU law, the line of cases starting with the decision of the European Court of Justice in Lawrence v Regent Office Care Ltd. Where the claimant and the comparator are employed by different employers but are part of the same service, or where they are employed by the same employer but at different establishments, then the courts have held that in order for a valid comparison to be made, there must be a “single source” responsible for the alleged discriminatory pay differences. In Potter , the employers unsuccessfully argued that even though the claimants and the comparators were employed by the same trust in the same establishment, they could not bring a claim because the terms and conditions for the respective groups were determined separately by different Whitley Councils, and that each Whitley Council was a separate source. The EAT will be asked to consider whether s.1(6) of the Equal Pay Act must be read so as to include a “single source” requirement.
Another issue in the Potter litigation will be heard by the EAT under the name of Casson v North Cumbria Acute Hospitals NHS Trust. The issue here relates to how the independent expert should approach the evaluation of a claimant’s work: should the independent expert evaluate the work as it was at the date of claim or, where it is alleged by the employer that there has been a material change in the work a claimant was doing, should the independent expert also evaluate the job as it was over the whole of the six years prior to the claim for which compensation is being sought. The tribunal ruled that the expert should assess the question only as at the date of claim. The claimants say that this deprives them of the full assistance of the independent expert.
Agenda for Change is the National Health Service pay settlement that came into force on 1 October 2004. A sizeable portion of the employment law bar will be engaged in Newcastle for six weeks from October in a preliminary hearing on national issues arising in Hartley v Northumbria Healthcare NHS Trust, a test case which challenges the validity of Agenda for Change under the Equal Pay and Sex Discrimination Acts. If the claim is successful, it clearly would have huge implications across the NHS, and there are a large number of local cases against various NHS trusts backed up behind Hartley. The trade unions have been named as co-defendants and the Secretary of State for Health will also be represented for the first time.
There are a large number of issues to be decided in Hartley. These include whether or not there are reasonable grounds for suspecting that the job evaluation scheme in Agenda for Change was invalid under the Equal Pay Act because it was not an analytical scheme within the meaning of s.1(5), or because the scheme itself and the processing of it was tainted by sex discrimination. It is being argued that since the way the scheme works is that a job in the trust is matched to a national profile, that is not an actual comparison of the woman’s job and the man’s job at all within the meaning of s.1(5).
It is also being claimed that the scheme itself was discriminatory because job profiles were “massaged” so as to be more beneficial to men. In addition, there are pay protection issues, in that employees were slotted in at the pay point nearest their previous pay – including allowances, bonuses etc – and this is being challenged on grounds that it perpetuates any previous discrimination. Moreover, Agenda for Change allows recruitment and retention premia, but it is alleged that this discriminates in favour of men.
Agenda for Change took effect in October 2004, but the job evaluation was only completed later. Therefore, pay was backdated. There is an interesting issue as to whether it is permissible to deem the effect of a job evaluation scheme to be backdated and treat an employee as having been evaluated in a particular pay band in October 2004 even though she was not actually rated at the time of her equal pay claim.
There are also a number of back pay points.
We are now awaiting the judgments in what is likely to be one of the most important cases for many years on the material factor defence to equal pay claims, the conjoined appeals in Redcar & Cleveland Borough Council v Bainbridge and Surtees v Middlesbrough Borough Council. This case asks the Court of Appeal to revisit the principles for establishing indirect discrimination and the genuine material factor defence under the Equal Pay Act. The key issue is when does the duty to objectively justify unequal pay arise: is it whenever there is evidence of discrimination, such as statistics showing that a predominantly female group is paid less than a predominantly male group, or is it, as the Court of Appeal held in Armstrong v Newcastle Upon Tyne NHS Hospital Trust, only where the employer cannot show that the material factor causing the difference in treatment was not “tainted” by sex? Armstrong was relied on by Mr Justice Elias in the Surtees case (and more recently in Cumbria County Council v Dow No.1 ) to hold that it is open to an employer to show that even though there is disparate impact, it is not related to any act of the employer that is sex-tainted, so that there is no need for the employer to justify.
The difficulty with this analysis, as we have pointed out, is that it seems to conflate direct and indirect discrimination. On the one hand, it appears to hold that before an employer is required to justify, there must be evidence of sex discrimination. On the other hand, it appears to hold that where there is evidence of direct discrimination, the employer still has the opportunity to justify.
The Equality and Human Rights Commission (EHRC) has intervened to argue that Armstrong introduced a new stage into the indirect discrimination analysis which is inconsistent with binding EC law as authoritatively set out by the European Court of Justice in the Enderby case.
Another key issue in Bainbridge and Surtees is pay protection: when is pay protection permissible after implementation of a job evaluation scheme? In particular, does the employer have a genuine material factor defence where pay protection perpetuates historic pay discrimination in that male-dominated groups get the benefit of pay protection because, unlike female-dominated groups, they were in receipt of bonuses which were discriminatory in that they did not genuinely reward productivity?
On this issue, more controversially, the EHRC is also intervening to argue that an employer can lawfully introduce temporary pay protection arrangements even if they prolong inequality for a limited time, provided the employer’s aim is to eliminate unequal pay as soon as possible and the method chosen disadvantages women as little, and for as short a period, as possible. The commission says that it is concerned that an adverse ruling on transitional pay protection will prevent workable negotiated solutions, and in particular will act as a disincentive for job evaluation.
The case will also deal with whether or not an equal pay claimant can make more than one claim in respect of the same period of time using a different comparator, or if this is precluded by the doctrine of res judicata. The EAT ruled in Bainbridge No.1 that each claim is a distinct cause of action, so that more than one action can be brought in respect of the same pay period, although awards of damages would be offset against each other if more than one claim was successful
Finally, the case raises the issue of the extent to which an employer can rely upon separate collective bargaining as a defence to paying predominantly male groups more than predominantly female groups.
Collective bargaining as a defence will also be the issue in the Court of Appeal in the latest instalment of Grundy v British Airways, listed for July. The issue in the case is whether BA was in breach of the Equal Pay Act by not providing support cabin crew, an overwhelmingly female group, with an incremental pay scale. Last year, the Court of Appeal found that this was indirectly discriminatory against women. In the forthcoming hearing, BA will be arguing that a collective agreement can provide justification for an otherwise discriminatory practice where the collective bargaining process was not itself affected by sex discrimination and where the staff groups represented were predominantly female.
Chief Constable of West Midlands Police v Blackburn is a recent decision on the material factor defence. The West Midlands Police operate a rotating three-shift system, which includes a night shift that all officers are expected to work unless they are excused by reason of childcare responsibilities or a medical condition. It was agreed that special payments would be made to those who were available to be rostered at any time. Women who could not work nights because of their childcare commitments, and thus were not eligible to receive these payments, successfully brought equal pay claims. The tribunal found that the requirement to work 24/7 had an adverse impact on women. Although the wish to reward 24/7 working was a legitimate aim, the tribunal concluded that it would have been possible to achieve that aim in a less discriminatory way than excluding from the special payments the women who could not work nights because of childcare responsibilities.
The EAT has now allowed an appeal against that decision, holding that the tribunal misunderstood indirect discrimination. According to the EAT: “It is no answer to a defence for a difference of pay to say that there is no need for the difference in the first place … The assumption appears to be that the employers should do their utmost to ensure that women and men on equal work are paid the same. That is not what the law requires.” Mr Justice Elias observed: “Nothing in the Equal Pay Act requires an employer to deem that women have done what they have not done. The payment of money to compensate for the economic disadvantages suffered by those who have childcare responsibilities is not what the Equal Pay Act requires.”
The Police Federation are seeking to take the case to the Court of Appeal.
In Cadman v Health & Safety Executive , the European Court of Justice held that pay differences based on length of service are generally presumed to be permissible even where they have a disparate impact upon women. However, the ECJ added a caveat that this presumption is rebuttable if the claimant can provide “evidence capable of giving rise to serious doubts as to whether recourse to the criterion of length of service is, in the circumstances, appropriate to attain” the objective of rewarding experience that enables the worker to perform his duties better.
The sister case to Cadman , Wilson v Health & Safety Executive, has now been decided by the Shrewsbury employment tribunal. This was a case in which the claimant conceded that performance improved for the first three years or so of service, but she argued the size of the service increment was entirely disproportionate to what was appropriate.
The tribunal interpreted the ECJ decision as meaning that the evidence capable of raising serious doubts has to be evidence relating to the specific job, not to the length of the pay scales. On that basis, it dismissed the claim, pointing out that in almost any employment, some recourse to service pay must be appropriate. It said that means that “the serious doubts exception seems to us only to be likely to apply in the case of a relatively unskilled worker, and not at all at a professional/managerial level, where it is going to be impossible to argue that experience does not enable an employee to perform his or her duties better.”
The tribunal did characterise the ECJ’s decision as “enigmatic”, and there will be an appeal to the EAT.
Part-time workers
Two cases raise the issue of whether an office holder is a “worker” for the purposes of the Part-time Workers Regulations 2000. Christie v Department for Constitutional Affairs concerns a retired part-time fee-paid chairman of social security appeal tribunals. He brought proceedings claiming that he was entitled to pro rata pension rights to those of full-time chairmen. The Regulations specifically exclude “the holder of a judicial office if he is remunerated on a daily fee-paid basis”. The real question was whether that accords with Directive 97/81/EC and the framework agreement on part-time work that the Regulations implement. Both the employment tribunal and the EAT held that he did not fall within the definition of a “worker”. The EAT held that there is no general concept of “worker” within the meaning of EU law. The Directive leaves it to the member state to define who is a “worker” for this purpose, and the UK has acted properly within that discretion.
The claimant has been given leave to appeal to the Court of Appeal.
A similar issue will be ventilated in the EAT in O’Brien v Secretary of State for Justice. This concerns whether the Part-time Workers Regulations apply to Recorders.
Pregnancy and maternity
The EC Pregnant Workers Directive 92/85 protects women against dismissal on grounds of pregnancy. An Austrian case currently before the European Court of Justice, Mayr v Bäckerei und Konditoei Gerhard Flöckner(C-506/06), raises an intriguing question as to the scope of this protection: “Is a worker who undergoes in vitro fertilisation a ‘pregnant worker’ within the meaning of” the Pregnant Workers Directive “if, at the time at which she was given notice of termination of employment, the woman’s ova had already been fertilised with the sperm cells of her partner and ‘in vitro’ embryos thus existed, but they had not yet been implanted within her?”
The Advocate General’s Opinion is not yet available in English. He appears to suggest, however, that a woman in such circumstances does not fall within the definition of “pregnant worker” in the Pregnant Workers Directive. However, he goes on to suggest that to dismiss a woman because she will become pregnant is contrary to the Equal Treatment Directive.
In Equal Opportunities Commission v Secretary of State for Trade and Industry , the High Court held that the UK had incorrectly implemented the revised Equal Treatment Directive by making the test of pregnancy discrimination whether the employer treats a pregnant woman less favourably than he treats a comparator who is not pregnant. In Tofeji v BNP Paribas, a senior foreign exchange dealer came back from maternity leave to find that she had lost her clients to other dealers who were covering for her during her absence. An appeal is due to be heard by the EAT from a tribunal decision that this did not amount to sex discrimination because she was not treated differently than the employers would have treated a man with a similar length of absence. It will be argued that the correct test is whether the woman was placed at a disadvantage as a result of taking maternity leave.
Sex and race discrimination
The Court of Appeal will be hearing the appeal against the EAT’s judgment in GMB v Allen, probably in May. The EAT, it will be recalled, overturned the employment tribunal’s finding that the union unlawfully indirectly discriminated against members in Middlesbrough who were represented by Stefan Cross. In so finding, the EAT set out the controversial principle that “once … it was accepted that the objective or aim was legitimate, it was difficult to see how it could be alleged that the means were inappropriate.” The appeal raises fundamental issues as to what amounts to indirect discrimination and what is the correct test for objective justification. It will be argued for the claimants that the EAT’s approach to justification incorrectly interprets the principle of proportionality embodied in EU law and now in our own statutes because it gives insufficient weight to whether the means adopted were appropriate. Although the Allen case was brought against a union, usually it is employers who are the respondents to discrimination claims and who would benefit from the interpretation of the justification test put forward by Mr Justice Elias. In the Court of Appeal, the union will be cross-appealing the EAT’s finding that its negotiating tactics were sex-tainted and had a disparate impact on women.
Meanwhile, other claims are pending against Unison and what is now Unite.
For the most part, there are separate employment and discrimination law regimes as between Great Britain and Northern Ireland. In Rogan v British Telecom a Northern Ireland tribunal ruled that, nevertheless, a Northern Ireland employee of a UK-wide company can bring a claim under the Race Relations (Northern Ireland) Order comparing their treatment to British-based counterparts. The case concerns BT mobile phone engineers. In 2001, those who were British-based were regraded to a higher grade and given a bonus of around £40,000 to encourage them to remain with the company. Despite doing exactly the same work, the Northern Ireland engineers were not regraded and did not receive the bonus. They claimed that this amounted to discrimination contrary to the race relations legislation. In a preliminary decision, the tribunal chairman ruled that there was nothing to restrict comparators from outside Northern Ireland being used.
The Court of Appeal in Northern Ireland has heard an appeal against this decision and judgment is awaited.
Judgment is awaited from the EAT in Okuno v G4S Services (UK). The Race Relations (Amendment) Regulations 2003, because they could go no further than the EC Race Discrimination Directive, only apply to discrimination on grounds of race, ethnic and national origin, but not to colour or nationality. Therefore, the provisions on the burden of proof do not, on their face, extend to discrimination on grounds of colour.
In Okuno , the claimant argued that he was discriminated against because he was “black”. The tribunal took a rather literal approach to this concept and treated the case as one of discrimination on grounds of “colour”, to which the reversal of the burden of proof did not apply. On appeal, it was argued that the Directive requires a purposive interpretation to give “colour” a meaning that includes “race”.
As mentioned, the provisions of the Race Relations (Amendment) Regulations on the burden of proof only apply to “discrimination” on grounds of race, ethnic and national origin. In Oyarce v Cheshire County Council, the EAT ruled that it follows that they do not apply to an act of victimisation contrary to s.2 of the Act, even though the reverse burden of proof applies to victimisation claims under the other five strands of unlawful discrimination.
The case will be heard by the Court of Appeal on 12 March. The EHRC is seeking to intervene. It acknowledges that it makes little sense to speak of victimisation on grounds of race, ethnic and national origin, since victimisation is defined as being “by reason that” the complainant has done one of the protected acts set out in the statute. Nevertheless, the commission will submit that the provisions are ambiguous and that on a purposive construction, victimisation can be said to fall within the concept of “discrimination”.
Taylor v King’s College Hospital NHS Foundation Trustconcerns the interface between the Sex Discrimination and Equal Pay Acts. The pay system for a dental technician provided for the award of discretionary points. Miss Taylor complained that she was treated less favourably by her line manager than her male comparators when she sought to raise issues about her pay and grading. The tribunal noted that “her case is that her concerns were dismissed and sidelined whereas when similar complaints were made by men, they were treated seriously and acted upon. So her complaints fall firmly and squarely within the ambit of the SDA.”
Her sex discrimination claim was not blocked by the exclusion in s.6(6) of “benefits consisting of the payment of money where the provision of those benefits is regulated by the woman’s contract of employment”. The tribunal said that “the discretionary points are exactly that: discretionary and non-contractual. It does not consist of the payment of money, but the allocation of points.” An appeal to the EAT is pending.
In the past two years, public authorities have been made subject to the disability and gender equality duties. These require the public authority to carry out equality impact assessments as part of its decision-making process, and impose specific duties, such as those relating to monitoring and requiring the public authority to publish equality schemes setting out the actions it will take to fulfil its general duties. This is beginning to produce litigation, although mainly outside the field of employment. PCS v Department for Transport, however, is a judicial review application that challenges the alleged failure of the department to consult the unions over its gender equality plan, and the way the department is proposing to deal with equal pay. The union is contending that the department has misconstrued the law by not applying the gender duty to the whole department, but instead applying it by bargaining units.
The Advocate General’s Opinion is due on 12 March in Centrum voor gelijkheid van kansen en voor racismebestrijding [Belgian Centre for Equal Opportunities and Opposition to Racism] v NV Firma Feryn(C-54/07). The reference asks whether there is direct discrimination contrary to EU Race Discrimination Directive 2000/43 if an employer does not employ any door fitters from ethnic minorities and, after posting a conspicuous job vacancy notice, publicly states: “I must comply with my customers’ requirements. If you say ‘I want that particular product or I want it like this and like that’, and I say ‘I’m not doing it, I’ll send those people’, then you say ‘I don’t need that door’. Then I’m putting myself out of business. We must meet the customers’ requirements. This isn’t my problem. I didn’t create this problem in Belgium. I want the firm to do well and I want us to achieve our turnover at the end of the year, and how do I do that? – I must do it the way the customer wants it done!”
Another part of the questions asks the ECJ whether a presumption of race discrimination in this case can only be rebutted by actual recruitment of door fitters from ethnic minorities, or whether, instead, it can be rebutted by the fact that a Tunisian cleaning lady was employed.
These may be somewhat extreme facts, but the underlying principle is not unusual. The employer is saying that it has good business reasons for discriminating. Will that be acceptable under EU law?
Sexual orientation discrimination
English v Thomas Sanderson Blinds is one of the first cases to be heard by the EAT under the Sexual Orientation Regulations. The case raises the interesting point of the position of someone who was subjected to homophobic taunts and abuse by work colleagues suggesting he was gay, even though the perpetrators knew he was not gay. The employment tribunal held that someone who was not gay himself, and was not mistakenly or genuinely thought to be gay, and was not harassed because of any gay associations or friendships, could not fall within the scope of the prohibition of harassment “on the grounds of sexual orientation”.
An appeal has just been heard in the EAT. It was argued on behalf of the appellant that the words “on the grounds of sexual orientation” cover a case where taunts and banter are homophobic and reflect hostility towards gay people in general, and that there is no valid distinction between subjecting a person to homophobic taunts and banter because he is mistakenly perceived to be gay, and subjecting a person to such conduct because he is perceived to have stereotypical characteristics associated with a gay person, although not himself believed to be gay.
Maruko v Versorgungsanstalt der deutschen Bühnen(C-267/06) is a German reference to the ECJ about whether it is contrary to the prohibition on sexual orientation discrimination in the Framework Employment Equality Directive for an occupational pension scheme to treat a same-sex registered civil partner differently as regards survivor’s benefit than a spouse is treated. The Advocate General’s Opinion is not yet available in English, but it appears to suggest that a distinction in this respect between the treatment of marriage and civil partnership constitutes indirect discrimination on grounds of sexual orientation contrary to the Framework Directive.
Disability discrimination
The Advocate General’s Opinion will be issued on 31 January, just after this edition went to press, in Coleman v Attridge Law (C303/06). This is a reference from an employment tribunal on the scope of the Framework Employment Equality Directive’s prohibition of discrimination “on grounds of disability”. For the discrimination strands other than disability and age, it is well established that discrimination on a prohibited ground extends to discrimination for a reason based on that ground and therefore covers discrimination by reason that a person associates with someone in a protected group. The Disability Discrimination Act, however, is asymmetrical in that it protects only “disabled persons”.
Coleman asks whether this is compatible with the Directive. The claimant was a legal secretary with a disabled young son requiring care. She sought to claim that, as a result, she was subjected to unfair treatment and harassment by her employers. The importance of the case is that if so-called associative discrimination is covered, it will be unlawful to discriminate against someone because they care for a disabled person. This would also be likely to have consequential effects for the rights of carers under the age discrimination Regulations.
In Hart v Chief Constable of Derbyshire Constabulary, a probationary constable’s service was terminated because she could not successfully complete her probationary period because of spinal injuries that prevented her carrying out duties in a confrontational situation requiring restraint and arrest. Since it was accepted that she was otherwise competent to become a non-frontline police constable, it was argued that the probation requirements should be adjusted. It was pointed out that officers who become disabled after completion of their probationary period may be placed on restricted duties.
The EAT accepted that in an appropriate case the duty of reasonable adjustment could extend to adjusting the existing job or finding a suitable alternative job. However, the police authority was in a different position from that of an ordinary employer in that, in effect, it plays a regulatory role by conferring a formal status on an officer who has completed probationary requirements. According to Mr Justice Elias: “It is reasonable to insist on standards being maintained. The tribunal was entitled to accept that the position of someone who has passed the probationary requirements is different from someone who has not.”
Leave is being sought to appeal to the Court of Appeal.
Age discrimination
During 2008, the European Court of Justice will be hearing, and probably deciding, R (on the application of the Incorporated Trustees of the National Council on Ageing) v Secretary of State for Trade and Industry, the Heyday challenge to the default retirement age. Most of the issues posed by the reference were answered by the Court in its judgment in the Palacios case. In particular, it now seems clear that mandatory retirement is direct age discrimination within the meaning of the Framework Employment Equality Directive. The key issue now is whether the default retirement age is objectively justified. What remains to be seen is whether the ECJ will give useful guidance on this, or whether it will simply send the case back to the High Court for a decision.
Meanwhile, in Johns v Solent SD, the EAT ruled that an age discrimination claim by an employee forced to retire against their will because they reached age 65 should be stayed pending the outcome of the Heyday challenge; and the President of Employment Tribunals, Judge Meeran, has issued a practice direction that all claims raising the same issue should be stayed. However, the employer in Johns has appealed to the Court of Appeal against the EAT’s ruling.
Partners in professional firms are not subject to the default retirement age exclusion from the age discrimination Regulations. Seldon v Clarkson, Wright & Jakes is a claim by the firm’s former senior partner that his compulsory retirement at age 65, as laid down in the partnership deed, was unlawful direct age discrimination. The tribunal accepted that compulsory retirement met a number of legitimate aims: to ensure that associates are given the opportunity of partnership after a reasonable period as an associate thereby ensuring that associates do not leave the firm; to facilitate the planning of the partnership and workforce across individual departments by having a realistic long-term expectation as to when vacancies will arise; and to limit the need to expel partners by way of performance management thus contributing to the congenial and supportive culture in the firm. It held that the compulsory retirement age was a proportionate means of achieving those legitimate aims, and that there was no alternative that would achieve the aims.
An appeal to the EAT has been lodged.
If, prior to the age discrimination Regulations coming into force, an employee agreed a retirement date of 63, to take effect after the Regulations were in force, does that agreement trump the need for the employer to objectively justify a retirement of someone below age 65? That is the issue in the forthcoming employment tribunal case of Reid v Elstree Film Studios
Early retirement rules in the public sector inevitably are going to be tested under age discrimination legislation. Typically, in a redundancy situation, whether you get a redundancy payment or an enhanced pension depends on whether you have reached a minimum age, such as 50. Nethercott v South West Ambulance Service NHS Trust deals with this issue and adds a further wrinkle. The claimant was made redundant, with an effective date of termination a week before her 50th birthday. Had she been 50, she would have had an enhanced pension costing the employer a further £300,000.
Under NHS rules, if you are sick during annual leave and as a result there is annual leave untaken at the end of your employment, that untaken leave extends the period of pensionable service even though it does not alter the effective date of termination.
Ms Nethercott had an operation during her annual leave close to the end of her employment. She claimed that this was related to a disability. When the employers heard about the operation, they brought forward her notice to prevent her qualifying for the enhanced pension. They claimed that she was deliberately manipulating the system. Ms Nethercott has brought an age and disability discrimination claim, which is now part-heard. The main issue is whether any age discrimination is justified.
In Hung v Halliburton, the claimant, who was dismissed on grounds of redundancy, has hundreds of thousands of pounds of share options. He has brought an age discrimination claim challenging the company’s rule that employees made redundant get to keep their share options only if their age plus their service equals 70 years.
Following reorganisation of the Meat Hygiene Service, newer recruits are members of the civil service pension scheme. This has more favourable redundancy terms than the local government pension scheme to which employees with longer service, who are on average older, belong. Hughes v Meat Hygiene Service is an age discrimination test case being brought on behalf of members of the local government scheme who were made redundant. The employers are arguing that any age discrimination was justified by reason of the cost of transferring the employees from one pension scheme to another, which they say would be in the region of £50 million. So this case raises directly the issue of whether the cost of not discriminating will be accepted as a defence to age discrimination. The tribunal hearing is scheduled for April.
Finally, an appeal to the EAT seems certain in Hampton v Lord Chancellor. This recent decision holds that the retiring age of 65 for fee-paid part-time Recorders is unlawful age discrimination. Most other judicial office-holders are required to retire at age 70. The Government ran the “vampire” justification. It claimed that a retirement age of 65 “strikes a reasonable balance between recognising individuals’ value and experience and bringing in new blood”. It said that there needs to be a reasonable flow of candidates for full-time judicial posts, both by permitting new appointees to begin judicial careers and by ensuring that those who may progress are given sufficient work to gain the necessary experience.
The tribunal took the view that this was a legitimate aim, but held that a retirement age of 65 was not a proportionate means of achieving that legitimate aim. Raising the retirement age to 70 would reduce the number of Recorders eligible for promotion from 1,372 to 1,138, but given that only 3% of Recorders are appointed judges each year, that would be unlikely to affect the pool of suitable candidates. Necessary experience for those in the promotion pool could be achieved by allocating them appropriate cases. The tribunal concluded that it had not been shown that the discriminatory treatment was a reasonably necessary means of achieving the legitimate aim.
