ISSUE 4 - MAY 2014
Equality Law Briefing
 

The Equality Law Project supports front line organisations to understand and use the Equality Act 2010. The Equality Act 2010 is the most fundamental overhaul ofprevious UK antidiscrimination and equality law.

For further information please contact Poornima Karunacadacharan, Equality Law Project officer on 0207 697 4092 or email Poornima@rota.org.uk.

 

 
Equalities in Focus


On the 29th of July 2013 The Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 came into force, which introduced a requirement that litigants pay a fee for different stages in Employment Tribunal Proceedings.  It will cost a Claimant £160 to issue a claim for unpaid wages; payment in lieu of notice; redundancy payments; and your the employer refusing to give time off to go to antenatal classes; and £230 for a hearing.  It will cost £250 to issue a claim involving  unfair dismissal; discrimination complaints; claims under the Public Information Disclosure Act (sometimes referred to as ‘whistleblowing’); and £950 for a hearing.

UNISON challenged the lawfulness of this order on four grounds through judicial review proceedings in the High Court.  The Court ruled that the fundamental flaw in the proceedings was that they were premature, as the evidence at this stage was not sufficient.  UNISON has announced that it will appeal.

Since the introduction of the fees there has been a 79% drop in the number of claims made in the Employment Tribunal.  The TUC is running a Campaign to end employment tribunal fees.  It is seeking examples of individuals who have been deterred from taking a tribunal claim because of the cost, or who have won a case against their employer in the past but who believes they wouldn’t have been able to had tribunal fees existed at the time.

TUC has an online survey where individuals can tell them about their experiences.  The site can be found at: www.surveymonkey.com/s/employment_tribunal

 
Case Law

This is a pick of the most recent judgments in relation to equalities:

R (on the application of Unison) v The Lord Chancellor [2014] EWHC 218 (Admin)

07 February 2014

Public Sector Equality Duty

UNISON – supported by the EHRC as the intervener – challenged the lawfulness of the Employment Tribunals and Employment Appeal Tribunal Fees Order on four grounds.

  • The first was that the requirement violated the EU principle of effectiveness.  This is the principle whereby member states must not make it virtually impossible or excessively difficult to exercise rights conferred by EU law, e.g. discrimination law.

    The High Court ruled that it was not enough that the fees made lodging a complaint 'daunting'.  It had to be shown that people were unable to pay.  The Court felt it too soon to assess the impact.  Evidence as to how the system works in practice, such as a dramatic fall in claims, may show that the principle of effectiveness is being breached.
     
  • The second ground on which the claim was brought was that the fee regime breached the EU principle of equivalence.  This principle places an obligation on member states to not make the process of bringing claims based on rights derived from EU law harder than the process governing similar domestic claims.  The comparison used was a claim in contract brought in the County Court. 

    The High Court rejected this argument, as in the County Court the unsuccessful party is ordered to pay the legal costs of the successful party, whereas in the Employment Tribunal parties bear their own costs.  This was said to be a disincentive to Claimants of limited means bringing a case in the County Court, compared to the Employment Tribunal.
     
  • The Third ground was that the Lord Chancellor was in breach of the Public Sector Equality Duty.  The High Court rejected this argument.  It held that the duty only required that the public authority collect, collate, and consider all relevant information as to the likely impact of the proposals.  The weight given to the relevant information and the conclusions reached is a matter for the public authority to decide on and not for the Court, unless it can be challenged on public law grounds of being outside the range of reasonable conclusions.  However, the Court held that the public sector equality duty is a continuing one and the Defendant is under an obligation to assess the impact of the fee regime on the basis of evidence revealed in practice.  This leads to the Claimant’s fourth ground.
     
  • The Claimant’s fourth ground is that the fee regime amounted to indirect discrimination against women, ethnic minorities and the disabled.  The Court strongly suspected that the requirement to pay a higher fee for discrimination, harassment, and victimisation cases under the Equality Act would have an adverse impact on women and workers with other protected characteristics as they were more likely to bring discrimination cases. 

    However, the Court held that once remissions for the lowest income claimants were taken into account, it was not possible to say what the impact would be and to reach a conclusion on whether the fee regime can be objectively justified.  If in the coming months there is evidence of the fee regime having an adverse impact on those within a protected class, the Defendant would be under a duty to take remedial measures to remove that adverse impact.
     

 R (on the application of Unison) v The Lord Chancellor [2014] EWHC 218 (Admin), Equality Law Reports, Michael Rubenstein Publishing Ltd, [2014] EqLR 215 - 229.

 

Brown v Young & Co’s Brewery plc [2014] EqLR 349

11 February 2014

Race Discrimination - harassment

Mr. Brown who is black was employed as a supervisor in a pub managed by Mr. Gavriloae.  On St. Patrick’s Day 2013 the staff were trying on some promotional hats.  Comments such as “you look sexy” and “you look like Robin Hood” were being made.  When Mr. Brown tried on one of the hats, Mr. Gavriloae said “you look like a pimp”.

Mr. Brown was hurt and offended by this remark but did not complain immediately.  Three weeks later he was informed that a disciplinary investigation had begun against him in relation to allegations of theft.  He raised a formal grievance with the Respondent’s operations manager, which was rejected.  He then brought a Tribunal claim alleging race discrimination and racial harassment.

Mr. Brown argued that the word “pimp” had racial connotations, which was denied by Mr. Gavriloae who claimed that he used the word because of the style of the hat and the way Mr. Brown tipped it down when wearing it.  The Respondent referred to the Oxford English Dictionary, which identified a pimp as “a man who controls prostitutes and arranges clients for them taking a percentage of their earnings in return”.  The Employment Tribunal referred to the Wikepedia entry that included the etymology for the word “pimping” that said the definition paid homage to hip-hop and its connection to street culture, although it has now entered common mainstream commercial use.  Furthermore, the Tribunal noted that more than 50% of the men that showed from a Google search of the word were black.

The Tribunal held that the word “pimp” was a racially stereotyping word and accepting that the use of the word was unwanted by the Claimant, whose perception was that his dignity had been violated, upheld the complaint of harassment.  The Tribunal also concluded that they would have found the incident to have amounted to one of direct discrimination.


Brown v Young & Co’s Brewery plc, East London Employment Tribunal, Equality Law Reports, Michael Rubenstein Publishing Ltd, May / June 2014, EqLR 349.

 
 
Best Practice Case Study of the month

 
A public body and the benefits of embracing the Equality Duty

A leading employment law QC member of the DLA has provided the following example which illustrates how, by incorporating equality requirements in a contract with an external supplier, a public authority can not only secure good equality outcomes for the contract in question but also bring about a change in the culture of the supplier itself. In this case, the resulting high equality standards which the supplier had fully implemented enabled it to satisfy an employment tribunal that it had taken ‘all reasonable steps’ and was therefore not liable for the alleged discrimination by its employees.

"My client is a large, international private sector business. It submitted a tender for a contract with a London-based public body. To win the contract, it had to demonstrate compliance with various equality and diversity standards and enter into commitments (i.e. in terms of audit, monitoring - with the public body concerned - and review) for the future. The public body concerned set high standards in terms of equality and diversity and joint monthly monitoring meetings were established at a high level.

My client decided to embrace these requirements not just in that part of the business engaged in the particular contract with this public body but across its operations in the UK. It set itself yearly and 5-yearly 'targets', set about a completely new programme of diversity training and awareness and put in place a number of other measures to address what appeared to be areas where it could do more in terms of equality and diversity. Although the company had previously had in place equal opportunities policies, this was a change to a far more pro-active agenda and everyone I spoke to (from the Director of HR, senior management, first level supervisors etc.) said it had brought about an entire change in culture - a real wind of change.

I was instructed by this client in relation to a case in the employment tribunal when it was defending allegations of a ‘culture of racism’ by four claimants. One claimant withdrew his allegation, two claims were dismissed and the fourth very similar claim was postponed due to illness. Significantly, the employment tribunal found in the alternative that my client had established its defence under s.109(4) - that it had taken ‘all reasonable steps’ to prevent its employees from doing the acts in question. This is the first time, in over 20 years at the Bar, that I have had personal experience of an employer succeeding in this defence."

The main point in the above example is how a public authority could - by proactively engaging with its statutory equality duty and using a contract with a private sector organisation to do so - bring about a lasting positive change in the culture of that organisation.

 


Source: Submission to the Review of the Public Sector Equality Duty, Call for Evidence[April 2013] : Discrimination Law Association

This case study is part of a resource developed in partnership with the Race Equality Foundation (REF) and collated by Leander Neckles, Equanomics UK.
 

 
News and events

Judicial Review Proposed Reforms Update

In their new report the Joint Committee on Human Rights says that evidence is lacking to support the reforms to judicial review proposed by the Government.  It also notes that, while quicker and more cost-effective mechanisms may be possible, the legal enforceability of the Public Sector Equality Duty is crucial in ensuring the implementation of, and compliance with, equality law by public authorities, and that the ultimate legal enforceability of the duty by judicial review should therefore be retained.

Find out more about this here

 
 

 

 

Race on the Agenda

c/o Resource for London
356 Holloway Road
London, N7 6PA
United Kingdom


Email: rota@rota.org.uk
Website: www.rota.org.uk

Patron: Lord Victor Adebowale CBE
Patron: Dr Richard Stone


Share this newsletter:   

 
 
 

 


To unsubscribe from the ROTA database and stop receiving ROTA communications, please click here or email: saifur@rota.org.uk