ISSUE 6 - AUGUST 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


‘At What Price Justice?’ – TUC Report

It has been one year since the introduction of Employment Tribunal Fees.  On the first anniversary of the introduction of fees the TUC reports that Employment Tribunal Fees have been a huge victory for Britain’s worst bosses!  The report claims to show a 79% fall in overall claims taken to the tribunal, with women and low paid workers worst affected.

The report analyses the Ministry of Justice statistics and reveals the following key findings:

  • Women are among the biggest losers – there has been an 80 per cent fall in the number of women pursuing sex discrimination claims. Just 1,222 women took out claims between January and March 2014, compared to 6,017 over the same period in 2013. The number of women pursuing pregnancy discrimination claims is also down by over a quarter (26 per cent).
     
  • Race and disability claims have plummeted – during the first three months of 2014 the number of race discrimination and sexual orientation claims both fell by 60 per cent compared to the same period in 2013.  Disability claims have experienced a 46 per cent year-on-year reduction.
     
  • Workers are being cheated out of wages – there has been a 70 per cent drop in workers pursuing claims for non-payment of the national minimum wage.  Claims for unpaid wages and holiday pay have fallen overall by 85 per cent. The report says that many people are being put off making a claim, because the cost of going to a tribunal is often more expensive than the sum of their outstanding wages.
     
  • Low-paid workers are being priced out – only 24 per cent of workers who applied for financial assistance to take claims received any form of fee remittance.  Even workers employed on the minimum wage face fees of up to £1,200 if a member of their household has savings of £3,000.  A copy of ‘At What Price Justice?’ is available here

 

 
Case Law


Essop v Home Office (UK Border Agency) [2014] EqLR 377[i]

Employment Appeal Tribunal

16 May 2014

Race Discrimination: Indirect

Mr Essop and others were a group of BME Civil Servants and in order for them to get promoted to certain higher-grade posts within the Civil Service, it was a requirement for them, as well as other Civil Servants to pass a core skills assessment (CSA). However, they claimed that BME candidates over the age of 35 were systematically less likely than non-BME and younger candidates to pass the CSA and alleged their employer had unlawfully indirectly discriminated against them contrary to Section 19 of the Equality Act 2010.

When Essop and the other claimants initially presented their claims of indirect race discrimination and indirect age discrimination to the Employment Tribunal at a pre-hearing review, the judge held that for them to be successful in their claim, each claimant had to show two things:

  1. That the systematic disadvantage was true of the group of which the claimant was a part (an older BME candidate)
  2. And why the claimant, on a balance of probabilities, failed the assessment

It was acknowledged at the preliminary hearing that there was indeed a statistically significant difference in the pass rate of older candidates with a BME background and younger, non-BME candidates taking the CSA. Both respondent and claimants also accepted that within the meaning of Section 19 of the Equality Act 2010, the test was a provision, criterion or practice – PCP.

Two other things were also assumed – firstly, that there were no reasons specific to any of the claimant candidates that could explain the disparities in CSA performance between the two groups (older BME and younger non-BME) and secondly, not all older BME candidates who sat the CSA failed.

The claimants disagreed that they needed to show why they obtained a lower pass rate and the judge held that the “particular disadvantage” which the claimants suffered - which was the lower pass rate - would have to be followed by the claimants showing that he or she had actually been put to that disadvantage and was not satisfied solely by their failure of the CSA.

The claimants appealed to the EAT which focused on the words “at that disadvantage” as provided by Section 19 Sub-Section (2)(C).  With regard to this, the claimants contended that it would be impossible for them to prove the reason they failed the assessment and this was information privy only to the respondents who, the claimants further argued, may not be able to appreciate the older BME failure rate. The fact that there was such an adverse effect on the claimants was all that was necessary, argued the claimants.

The EAT held that the judge at the preliminary hearing erred in directing that for the claimants to establish indirect discrimination contrary to Section 19 of the Equality Act 2010, each of them had to prove the reason why he or she had been subjected to a disadvantage. The judge said that members of a disadvantaged group are not required by Section 19 to show why they had suffered the disadvantage in addition to the fact they had done so and asking them to satisfy such a requirement was not provided for by statute.

The judge at the preliminary hearing had also erred in his reasoning that the mere fact of failure of the assessment was not sufficient to establish whether the claimant had been put at that disadvantage. The greater risk of, or actual failure of the CSA, was the disadvantage to which the claimants were disproportionately exposed to and had suffered precisely that disadvantage.

The second point the EAT dealt with relates to the implementation of EU law with regard to how domestic legislation must be interpreted to conform, so far as is possible, with Eu law. Thus, the judge at the EAT referred to the sex discrimination case of Enderby v Frenchay Health Authority [1994] ICR 112, ECJ, inferring two crucial points to the present case: that as submitted by counsel for the claimants in Essop, “an employer’s practice may not be transparent, such that discrimination may be disguised, often to the employer itself – and relevant and significant statistics may uncloak it; …that where such statistics demonstrate disparate outcomes as between two groups, one with a protected characteristic and one without, that sufficient proof without more to call the for the employer to show that what has caused the difference is objectively justified, and is not itself tainted by the relevant discrimination.” Using the purposive approach to EU law, the EAT extrapolates that the relevant sections of the Equality Act 2010 should be construed in such a manner that promotes the elimination of the adverse effects of “disguised” discrimination. The pre-hearing judge’s requirement that each claimant prove the reason for failing the CSA test failed to advance the elimination of such discrimination and allows the disproportionate effect to persist.

The final point made by the EAT related to the respondent’s reference to the hypothetical “tail coater” being inadvertently disadvantaged by the application of the PCP (which stands for provision, criterion or practice). It was the respondent’s argument that unless a claimant is made to prove the reason for suffering the particular disadvantage, any person from a protected group that performed proportionately less well, who failed the test, would be able to show that they had been indirectly discriminated against without there being any link between their failure and protected characteristics. Thus, the unmeritorious claimant would be allowed to hold on to the tail coats of the meritorious.

The judge at the EAT held that for a claimant to succeed in establishing indirect discrimination it was essential but not sufficient that he had suffered a particular disadvantage as provided for by Section 19 Sub-Section (2)(b) of the Equality Act 2010. The employer was allowed to show that the PCP producing the disadvantage was objectively justified – meaning that it was a proportionate method of producing a legitimate aim.


[i] Equality Law Reports, Michael Rubenstein Publishing Ltd, July / August 2014, EqLR 377.

 
Best Practice Case Study of the month


Merseyside Fire and Rescue Authority [1]

Promoting equality and diversity 2010-13 – age

Background

The Merseyside Fire and Rescue Authority (MFRA) in considering how to meet their public sector equality duty used statistics on deprivation and age. The indices of multiple deprivation indicate that 40% Merseyside wards are ranked in the top 5% of the most deprived wards in England. In addition, all the local authorities in Merseyside are within the top 20% of the most income deprived in England. There is a direct correlation between deprivation and greater risk from fire and various risk mapping techniques have been used to identify ‘hot spot’ areas where greatest effort may be concentrated to reduce the risk. The 20% most deprived wards are over twice as likely to have a fire or fire related injury as the 20% that are least deprived.

Like many areas of the country, Merseyside is seeing an increase in the percentage of older people living within its communities, with older age groups increasing in numbers. Older people are particularly vulnerable to fire with the vast majority of fire deaths occurring in the over 60s age group. Often this is accompanied by other factors that add to the vulnerability such as mobility and sensory difficulties, and a lack of ability to respond to danger. It was recognised that age can be a factor when identifying risks of fire or injury. The elderly are statistically less likely to have a smoke alarm than many other groups in society and additional factors such as living longer and consequently often living alone longer and the effects of limiting illness are added, the risks to this group increase.

Action taken

Risk Mapping
MFRA has developed a risk model, which uses relevant data sets, including the Indices of Multiple Deprivation and local, historical incident response data. Weightings have then been used to represent the differing influence of these data sets on risk. All of these factors are then totalled, banded and then mapped by area to establish a risk map. Using the community demographic profile of Merseyside, the Merseyside risk map and the occurrence of incidents in relation to that information witnessed over the last three years, provides significant intelligence from which MFRA can use to target prevention and protection resources at the areas of greatest risk.

Customer Insight – Supporting vulnerable people
Intelligent targeting is the key to MFRA’s new approach. MFRA has developed a Customer Insight model which is the cornerstone of its home safety strategy. The model will ensure that MFRA not only target those most at risk but carry out interventions in the most cost effective manner, thus ensuring the satisfaction and well-being of Merseyside communities by giving them access to the services they need.

Customer Insight is made up of two sub projects: The first is to produce Community Profiles; maps that give MFRA details about the type of people that live in all areas of Merseyside. The second is a Vulnerable People Index, this allows MFRA to use information it receives from partners to target the people most in need of MFRA’s help, this includes identifying a vulnerability index by age to help target fire safety work.

Advocates
MFRA employs a number of advocates (some are ‘older persons’ themselves) who work with older people and groups who specialise in services for older people. They have received training to ensure that the most vulnerable older people are receiving all of the welfare benefits to which they are entitled. In this way the Advocates tackle the root cause of poverty which in turn reduces an individual’s vulnerability to fire. For example, if someone cannot afford to pay their electricity bill they may resort to using candles or paraffin heaters, which can increase risk. As a consequence of our efforts many older people at risk have been able to continue living in their own homes.

Outcomes
With regard to fire related incidents, fires in the home pose the greatest risk to life and are therefore at the vanguard of MFRA’s Community Risk Prevention campaigns. Between 2004/05 and 2011/12 there has been a 20.4% reduction in Accidental Dwelling Fires; this equates to 308 fewer incidents, 14% reduction in those incidents which resulted in injury for the over 65’s over the same period.                 

MFRA Equality and Diversity objectives, set in January 2012, will remain a main focus during 2013/17 to continue to address the role of inequality in relation to fire and the resultant impact of fire on people’s lives, MFRA have set a number of equality objectives which support the Public Sector Equality Duties. They include reduction of accidental fires in home and the deaths and injuries caused.

_________________________________________

[1] Equality and Diversity Forum submission to the Government’s Equality Duty Review [April 2013]
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


ROTA’s ‘Holding to Account On Equality’ website
http://equalities.rota.org.uk/

Please give us your feedback on the website by completing the following survey: https://www.surveymonkey.com/s/YCRGL23.

 

DLA Conference 2014 “Discrimination and Economic Inequality: two faces of disadvantage” – 20th October 2014

To book your place for the conferece here.

 

European survey of the healthcare of migrants communities - Have your say on healthcare in Europe

The aMASE community study is an online survey. It focuses on the barriers to accessing health care for migrant communities. The survey is open to all migrants. Information from this study will be used to help plan services and ensure that the best care is available for everyone in Europe, no matter where they come from.

The Health Forum is promoting this important survey of health care for migrant communities.  Please encourage your members to participate in the survey.

The community survey takes around 15 minutes to complete. To take part you just have to be aged 18 or over and living outside your country of birth. Taking part will make a difference to you, your family and your community. Take part in the community study.

 

 

 

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