We’re barely into 2020 and we seem to be on something of a roll with stories about sex discrimination. Yesterday, I discussed the issue of equal pay.
Only this morning I was flicking through the newspaper and came across another story, this time, concerning pregnancy discrimination.
Helen Larkin was dismissed from her post with the Liz Earle Beauty Company on the grounds of her pregnancy. Her employer was restructuring the company and refused to consider Ms Larkin for two alternative posts within the organisation. This refusal to consider suitable, alternative employment appeared to be motivated by the fact that Ms Larkin would shortly be going off on her period of maternity leave.
This treatment amounted to unlawful direct discrimination in terms of Sections 13 and 18 of the Equality Act 2010. Her dismissal would also be automatically unfair in terms of the Employment Rights Act 1996.
Consequently, Ms Larkin was awarded over £17,000 in compensation. This sum, of course, reflects an element to injury to feelings (the so called Vento Bands or Guidelines).
A study carried out jointly by the UK Government Department (Business, Innovation and Skills) and the Equality and Human Rights Commission previously discovered that some 54,000 women per year in this country were forced out of their employment for reasons related to pregnancy and/or maternity.
A link to a summary of the research on the website of the Equality and Human Rights Commission can be found below:
Again, as I noted in yesterday’s Blog (New Year, same old story …), we have had anti-discrimination laws in the UK for nearly 45 years and yet we still regularly hear stories about pregnancy and maternity discrimination.
Readers might be interested to learn about the work of a pressure group (Pregnant then screwed) whichcampaigns to end the ‘motherhood penalty’:
A person’s protected characteristics in terms of the Equality Act 2010 seems to be the theme of the Blog today.
Sexual orientation is a protected characteristic in terms of Sections 4 and 12 of the Act. Most people these days are familiar with the following definitions in terms of an individual’s sexuality: e.g. heterosexual, homosexual (gay/lesbian) and bisexual.
What about a person who declares themselves to be pansexual?
According to Stonewall, the group which campaigns on behalf of the LGBTI community, this term refers to a person ‘whose romantic and/or sexual attraction towards others is not limited by sex or gender.’ Stonewall also makes the point that bisexual individuals can declare themselves to be pansexual.
An interesting story appeared in today’s British media about pansexuality. Layla Moran, Liberal Democrat MP and possible contender for the leadership of that Party, has declared herself to be pansexual. She is the first Member of the Westminster Parliament to define her sexual orientation in this way. Previously, she would have declared herself as heterosexual.
Andrew Adonis, Labour member of the House of Lords and former UK Government minister tweeted his reaction to the story:
The point that Adonis was trying to make is that it shouldn’t have been a story. As a society, the UK has supposedly become more tolerant and progressive towards people with different sexual orientations.
Ms Moran admitted herself that the decision to be open about her sexual orientation had caused friends and colleagues to worry that this might harm her career – and her aspiration to be the next or future leader of the Liberal Democrats. So much for a more tolerant and progressive society …
Explaining her reason for going public about her sexual orientation, Ms Moran stated that:
“… I feel now is the time to talk about it, because as an MP I spend a lot of my time defending our community [LGBTI] and talking about our community. I want people to know I am part of our community as well.”
A link to the story in Pink News can be found below:
Disability is a protected characteristic in terms of Sections 4 and 6 of the Equality Act 2010. In terms of Sections 20 and 21 of the Act, employers and service providers have a legal duty to make reasonable adjustments to accommodate the needs of a disabled person.
What about a new prison inmate (a sex offender) who is visually impaired and wishes to bring his assistance (or guide) dog with him?
The prison authorities have said no to this request, it is simply against the rules.
Discrimination or less favourable treatment, of course, can be perfectly legal if it is objectively justified.
It would be very interesting to see if the prison authorities were potentially in breach of the Equality Act (direct or indirect discrimination).
A link to the story on the BBC News App can be found below:
Thanks to @tchickphoto for making this photo available freely on @unsplash 🎁
Scanning through the papers today for news worthy stories, I found myself looking across the sea (the Irish Sea to be precise) and it was there that I stumbled upon an interesting article in The Irish Times.
Regular readers of this Blog will be aware that I have a particular interest in the areas of discrimination and employment law and this story ticked both boxes.
A female supermarket delicatessen worker was repeatedly subjected to sexual harassment on an almost daily basis by one of her male co-workers. The dreadful treatment appears to have started less than a month after the woman commenced her employment (May 2018). Her manager (a man) was fully aware of the situation, but did nothing to put an end to her ordeal. In fact, he witnessed one of the brazen attempts by her tormentor and made a joke of it. This joke involved comments about people from Limerick. I have to say as someone who has Limerick ancestry, I felt pretty insulted when reading the manager’s gratuitous comment.
A link to the story in The Irish Times can be found below:
The woman complained about the situation, but she was not informed about the progress of this by her employer. Eventually, the woman felt that she had little choice but to resign from her employment. This could be viewed as the last straw – her employer’s conduct having led to a complete breakdown in their relationship. It might be said that the implied duty of trust and confidence on the part of the employer had been completely shattered.
In the UK, we would, of course, recognise this situation as one of constructive (unfair) dismissal in terms of the Employment Rights Act 1996 and the Equality Act 2010 (she was being subjected to discrimination/unlawful less favourable treatment on the grounds of her sex).
When the woman’s formal complaint was submitted, her employer did move her male colleague to a different location within the supermarket (the storeroom), but he went absent on sick leave shortly afterwards.
The whole experience was extremely distressing for the woman who has now been awarded €20,000 in compensation.
Again, readers in the UK will make the obvious comparison with our Vento scale (or bands) for compensation for victims of discrimination. The sum awarded to this woman would fall into the middle band in the UK (£8,800 to £26,300).
A link to an article about the current UK Vento scale or bands can be found below:
Anyone with a background in discrimination law who reads the article from The Irish Times about this story will immediately recognise the terminology used. The women alleged that her co-worker’s behaviour “was a violation of dignity in that it created an intimidating, hostile, degrading, humiliating and offensive environment for her.”
Such a statement reflects the language of the European Commission’s Code of Practice on Measures to combat sexual harassment. This Code was first formulated as far back as 1991 and has now been largely implemented into the legal systems of EU member states. The Republic of Ireland is, of course for the time being, one of our fellow EU member states and Irish anti-discrimination practitioners will be readily familiar with the terminology. For many years, Employment Tribunals and UK courts routinely used the Commission’s Code of Practice when dealing with cases which involve allegations of sexual harassment.
Current UK law on harassment in the workplace is contained primarily in the Equality Act 2010. More seriously, acts of harassment can also be a criminal offence.
A link to a guidance published by the UK Equality and Human Rights Commission concerning sexual harassment in the workplace can be found below:
The Conciliator appointed by Ireland’s Workplace Relations Commission, an independent statutory body created by Oireachtas – both Houses of the Irish Parliament, concluded that the woman’s employer had “failed to put appropriate measures in place to stop this harassment and sexual harassment from occurring or to reverse its effects”.
The Conciliator also noted that “the supermarket failed to conclude its investigation and make a decision is the most egregious flaw in the process.” The employer tried to justify this failure by saying that, as a matter of natural justice, it could not conclude the investigation because the male colleague had since left Ireland to return to his country of origin. The Conciliator stayed that the employer made this decision “at the expense of the complainant and closure for her of this appalling experience”.
Employers, please take note: failing to follow basic grievance procedures contained in the employment contract can have serious and expensive consequences. Such a failure on your part can contribute to the breakdown of the relationship with the employee and may very well open the door to claims for constructive dismissal against you.
An interesting case which caught my attention recently seemed to raise many issues which I have been emphasising to my students who are preparing for their upcoming Discrimination Law exam this month.
The case (The Governing Body of Tywyn Primary Schoolv Aplin Case No 1600635/2016 ) seemed to cover (almost) the whole syllabus of the Discrimination Law unit:
A discrimination dismissal of a high flying professional employee (a head teacher)
A large sum of compensation awarded to the employee for the dismissal (nearly £700,000)
Direct discrimination on the basis of a protected characteristic (the employee’s sexual orientation) in terms Sections 4, 12 and 13 of the Equality Act 2010
The real problems faced by the employee in attempting to mitigate his losses (which the amount of the compensation award reflects)
Breach of disciplinary procedures by the employer
Breach of human rights i.e. Article 8 of the European Convention on Human Rights (right to privacy and family life)
Alleged reputational damage caused to the employer as a result of the employee’s conduct
The reversal of the burden of proof
The use of hypothetical comparators
Matthew Aplin is an openly gay man who was the head teacher of Tywyn primary school in Wales. He has been a teacher for 19 years and has an excellent professional reputation. In 2015, allegations about Aplin’s private life came to the attention of his employer (the School’s Board of Governors). It was alleged that Aplin had engaged in consensual sexual relationships with two 17 year old males that he had met through Grindr, the well known dating app. Users of Grindr must be aged 18 or over and, significantly, Aplin did not suspect the true age of the two males.
Aplin believed that the two young men were over 18 and, in any case, users of Grindr have to be aged 18 or over.
Following these allegations of alleged misconduct, Aplin was suspended and the Board of Governors commenced a disciplinary investigation.
At the request of the Governors, an investigating officer (Mr Gordon) was appointed by the local council. Mr Gordon’s terms of reference in respect of Aplin’s behaviour were as follows:
(a) had this brought the reputation of the School into disrepute?
(b) had it impacted on his ability to undertake the role of Head Teacher?; and/or
(c) had it demonstrated so gross an error of judgment as to undermine the School’s confidence in him and, therefore, to call into question his continuation in the role?
Mr Gordon quickly concluded that Aplin should be dismissed from his post despite the fact that this employee did not represent a possible threat to children. Local Police officers were briefly involved in their own investigation, but significantly they later concluded that no crime had been committed by Aplin.
Despite this, Aplin was dismissed for gross misconduct by the School Governors.
He promptly appealed against his dismissal, but the Governors did not deal with this matter efficiently or properly. Angered at the perceived lack of fair treatment of his appeal, Aplin decided to resign from his employment and claim unfair (constructive) dismissal; discrimination by reason of his sexual orientation; and interference with his right to respect for private and family life.
The Employment Appeal Tribunal (which became involved to deal with technical aspects of the case) later noted:
“There were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the disciplinary hearing.”
Ordinarily, the burden of proof lies upon the claimant (Aplin) to show that discrimination has taken place. In this case, there were enough factors present which meant that the burden of proof should shift to the respondent (the School Governors) who would now have to show that they had not discriminated against Aplin.
On the question of whether the burden of proof should be reversed, Judge Shanks in the Employment Appeal Tribunal had this to say:
“… in my view the thrust of it [the Tribunal’s reasoning] is clear and it provides a sufficient basis for the ET’s decision that the burden of proof had shifted on the question of whether Mr Aplin was treated unfavourably because of his sexual orientation.”
In arriving at this position, Judge Shanks was firmly of the view that:
“.. the Tribunal had rightly recognised that the background to the whole case was intimately connected with Mr Aplin’s sexuality; they then judge that the procedural failures by the School were so egregious that the inference could be drawn that there was more to it than simply the fact that he had had lawful sex with two 17 year olds; and they therefore considered that it would be possible, in the absence of any other explanation, properly to infer that he had been discriminated against because of his sexual orientation. That seems to me a perfectly acceptable line of reasoning.”
The decision of the Employment Tribunal
Aplin had been unfairly dismissed; and subjected to direct discrimination by reason of his sexual orientation.
As a point of interest, the case involved the use of hypothetical comparators to arrive at its decision, namely, would a heterosexual teacher (either male or female) who had sexual relations with two 17 year olds have been treated in the same way as Aplin? The Employment Tribunal concluded that such individuals would not have been treated any differently.
Interestingly, in its final judgement, the Tribunal found that, although a person’s sexual relationships are undoubtedly covered by Article 8 of the European Convention on Human Rights, it is not an absolute right. Such a right may be restricted or interfered with “where it is necessary for the protection of morals” in “a democratic society”:
“Thererefore, we consider that it is possible to conclude that in the circumstances of this case the claimant could have been disciplined for his admitted conduct within the qualification in Article 8(2). …
… However, a fair process would require the respondent to consider whether the claimant was aware that the individuals were 17 years of age. Further it would have to consider what the real risk of the issues becoming public were and therefore what the real potential for reputational damage was.”
The two 17 year olds were children in the eyes of the law and Aplin, as a Head Teacher, could be viewed as someone who was in a position of power and that position which could be abused by him.
As Aplin had admitted to his conduct (the relationships with the two males), the Employment Tribunal concluded that there was at least. 20% chance of him being dismissed successfully – had the proper disciplinary procedures been carried by the employer (which of course they were not). In this respect, Aplin suffered a 20% deduction in the overall compensation awarded to him as per the guidelines originally laid down in Polkey v AEDayton Services Ltd  UKHL 8.
Links to the decisions of the Employment Tribunal and the Employment Appeal Tribunal can be found below:
Yesterday, I tuned into Jeremy Vine’s daily show on BBC Radio 2 while out in the car and happened to catch an interesting discussion about potential discrimination and blood donation.
Ethan Spibey was a guest on the show and he was discussing his campaign to make it easier for gay and bisexual men to make regular blood donations. Mr Spibey is involved in a campaigning organisation called Freedom to Donate.
Readers of this Blog will be aware that I often discuss examples of actual or potential discrimination in terms of the Equality Act 2010.
Mr Spibey’s contribution to the Jeremy Vine show got me thinking about an issue – to which I readily confess hadn’t featured much on my radar previously: was the requirement or condition imposed by the NHS in this country making gay or bisexual men abstain from sex for 3 months before they are permitted to give blood an example of discriminatory treatment?
A link to Freedom to Donate’s Twitter account can be found below:
The discussion about restrictions on who can give blood got me thinking: would this be an example of direct and/or indirect discrimination in terms of Sections 13 and 19 respectively of the Equality Act 2010?
Direct discrimination occurs when someone experiences unlawful, less favourable treatment because they possess a protected characteristic (in this situation: sexual orientation).
As we shall see, gay and bisexual men are certainly placed at a distinct disadvantage in regarding the current restrictions on blood donation when comparing their situation to that of heterosexuals.
The National Health Service (NHS) is also applying a practice criterion or policy (PCP) which has a disproportionately adverse effect on men who are gay or bisexual.
Section 19 of the Equality Act defines indirect discrimination in the following terms:
A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’
Section 19(2) makes it very clear what it is meant by a discriminatory provision, criterion or practice in relation to a relevant protected characteristic:
(a)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim.
In 2017, to much fanfare, NHS England announced that the previous 12 month abstention period for gay and bisexual men had been reduced to the current period of 3 months.
A link to a press release from NHS England can be found below:
Apparently, all blood donors are asked about their sexual orientation as part of the screening process. However … if you are a gay or bisexual man, then you are asked further questions about your sex life.
Needless to say this requirement does not apply to individuals whose stated sexual orientation is heterosexual.
Now, Ethan Spibey conceded that the paramount duty of the NHS was to ensure the safety of blood donations, but he was firmly of the view that heterosexuals could pose just as much of a threat to the health and safety of the beneficiary.
Are gay and bisexual men suffering as a result of a hangover from the 1980s when the fear of AIDS and HIV was omnipresent as the rather grim public information film from the time demonstrates?:
The current approach to blood donations, as campaigners like Mr Spibey would argue, results in a blanket policy which has a disproportionately adverse effect on gay and bisexual men. A person’s sexual orientation is, of course, a protected characteristic in terms of Sections 4 and 12 of the Equality Act 2010.
Health and safety can be used as an objective justification to defeat claims of discrimination, but it must be a credible defence. Do gay and bisexual men represent a greater threat to the safety and security of the nation’s blood supply? Clearly, the scientific evidence would have to be objective and credible to sustain this argument.
After listening to Mr Spibey, I was left with the impression that the scientific evidence for treating this group of people differently might not be so clear cut.
A link to a discussion on the BBC website about the issue can be found below:
… or, if you prefer, equals should not have jurisdiction over equals.
It’s a legal principle which forms an important foundation of public international law or the relationships between foreign countries.
In the UK, we have the State Immunity Act 1978 which confers immunity from prosecution or civil actions on eligible foreign nationals and emanations (or bodies) of a foreign state.
Practically speaking this means that courts and tribunals sitting in the UK are not permitted to have jurisdiction over eligible foreign nationals e.g. diplomatic staff and eligible bodies controlled by a foreign state. Furthermore, if state immunity applies to a situation, this means that it will be nigh impossible to enforce a court or tribunal order against eligible foreign nationals or bodies.
That said, it is important to realise that the type of state immunity recognised by the Act of 1978 is not, however, an absolute concept. In commercial disputes between foreign states, UK courts and tribunals may have jurisdiction in the matter.
The famous House of Lords’ decision – I Congresso del Partido  AC 244 – is a case in point where Lord Wilberforce was of the view that the Republic of Cuba had been engaged in commercial or private law activities and should not be entitled to rely on the principle of state immunity.
It’s not normally an issue which tends to grab the attention of the public, but add to it a human interest story and you’ve got a totally different perspective.
That said if you work for Transport for London, you’ll be more than aware that state or diplomatic immunity is often used (dubiously it has to be said) by the staff of foreign embassies to avoid paying the City’s congestion charge:
Boris Johnson is urged to act against foreign embassies for £105m unpaid congestion charge.
And yet, you wait years for a media story about state immunity to appear and two come along within as many months of each other.
The first story concerned the tragic death of Harry Dunn, a 19 year old motor cyclist, who was killed in a collision with the driver of a car on 27 August 2019.
Deaths on the road are an unhappy and frequent event, but criminal and civil law are usually more than capable of dealing with the consequences of such incidents i.e. punishing the offender and compensating the victims (or their families).
What made Harry Dunn’s death more unusual (from a legal perspective) was the fact that driver – Anne Sacoolas – was claiming diplomatic immunity in order to escape responsibility (both criminal and civil) for the incident.
Ms Sacoolas, as it turns out, is the wife of a United States Air Force (USAF) officer and diplomat stationed at RAF Croughton, Northamptonshire. The accident occurred near to or just outside the air base which hosts USAF personnel.
It was suspected that Ms Sacoolas had caused the accident by driving her vehicle on the wrong side of the road. Subsequently, Ms Sacoolas went back to the United States and has refused to return to the UK to face legal action.
Predictably, her actions caused outrage and the British media gave the story an extremely high profile. The parents of Harry Dunn met with the UK Foreign Secretary and US President Donald Trump to discuss the case.
As of the date of writing, Ms Sacoolas remains in the United States – although she has been interviewed by British Police detectives – but it does not look as if there is going to be happy ending to this story for the Dunn family.
On 5 October 2019, the US State Department, which employs diplomatic staff, confirmed that diplomatic immunity is very rarely withdrawn from individuals.
When your employer is Uncle Sam …
The second story which caught my eye about state immunity involved two employment disputes at RAF Croughton (again) and RAF Lakenheath which are both run by the USAF.
Two female employees (Caroline Wright and Anthea Webster) working at the air bases were unable to proceed with their Employment Tribunal claims because their employer, the United States of America, claimed state immunity.
In other words, British courts and tribunals have no jurisdiction over what goes on at these bases – even if they are located within the territory of the UK. No matter the potential merits of Wright and Webster’s claims, they have been effectively struck out on the principle of state immunity.
A link to the Wright and Webster Employment Tribunal judgement can be found below:
State immunity may, from time to time, stir up public outrage or incomprehension – especially in highly emotive cases like the death of Harry Dunn. That said, it remains too useful a tool for countries in their dealings with other states.
Theoretically, it allows diplomatic staff to go about their business without let or hindrance when working abroad – especially in countries with which their state employer has difficult or hostile relations. Think of American diplomats stationed in Cuba or British diplomats stationed in Iran.
In countries where foreign military forces are stationed, international agreements between the host state and its guests very often operate on the basis of state immunity. This is a price which the host state is prepared to pay and, for any one living in the UK between the 1960s and 1990s, they will recall that this was a feature of the American military presence at many British airforce and naval bases. Even in 2019, ordinary UK citizens may be completely unaware of the exact terms of the agreements between this country and the USA regarding the deployment of American military forces because (theoretically) the provisions of the Official Secrets Act 1989 (as amended) will apply.
It is also a feature of arrangements that Britain has with the Government of the Republic of Cyprus in relation to the British Sovereign military bases of Akrotiri and Dhekelia. So, people in glass houses shouldn’t throw stones …
Links to media stories covering the death of Harry Dunn and the Wright and Webster Employment Tribunal decision can be found below:
On 20 December 2019, the Crown Prosecution Service announced that Anne Sacoolas was to be charged with causing death by dangerous driving. This has come as an immense relief to Harry Dunn’s family, but it is far from certain that Mrs Sacoolas will ever face trial in a criminal court in England.
She remains in the USA and there is no guarantee that the US Government will agree to extradite her to the UK in terms of the UK/USA Extradition Treaty of 2003.
A link to the Sky News website explaining developments in the case can be found below: