Mind your language!

Photo by Ilya Ilford on Unsplash

“Great big girl’s blouse!” or “a girly swot”. Harmless insults; a bit of banter; or perhaps an example of sexist language? Deborah Haynes, a journalist with Sky News, certainly took the view that these remarks were sexist in nature – even though men were the targets (see the link below).

https://news.sky.com/story/sky-views-girly-swot-big-girls-blouse-are-sexist-jibes-and-shouldnt-be-used-by-the-pm-11804690

The first of these remarks was uttered allegedly by Prime Minister Boris Johnson MP in the House of Commons last week and directed towards the Leader of the Opposition, Jeremy Corbyn MP. The second remark was in a memo written by the Prime Minister in which he was critical of David Cameron (one of his predecessors).

Mr Johnson is well known for his colourful language in both print and in his speeches, but he was called out last week in the House of Commons by the Labour MP, Tammanjeet Singh Dhesi who accused him in very blunt terms of making racist remarks about Muslim women who chose to wear the Islamic form of dress known as the burka as an outward sign of their religious beliefs and cultural background.

Mr Tammanjeet drew on his own experiences as a Sikh and the kinds of derogatory remarks that he had to endure. His speech was received very warmly on the Opposition benches of the House of Commons.

On the other hand, Mr Johnson attempted a defence of his language by saying that he had merely spoken up in favour of the good old fashioned liberal value of freedom of speech. It was not an entirely convincing performance from the Prime Minister and far from his finest hour at the despatch box.

The Equality Act 2010 recognises various forms of prohibited conduct such as direct discrimination (Section 13) and harassment (Section 26). Sexist, sectarian and homophobic remarks may well be taken as examples of direct discrimination. A sustained campaign of bullying to which an individual (with a particular protected characteristic) is subjected may amount to harassment.

It will be sensible for employers particularly to spell out to employees what is acceptable (and what is not) in terms of the kinds of language or behaviour in the work-place. If employers do nothing to check discriminatory remarks such as racist or sexist insults, there is a real danger that they could be held vicariously liable.

Had Mr Johnson been a mere mortal, some of his remarks may have come back to haunt him. Employers are entitled to take disciplinary action against those employees who have committed acts of discrimination. After all, they are merely protecting their position by not leaving themselves open to the threat of legal action by the victims.

From the employee’s perspective, engaging in offensive language could give the employer the right to treat this type of behaviour as gross misconduct. It should be recalled that, in terms of Section 98 of the Employment Rights Act 1998, misconduct committed by an employee can be punished by dismissal and such a termination of the employment contract may be entirely reasonable in the circumstances.

In short, no one should have to work in a place where there is a hostile, degrading or intimidating environment. Racist or sexist remarks can be highly suggestive of such a working environment if permitted to go unchecked and unchallenged. Maybe in future the Prime Minister would do well to mind his language.

Links to articles about the Prime Minister’s colourful turn of phrase can be found below:

https://news.sky.com/video/share-11802095

http://news.sky.com/story/boris-johnson-branded-david-cameron-girly-swot-leaked-document-reveals-11803807

Copyright Seán J Crossan, 7 September 2019

Tickets for “people of colour” … or the problem with positive discrimination

Photo by Ehimetalor Unuabona on Unsplash

Tickets for “people of colour” …

In a previous blog (The force is not with you … published on 28 February and updated on 10 June 2019), I discussed the problems associated with policies of positive discrimination.

So, it is with some interest that I read an item on Sky News today about Afrofuture Fest a music festival which was to take place in the American City of Detroit. The festival organisers had offered tickets for sale to members of the public. Absolutely nothing unusual in that readers will undoubtedly respond, but what was unusual was the fact that the price to be paid in conjunction with an ‘early bird’ promotion was to be determined by the customer’s racial origins (tickets for “people of colour”).

If you were an African American applying for tickets, you would pay less than a White American wanting to go to the gig. I admit that I was intrigued by this marketing approach and I wanted to know what were the underlying motivations of the organisers? I confess: I’m coming from a different cultural perspective here in the UK and, generally, we’re not too keen on the widespread use of positive discrimination as a tool for promoting equality.

Well, it would seem that the pricing policy was motivated by a genuine determination to ensure that African Americans (who happen to be in the disproportionately lower income section of US society) were not deterred from attending the event by high prices. Furthermore, the organisers wanted a racially diverse group of music fans to attend the festival.

All well meaning, but the event has now become mired in controversy with the organisers receiving threats from white supremacist groups and artists deciding not to perform. The ticket policy has now been scrapped.

A link to how the story was reported on Sky News can be found below:

Festival scraps cheaper ‘people of colour’ tickets after ‘white supremacist threats’
http://news.sky.com/story/festival-scraps-cheaper-people-of-colour-tickets-after-white-supremacist-threats-11758953

Positive discrimination: the legal position

Discriminating in favour of one group of people over another (whether this is motivated by a good intention or not) will most likely be regarded as an example of direct discrimination which contravenes Section 13 of the Equality Act 2010.

The judgement of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 was particularly strong on this point and it was irrelevant that the Council was acting from motives of good faith i.e. to promote healthier lifestyles for female residents of the Borough. The simple fact was that the Borough Council was acting unlawfully (in breach of the then Sex Discrimination Act 1975) when it charged men for entry to the swimming pool when women were not charged for access to this facility. The Borough Council had committed an act of direct, sex discrimination.

Positive discrimination has only really been successful in the UK when the Westminster Parliament has given it the full backing of the law and, additionally, it complies with this country’s EU legal obligations.

One notable example of positive discrimination is the Sex Discrimination (Election Candidates) Act 2002 which aimed to encourage more women to enter Parliament by having all women short lists. Previously, such an attempt to promote positive action would have been illegal under the (now repealed) Sex Discrimination Act 1975.  Some (male) Labour activists did, in fact, bring successful legal challenges under the former sex discrimination legislation on the grounds that they had suffered discrimination because of their gender in being automatically disqualified from the parliamentary candidates’ selection process (Jepson and Dyas-Elliott v The Labour Party and Others [1996] IRLR 116).

The other example of positive discrimination involves the Police Service of Northern Ireland. The PSNI was created in 2001 following the Belfast or Good Friday Agreement in 1998. The PSNI replaced the old Royal Ulster Constabulary (RUC) which was largely seen as a biased or sectarian police force by most Roman Catholics in Northern Ireland.

According to figures produced by the official Patten Report, the RUC was overwhelming Protestant in composition (91.7% to 8.3% Roman Catholic).

One of the key recommendations of the Patten Report was that:

“An equal number of Protestants and Catholics should be drawn from the pool of qualified candidates.” [para. 15.10]

This led to a deliberate 50/50 recruitment policy in which half of the candidates recruited to the PSNI had to come from a Roman Catholic background.

That said, there was significant criticism of the 50/50 recruitment policy coming from the Unionist and Loyalist community in Northern Ireland – who were never going to be reconciled to the demise of the RUC in any case. The recruitment policy was only ended in 2011 by Owen Patterson MP, the then Conservative Secretary of State for Northern Ireland. Predictably, this development did not please the Nationalist and Republican community in Northern Ireland.

Affirmative or positive action

In the United States of America, of course, there is a completely different approach to the promotion of diversity and equality from what we would understand in the UK and the European Union. The Americans, for example, are very keen on affirmative action (or positive discrimination) and often employers will speak of filling quotas i.e. recruiting a certain number of African Americans or Hispanic Americans. This practice of affirmative action or positive discrimination is an attempt by the Americans to overcome the problems of historic and entrenched racism in their society. In the UK and the European Union, we too have had our problems with under-representation of certain groups in the work-place, but any attempt to introduce positive discrimination has been much more limited in scope.

Affirmative action has its limits: the ticket policy at Afrofuture Fest would, however, appear to be a breach of the Civil Rights Act 1964 (Title II) which states that:

“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

The UK and EU approaches to positive discrimination

Limited positive action or discrimination has, for some time, been tolerated by the Court of Justice of the European Union where employers gave preference, as part of an equality policy, to female candidates over suitably qualified male candidates in order to address gender imbalances in the work-place (see Kalanke Freie Hansestadt Bremen (1995) C-450/93 and Badeck and Others (2000) C-158/97).

The Equality Act 2010 does, admittedly, permit what is referred to as ‘positive action’ in fairly limited circumstances and it has been observed that it does not really advance the law very much in this area.

Certainly, in terms of the public sector equality duty, organisations may be permitted to take specified forms positive action in the work-place to eradicate or minimise forms of discriminations e.g. ‘the need to tackle prejudice and promote understanding’ (see Section 149(5) of the Equality Act)

Section 158 of the Act permits an employer to take positive action to help individuals with a protected characteristic to overcome or minimise such a disadvantage. Such action on the part of the employer must, however, be a proportionate means of achieving this aim.

Section 159 also permits an employer to take positive action in recruitment and promotion in relation to people with protected characteristics. The employer will only really be able to utilise this provision if candidates for a job or a promoted post have the same or similar qualifications. In such situations, the employer will able to consider if candidates with protected characteristics are at a disadvantage or are under represented in matters of recruitment or promotion.

There is one important exception to the rules on positive action contained in the Act: it will not be illegal for an employer to treat a disabled person more favourably in comparison to a non-disabled person.

Conclusion

In the UK, positive discrimination in recruitment can be lawful under very limited circumstances. In other words, it is a practice which, if objectively justified, can be used to overcome historical patterns of discrimination e.g. to address the woefully low numbers of female politicians or the under-representation of Roman Catholics in the Police Service in Northern Ireland.

Such arrangements permitting limited positive discrimination tend to be governed by ‘sunset clauses’ i.e. they have a built in expiry date, so they will not last forever. Furthermore, positive discrimination is really only legitimate  in so called ‘tie-break’ situations where several applicants have the same qualifications and experience, but as a matter of public policy, for example, a female or minority ethnic applicant is given preference in order to address historic diversity imbalances in that particular work-place.

The Americans, on the other hand, have tended to pursue a very explicit policy of positive discrimination or affirmative action by placing an emphasis on the filling of quotas – either, for example, in employment or education. Such an approach places a legal obligation on employers and service providers (colleges and universities) to ensure that certain minimum numbers of people from racial or ethnic minority backgrounds are given a job or a place in training or education.

As we have seen with the ticket policy for events such as Afrofuture Fest, positive discrimination can be controversial and potentially unlawful.

Copyright Seán J Crossan, 8 July 2019

Is it cos I is black?

Ali G was (and still is) the memorable creation of the comedian, Sacha Baron Cohen. Ali G’s catchphrase was “Is it cos I is black?” and the comedian famously put this to a senior British police officer when he gatecrashed a political protest during a sketch for one of his TV shows on Channel 4.

Sacha Baron Cohen was making a very serious point when he wrote and planned such escapades: he was satirising the widespread racist sterotyping of Black and Minority Ethnic (BME) groups in the UK by their fellow White British citizens. When the character of Ali G first made appearances on Channel 4’s The 11 o’clock Show in 1999, it’s worth remembering that it was less than 6 years after the murder of the black teenager, Stephen Lawrence, in London.

Coincidentally, in 1999, Sir William Macpherson, a retired judge of the English High Court, had published his Report on the Stephen Lawrence murder and one of his most famous conclusions concerned the levels of “institutional racism” in the Metropolitan Police Service (paragraphs 4.45 – 6.63).

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf

Several years ago, I attended an event for Black History Month and members of the panel were recounting their experiences of racism in the UK. Glasgow City Councillor, Graham Campbell told the story of his cousin who worked at Ford’s Dagenham car plant who constantly had his locker broken into and vandalised by his white, work colleagues. More often than not, his work tools were stolen from the locker. Eventually, this young man started to carry his tools to and from the Ford plant in order to avoid having to replace them. He was stopped and searched regularly by the same police officers who asked him each time if the tools were for burglaries. This was the kind of harassment that black people typically experienced in Britain of the 1970s.

Racial stereotyping which leads to people from certain ethnic groups suffering (unlawful) less favourable treatment is an example of direct discrimination in terms of Sections 9 and 13 of the Equality Act 2010. Repeated examples of harassment on grounds of race would also constitute breaches of Sections 9 and 26 of the Equality Act 2010.

So, it was with some interest that I read an article in The Independent on Saturday 15 June 2019 which recounted an incident which had taken place in Maidstone in Kent whereby a white police officer had assumed that a black man must be a criminal just because he happened to be in an area which was perceived to be ‘white’.

In England and Wales, you are much more likely to be stopped and searched by the police if you happen to come from the black community:

It doesn’t seem as if attitudes to race in certain sections of the police have moved on much from the 1970s.

A link to the story in The Independent can be found below:††

‘Officer assumed black man was criminal in ‘white area

https://edition.independent.co.uk/editions/uk.co.independent.issue.150619/data/8959141/index.html

Copyright Seán J Crossan, 18 June 2019

How dare you mention my age!

Photo by Elena Saharova on Unsplash

The above picture may conjure up blissful images of a well deserved retirement, but the reality can be very different for many older employees and workers. Financial necessity and a higher state pension age may mean that many individuals will have to remain in work for much longer than they would like.

In October 2011, the UK Parliament issued a PostNote entitled “An Ageing Workforce” which made the following observations in its introduction:

Over the next decade, the changing age profile of the workforce will be the most significant development in the UK labour market, as a third
of workers will be over 50 by 2020Employers will be expected to respond to this demographic shift by making work more attractive and feasible for older workers, enabling them to work up to and beyond State Pension Age (SPA) if they are capable.”  

Significantly, this PostNote went on to state:

Within 20 years, nearly a quarter of the UK population will be aged 65 or over. People are now spending an average of 7 years longer in retirement than in the 1970s …

A link to this PostNote can be found below:

https://www.parliament.uk/pagefiles/504/postpn391_Ageing-Workforce.pdf

Not much has changed for the better it would seem. Some 7 years later, the above conclusions would also be mirrored by a Report issued by the Women and Equalities Committee of the House of Commons on 17 July 2018 which stated:

“The talents of more than a million people aged over 50 who want to work are being wasted because of discrimination, bias and outdated employment practices. … Government and the Equality and Human Rights Commission (EHRC) are failing to enforce the law on age discrimination and must be clearer that prejudice, unconscious bias and casual ageism in the workplace are all unlawful under the Equality Act 2010.”

A link to the Committee’s Report can be found be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/older-people-employment-report-published-17-19/

It’s all very well going on about the need for people to work beyond state pension age, but what if older employees and workers find themselves being actively discriminated against by employers? What rights (if any) do they have? Admittedly, age discrimination is not just problem for older people; younger people can often find themselves victims of this type of discrimination (see Hutter v Technische Universität Graz (2009)). 

Age discrimination in the news

I was thinking about unlawful age discrimination this week after reading a story on BBC Northern Ireland’s website. It was reported that the Arts Council of Northern Ireland had been sued by its former Chief Executive, Roisin McDonough who was alleging age discrimination. Ms McDonough has now settled her claim with the Arts Council for £12,000. It was alleged by Ms McDonough that the issue centred around the failure by the Arts Council to consider giving her the option of flexible retirement arrangements. She had requested that she be allowed to work 4 days instead of 5 from 1 April 2017. Apparently, this request was never dealt with properly and Ms McDonough was subsequently asked to name a date when she intended to leave her employment. 

A link to the BBC Northern Ireland article can be found below: 

Age discrimination: Arts chief Roisin McDonough awarded £12,000

Roisin McDonough claimed the Arts Council had discriminated against her because of her age.
 

 

The Equality Act 2010

It was only with the introduction of the Employment Equality (Age) Regulations 2006 that unjustified age discrimination became illegal across the UK. Please note that I have deliberately used the word ‘unjustified’ in my first sentence because there can be situations where discrimination on the grounds of a person’s age can be be quite lawful (more about that later in this blog). 

The 2006 Regulations have now been replaced by the Equality Act 2010. For dedicated Brexit followers, these Regulations were introduced because, in 2000, the European Union passed Council Directive 2000/78/EC of 27 November 2000 which established a general framework for equal treatment in employment and occupation. Interestingly, this Directive also spawned new legal protection in relation to a person’s sexual orientation and religion and belief. Admittedly, the scope of the Directive was limited to the area of employment. It did not cover these types of discrimination in relation to the provision of goods and services. 

We have since moved on and many of the key principles of the Directive are now to be found in the Equality Act 2010. 

Section 5 of the Equality Act states that in relation to the protected characteristic of age:

(1) (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

It is, therefore, unlawful for employers and service providers to discriminate against an individual on the grounds of that person’s age. Employers must be particularly careful in relation to recruitment policies and procedures, terms and conditions of employment, promotion and training opportunities and termination of the employment relationship. Practically speaking, this will mean that employers will have to be especially careful when recruiting workers to their organisations.

Any advertisements or recruitment criteria which seem to suggest a preference for one age category over another should be discouraged – unless there is a sound legal reason for this. It’s probably very unwise for recruiters to use phrases like ‘Mature person sought for post’; ‘Dynamic individual preferred’ or ‘Youthful enthusiasm’ or ‘Are you still hungry enough to succeed?’ (see Canadian Imperial Bank of Commerce v Beck 2010; McCoy v James McGregor and Sons Limited and others 2007; and Hutter v Technische Universität Graz (2009)).

That said, there are situations where the law will permit differences in treatment based on a person’s age. The National Minimum Wage Act 1998 and the associated Statutory Regulations, for example, continue to operate meaning that workers can be paid different minimum and living wage rates depending on their age. In situations involving redundancy, those employees with 2 or more years’ continuous service will be entitled to receive a statutory redundancy payment. It is very likely that older employees may have longer service than their younger colleagues and will, therefore, be better off financially under the employer’s redundancy arrangements.

A case where an employer attempted unsuccessfully to justify direct age discrimination occurred in O’Reilly v (1) BBC & (2) Bristol Magazines Ltd (2010) Miriam O’Reilly, a very experienced and well regarded radio and television journalist, lost her job as one of the main presenters of the BBC’s popular Countryfile television programme (which has been broadcasting since 1989 until the present day). Ms O’Reilly was then 51 years of age. This was part of a strategy by the BBC to appeal to a much younger audience. The new presenters who had been recruited to work on the programme were all in their 30s. 

Held: by the Employment Tribunal (unanimously) that O’Reilly had been subjected by the BBC to direct age discrimination and that the BBC and Bristol Magazines Ltd had subjected her to age victimisation. Claims for sex discrimination were not proved. The Tribunal was strongly of the opinion that had O’Reilly been 10 or 15 years younger, she had would have been in a strong position to retain her presenting post on the programme. In fact, it was heard during the evidence that the BBC had considered offering Michaela Strachan (a well known television presenter who had guest presented on the show) a permanent presenting job. Strachan was then aged 42 as opposed to O’Reilly who was 51. 

Health and safety considerations might seem like a fairly straightforward way of justifying age discrimination in relation to certain jobs which rely on the person displaying a high level of technical competence e.g. an airline pilot, but employers will have to be very careful here that they do not use this issue as a blunt instrument as the Court of Justice of the EU decided in Case C-447/09 Prigge and Others v Lufthansa [2011].

In Prigge, Lufthansa, the German national airline operated a compulsory retirement age of 60 for its pilots. Prigge and a number of other pilots who had either reached or were approaching this age, objected to the policy on the grounds that it was an example of age discrimination. Lufthansa, amongst other things, argued that the policy could be objectively justified on the grounds of health and safety.

Held: by the Court of Justice that Lufthansa’s mandatory retirement age of 60 could not be objectively justified and was not a proportionate means of achieving a legitimate aim. The airline had committed unlawful discrimination on the grounds of age by operating the compulsory retirement age.

For many years, the UK in common with many other EU member states permitted employers to operate compulsory retirement ages. Until 2011, the default UK retirement age for both men and women was 65. This has now been abolished and people have the right to request that they permitted to work on. 

As a consequence of major demographic change i.e. a rapidly ageing population in this country, it will be necessary for people to work for longer than previous generations. A person’s entitlement to receive a state and/or occupational pension scheme has been raised to 66 years of age if you intend to retire by October 2020 (and then to age 67 between 2026 and 2028). These projections may still be overly optimistic given the UK’s demographic time bomb and, in 2016, the Independent Review of Retirement Income, chaired by Professor David Blake of Cass Business School, submitted that people would have to work into their seventies in order to avoid hardship and poverty in their old age. This research was also supported by a study by Royal London which suggested a retirement age of 77!  

The Court of Justice of the European Union gave cautious approval to the UK’s then default or mandatory retirement age of 65 (see Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (2009)). Compulsory retirement ages set by EU member states were essentially a proportionate means of achieving a legitimate aim i.e. the orderly management of a country’s labour market and the opening up of employment opportunities for younger people.

Having said that, with the abolition of the UK’s default retirement age, employers will still have to be careful how they handle the issue of older employees. Requests to continue working by those individuals in the older age demographic will have to be considered seriously by employers. Employers may be justified in refusing to continue employment if they can demonstrate that an older employee falls short of a basic (objective) standard of mental or physical abilities required to perform the job; or in situations where the law lays down the retirement age. Finally, we should also be aware that younger people can also be the victims of age discrimination. 

ACAS Guidance on Age Discrimination

In March 2019, ACAS helpfully produced new guidance on how to prevent age discrimination in the workplace.

Some of the ACAS examples can be found below:

Example 1 – Ordinary direct discrimination (Section 13: Equality Act 2010)

Manager Louise is looking to fill a role which will require the successful applicant to then complete difficult training. She instructs her HR manager to discount her team’s younger members, presuming they will not want the hard work. She also tells HR to discount older members, thinking they will not adapt to the change. Instead she shortlists Bruce and Mikel, believing people in their mid-thirties are more likely to have the necessary blend of ambition and sense of responsibility. Her actions are likely to be discriminatory.

Example 2 – Direct discrimination by association (Section 13: Equality Act 2010)

Senior manager Jurgen decides not to invite employee Sarah and her partner Claude to a business party because Claude is much older than her. Jurgen feels Claude would not fit in with the party mood. This is likely to be discriminatory.

Example 3 – Direct discrimination by perception (Section 13: Equality Act 2010)

Siobhan is turned down for a supervisor’s job because her bosses decide she does not look mature enough for the role. They think she looks about 20. In fact, she is 30. Her bosses’ decision is likely to be discriminatory.

Example 4 – Indirect discrimination (Section 19: Equality Act 2010)

City centre gym manager Esme tells employees she needs two more staff to work on reception. She adds that anyone interested needs to look ‘fit and enthusiastic’ as the gym is trying to encourage more young people to join. Her requirement may indirectly discriminate against older staff unless it can be objectively justified.

Example 5 – Harassment (Section 26: Equality Act 2010)

Sixty-year-old Margaret feels humiliated and undermined at the store where she works because of her age. Despite her extensive experience in retailing and recently gaining a qualification as a visual merchandiser, her manager Darren regularly tells her in front of other staff that she is ‘out of touch’ and that the store needs ‘fresh blood’. Darren’s behaviour is likely to be harassment.

Example 6 – Victimisation (Section 27: Equality Act 2010)

Manager Alan tells apprentice Reyansh he is happy with his progress and performance. Reyansh then feels confident enough to tell Alan that some of the older employees regularly make fun of him because of his age and play pranks such as leaving toys where he’s working. Reyansh wants this to stop. Alan tells Reyansh to toughen up and that the firm has no time for complainers. Some weeks later Alan punishes Reyansh for complaining by cancelling his training course. This is likely to be victimisation.

The ACAS Guidance can be accessed using the link below:

http://m.acas.org.uk/media/pdf/o/1/Age_discrimination_key_points_for_the_workplace.pdf

Copyright Seán J Crossan, 9 May 2019

Stereotyping = unlawful discrimination?

Photo by Ken Treloar on Unsplash

We can all be guilty of pre-judging other people – sometimes we do this consciously and, at other times, we can do this unconsciously. In other words, we can reduce people to stereotypes.

This becomes a problem if our pre-conceptions about other people cause us to behave in a way that translates into unlawful, less favourable treatment. If we treat others less favourably due to a protected characteristic that they possess (e.g. age, disability, gender, race, sexual orientation etc) in terms of the Equality Act 2010.

Stereotyping or negative perceptions about individuals may well give rise to the victim (with the relevant protected characteristic) having a claim for direct discrimination in terms of Section 13 of the Equality Act 2010).

This recalled a story, from several years ago, in which the BBC reported the experiences of a gay man who was subjected to all sorts of less favourable treatment based on negative stereotyping of LGBTI people. The victim of this offensive behaviour took successful legal action against the individual in question.

A link to this story on the BBC News site can be found below:

Why ‘gay’ gestures are discrimination

Clive Coleman reports on the case of a gay man who has won the first compensation award for discrimination based entirely on homophobic gestures.
More recent examples of negative sterotyping

When glancing through various media stories over the last few days, stereotyping or negative perceptions of people came to mind.

In the first story, sufferers of Parkinson’s Disease spoke about the negative reactions they often experience when going about their daily lives. People with this very serious condition have reported that their symptoms are mistaken by members of the public as drunken behaviour or that they are acting under the influence of drugs. Individuals who suffer from Parkinson’s have a disability in terms of Section 6 of the Equality Act 2010.

A link to this story can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110419/data/8863856/index.html

In the second story, a person with cerebral palsy (also a disability) speaks about the discrimination that he has suffered.

A link to this story can be found below:

‘My disability is mistaken for drunkenness’

Stuart Devlin, who has cerebral palsy, carries a card to show door staff after being refused entry to pubs.

In the third story, which hails from Russia, the Russian authorities have allowed prisoners to resume yoga exercises during the period of their incarceration.

Previously, the Russian Government had banned this form of exercise for prisoners because it was believed it was linked to homosexuality! In the UK, a person’s sexual orientation is a protected characteristic in terms of Section 12 of the Equality Act 2010.

A link to this story can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110419/data/8863506/index.html

Photo by Annie Spratt on Unsplash

Copyright Seán J Crossan, 12 April 2019

The trouble with veganism …

Photo by Kylli Kittus on Toimetaja tõlkebüroo: https://toimetaja.eu/

… is that it’s shameful and un-Australian according to Scott Morrison, Prime Minister of that country. The Australian Premier spoke as the country witnessed nationwide protests by vegans (Some of whom chained themselves to abattoirs, amongst other things). The protesters are, of course, attempting by their actions to highlight the issue of cruelty to animals.

Mr Morrision’s remarks are certainly two of the more interesting descriptions (criticisms) of veganism that I’ve heard uttered recently.

In a number of previous Blogs, I’ve discussed the possibility of veganism being regarded as a philosophical belief capable of being legally protected in terms of the Equality Act 2010. At the time of writing, we still await the decision of the London Employment Tribunal in the matter of Casamitjana v the League Against Cruel Sports (which was lodged in late 2018) as to whether veganism should be a legally protected, philosophical belief.

A link to the story from Australia can be found on the BBC News website:

Vegan protests: ‘Un-Australian’ activists arrested, PM Morrison says

Scott Morrison rebukes animal rights activists after dozens are arrested in nationwide protests.

A special report by Peter Egan for Sky News raises serious considerations about veganism.

Egan, a British actor who was well known to audiences in the 1970s and 1980s, is now a prominent animal rights activist and I think it can be fairly implied that he probably thinks veganism is an ethical choice which should be capable of respect in a democratic society. After all, in 2011, the Employment Tribunal decided that an animal rights activist who believed in the sanctity of all animal and human life held protected, philosophical beliefs (anti-fox hunting beliefs) and should not be discriminated as a consequence of them (see Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) ET/3105555/2009).

A link to Egan’s report for Sky News can be found below:

https://news.sky.com/story/i-visited-a-dog-meat-market-the-horror-keeps-me-awake-at-night-11684081?

A link to the Hashman judgement can be found below:

https://uk.practicallaw.thomsonreuters.com/Link/Document/Blob/I42aa7bb90c5511e498db8b09b4f043e0.pdf?targetType=PLC-multimedia&originationContext=document&transitionType=DocumentImage&uniqueId=27215574-54b1-4c5f-b839-6b11ecab733a&contextData=(sc.Default)

Copyright Seán J Crossan, 8 April 2019

Segregation

Photo by Jeff Qian on Unsplash

The word segregation has very negative associations and we often think of the American Deep South before the victory of the Civil Rights’ Movement in the 1960s. In more recent times, we think of Apartheid era South Africa and its official policy of segregating the different racial groups.

Segregation on racial grounds would constitute direct discrimination in terms of the Equality Act 2010.

In its code of practice, the Equality and Human Rights Commission has previously used the following example of segregation which would be unlawful:

Example

A British marketing company which employs predominantly British staff recruits Polish nationals and seats them in a separate room nicknamed ‘Little Poland’. The company argues that they have an unofficial policy of seating the Polish staff separately from British staff so that they can speak amongst themselves in their native language without disturbing the staff who speak English. This is segregation, as the company has a deliberate policy of separating staff because of race.

A story (first reported by The Guardian) focused on segregation at a housing development in England. The developers were not prepared to allow housing association tenants on the site to have access to the recreational facilities. Only those individuals who had purchased properties at the development were entitled to make use of them.

On the face of it, this may be another example of the (social) class divide in the UK and no amount of legislation has managed to eradicate this problem. That said, a deliberate policy of segregation as operated by the developers might be capable of legal challenge if it could be demonstrated that the policy was leading to indirect discrimination in connection with a person’s protected characteristics.

I can’t help wondering if the developer carried out an equality impact assessment study before implementing the policy? Indirect discrimination, of course, occurs when an individual or an organisation operates a policy, criterion or practice (PCP) which has a disproportionately adverse effect on a certain group of people.

In a previous Blog (Indirect Discrimination published on 21 February 2019), I discussed this form of discrimination in relation to a story from New York.

It may be the case that a higher proportion of people from minority ethnic groups or non-white British citizens or EU nationals may be tenants of the rented accommodation at the development. We could also have more single parent families living in the rented properties who are headed by a female.

Several of the tenants are looking into the possibility of raising a legal challenge. Although, by the time that the story had gained national publicity, the developer was reconsidering its position.

Links to the story can be found below:

https://www.theguardian.com/cities/2019/mar/25/too-poor-to-play-children-in-social-housing-blocked-from-communal-playground

U-turn over ‘segregating’ children at London housing development

Postscript

In July 2019, the UK Government announced plans to introduce legislation in England which would effectively put an end to the practice by developers of having separate entrances and facilities (in effect segregation) for private owners and public sector tenants living in housing developments.

In Scotland, housing policy falls within the legislative powers of the Scottish Parliament.

A link to the story about the proposed legislation as reported by the BBC can be found below:

Ministers pledge to end ‘poor doors’ in new build housing

Copyright Seán J Crossan, 1 April and 22 July 2019