Tag: Discrimination

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

The trouble with pregnancy …

Photo by Xavier Mouton Photographie on Unsplash

According to a study just published by the Young Women’s Trust, it would appear that, in 2019, pregnancy discrimination in employment is more common than you might have thought.

The figures seem to show that 10% of those employers who were questioned would be very hesitant to hire a female candidate because of fears that she may decide to have a child in the near to long term future. Male bosses were much more likely to discriminate against female employees in this manner.

Section 18 of the Equality Act 2010 makes it illegal for employers to treat a woman less favourably in relation to pregnancy and maternity. Thankfully, there is no longer a requirement for a women to identify a male comparator in cases of alleged pregnancy and maternity discrimination (Section 17 of the Act deals with discrimination in non-work cases).

The Equality Act was particularly significant for women. Probably, for the first time in UK anti-discrimination law, less favourable treatment in relation to the issues of maternity and pregnancy would be dealt with in a more comprehensive and integrated fashion. Under the older equality laws, such as the now defunct Sex Discrimination Act 1975, women could not always be confident that they would receive protection under the law in connection with these important issues. Regrettably, repeated failures by the UK Parliament in this area meant that the intervention of the European Union had to be called upon when domestic law was found to be inadequate.

Ultimately the Court of Justice of the European Union would improve the legal situation for pregnant women (see Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus [1991] IRLR 27, a case which originated in the Netherlands).

In Dekker, the Court of Justice stated unequivocally that it is always direct discrimination to refuse to offer employment to a woman for reason of her pregnancy. The Court also made it clear that a pregnant woman does not have to compare herself to that of a male co-worker/employee.

The provisions of Section 18 of the Equality Act implement the European Union’s Equal Treatment Directive (2002/73) in relation to maternity and pregnancy.

The Directive contained far stronger rules expressly forbidding discrimination on the grounds of pregnancy and maternity leave. This should mean that pregnant women now receive much stronger legal protection in employment. Pregnant employees must, however, prove that the less favourable treatment suffered by them was by reason of their pregnancy.

An employer will also commit an act of direct sex discrimination if a female employee is dismissed by reason of her pregnancy (see O’Neill v Governors of St Thomas More [1996] IRLR 27). The dismissal can also be challenged on the grounds that it is automatically unfair in terms of Section 99 of the Employment Rights Act 1996.

Yet, despite all this legal protection, we still hear stories about the prevalence of pregnancy and maternity discrimination in the work-place. The one bright spot in the story is that the number of employers who stated that they would be reluctant to hire a female employee due to pregnancy concerns had actually decreased. That, at least, is a small crumb of comfort, but still not much to be overjoyed about.

Links to the story can be found below

http://news.sky.com/story/dinosaur-bosses-reluctant-to-hire-women-who-may-get-pregnant-11790837

https://www.youngwomenstrust.org/what_we_do/media_centre/press_releases/1011_employers_say_theyd_be_reluctant_to_hire_women_who_may_have_children

A link to a recent case from Northern Ireland where a pregnant woman successfully sued her employer for discrimination can be found below:

Pregnant woman ‘unfairly dismissed’ rules industrial tribunal

Laura Gruzdaite was accused of “skipping work” despite telling bosses about a baby scan.

Copyright Seán J Crossan, 22 August & 25 September 2019

Beardy weirdy?

Photo by Nonsap Visuals on Unsplash

A common theme of this Blog over the last few weeks concerns banning certain forms of dress or appearance (Burka bans and horse racing in a hijab published on 1 August 2019).

Imposing a ban in relation to dress codes or appearance can be problematic legally speaking because such an approach could be tantamount to indirect discrimination in terms of Section 19 of the Equality Act 2010.

Several of my previous blogs have addressed the issue of indirect discrimination.

So it was with some interest that I read a story recently about Burger King’s plans to prevent male staff from wearing beards while working in its restaurants throughout the region of Catalunya/Catalonia in Spain. Immediately, I thought about the legal consequences of such a ban being introduced to UK Burger King outlets. The test for indirect discrimination is whether a provision, criterion or policy (PCP) imposed by an organisation is likely to have a disproportionately adverse effect on certain groups of individuals who possess a characteristic protected by law (in the UK, we are primarily talking about the Equality Act).

Unsurprisingly, this attempt to impose a blanket ban on Burger King’s male employees fell foul of the Spanish Constitution’s provisions on equality. I would be prepared to stick my neck out and argue that a similar result would almost certainly be replicated in the UK had Burger King attempted to introduce such a ban. I wasn’t really surprised by this outcome because Spain, as an EU member state, has very similar equality and discrimination laws to the UK. In fact, the current concept of indirect discrimination in the Equality Act 2010 is derived from EU Law.

So, who might be affected if an employer implements a blanket ban on the wearing of beards in the work place? Quite a lot of male employees as it turns out, for example, very religious and observant Jews, Muslims and Sikhs. Furthermore, members of the Russian and Greek Orthodox faith groups and Rastafarians may also face real issues complying with such a requirement imposed by the employer. In short order, such bans may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

It is always open to an organisation, of course, to argue that dress codes or enforcing strict rules about an individual’s personal appearance can be objectively justified. In the past, banning beards or regulating the length of hairstyles in the work place have been justified successfully by employers or organisations on health and safety grounds i.e. primarily concerning hygiene (see Singh v Rowntree Mackintosh (1979) ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

Recently, the Royal Air Force (RAF) has significantly relaxed its total ban on male service personnel wearing beards (moustaches were permitted). This change of heart by the RAF has been motivated by the realisation that individuals from ethnic and religious minorities were being actively deterred from applying to join the service because of the ban on beards.

Even the argument that beards are unhygienic is being undermined with Professor Michael Moseley, presenter of the BBC programme “Trust Me I’m a Doctor“, highlighting recent, scientific evidence that clean shaven men represent a greater threat to hygiene than their bearded counterparts.

Links to the stories on Burger King’s attempt to ban the beard, the RAF’s change of policy and whether beards are actually unhygienic can be found below:

https://www.theguardian.com/world/2019/jul/31/burger-king-beard-ban-infringes-workers-rights-says-catalonia

https://www.bbc.co.uk/news/uk-49313406

https://www.bbc.co.uk/news/magazine-35350886

Copyright Seán J Crossan, 16 August 2019

Burka bans and horse racing in a Hijab

Photo by أخٌ في الله … on Unsplash

I have just been reading two, contrasting stories about Islamic dress codes which appeared in today’s UK media.

The first story comes from our close neighbour and EU partner, the Netherlands which has decided to bring in a new law banning certain forms of Islamic dress – principally the Burka, Hijab and the Niqab – from being worn by female Muslims in hospitals and schools and while travelling by public transport. This ban imitates similar initiatives in other EU member states such as Austria, Denmark, France and Germany. Those individuals who ignore or flout the ban run the risk of being fined €150. Some Dutch politicians, for example, Geert Wilders of the far right Party for Freedom would like the law to be extended in order to ban Islamic headscarves.

The second story comes from the UK and couldn’t be more different in tone. The BBC reports that a female, Muslim jockey, who wears the Hijab, has made history by winning the Magnolia Cup at Glorious Goodwood.

Links to the two stories can be found below:

http://news.sky.com/story/netherlands-burka-ban-comes-into-force-in-schools-hospitals-and-on-buses-11774887

Khadijah Mellah: Hijab-wearing jockey triumphs on Haverland and makes history

These two stories made me think about the limits of tolerance in relation to the outward signs of religious belief in our communities. Under UK and EU laws, a person’s religion is a protected characteristic and s/he has the right not to be subjected to unlawful, less favourable treatment (discrimination).

The right to enjoy protection from religious discrimination was first introduced to the mainland UK as a result of the EU Directive 2000/78/EC on Equal Treatment in Employment and Occupation. The laws on religious discrimination were to be found in the Employment Equality (Religion or Belief) Regulations 2003. It should be noted that the scope of these Regulations was limited in that they applied only to the area of employment – not, for example, the provision of goods and services.

Previously, Northern Ireland was the only part of the UK which had laws on religious discrimination – for understandable reasons given the troubled history of that part of the world. The Regulations did not extend to Northern Ireland because it already had laws in place to deal with this issue.

The Regulations have now been superseded by the provisions of the Equality Act 2010 (primarily Section 10) which are much wider in scope in that they cover both religious discrimination in employment and the provision of goods and services.

Additionally, Article 22 of the EU’s Charter of Fundamental Rights recognises a person’s right to cultural and religious diversity.

Wearing Islamic dress is obviously a way in which very religious members of this community can express their religious beliefs. Reading both articles today, I found myself asking the question what would be the legal effects if a similar ban on Islamic dress was introduced in the UK?

The new UK Prime Minister, Boris Johnson, has made disparaging remarks about forms of Islamic dress, but admittedly he does not seem willing to introduce a ban.

Countries such as Austria, Denmark, France, Germany and now the Netherlands are just as much bound by laws such as Directive 2000/78/EC and the Charter of Fundamental Rights as the UK is at the time of writing, so how do they justify banning certain forms of Islamic dress?

Freedom of religion is not absolute and sometimes the State can decide that a person’s religious beliefs must take second place if they clash with other people’s human rights (e.g. sexual orientation) or general public safety goals. In the UK, discrimination less favourable treatment in connection with a person’s protected characteristics may be permitted under the Equality Act 2010 if it can be objectively justified i.e. it is a proportionate means of achieving a legitimate aim. Health and safety or concerns about terrorism are often grounds used by States across the EU to justify periodic crackdowns on the wearing of Islamic dress in public places.

Copyright Seán J Crossan, 1 August 2019

Who’s the daddy?

Photo by Sandy Millar on Unsplash

Coming on the back of one of my recent blogs about gender reassignment (Gender Neutral? published on 25 June 2019), I spotted an interesting story appeared on Sky News today.

It concerns a legal action taken by Freddy McConnell, a multimedia journalist with The Guardian newspaper, to have himself declared the father of a child. There would seem to be nothing particularly significant about this. Mr McConnell is a transgender man and he gave birth to the child in 2018 after he had undergone gender reassignment and was no longer legally recognised as female. During the process of gender reassignment, Mr McConnell chose not to have a hysterectomy.

When he attempted to register himself as the child’s father, the registrar refused to do this – hence the lodging of the legal action before the English High Court’s Family Division.

In terms of Section 7 of the Equality Act 2010, a person who has undergone or who is contemplating gender reassignment can bring a legal action under the Act if they believe that they have been subjected to unlawful, less favourable treatment (prohibited conduct).

The story has now hit the headlines because Mr McConnell had enjoyed anonymity while the action is still to be decided. He has now lost this anonymity because he participated in a documentary (partly produced by his employer) about his struggle to be named as his child’s father rather than its mother.

Other media outlets, such as The Telegraph, challenged the anonymity order as they argued that it infringed the right of journalists to comment freely on a matter of legitimate, public interest.

Human rights

Interestingly, the story then became not merely about transgender rights, but also one of human rights (in terms of the Human Rights Act 1998). There was a conflict between Mr McConnell’s right to privacy and a family life and the right of freedom of expression of journalists (Articles 8 and 10 respectively of the European Convention on Human Rights). On this particular matter, Mr McConnell has lost his attempt to remain anonymous as Sir Andrew McFarlane, President of the High Court’s Family Division has found in favour of The Telegraph et al.

It remains to be seen whether Mr McConnell will win his legal action to be named as his child’s father on the birth certificate.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/man-who-gave-birth-loses-anonymity-in-his-bid-to-be-registered-as-father-on-birth-certificate-11764821

A link to Sir Andrew McFarlane’s judgement can be found below:

TT v YY [2019] EWHC 1823 (Fam) Case No: FD18F00035

https://www.judiciary.uk/wp-content/uploads/2019/07/TT-anonymity-judgment-150719.pdf

Copyright Seán J Crossan, 17 July 2019

Boxing clever?

Photo by Ryan Tang on Unsplash

In a previous blog (Indirect discrimination? published on 21 February 2019 and updated on 8 July 2019), I discussed the form of prohibited conduct known as indirect discrimination in terms of the Equality Act 2010.

Section 19 of the Equality Act 2010 defines indirect discrimination:

‘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.

Employers and service providers (and other organisations) must be particularly wary when they apply a provision, criterion or practice (a PCP) to the general workforce or the general population. It may be the case that, in applying a PCP, that an employer or service provider unwittingly treats certain individuals with a protected characteristic (e.g. women, the disabled, older people, members of a faith group or people from certain racial or ethnic groups) less favourably when compared to other individuals who do not possess this characteristic. It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554).

So, bearing the above in mind, it was with some interest that I saw a story reported by the BBC about a policy imposed by the Welsh Amateur Boxing Authority that all boxers have to be clean shaven in order to participate in matches. This rule is being challenged by Aaron Singh, who is a member of the Sikh community. Singh is claiming that the rule prevents him from boxing. As outward manifestations of their race, religion and culture, many Sikh men will grow beards. Especially religious males in the Sikh community will also wear a Dastar, pagri or pagg (forms of headwear signifying religious and cultural observance). A Kirpan – a ceremonial dagger – will also be carried by many observant Sikh males. Both male and female Sikhs will also choose to wear iron bangles and bracelets (the Kara) which have both religious and cultural significance.

If you are unfamiliar with the Sikh religion, you can access the video below for more information:

You can also find a link to an article below about Sikhs which was originally published in The Independent:

https://www.indy100.com/article/sikhs-face-discrimination-get-mistaken-for-muslims-hardayal-singh-united-sikhs-8332796

Could this rule be an example of indirect discrimination which particularly impacts (in a very negative way) on members of the Sikh community? In terms of the Equality Act 2010, Sikhs are covered by Sections 9 (Race) and 10 (Religion). Some Sikhs may not be particularly religious (in other words non-practising), but they will be covered by the protected characteristic of Race (see Mandla v Dowell–Lee [1982] UKHL 7).

Interestingly, as a point of reference, Judaism is also a protected characteristic in terms of Sections 9 and 10 of the Equality Act 2010.

In its defence the Welsh Amateur Boxing Association will be arguing the health and safety card as objective justification. Of the rule. In response, Singh is arguing that the English Amateur Boxing Association dropped its rule demanding that boxers be clean shaven.

It will be interesting to see how this dispute develops.

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

Boxing beard ban not fair says Cardiff University student

Cardiff student Aaron Singh says the rules in Wales are “not fair” and discriminatory.

The Equality and Human Rights Commission has also published guidance for employers and organisations about the Sikh community and its beliefs:

https://www.whatdotheyknow.com/request/288201/response/709901/attach/3/guidance%20on%20sikh%20articles%20of%20faith%20for%20scotland%20pdf.pdf

More links to stories about Sikhism and potential indirect discrimination can be found below:

https://www.telegraph.co.uk/news/religion/2469905/Sikh-teenagers-bangle-discrimination-win-will-impact-rules-on-uniforms.html

http://news.bbc.co.uk/1/hi/8500712.stm

Copyright Seán J Crossan, 8 July 2019

Update

In July 2019, the Welsh Amateur Boxing Association dropped the ban on beards.

Please see link to this story:

https://www.bbc.co.uk/news/uk-wales-49007583

Ouch!

Photo by Seán J Crossan

A salutary tale from Northern Ireland about the dangers of unequal pay for employers.

Margaret Mercer, a Belfast solicitor, has been awarded £273,000 in compensation by the Industrial Tribunal (yes, they still exist in Northern Ireland) after she won her equal pay claim against her employer, C&H Jefferson (a law firm).

The Tribunal concluded that Ms Mercer had been doing “like work” when a comparison was made with 4 other colleagues who held the rank of salaried partner in the firm. Three of these individuals were men.

It should be recalled that, under equal pay legislation in the UK, individuals can bring claims on a number of grounds:

  • They are engaged in like work with their comparator(s);
  • They are engaged in work of equal value with their comparator(s); or
  • They are engaged in work rated equivalent with their comparator(s).

C&H Jefferson has stated that it intends to appeal the Tribunal ruling.

More details about Ms Mercer’s claim can be found below in the BBC article:

Belfast solicitor wins £273k in equal pay case

Margaret Mercer found out she was not being paid the same as some colleagues at the law firm C&H Jefferson.

Copyright Seán J Crossan, 26 June 2019

Gender neutral?

Photo by Michael Prewett on Unsplash

On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004. It remains unclear, however, when exactly the Government will introduce the draft legislation. Shirley-Anne Sommerville MSP, the Government Minister with responsibility for this issue has publicly admitted that there is still a need to build a “maximum consensus” before things become clearer. 

A link to information about the proposed Bill can be found below:

https://www.gov.scot/publications/review-of-gender-recognition-act-2004/

Gender reassignment (or even gender identity) seems to have become a particularly fraught issue recently as a number of diverse media articles demonstrates:

Father Ted co-creator Graham Linehan warned by police over ‘transphobia’ Twitter row

http://news.sky.com/story/father-ted-co-creator-graham-linehan-warned-by-police-over-transphobia-twitter-row-11520340

Transgender prison inmate who sexually assaulted women jailed for life

http://news.sky.com/story/transgender-prison-inmate-who-sexually-assaulted-women-jailed-for-life-11523584

First UK transgender prison unit to open

https://www.bbc.co.uk/news/uk-47434730

Sam Smith comes out as non-binary: ‘I’m not male or female’

http://www.bbc.co.uk/news/newsbeat-47612616

My passport gender should be non-binary

https://www.bbc.co.uk/news/uk-england-london-48126998

Retired naval chief criticises gender neutral ships

https://www.bbc.co.uk/news/uk-scotland-48037933

Jacqueline Wilson: Gender reassignment for children makes me very worried’

https://edition.independent.co.uk/editions/uk.co.independent.issue.240419/data/8882366/index.html

Munroe Bergdorf: NSPCC cuts ties with transgender activist

https://www.bbc.co.uk/news/uk-48572955

‘Race science’ is rearing its ugly head – again and black women are the target

https://www.independent.co.uk/voices/caster-semenya-race-science-guinea-pig-saartjie-baartman-a8971081.html

Political controversy

In 2018, the Labour Party became embroiled in difficulties concerning the issue of whether trans women should be included in all female short lists for the selection of parliamentary candidates. Senior members of the Party – Jeremy Corbyn, Dawn Butler, Harriet Harman and Angela Rayner are supportive of this initiative.

The Standing for Women Campaign ran a (fiercely debated) poster ad during the Labour Party’s Conference in Liverpool focusing on the definition of a woman. This poster caused something of a storm and was later removed by the billboard company amid accusations of hate speech and discrimination against transgender people:

This image has an empty alt attribute; its file name is women_poster-1.png

Kellie-Jay Keen-Minshull, one of the activists behind the poster was quoted in The Spectator (11 September 2018) saying:

‘I was a supporter of the Labour Party for years, but I can’t now in all good conscience support a political party that is hellbent on destroying women’s rights. But this is wider than just the Labour party. The word ‘woman’ matters. It means adult human female. If we expand that definition to say that ‘woman’ includes men who claim to feel like women, so as not to hurt their feelings, the word will become meaningless. As will the rights that generations of women before us fought for.’

Gender Identity Research & Education Society

Sporting controversies

It’s not merely the world of politics which witnessed passionate debates about gender reassignment. The sporting world has also seen some fierce clashes between female and transgender athletes. Former Olympic medalists, Kelly Holmes and Sharron Davies; and former Marathon champion, Paula Radcliffe have all expressed caution about permitting trans-women athletes to compete in women’s sporting events. Martina Navratilova, the former Tennis champion was even accused of being a “transphobe”  when she suggested that the inclusion of trans-women in sporting events could be viewed as tantamount to “cheating”.

Furthermore, the ongoing scrutiny concerning the gender of the South African athlete, Caster Semenya continues to divide many people in the sporting world.

The Gender Recognition Act 2004

In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.

Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.

Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment.

This now means that the decision by the House of Lords in Chief Constable of West Yorkshire Police v A (2004) which held that the police force could rightfully refuse to employ an individual who had undergone a sex change as a constable has been reversed. Such treatment would now be regarded as an example of unlawful discrimination.

That said, in addition to UK anti-discrimination and equality laws, the Court of Justice of the European Union (as long ago as the case of P v S & Cornwall County Council (1996))held that discriminatory treatment of people having undergone gender reassignment was a breach of the Equal Treatment Directive. The individual in question had been dismissed from employment because she undergone a gender reassignment operation.

In Richards v Secretary of State for Work and Pensions (2006) the Court of Justice of the European Union ruled that a person (Richards) who was born male and then underwent gender reassignment to become female was entitled to claim a pension that would have been payable to a woman at age 60.

The individual in question had suffered less favourable treatment and the UK Government’s insistence that it would only begin to pay a pension to the individual in question from her 65th birthday onwards was an example of discriminatory treatment. In other words, the pensions authority was continuing to treat Richards as a man and was not taking into account the fact that gender reassignment had taken place.

In any event, the Richards case (above) is really of historical interest as the legal situation has greatly improved for any person having undergone gender reassignment. Such a person will now be issued with an official gender recognition certificate (see below) which means that they will be entitled to receive a pension from the date that such a certificate was issued.

The Court of Justice of the European Union has long held that discriminatory treatment of people having undergone gender reassignment is a breach of the Equal Treatment Directive.

The Scottish Government’s proposed Gender Recognition Bill

The proposed Bill is controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:

https://www.scottishlegal.com/article/joanna-cherry-qc-signs-letter-opposing-rush-to-reform-gender-law

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-48037152

Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.

What would be required of the individual in question under the proposed legislation are the following:

  • A statutory declaration to the effect that they have decided to change gender or sex;
  • The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
  • The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).

Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.

A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:

https://www.holyrood.com/articles/news/scottish-trans-policy-detrimental-women-and-girls

The Equality Act 2010

Section 7 of the Equality Act 2010 addresses the issue of a person who has undergone gender reassignment in the following terms:

 (1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

As we shall see, when discuss guidance from the Equality and Human Rights Commission (in the paragraph below), the Equality Act 2010 does not actually require a person to have undergone physical or physiological changes in order to be regarded as possessing the protected characteristic of gender reassignment.

Guidance from the Equality and Human Rights Commission

The Statutory Code on Employment issued by the Equality and Human Rights Commission contains a number of examples which demonstrate discrimination on the grounds of gender reassignment:

Example 1

A person who was born physically female decides to spend the rest of his life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully passes as a man without the need for any medical intervention. He would be protected as someone who has the protected characteristic of gender reassignment.

Example 2

A person born physically male lets her friends know that she intends to reassign her sex. She attends counselling sessions to start the process. However, she decides to go no further. She is protected under the law because she has undergone part of the process of reassigning her sex.

Example 3

Before a formal dinner organised by his employer, a worker tells his colleagues that he intends to come to the event dressed as a woman ‘for a laugh’. His manager tells him not to do this, as it would create a bad image of the company. Because the worker has no intention of undergoing gender reassignment, he would not have a claim for discrimination.

On the other hand, if the employer had said the same thing to a worker driven by their gender identity to cross-dress as a woman as part of the process of reassigning their sex, this could amount to direct discrimination because of gender reassignment.

It is worth noting in the above examples 1 and 2 that the individuals in question have not actually undergone the start of a physical transformation from one gender to another, but nonetheless both are protected in terms of Section 7 of the Equality Act.

Conclusion

A person who has undergone gender reassignment will have a protected characteristic in terms of the Equality Act 2010. Currently, the process by which an individual undergoes gender reassignment is laid down by the Gender Recognition Act 2004. This legislation was passed by the UK Parliament and applies across the country.

The Scottish Government has now announced that it intends to introduce a Gender Recognition Bill to reform the existing legislation. At the time of writing, it remains unclear when this will happen.

The purpose of the reforms is to move away from an emphasis on medical evidence to support the issuing of a gender recognition certificate to a system of self-declaration of gender (albeit under certain conditions being satisfied).

This subject has generated a lot of (often heated) debate and will probably continue to do so.

Postscript

The proposed Gender Recognition Bill continues to cause controversy – Wings over Scotland – the biggest pro-independence blog in Scotland edited by Stuart Campbell has found itself at the centre of the storm this week (4 July 2019). Campbell criticised the prominent nationalist MP, Mhairi Black for appearing on a YouTube channel where she appeared to attack those who were not in favour of the Gender Recognition proposals.

Needless to say this has generated a lot of comments by readers of the blog.

Links to Stuart Campbell’s blog entry and Mhairi Black’s Video can be found below:

https://wingsoverscotland.com/no-independence-day/#more-111060

https://youtu.be/9FlbIes2mlg

Copyright Seán J Crossan, 25 June, 5 & 29 July 2019

Ungagged?

Photo by Igor Rand on Unsplash

Should employers be permitted to insist on the inclusion of a “gagging clause” or non disclosure agreement (NDA) when they settle a claim outside court or tribunal for alleged harassment or discrimination?

Maria Miller MP, Chair of the Women and Equalities Committee of the House of Commons certainly doesn’t think so. Ms Miller is firmly of the view that the UK Parliament should introduce legislation, at the earliest opportunity, to outlaw the widespread use of “gagging clauses” or non-disclosure agreements.

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

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2017/nda-inquiry-17-19/

In April 2019, the BBC revealed that Ulster University in Northern Ireland had paid out approximately £226,000 as part of 6 settlement agreements involving former members of staff who had brought claims for discrimination and harassment while employed at the institution. These settlement agreements contained confidentiality clauses, “gagging” clauses or NDAs (the reader is free to decide which term is preferred). The BBC also discovered that 96 UK universities had used NDAs representing £87 million in value. A truly staggering figure and one can only wonder what would be the figure for settlements in privately run businesses.

Confidentiality clauses are often a staple feature of cases brought to the Employment Tribunal. The parties may well decide to settle the claim privately before proceedings are concluded. It tends to be the case that the employer party is keen to include a confidentiality clause in the settlement agreement as a condition of making a payment to the ex-employee. It should be said of course that in these types of settlement agreements, the employer is making the payment without admission of liability and the reason for choosing this method to resolve the claim can often be purely about simple economics i.e. you weigh how much it would cost you in legal expenses and disruption to your organisation for representation at a 5 day Tribunal hearing as opposed to settling the claim quickly.

NDAs started life as a way of ensuring that former employees who had previously worked for organisations were not tempted to disclose trade secrets (or other information) to their new employers which they had acquired in their old jobs.

Admittedly, the common law imposes a number of duties on employees such as:

  • to provide loyal service;
  • to act in good faith;
  • to ensure confidential information remains secure

Now, it would be something of a stretch for employers to argue that the above duties permitted them to ‘gag’ employees who had been the victims of discrimination and harassment in the work-place – hence the rise of the NDA. This is where employers get the victims to enter into a legally binding settlement agreement where, in return for a compensation payment (and sometimes an agreed reference), the victim promises not to discuss their situation with anyone other than his or her legal advisers.

Since the rise of the #MeToo and Time’s Up movements, there has been much more interest in these types of settlement agreements as more and more allegations about sexual harassment in the work-place have come to light. It has been alleged that individuals such as the disgraced American film producer, Harvey Weinstein and the British retailer, Sir Philip Green made use of NDAs to prevent people discussing how they were treated when they worked for these individuals. These agreements are seen as a sinister attempt to buy the victim’s silence by rich and powerful men who have seemingly bottomless pockets and inexhaustible legal resources.

Maria Miller and her colleagues on the Women and Equalities Committee are now saying time’s up for these types of arrangements.

Links to the stories about the work of the Women and Equalities Committee and the use of NDAs at Ulster University can be found below:

NDAs: MPs call for ban on ‘gagging clauses’ over ‘cover-up’ fears

https://www.bbc.co.uk/news/uk-northern-ireland-47981244

Postscript

In July 2019, the UK Government announced that it plans to introduce a Bill to Parliament in order to ban the widespread use (and abuse) of non disclosure agreements in employment contracts.

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

NDAs: New laws to crack down on ‘gagging’ clauses

A ban will be placed on NDAs that stop people speaking to police, doctors or lawyers, ministers say.
The scale of the problem of alleged harassment in the work-place and how employers deal with this can be seen in the article below which appeared in The Independent:

Copyright Seán J Crossan , 12 June and 21 July 2019

(In)Equality in the EU?

Photo by Markus Spiske on Unsplash

Have member states of the European Union made progress this last year in the protection of minority groups?

It would seem that the answer to this question is not particularly straightforward if you read the EU’s Fundamental Rights Report 2019.

Michael O’Flaherty, Director of the EU’s Fundamental Rights Agency presents a fairly gloomy picture across Europe:

“Fundamental rights alarm bells are ringing across the EU as inequalities, harassment and prejudices continue to grow. … We need robust responses outlining how rights benefit us all and provide the answers to the inequalities that are holding us back from a fair and just society where everyone can prosper.”

Across the EU, there are Governments in power (Hungary and Italy particularly) which promote strongly anti-immigrant messages. Until recently, the far-right Freedom Party was part of the coalition government of former Federal Chancellor Sebastian Kurz in Austria. In France, Germany and Spain, we have witnessed rising levels of support for far right parties such as the Front National, AfD and Vox respectively.

Other European countries have witnessed similar trends and did well in the recent European Parliament elections in May 2019.

We are not immune from such trends in the UK with many people being suspicious of the motivations of the Brexit Party and UKIP (despite denials to the contrary by the leaderships of these organisations that they are not far right movements).

In essence, the conclusions of the Fundamental Rights Report 2019 are as follows:

  • The levels of racial discrimination and harassment across the EU remain stubbornly high e.g. Black, Jewish and Roma people continue to report discrimination and harassment in their daily lives;
  • A significant percentage of Europeans (40%) consider immigration to be a problem and these individuals over-estimate the levels of (actual or true) immigration to the EU;
  • The number of children in poverty has decreased, but at 25% this figure is a still a cause for concern with certain groups (Roma children) being particularly affected.

A link to the Fundamental Rights Report 2019 can be found below:

https://fra.europa.eu/en/publication/2019/fundamental-rights-2019

Copyright Seán J Crossan, 10 June 2019