Equality Act 2010 – Page 4 – Seán Crossan's Scots Law

Hostile, degrading, humiliating

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:

https://www.irishtimes.com/news/ireland/irish-news/deli-worker-awarded-20-000-for-almost-daily-sexual-harassment-1.4128207

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:

https://www.crosslandsolicitors.com/site/hr-hub/injury-to-feelings-awards-updated-Vento-guidelines-April-2018

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:

https://www.equalityhumanrights.com/sites/default/files/sexual-harassment-and-the-law-guidance-for-employers.docx

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.

Related Blog Articles

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

Copyright Seán J Crossan, 1 January 2020

Civil partner? I do!

Photo by Jason Leung on Unsplash

As of today (31 December 2019), heterosexual couples in England and Wales will be able to enter civil partnerships as an alternative to marriage.

This change does not yet extend to Scotland: the Scottish Government has introduced its own Bill to introduce civil partnerships for heterosexual couples.

An info graphic showing the current progress of this Bill in the Scottish Parliament (Stage 1) can be seen below:

When the Labour Government of Prime Minister Tony Blair originally introduced civil partnerships across the UK (as a result of the Civil Partnerships Act 2004) such legal unions were open to gay and lesbian couples only.

It was the first time in the history of Scots and English family law that gay and lesbian couples were entitled to enter a legally recognised relationship.

Fast forward a decade or so and we now have same sex marriage in Scotland, England and Wales – but not yet Northern Ireland (although the clock may be ticking here on this issue). Admittedly, same sex couples can enter civil partnerships in Northern Ireland, but since the Republic of Ireland made same sex marriage legal in 2015, pressure has been mounting for change in the North.

The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin).

In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004) discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights. The ban on civil partnerships for heterosexual couples was also a potential breach of the Equality Act 2010 in the sense that it represented direct discrimination on grounds of a person’s sexual orientation.

Initially, the English High Court rejected the challenge brought by Steinfeld and Keidan, whereupon the case was allowed to proceed to the English Court of Appeal. Although expressing sympathy for Steinfeld and Keidan’s predicament, the Lord Justices of Appeal refused to overturn the ban (see Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81).

The couple were then given leave to appeal to the UK Supreme Court.

On 27 June 2018, the Supreme Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.

Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:

“I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”

Following the Supreme Court’s decision, the UK Government of former Prime Minister Theresa May initiated steps to amend the Civil Partnership Act 2004 in respect of the law for England and Wales.

A link to an article about the change to the law in England and Wales on the Sky News website can be found below:

Civil partnerships: First mixed-sex couples celebrate union http://news.sky.com/story/civil-partnerships-first-mixed-sex-couples-celebrate-union-11898759

Termination of contract

Photo by Craig Whitehead on Unsplash

It has just been announced that the well known UK construction company Balfour Beatty has just had a contract terminated by one of its clients.

The client in question is MI6 or the UK Special Intelligence Service, the equivalent of the CIA and the employer of Britain’s best known (but fictional) spy – James Bond. The Service is based at Vauxhall Cross on the River Thames.

Termination of contract can be a pretty dry area, but mix it in with the world of secret intelligence services and you have a story that will be of interest to a potentially large audience.

Who cares?

The company’s shareholders will almost certainly care about this and a large part of the public will be keenly interested to know the facts behind this development.

What went wrong?

Balfour Beatty had been contracted to refurbish the HQ of MI6. In order to carry out the job, the company had in its possession floor plans of the building. Somehow these plans went missing – although they were later recovered – but too late the damage had been done.

Mindful of the mind boggling ramifications of this huge security breach, the UK Foreign Office, which has overall responsibility for the work of MI6, promptly removed Balfour Beatty from further involvement in the middle of the refurbishment project.

A link to the story as reported in The Financial Times can be found below:

https://www.ft.com/content/81d4ac8c-28d9-11ea-9a4f-963f0ec7e134

I would assume that the Foreign Office is on pretty safe legal ground when it made the decision to terminate Balfour Beatty’s contract. The loss of highly confidential documents by the company could represent nothing less than a material breach of contract. This arises in situations where one of the parties acts in such a way that it completely undermines the contract. The breach, in other words, is so serious because it goes to the very roots of the contract.

The victim of the breach can then potentially use the remedy of rescission i.e. terminate the agreement. The remedy of damages is also available to the victim.

Rescission is actually a much more common remedy than you otherwise might think. In terms of both the Sale of Goods Act 1979 and the Consumer Rights Act 2015, a buyer may choose to terminate a contract of sale in situations where the trader supplies goods that fail to comply with, for example, the implied duty of satisfactory quality.

In employment contracts, an employer is entitled to dismiss an employee in circumstances where the individual commits an act of gross misconduct (theft, violence, gross negligence or failure to follow lawful orders). The Employment Rights Act 1996 recognises that there will be situations where the employer is entitled to terminate the contract of employment and there will be nothing unfair or wrongful about the dismissal (presuming, of course, that proper disciplinary procedures have been followed).

In the well known Scottish employment law decision of Macari v Celtic Football & Athletic Club [1999] IRLR 787 SC, a football manager had his contract terminated quite legally by his employer owing to the fact that he had repeatedly failed to follow lawful and reasonable orders. This failure by the employee to honour the terms of his contract was nothing less than a material breach of the agreement.

Conversely, an employee may choose to regard the employment contract as terminated in situations where the employer has breached the implied duty of trust and good faith. This could occur where the employee was subjected to bullying and harassment by colleagues and the employer (being aware of this) does nothing meaningful or concrete to deal with this. In the face of the employer’s indifference (or collusion), the employee could regard him/herself as constructively dismissed.

Particularly serious for the employer could be situations where the bullying or harassment are motivated by hostility towards an individual’s protected characteristic in terms of the Equality Act 2010 e.g. age, disability, gender reassignment, race, religion or belief, sex, sexual orientation.

Back to Balfour Beatty: it looks as the company has no one to blame for this mess, but themselves. MI6 or the Foreign Office obviously felt that the loss of sensitive (Top Secret?) documents was such a serious development that there was no choice to terminate the contract with immediate effect.

Copyright – Seán J Crossan, 29 December 2019

Say what you want?

Photo by Denin Lawley on Unsplash

There is no such thing as the absolute right to free speech or free expression – not even in the United States of America. The US Supreme Court formulated the Miller Test as far back as 1973 which defined boundaries as to what forms of expression may constitute obscenity (see Miller v California 413 US 15 (1973)).

This country is (certainly) not America when it comes to the issue of freedom of speech. Although Articles 9 and 10 of the European Convention on Human Rights (as implemented by the Scotland and Human Rights Acts 1998) do protect the individual’s right to freedom of conscience, thought etc and expression, there is recognition that the State may have good reason to restrict these rights (known as the margin of appreciation).

In an earlier Blog, I discussed the fact that the European Court of Human Rights ruled that denial of the Holocaust is not a belief which should be protected by law.

See:

Holocaust denial

https://seancrossansscotslaw.com/2019/10/08/holocaust-denial/

A famous example of the margin of appreciation being utilised (and approved by the European Court of Human Rights) in this country was the decision of Wingrove v UK [1996]. Here the film, Visions of Ecstasy, used highly sexualised imagery in its depiction of religious themes. Such a presentation would have been highly offensive to devout Roman Catholics (and a breach of the then, very strict blasphemy laws). Consequently, the British Board of Film Classification (the UK censor) refused to allow the film to be released. In this case, it was felt that someone’s artistic freedom of expression would cause grave offence to another group of people.

Wingrove is a really a moot point these days given that, in 2008, the UK reformed its blasphemy laws and the uncut version of Visions of Ecstasy was given a theatrical release (with an 18 certificate) in 2012. Yet it remains an interesting example of the tension between diametrically opposed viewpoints and how the State can be forced to mediate between these.

A link to the Wingrove judgement can be found below:

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22wingrove%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58080%22]}

Gender Critical Speech

I was reminded about freedom of speech only this week when an Employment Tribunal put clear limits on an individual’s right to say certain things. The individual lost the case, but its aftermath has stirred up a hornet’s nest of recriminations, with even JK Rowling weighing in to criticise the Employment Tribunal.

The case in question was Forstater v 1) CGD Europe 2) Centre for Global Development 3) Masood Ahmed Case No 2200909/2019 18 December 2019. It involved Maya Forstater who was engaged by the Centre for Global Development (a Think Tank) as a Visiting Fellow from January 2015 to 31 December 2018. Ms Forstater is a professional researcher and writer on public policy, tax and business. She provided services in this respect to the Think Tank. She is also had an active social media presence on Twitter.

Ms Forstater had issued a number of tweets about UK Government policy in which she questioned the right of trans females to call themselves women. Several of her colleagues complained about these and stated that they were ‘transphobic’ in nature. When her contract with the Think Tank was not renewed, she took the view that this decision had been motivated by her statements on Twitter. She, therefore, took the view that she was being subjected to direct discrimination by reason of her beliefs in terms of Sections 4, 10 and 13 of the Equality Act 2010. Furthermore, Forstater argued that her rights to freedom of thought, conscience and religion and expression (Articles 9 and 10 of the European Convention) had been breached.

As Employment Judge Tayler noted:

“When questioned during live evidence the Claimant [Ms Forstater] stated that biological males cannot be women. She considers that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate. On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex. She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally. If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. The Claimant made it clear that her view is that the words man and woman describe a person’s sex and are immutable. A person is either one or the other, there is nothing in between and it is impossible to change form one sex to the other.”

In dismissing Ms Forstater’s claim, Employment Judge Tayler stated:

“However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned.”

A link to the Forstater judgement can be found below:

https://doc-08-3g-docs.googleusercontent.com/docs/securesc/ha0ro937gcuc7l7deffksulhg5h7mbp1/ro6ahkv1c745m9ad7rvct412fk1uvhmp/1576958400000/06325118964551598628/*/12P9zf82TicPs2cCxlTnm0TrNFDD8Gaz5?e=download

In arriving at his judgement, Employment Judge Tayler was influenced by an earlier decision which defined the scope of a person’s beliefs and whether they ought to be protected.

Mr Justice Burton sitting alone in the Employment Appeal Tribunal in the case of Grainger v Nicolson Appeal No. UKEAT/0219/09 [2009] formulated some pretty clear guidelines about what constitutes a belief capable of protection under the UK equality laws. His Honour stated that for a belief to be capable of protection, it must satisfy the following requirements:

It must be genuinely held.
It must be a belief and not … an opinion or viewpoint based on the present state of information available.
It must be a belief as to a weighty and substantial aspect of human life and behaviour.
It must attain a certain level of cogency, seriousness, cohesion and importance.
It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

We may not have heard the last of Ms Forstater who may well be given to leave to appeal against Employment Judge Tayler’s judgement.

A link to the decision in Grainger v Nicolson can be found below:

http://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html

A link to a report about the Forstater decision can be found below on the BBC News website:

Maya Forstater: Woman sacked over trans tweets loses tribunal

Maya Forstater lost her job after she questioned government plans to let people declare their own gender.

Author’s note:

Since the original article was published in December 2019, Ms Forstater has successfully appealed to the Employment Appeal Tribunal (EAT) and overturned the original decision of the Employment Tribunal.

Please see a link to the EAT’s judgement in this respect which was issued on 10 June 2021:

https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf

Copyright Seán J Crossan, 21 December 2019

Different standards?

Photo by Elyssa Fahndrich on Unsplash

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 School v Aplin Case No 1600635/2016 [2019]) 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

The facts

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 AE Dayton Services Ltd [1987] UKHL 8.

Links to the decisions of the Employment Tribunal and the Employment Appeal Tribunal can be found below:

https://assets.publishing.service.gov.uk/media/5dcd4bf140f0b608cb5cb738/Mr_Aplin_v_The_Governing_Body_of_Tywyn_Primary_School_-_1600635.2016_-_Judgment.pdf

https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2019/0298_17_2203.html&query=(Tywyn)

A link to the story on The Independent’s website can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.171119/data/9205646/index.html

Copyright Seán J Crossan, 8 December 2019

Not British enough?

Photo by Guillaume de Germain on Unsplash

It never feels to amaze me that by casually flicking through the weekend newspapers and news outlets you can discover stories about discrimination without really making much of an effort. I often say this to my students when I ask them to highlight a media story about an aspect of discrimination law at the beginning of each class. There’s really no excuse for saying that they couldn’t find anything to talk about.

And so it proved today – although I must give credit to my students who had alerted me to this story some weeks ago during one of their regular presentations.

The story concerns Mr and Mrs Mander who have just won their claim for unlawful direct discrimination on the grounds of their race. Race (including national origin and a person’s colour), of course, is one of the protected characteristics which is set out in terms of Sections 4 and 9 of the Equality Act 2010.

Section 13 of the Act contains the definition of direct discrimination.

The Manders are of Sikh and Indian heritage who were both born in the UK and are British citizens. Their parents all came to the UK when they were small children. The couple participate in ceremonies and events throughout the Sikh Holy Year, but otherwise they are not particularly religious.

In this respect, they are very similar to people from a White British or Irish background who attend Church, for example, at Christmas and Easter. The couple are both university educated professionals with senior positions in the IT industry and they are comfortably well off. Culturally, the Manders see themselves as British, but obviously they are rightly aware and proud of their heritage.

After numerous attempts to start a family, the Manders decided to investigate the possibility of adopting a child. For this purpose, the couple dealt with the Royal Borough of Windsor and Maidenhead and Adopt Berkshire. The experience would end in disappointment for the couple.

The Manders took a claim to Oxford County Court alleging direct race discrimination (and alternatively indirect discrimination in terms of Section 19 of the Act of 2010) against the Royal Borough of Windsor and Maidenhead and Adopt Berkshire (the defendants).

It should also be appreciated that Section 29 of the Equality Act makes it clear that individuals can experience unlawful discrimination in respect of the provision of a service – in this case that of adoption services.

The couple also alleged that they had suffered discrimination in respect of the European Convention on Human Rights in respect of the following:

Article 8 (the right to family and private life)
Article 12 (the right to marry and found a family)
Article 14 (the prohibition on discrimination)

In the event, at the trial, the Manders decided not to pursue claims in terms of Article 8 and Section 19.

Her Honour Judge Clarke summarised the essence of the Manders’ claim:

‘It is important to understand that Mr and Mrs Mander’s claim is not that they applied to be approved as adopters but were wrongly or unfairly rejected or discriminated against either during the process of consideration of their application for adoption, or when considering whether to match them to a child. Mr and Mrs Mander’s case is that the Defendants discriminated against them on the basis of their race before they made formal application to adopt, inter alia by refusing to progress them to the ROI/application stage.’

The Council and Adopt Berkshire did not at any time advance the argument that the Manders were in any way unsuitable as prospective, adoptive parents.

The justification given for the refusal to permit the Manders to proceed to the Registration of Interest/application stage was that it was unlikely that children from the same cultural background as the couple would become available for adoption in the short or longer term.

The couple were informed by letter from the Service Manager of Adopt Berkshire that:

‘In the last 17 months since Adopt Berkshire we have not had a single child of Indian or Pakistani heritage referred to us for placement …’

The letter went on to state:

‘… it is hard at the current time to advise you how best to proceed regarding adopting within the U.K.; however another option that you may wish to explore is the option of adopting from India – while this is likely to be a lengthy process and may be financially stretching, it may ultimately be more likely to enable you to achieve the placement of a young child whose cultural heritage is similar to your own.’

Eventually, the couple adopted a child from the United States of America, but at a considerable financial cost.

In evidence, the Manders were in no doubt that they had been treated differently by Adopt Berkshire:

‘There was no doubt in my mind that she [Mrs Popat, an employee of Adopt Berkshire] in fact made a judgment based on the colour of our skin. I was never treated like this before. I grew up in this country. My grandfather fought in the British Army – I was hurt and disappointed.’ (Mrs Manders)

‘Adopt Berkshire made me feel that the country where I grew up still saw me as different. It did not matter that I grew up here, as long as I was not white, I could not be British. I found this thought very disturbing – I had trouble sleeping at night because of how angry and helpless I felt.’ (Mr Manders)

Held: by the County Court that the Manders had suffered direct discrimination on the grounds of their race when their application was not progressed to the ROI/application stage of the adoption process.

Her Honour Judge Clarke did not, however, uphold the couple’s claim that their rights under Article 12 of the European Convention had been breached. As her Honour pointed out the right to adopt a child is not covered by the Convention, but rather is left to national law.

Judge Clarke also acknowledged that the discrimination suffered by the Manders was of a very serious nature:

‘I consider this to be a very serious case, which sits at the top of the middle, or bottom of the upper, range of the Vento bands …’

In this respect, the Manders were awarded both ordinary (£29,000) and special damages (£60,000).

The application of the Vento Bands was discussed in a previous Blog, Hurt feelings:

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

A link to the decision of the County Court in Reena and Sandeep Mander v (1) Royal Borough of Windsor and Berkshire and (2) Adopt Berkshire [2019] Case No: C01RG184 can be found below:

https://www.judiciary.uk/wp-content/uploads/2019/12/Mander-Mander-v-RBWM-Adopt-Berkshire-FINAL-Judgment-C01RG184.pdf

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

https://www.theguardian.com/society/2019/dec/06/sandeep-reena-mander-win-race-discrimination-case-adoption-berkshire

Copyright Seán J Crossan, 7 December 2019

Biased blood?

Photo by LuAnn Hunt on Unsplash

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:

https://twitter.com/FreedomToDonate

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:

https://www.blood.co.uk/news-and-campaigns/news-and-statements/blood-donation-rules-have-changed/

NHS Scotland also operates a similar approach as can be seen from the link below (click on the section entitled Sexual relations):

https://www.scotblood.co.uk/giving-blood/can-i-give-blood/

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:

https://www.bbc.co.uk/news/health-48598461

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

Barbaric!

Photo by Sharon McCutcheon on Unsplash

We may think that in Western societies we’ve come a long way regarding the advances made by women.

Then, before we get too smug, something happens which forces us to confront the fact that we’re not quite as enlightened or civilised as we like to think.

Such an incident occurred last week in the United States of America when it was reported that a the authorities were negligent when Diana Sanchez, a pregnant woman who was being held in Denver County Jail, was denied proper medical treatment. The woman’s cries for help were allegedly ignored for 5 hours and she was forced to give birth to her son in the prison cell.

Had something similar occurred in the UK, lawyers might have been looking at Section 17 of the Equality Act 2010 (pregnancy and maternity discrimination: non-work cases) to provide grounds for a legal challenge against the operators of a prison. Clearly, this sort of failure by the authorities to implement a basic duty of care could be viewed as blatant sex discrimination.

In 2019, would have been too difficult for the Denver County Jail authorities to have ensured that this particular inmate had access to to the appropriate medical facilities? Surely, given her condition, this was not asking too much?

Lawyers for Ms Sanchez are now, unsurprisingly, pursuing a civil action against Denver County Sheriff’s Department.

A link to the story as reported by Sky News can be found below:

http://news.sky.com/story/woman-who-gave-birth-alone-in-denver-prison-cell-files-lawsuit-11797438

Postscript

Lest we become judgemental about the US Penal system, on 4 October 2019, The Guardian reported that the new born child of an inmate at HM Prison Bronzefield in Surrey had died. The mother had been in an “advanced state” of pregnancy, but had been left alone in her cell overnight when she had given birth to the child.

A link to the story can be found below:

https://www.theguardian.com/society/2019/oct/04/baby-dies-in-uk-prison-after-inmate-gives-birth-alone-in-cell

Copyright Seán J Crossan, 10 September and 4 October 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