Indirect discrimination – Seán Crossan's Scots Law

Unequal pay? A thing of the past?

Photo from HiddenHerStories Blog and Podcast

By Saad Niaz, Anna Stevenson, Kaspar Stewart and Jodie Williams (Editor: SJ Crossan)

To put it simply equal pay is when both men and women who perform equal work get paid equally. This is set out in the Equality Act 2010 which we will discuss later in this post. If you are an employer, it is extremely important to take note of this. It does not only apply to salary. But it takes into consideration all terms and conditions in their contract such as holiday entitlement, bonuses, pay and rewards schemes, pension and any other benefits your company may offer (Equality and Human Rights Commission, 2019).

Now we would think that in this day and age both men and women would be getting paid equally, unbelievably, in 2019 the data from Britain’s largest companies should that men are still mostly getting paid a lot more than women. Even with the amount of campaigns that women’s groups are bringing forward, the startling figures show that 78% of Britain’s biggest companies have a pay gap favouring men (Petter, 2020).

The Beginning of Equal Pay

Shockingly, this has been a problem for over 40 years. Prior to 1970, women in the UK, especially in the private sector, were on different and lower rates of pay, no matter what their skill levels were (Wage Indicator, 2020).

In 1968, women who were sewing machinists at Ford’s Dagenham Factory went on strike as they argued that their work demanded the same amount of skill and effort as work carried out by Eastman cutters and paint spray operators, even though their job had been graded higher. This strike sparked a movement and before we knew it, we had many other equal pay strikes throughout Britain. This led to the formation of the National Joint Action Campaign Committee for Women’s Equal Rights (NJACCWER) who then went on to organise a big equal pay demonstration in May 1969.

The Ford Dagenham Factory strike also motivated the Women’s Liberation Movement to take more action. They continued to fight for equal pay of equal value and also and sexual discrimination both in the workplace and at home. One of their main slogans was simple but effective “Equal Pay for Equal Work”. Two of their other demands included equal education and training as well as free 24-hour childcare. This was being fought for to allow women to be financially independent from their father, husbands and other males.

Barbara Castle MP, who was UK Employment Secretary of State at the time and eager to address the obvious unhappiness and distress caused by the issue, promoted the Equal Pay Act 1970. This allowed equal pay claims to be made by women who were working in the private and public sector. This act will be discussed further in this article. When this legislation was brought out, it really highlighted the problems in the workplace to do with equal pay and women (Wage Indicator, 2020).

It was said that women should be paid less for two reasons, first, because their work was less skilled than men’s and in return should be paid less and second, because a woman’s wage does need to support other dependents. We can see how these assumptions would make anyone unhappy within the workplace. Many women have to support other people besides themselves such as children, parents etc.

Legislation

The first legislation which directly addressed equal pay was the Equal Pay Act 1970. This act was passed in 1970 but later came into force in 1975, and was introduced to “prevent discrimination, as regards terms and conditions of employment, between men and women” (Equal Pay Act 1970). This legislation arose after a series of high-profile strikes took place. These strikes were crucial in highlighting the inequalities in pay between men and women. (NEU, 2019)

The Equal Pay Act 1970 along with many other acts such as the Sex Discrimination Act 1975 was replaced by an umbrella act in 2010 called the Equality Act. The Equality Act 2010 set to update and simplify previous legislation.

The Equality Act 2010 and the Equal Pay Statutory Code of Practise both include the equality of terms provisions, which states that employees/individuals have a legal right to equal pay, for equal work, as compared to employees of the opposite/same sex. Additionally, pay is not limited to just contractual pay, as it includes any element of a pay package and/or any employment benefits. Pay, for example, would cover bonuses, company cars, hours of work, overtime rates etc.

The Act further states that an individual/employee can bring forward a claim for equal pay if that individual meets the criteria of equal work in comparison to a comparator. Moreover, a comparator can be further defined as an individual who is/was employed by the same employer (or associated employer) at the same work environment or at an environment where there is identical terms and conditions. (The Law Society, 2015)

The Equality Act further defines equal work and separates it into three categories; like work, work rated as equivalent and work of equal value. Determining like work involves two stages, of which the first is to determine whether the comparator is employed in work of a similar nature with consideration to the skills/effort/knowledge required to carry out the work.

Like work

Once like work is established then the next stage is to assess whether any existing differences are not of any practical importance i.e. are differences, of crucial importance in the performance of the job regardless of job description. Additionally, at this stage particular attention is paid to the frequency of occurring differences and to the nature/extent of any differences. Employers responding to a claim must then sufficiently demonstrate that crucial differences of practical importance exist, justifying difference in pay.

Work rated equivalent

Work rated as equivalent is when work is evaluated in terms of how demanding it is and is determined under a job evaluation scheme, which ultimately makes a decision based on multiple parameters such as skill and responsibility, with a stronger focus on the demands related to work. A job evaluation scheme analytically assesses the relative value of a job and typically utilises a scoring-based system to determine equal work. These schemes must be fair, non-discriminatory and not influenced by any stereotyping. ACAS provides free information on how to design and implement a job evaluation scheme.

Work of equal value

The final and third way of determining equal work, is by determining if the comparators work is of equal value, with specific reference to the demands of work made on that individual, such as the physical/emotional effort involved in work. Furthermore, work may not be particularly similar however it may be of equal value as the demands of such work is equal. This category is similar to the category of work rated as equivalent, however work rated as equivalent takes an analytical approach whereas determining equal value is centred around a more methodical and logical approach where often an industry expert is needed to clarify whether effort, skills, decision-making etc are of equal value. (Equality and Human Rights Commission, 2019)

Key Industrial Actions

It is also important to note, that any or all three stage of equal work can be used as comparison methods when bringing forward a claim. Additionally, when a claim is brought forward to an employment tribunal, the tribunal will determine the case based on its own facts so a decision for equal work in another case might not be relevant. Furthermore, an equal pay claim must be brought forth either when the individual is at the work whereby there is unequal pay or six months after leaving that position. However, if the time limit is exceeded it may be possible for the claim to be heard in ordinary courts such as the high court. Also, before launching a claim to the employment tribunal, employee/individual must before seek advice from ACAS and complete the ACAS Early Conciliation notification form before commencing. (Equal Pay Portal, 2020)

As we know, in 1970, the Equal Pay Act was passed, forbidding unequal pay and working conditions between men and women. However, the Act did not actually come into place until 1975. As previously mentioned, the need for this type of legislation was given huge impetus by the women’s industrial action at the Ford-car manufacturing plants in 1968 and also by legislation introduced by Barbara Castle in 1970. Further important industrial actions were conducted in the 1970s and 80s in which both men and women fought for their workers’ rights regardless of gender, ethnicity and class.

The Night Cleaners Campaign (1972-1975)

Three important campaigns/strikes that helped allow the Equal Pay Act to come into force were the Night Cleaners Campaign, the Grunwick Film-Processing Laboratories strike and the Miners’ strike.

During the early 1970s, and prior to this, many women across Britain were working late night shifts cleaning offices. These women were some of the most badly paid and were often taken

advantage of in the workforce. Contract cleaning was introduced, and the situation worsened – companies began to compete against each other over price which resulted in costs being cut and lower wages for the women. May Hobbs was a cleaner who had to experience this discrimination and played a key role in in initiating the struggle for better pay and conditions. She also allowed for union recognition to increase in which more protection was granted for women working in this industry.

Grunwick Film-Processing Laboratories strike, Willesden (1976–1978)

This particular strike was in regard to Asian women working as film processers in Grunwick laboratories, the unfairness they were facing in this particular industry. In 1976 Jayaben Desai resigned from her job and instigated a strike along with other working-class Asian women. The protest was in regard to pay inequality, unreasonable overtime arrangements and even racist company practices. She led this strike for two years and within this period there were many violent affairs between the protesters and the police. Desai went to the extreme measures of going on a hunger strike outside the Trades Union Congress which resulted in her union membership being suspended. The Grunwick strike was key in raising the profile of Asian women living and working in the UK. Its highlighted class and ethnic divisions in the workforce. Jayaben Desai showed passion and desire in her protests which increased the recognition of how important women’s work is in terms of industrial organisation.

The Miners’ Strike (1984-1985)

In the 1980s, the mining industry was key for thousands of workers across Britain who worked in this field. In 1984 miners went on strike in protest against the planned closure of numerous mining pits and the lack of discussion about this from the government. This would result in hundreds of lost jobs, taking a big hit at the income of many families across the UK. Women became involved in this by forming groups among the families of these miners and adding vital support to the strike. Women Against Pit Closures (WAPC) was formed, essentially putting feminist ideologies into practice – the male dominated industrial dispute allowed for women to empower themselves and take a public role in campaigning against it. Communal feedings of families in April and May 1984 allowed for the group to grow even further as it began to take on a more explicitly political role. During the strike, numerous local support groups were organised which arranged demonstrations, influenced MPs, addressed public meetings and shone exposure onto the poor conditions of miners to the wider public.

Recent Stories Regarding Equal Pay

As mentioned previously, equal pay is the right for both men and women to be paid the same when doing the same or equivalent, work. Equal pay has been an aspect of UK sex discrimination law since the Equal Pay Act 1970 and now the Equality Act 2010, as well as EU primary and secondary legislation. Although equal pay has been the law for 50 years a significant difference in pay between male and female employees still exists in today’s world of work (CIPD, 2019).

The Equality Act 2010 incorporates an equality clause into employment contracts which means that employers have a duty to ensure that men and women are paid equally for carrying out the same work or work of equal value (Crossan, 2020). In November 2018, a survey by Young Women’s Trust (YWT) found unequal pay is widespread with 20 per cent of women reporting being paid less than male colleagues for the same or similar work (Gallagher, 2019).

In today’s world of work there are various women standing up for themselves to fight for the equal pay that they legally deserve. However, according to the Young Women’s Trust more than 50% of women said they would not feel confident enough to challenge their employer even if they knew they were wrongfully being paid less than a male colleague (Gallagher, 2019).

In order to fight for equal pay people all over the world dedicate one day a year to raise awareness of the gender pay inequality. Equal Pay Day is the point in the calendar at which the average man has earned the amount the average women will over the course of the year. Data from the Office for National Statistics (ONS) shows women’s total earnings were 17.3 per cent lower than those of men in 2019, down from 26.9 per cent in 1999 (CIPD, 2019).

Kay Collins

A recent equal pay case involved Kay Collins a former head chef for employer Compass Group UK & Ireland discovering she was being paid around £6,000 less than one of her male colleagues who was less experienced, less qualified and had a far less senior title. Collins was shocked by this news as she had more than 10 years’ experience than her male colleague so asked her employer to confirm this and after the employer confirmed this was the truth Collins gave her employer the chance to resolve the issue internally. However, they did not comply so she took it upon herself to raise an official grievance which could take up to three years to carry out and would see her lose her job in the process. The employment tribunal found that in most respects Ms Collins’ work and her male colleague’s contained differences of ‘no practical importance’ and most of their responsibilities were ‘substantially the same’ and that Ms Collins ‘appeared to shoulder greater responsibility’ than one of her male comparators in some respects. Therefore, Collins won her claim against Compass Group on the majority of the grounds upon which the employer had consistently said that Ms Collins did not do ‘like work’ to that of her male colleagues. Indeed, Compass Group’s own witnesses accepted that their own evidence on a number of these grounds was inaccurate (Gallagher, 2019).

Carrie Gracie and the BBC

Another recent equal pay case involved the BBC’s former China editor Carrie Gracie who resigned from her post after discovering a male in a comparative role to hers was being paid far more. The BBC admitted Gracie had been told she would be paid in line with the north America editor, Jon Sopel, whose salary is in the £200,000-£250,000 range, but after she accepted the role her pay turned out to be £135,000. Jeremy Bowen, the BBC’s Middle East editor, is paid between £150,000 and £199,999. Gracie won her claim about gender pay inequality, received an apology and a pay-out from the corporation, which she decided to donate to a charity that campaigns for gender equality (Sweney, 2018).

Conclusion

So, it can be said that even after all these years, equal pay problems are still here and it doesn’t seem to be going away anytime soon regardless of all the work women are doing and no matter how many cases they win. We can only hope that one day, we will live in a world where men and women will be paid equally for equal work.

Bibliography

CIPD, 2019, Equal pay, Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/equal-pay/factsheet [Last Accessed 27/04/20]

Crossan, S, 2019, 2020: same old sexism (yes, equal pay again), Available at: https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/ [Last Accessed 27/04/20]

Equal Pay Portal, 2020. Bringing a claim. [Online] Available at: https://www.equalpayportal.co.uk/for-workers/ [Accessed 28 April 2020].

Equality and Human Rights Commission, 2019. What is equal work?. [Online] Available at: https://www.equalityhumanrights.com/en/advice-and-guidance/what-equal-work [Accessed 28 April 2020].

Equality and Human Rights Commission, 2019. What is Equal Pay?. [Online] Available at: https://www.equalityhumanrights.com/en/advice-and-guidance/what-equal-pay#h1

Gallagher, S, 2019, Meet the women who took on unequal pay in their workplace, Available at: https://www.independent.co.uk/life-style/equal-pay-day-women-dealing-with-unequal-pay-a9201481.html [Last Accessed 27/04/20] [Accessed April 2020].

NEU, 2019. Equal pay and The Equal Pay Act 1970. [Online] Available at: https://neu.org.uk/advice/equal-pay-and-equal-pay-act-1970 [Accessed 27 April 2020].

Petter, O., 2020. WHAT IS THE GENDER PAY GAP AND HOW IS IT DIFFERENT FROM EQUAL PAY?. [Online] Available at: https://www.independent.co.uk/life-style/women/gender-pay-gap-equal-pay-women-paid-less-motherhood-a8856121.html [Accessed April 2020].

Sweney, M, 2018, BBC reaches equal pay deal with former China editor Carrie Gracie, Available at: https://www.theguardian.com/media/2018/jun/29/bbc-reach-equal-pay-deal-with-former-china-editor-carrie-gracie [Last Accessed 27/04/20]

The Law Society, 2015. Equal pay. [Online] Available at: https://www.lawsociety.org.uk/support-services/advice/practice-notes/equal-pay/#ep511 [Accessed 28 April 2020].

Wage Indicator, 2020. A brief history of equal pay. [Online] Available at: https://wageindicator.co.uk/what-she-earns/equal-pay-history [Accessed April 2020].

Copyright Saad Niaz, Anna Stevenson, Kaspar Stewart and Jodie Williams, 28 April 2020

The love that dared not speak its name

Thanks to @ChouetteLaura for making this photo available freely on @unsplash 🎁

Every day is supposedly a school day and I have just learned that, 125 years ago today, Oscar Wilde, Victorian poet and novelist, began a sentence for 2 years’ imprisonment for the crime of gross indecency in terms of Section 11 of the Criminal Law (Amendment) Act 1885.

This was the culmination of several legal actions in which Wilde had become embroiled in order to end speculation about his sexual orientation. Although married and being the father of two children, Wilde had a secret: he was a gay man living in a very hostile environment.

It was such a hostile environment that Professor Dominic Janes of Keele University (and author of Oscar Wilde Prefigured: Queer Fashioning and British Caricature, 1750-1900) (University of Chicago Press, 2016) states that:

“Britain had some of the strongest anti-homosexuality laws in Europe … The death penalty was in place until 1861 [the last execution took place in 1835]. In general, one of the main images of what we’d call a gay or queer man was a sexual predator of younger men. Many people would have also been informed by religious arguments from the Old Testament.”

When Wilde’s ‘sexual transgressions’ with a number of younger men were finally exposed in court due, in a large part, to the work of a private detective, he didn’t really stand a chance against the ensuing moral outrage of Victorian society.

The trials and eventual prison sentence would ruin Wilde financially and reputationally – for good (or so it seemed at the time).

More information about the trials of Oscar Wilde can be found in an article which appeared in The Independent to mark the 125th anniversary of his downfall.

https://edition.independent.co.uk/editions/uk.co.independent.issue.250520/data/9525296/index.html

The long and winding road

If Victorian society was uniformly unforgiving and scornful of Wilde in 1895, contemporary British society has certainly rehabilitated his reputation. There is now almost universal agreement that Wilde was the victim of oppressive laws and social attitudes.

Wilde himself would probably be astounded at the amount of progress that members of the LBGTQI community have made in the intervening 125 years.

I’m also sure that he would be delighted to know that he is still the focus of discussion in 2020 (“There is only one thing in life worse than being talked about, and that is not being talked about.”).

It has been a a long and winding road for members of the LBGTI community to achieve legal recognition and protection.

Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, society (and particularly the work-place) could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).

Admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights.

In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands.

Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.

The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.

Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles; then reduced to 18; and then finally 16 years of age. Societal attitudes had moved on and the law had to follow.

In the last 20 years, the influence of the European Union has also been particularly profound regarding measures to combat sexual orientation discrimination. In spite of Brexit, there is a large body of anti-discrimination law which has been bequeathed to us as a result of our membership of the European Union.

In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.

This body of law is not just going to disappear overnight when the transitional period for Brexit ends (as currently anticipated by the UK Government) on 31 December 2020. As I often remark, European Union has become hardwired into the various legal systems of this disunited Kingdom.

Indeed, a person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

Even greater strides towards equality were ushered in as a result of the Civil Partnerships Act 2004 which would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Northern Ireland finally legalised same sex marriage in 2020.

When Oscar Wilde was serving part of his sentence in Reading Gaol (which inspired his Ballad of the same name) he could hardly have contemplated life as we know it in 2020.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/02/02/the-only-gay-in-the-village/

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 25 May 2020

No Blacks, No dogs, No Irish!

The title of this Blog refers to the not so distant past when discrimination was an accepted feature of life in the United Kingdom. In the 1950s and 1960s, these types of signs were routinely displayed in the windows of hotels, boarding houses and guest houses in the United Kingdom. They were blatantly racist, but completely legal.

It wasn’t just an unwillingness by White British landlords to rent rooms or properties to Afro-Caribbean and Asian families especially, ethnic minorities were often actively discouraged from purchasing properties in White neighbourhoods.

In 1968, Mahesh Upadhyaya, a young Asian immigrant to the UK, mounted legal challenge in respect of a refusal by a white British builder to sell him a house. It was the first time that anyone could do this. Mr Upadhyaya was able to do this because the Race Relations Act 1968 had just come into force. Although Mr Upadhyaya’s claim was ultimately dismissed on a technicality, the action generated a lot of publicity and greater awareness of the existence of anti-discrimination legislation amongst the British public.

A link can be found below which provides more information about Mr Upadhyaya’s story:

https://eachother.org.uk/racism-1960s-britain/

Even in the 1970s, you could still have a popular television sitcom called Love Thy Neighbour which dealt with the trials and tribulations of an Afro-Caribbean family moving into a white neighbourhood. If you watch it today, you can only cringe at the racist attitudes and name calling on display (see below) – you have been warned!:

https://youtu.be/mGesyvKfAOA

This was the post-War period when Britain was suffering from acute shortages of labour and the solution adopted by successive Governments was to encourage immigration from former colonies such as Bangladesh, India, Pakistan, Sri Lanka and the British Caribbean islands.

Today, with the Equality Act 2010 firmly in place, it’s unthinkable that this type of blatant discrimination in housing could or would still take place. From time to time, however, stories are reported in the British media which highlight blatant racial discrimination in housing, but most people would now recognise that this type of behaviour is completely unlawful (see link below):

https://www.theguardian.com/money/2017/nov/08/landlord-ban-coloured-tenants-unlawful-court-rules-equality-watchdog

‘No DSS’ tenants

With this historical background, it was with some interest that I read recently about a number of legal actions (which had resulted in out of court settlements) where landlords had refused to let properties to certain individuals. These refusals had nothing to do with the racial backgrounds of prospective tenants, but the cases usefully demonstrate that letting properties can still be something of a legal minefield for landlords.

If the prohibition regarding Asian, Black and Irish people was an example of direct race discrimination (now in terms of Sections 9 and 13 of the Equality Act 2010), what about a prohibition which states ‘No DSS’ tenants? This term refers to individuals who are in receipt of State benefits such as Universal Credit whereby their rent is effectively paid by the Government.

At first you might be forgiven for thinking how such a prohibition could infringe equality laws, but dig a little deeper and think things over. The prohibition is a provision, criterion or practice (PCP) imposed by the landlord. Admittedly, people receiving State benefits are a hugely varied group: they will encompass men and women; White and Black and Minority Ethnic individuals; disabled and non-disabled people; heterosexual and LGBTI individuals; and people with religious/ philosophical beliefs and those with none.

This is to miss the point: could such a PCP be an example of indirect discrimination by reason of a protected characteristic in terms of Section 19 of the Equality Act 2010?

The answer seems to be yes: it would seem that more women than men are adversely affected by the prohibition ‘No DSS’ tenants. In other words, the prohibition is an example of indirect sex discrimination. Indirect discrimination can be understood in basic terms as hidden barriers which lead to unlawful, less favourable treatment.

Landlords may argue that they are not intentionally discriminating against women, but this is precisely the effect of their unwillingness to let properties to people receiving State benefits.

In 2017, the UK Supreme Court clarified the meaning of indirect discrimination in Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27:

There is no obligation for a complainant with the protected characteristic to explain why the PCP puts her at a disadvantage when compared to other groups;
Indirect discrimination does not (unlike direct discrimination) have to demonstrate necessarily a causal link between the less favourable treatment and the protected characteristic. All that is required is a causal link between the PCP and the disadvantage suffered by the complainant and her group.
Statistical evidence can be used to demonstrate a disadvantage suffered by a group, but a statistical correlation is not of itself enough to establish a causal link between the PCP and the disadvantage suffered;
The PCP may not necessarily be unlawful of itself, but it and the disadvantage suffered must be ‘but for’ causes of the disadvantage. Put simply, if the PCP was not there, the complainant and her group would not suffer the detriment.
The PCP itself does not have to disadvantage every member of the complainant’s group e.g. some women may be able to comply with it, but , critically, more women than men cannot.
The pool of individuals to be scrutinised to assess the impact of the disadvantage should include everyone to which the PCP applies e.g. all those receiving State benefits whether they are negatively affected or not.

A link to the Supreme Court’s judgement can be found below:

https://www.supremecourt.uk/cases/docs/uksc-2015-0161-judgment.pdf

Conclusion

It looks as if the phrase ‘No DSS’ may be consigned to the history books along with the more notorious example of ‘No Blacks, No dogs, No Irish’. Speaking of dogs: a general ban on these animals might constitute another example of indirect discrimination as individuals who are visually impaired (a disability) may be less likely to be able to comply as they rely on their guide dogs.

Links to stories about the legal challenges to the PCP of ‘No DSS’ tenants can be found below on the BBC News App:

Landlords who say ‘no DSS’ breaking equality laws

“No DSS” landlords who turn down housing benefit claimants risk breaching equality laws.

Legal victories over ‘No DSS’ letting agents

Two single mothers win out-of-court settlements against letting agents refusing benefit claimants.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/03/04/there-aint-nothin-goin-on-but-the-rent/

https://seancrossansscotslaw.com/2019/07/09/boxing-clever/

https://seancrossansscotslaw.com/2019/06/21/sickness-absence/

https://seancrossansscotslaw.com/2019/08/20/beardy-weirdy/

https://seancrossansscotslaw.com/2019/02/21/indirect-discrimination/

Copyright Seán J Crossan, 13 April 2020

Muslim, male, and single: don’t fly with us!

Michael O’Leary, the motor mouth CEO of Ryanair, could never be accused of being a shrinking violet or one to shy away from a fight. As they say in Ireland: that one would cause trouble in an empty house.

The latest controversy to engulf Mr O’Leary concerns accusations of racism, religious discrimination and, indeed, sexism. Quite a charge sheet. He has suggested that single, males of the “Muslim persuasion” should be turned away from plane flights because “this is where the threat is.”

Ryanair is an Irish airline, but it services a large number of European destinations and many of its customer base will be single Muslim males who have quite lawful travelling plans.

Ryanair is a popular (I probably meant busy) airline that flies to and from destinations in the UK and many of British citizens are, of course, Muslim.

Mr O’Leary’s comments could potentially fall foul of the provisions of the Equality Act 2010 in relation to direct discrimination (Section 13) on the grounds of the following protected characteristics:

Religion (Section 10)
Sex (Section 11)

Now the Muslim faith is not a racial characteristic, so where could the accusations of race possibly arise? Well, if you are applying a criterion to your customer base, it could have a disproportionately adverse effect on certain groups within the population. Muslims are much more likely to be found amongst non-White British and Irish UK citizens. Indirect discrimination any one? (see Section 19 of the Equality Act 2010)

There’s also the small matter of European Union law (yes, in the UK we continue to follow these rules throughout the Brexit transition period) and Mr O’Leary’s comments could represent a breach of the Treaty on the Functioning of the European Union (primary legislation) and Equal Treatment Directives (secondary legislation).

There may be one get out for Mr O’Leary: if he can show that his comments were an objective (don’t laugh) and proportionate means of achieving a legitimate end. National security and health and safety concerns do, potentially, fall into this category, but Mr O’Leary’s approach to dealing with terrorism might be regarded as using a sledgehammer to crack a nut i.e. totally over the top and disproportionate. Section 192 of the Equality Act states:

“A person does not contravene this Act only by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose.”

Mr O’Leary may not be too concerned about the latest furore surrounding his comments – after all, as a fellow Irishman (Oscar Wilde) once remarked: “There is only one thing in life worse than being talked about, and that is not being talked about.”

In fairness to Mr O’Leary he has since apologised for his remarks, but the Muslim Council of Britain has condemned his comments (made in an interview with The Times).

Many Muslims have logged on Twitter their negative experiences of flying (see below):

A link to an article on the BBC News App about Mr O’Leary’s comments can be found below:

Michael O’Leary: Ryanair boss criticised for Muslim profiling comments

The Ryanair boss says Muslim men should be profiled at airports because “that is where the threat is”.

Copyright Seán J Crossan, 22 February 2020

You’ve got (e)mail! … or will I ever get out of this place?!!!

Email can be a wonderful form of communication. It can also be, quite frankly, something of a curse for many employees and workers. Essentially, you’re never too far away from the work-place and bosses/clients/service users expect to receive an instant reply.

The expectation by bosses and managers that employees and workers should be monitoring their emails (constantly) does tend to be a contributory factor in the rising number of cases of work-related stress. Employers: please note that you have a duty of care to provide a safe working environment and part of this obligation includes monitoring unacceptably high levels of stress in the work-place.

There is a perception (rightly or wrongly) that UK employees suffer from some of the longest working hours in Europe. In 2019, data from the EU’s Eurostat Agency seemed to support this contention but, interestingly, the Organisation for Economic Co-operation and Development (OECD) took a more sceptical approach by questioning the method of data collection (the old adage about lies, damned lies and statistics springs to mind here).

Links to a BBC article about this issue and the Eurostat figures (and OECD response) can be found below:

https://www.bbc.co.uk/news/uk-politics-49795179

https://ec.europa.eu/eurostat/databrowser/view/tps00071/default/table?lang=en

https://www.oecd-ilibrary.org/economics/international-productivity-gaps_5b43c728-en;jsessionid=c_2XYmRNoOJLRgHdT0TJPQqs.ip-10-240-5-115

UK employees are, of course, entitled to receive a written statement of the main terms and particulars of their employment as per Section 1 of the Employment Rights Act 1996. This statement must contain a provision which addresses the employee’s normal weekly working hours.

Despite Brexit (which did occur on 31 January 2020 – in case you missed it), the UK is still following EU rules until the end of this year … One EU Law with particular relevance to this debate is the Working Time Directive ((2003/88/EC) which was transposed into UK employment law by way of the Working Time Regulations 1998.

In theory, the Directive and the Regulations cap the number of hours that employees (and workers) can work at 48 hours per week (technical point: this figure can be averaged out over a reference period – 17 weeks normally). Crucially, however, UK employees and workers can opt out of the 48 hour maximum by signing a declaration (opt-out) that they wish to do so. If they change their minds, they are entitled to do so by giving the employer a minimum seven days’ notice (or in certain cases – 3 months) of this intention.

The legal rules on working hours are all very well in theory, but what about the culture of organisations which may (at an informal level) promote the idea that long hours spent at work (or just working) are a sure fire way to get ahead in your career?

This is where the influence of email (and other instant messaging services) can be quite insidious (pernicious even?). Employees feel under pressure to deal with this work load at weekends, during holidays and evenings. Parents of young children and carers of elderly relatives, who may have negotiated flexible working arrangements, may be under acute pressure to deal with emails etc when they are outside the work-place. In this way, the work-place becomes like the Eagles’ song, Hotel California (‘You can check out any time you like, But you can never leave!‘).

Interestingly, in some of our ex-EU partner countries, there have been initiatives at both the organisational and legal level to curb the smothering influence of email outside the work-place.

There is a real danger here for employers that, by encouraging employee use of email outside working hours, it may constitute a policy, criterion or practice (PCP) – no matter how informal – which could open themselves up to accusations of indirect discrimination on grounds of sex (women are still the primary carers for children and elderly dependents) and disability (by reason of a person’s association with a disabled person) in terms of Section 19 of the Equality Act 2010.

Furthermore, employees might feel that they are under constant surveillance by the employer because it becomes easier to keep tabs on individuals when they are logging in and out of the company’s IT network. For employers, this could lead to legal challenges from employees who are concerned that the right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights has been violated.

Is there a better way of doing things? Yes, is the short answer.

In 2011, the German multinational car manufacturer, Volkswagen (VW) introduced major changes to its working practices by curbing the use of emails when employees were off duty. This agreement was negotiated by the company and trade union/labour organisations.

In France, in August 2016, they went further and passed the El Khomri Law (named after the French Government Minister for Labour who introduced the proposal). This law gave employees a right to disconnect from email. In one particular case which involved the French arm of the British company, Rentokil, an employee was awarded €60,000 because his right to disconnect from email had been breached.

Links to stories about the changes to VW’s working practices and the French El Khomri Law can be found below:

https://www.telegraph.co.uk/news/2018/08/01/british-firm-ordered-pay-60000-french-court-breaching-employees/

The debate about the right of employees to disconnect from email – whether this is negotiated via some sort of collective agreement or underpinned by law – now seems to have penetrated the British consciousness. Rebecca Long-Bailey MP, one of the leading contenders for leadership of the British Labour Party has thrown her hat into the ring by backing a trade union campaign to introduce a legal right to disconnect in the UK.

One small problem: the Labour Party lost the last British General Election on 12 December 2019 to the Conservatives and is, therefore, in no position to deliver. Over to you Prime Minister Johnson? (a man fond of the populist gesture).

A link to an article in The Independent about Rebecca Long Bailey’s support for the trade union campaign to introduce a law guaranteeing the right to disconnect can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110220/data/9327866/index.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/10/23/a-hard-days-night/

https://seancrossansscotslaw.com/2019/02/25/the-work-life-balance-or-utopia-reimagined/

https://seancrossansscotslaw.com/2019/02/22/stress-kills/

https://seancrossansscotslaw.com/2019/02/11/employment-contracts-read-them-or-weep/

Copyright Seán J Crossan, 11 February 2020

Bad hair day

It never ceases to amaze me that employers and service providers fall foul of arbitrary codes or policies which they impose on employees and service users. Regular readers of this Blog will be aware of previous articles covering discrimination or less favourable treatment which arises because employers or service providers issue generalised guidelines which discriminate against individuals because they happen to have certain hairstyles or wear beards or jewellery.

It is this lack of awareness that often leads to legal action in terms of the Equality Act 2010. By imposing a policy, criterion or practice (PCP) across the board, employers and other organisations could be setting themselves up for a fall specifically in relation to Section 19 of the Equality Act 2010. This part of the Act makes indirect discrimination unlawful i.e. it is an example of prohibited conduct by reason of a person or a group possessing a protected characteristic such as race or religion (Sections 9 and 10 respectively)

Since the introduction of the Race Relations Act 1976 (now repealed by the Equality Act 2010), we have seen a number of well known cases involving indirect discrimination being determined by Courts and Tribunals. So, you would think by now that employers and other organisations would have learned the lesson by now – apparently not as we shall see shortly.

In short order, such bans or generalised restrictions 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.

Over the years, groups such as Jews, Muslims, Orthodox Christians, Sikhs and Rastafarians have brought successful legal actions for indirect discrimination on grounds of race and/or religion (see Mandla v Dowell–Lee [1982] UKHL 7). Being Jewish or Sikh can be both a religious and a racial identity.

Taking all of the above on board, I was really interested to read a story in The Independent this weekend which highlighted the problems of schools imposing dress codes on pupils. I thought: haven’t we been here before and why does no one seem to learn?

The story in question involves Ruby Williams who was “repeatedly sent home from Urswick School in Hackney, East London because she had Afro hair”. The school seems to have reacted with gross insensitivity to the youngster by informing her that her hairstyle was a breach of school uniform policy and that it could “block other pupils from seeing the whiteboard”.

Ruby and her family took legal action against the school (with the support of the Equality and Human Rights Commission) and she has since been awarded an out of court settlement of £8,500. The settlement figure clearly reflects the distress which she has suffered and the fact that all this trouble took place when she was studying for her GCSE exams (remember the Vento Guidelines anyone?). Ruby’s father is a Rastafarian and he has often stressed to his daughter the cultural, racial and religious significance of Afro hairstyles.

Apart from indirect discrimination which the school’s policy has caused to Ruby Williams, she may well also have had a claim in terms of Section 13 (direct discrimination) and Section 26 (harassment) of the Equality Act 2010 for being singled out in this way by the school authorities.

Perhaps the staff and Governors of the school might find it appropriate to undertake an equality awareness course at the next in-service day?

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 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.

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

https://edition.independent.co.uk/editions/uk.co.independent.issue.080220/data/9323781/index.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/07/09/boxing-clever/

https://seancrossansscotslaw.com/2019/08/20/beardy-weirdy/

https://seancrossansscotslaw.com/2019/02/21/indirect-discrimination/

https://seancrossansscotslaw.com/2019/04/10/everyday-experiences-of-racism/

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

Copyright Seán J Crossan, 9 February 2020

The only gay in the village?

Photo by Steve Johnson on Unsplash

The only gay in the village became a household phrase in the UK thanks to the long running Little Britain sitcom TV and radio series (which has been broadcast by the BBC since 2000).

Daffyd Thomas claimed to be the only gay person in a small, Welsh village (actually he wasn’t), but in some respects his catchphrase reflected the isolation that many people in the LGBTI communities experience – either in their personal or professional lives.

The reason that I mention this topic is because, last week, the LGBTI campaigning organisation, Stonewall, published research about the most inclusive LGBTI friendly employers in the UK (Newcastle City Council topped the list). That said, for many LGBTI employees, an inclusive work place is still a far off dream.

Please find a link to a story on the Sky News website about one employee’s decision to hide his LGBTI identity from his colleagues:

https://news.sky.com/story/i-felt-i-had-to-hide-my-lgbt-identity-at-work-so-i-decided-to-do-something-about-it-11920174

Links to Stonewall’s findings (and a Sky News article) can be found below:

https://www.stonewall.org.uk/system/files/2020_top_100_report.pdf

https://news.sky.com/story/stonewall-reveals-its-most-lgbt-inclusive-employers-11919950

A person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

Many years ago, I remember teaching a group of students who were studying for a professional qualification. Many of them were employed by recruitment agencies and it was my task to highlight the relevant provisions of discrimination law at that time. One evening, we had a discussion about discrimination on the grounds of a person’s sexual orientation – particularly in the context of the ban on gay and lesbian people serving in the UK Armed Forces. This ban would eventually be lifted in 2000 – following the decision of the European Court of Human Rights in Smith and Grady v UK (1999) 29 EHRR 493.

One of the students asked me what protection existed for gay and lesbian people in employment law generally. Very little was my response. Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, the work place could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).

Yes, admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights. In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands. Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.

Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles. Things have since moved on and the age of consent was firstly reduced to 18 and then eventually to 16.

In the last 20 years, the influence of the European Union has been particularly profound regarding measures to combat sexual orientation discrimination.

On 1 December 2003, the Employment Equality Directive would eventually become part of UK law in the form of the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations were repealed and replaced by the relevant provisions of the Equality Act 2010 (which came into force on 1 October 2010).

It did not extend to the provision of goods and services, so had the case of Bull and Another v Hall and Another [2013] UKSC 73 occurred when the Directive was first transposed into UK domestic law, the same sex couple who were refused a double room at the guest house in Cornwall would not have been successful in their claim for sexual orientation discrimination. Luckily for them, the Equality Act had since come into force and covered unlawful less favourable treatment on grounds of a person’s sexual orientation with regard to the provision of goods and services.

The Treaty on the Functioning of the European Union (TFEU) is also worthy of comment. Article 19 prohibits discrimination by reason of a person’s sexual orientation and, notably, this provision is hardwired into UK law by way of the Equality Act 2010. Article 19 extended legal protection to gay and lesbian people more generally – over and above the limited areas of employment and vocational training which the Treaty of Amsterdam and the Employment Equality Directive had originally addressed.

The EU Charter of Fundamental Rights (although Poland and the UK had negotiated some opt-outs) contained significant provisions on equality and non-discrimination, namely, Article 20 (equality before the law) and Article 21 (the principle of non-discrimination).

Another massive step forward for the equality of the LGBTI community was the introduction of the Civil Partnerships Act 2004 which would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Currently, Northern Ireland is the only part of the UK not to permit same sex marriage – although this will change from next week onwards (see link below):

Same-sex marriage: Couple ‘excited but nervous’ to become first in NI

Robyn Peoples and Sharni Edwards will celebrate their wedding on Tuesday in Carrickfergus.

This change to the law has come about as a result of the introduction of the Northern Ireland (Executive Formation etc) Act 2019 passed by the UK Parliament (in the absence of of a functioning devolved government for nearly the last 3 years).

Finally, if employers want to do more to create an inclusive work place, they could start by using Stonewall’s inclusive toolkits (see link below):

https://www.stonewall.org.uk/best-practice-toolkits-and-resources

Conclusion

As a society, the UK has certainly moved on from the overtly hostile attitudes towards members of the LGBTI communities over the last 50 years or so. The legal rights and protections which LGBTI people now enjoy would have seemed unthinkable in 1967 when a limited form of tolerance was ushered in as a result of the Sexual Offences Act (in England and Wales). More recently, the UK and Scottish Governments have issued pardons to those individuals who were convicted of criminal offences under the previous laws (in 2017: the Policing and Crime Act 2017 in England and Wales (known as Turing’s Law after Alan Turing, the Enigma Code Breaker) and, in 2018, the Scottish Parliament followed suit by passing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018).

Postscript

On Friday 7 February 2020, Phillip Schofield, the British TV celebrity announced that he was gay at the age of 57. Mr Schofield is married with 2 children and had lived a heterosexual life – until now. He likened hiding his sexual orientation to being in prison and being consumed by it.

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

http://news.sky.com/story/phillip-schofield-comes-out-as-gay-11928156

If anyone doubts that homophobia still exists in the UK, please see the story below:

Homophobic graffiti daubed on Polo Lounge entrance in Glasgow

Police have launched an investigation after they were alerted to the vandalism at the Polo Lounge.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

No guide dogs!

Photo by Viktor Forgacs on Unsplash

Disability is a protected characteristic in terms of Sections 4 and 6 of the Equality Act 2010. In terms of Sections 20 and 21 of the Act, employers and service providers have a legal duty to make reasonable adjustments to accommodate the needs of a disabled person.

What about a new prison inmate (a sex offender) who is visually impaired and wishes to bring his assistance (or guide) dog with him?

The prison authorities have said no to this request, it is simply against the rules.

Discrimination or less favourable treatment, of course, can be perfectly legal if it is objectively justified.

It would be very interesting to see if the prison authorities were potentially in breach of the Equality Act (direct or indirect discrimination).

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

Blind sex offender cannot take guide dog to prison

Neil Nellies arrived in court with his dog, but was told he must serve his sentence without the animal.

Related Blog Articles:

/https://seancrossansscotslaw.com/2019/06/21/sickness-absence/

https://seancrossansscotslaw.com/2019/02/26/jumping-the-gun/

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

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