Right to refuse?

Thanks to @beamomatic9000 for making this photo available freely on @unsplash 🎁

The COVID-19 crisis continues to throw up some interesting legal questions e.g. employment rights, EU freedom of movement rights, frustration of contract etc.

One area which seems somewhat overlooked is in relation to the actions of many retailers – principally supermarkets and grocery stores – which have been restricting sales of particular items. The items in question include soap, hand gel and sanitiser, bleach, anti-septic wipes, paper towels and even toilet rolls.

The COVID-19 situation has led to panic buying of these essential hygiene items and supermarkets have imposed clear limits on their sale.

Can supermarkets and other retailers impose these sorts of restrictions?

This, of course, takes us back to the basic rules governing the formation of a contract. Retailers are especially guilty when applying the term ‘offer’ to the goods which they stock. It is no such thing: goods on the shelves; on display; or in shop windows are invitations to treat. It is the the customer who is being invited to make the offer (see Fisher v Bell [1961] 3 ALL ER 731 where the English Court of Appeal ruled that a knife displayed in a shop window was not being offered for sale, it was merely an invitation to treat. Lord Parker, the Chief Justice being particularly emphatic on this point).

In the seminal case of Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB 401, the judges of the English Court of Appeal helpfully distinguished between an offer and an invitation to treat. The case arose as a result of a provision in the Pharmacy and Poisons Act 1933 which stipulated that the sale of certain medicines must take place in the presence of a registered pharmacist.

Boots Chemists operated a self service system whereby it’s customers were able to place the medicines which they wished to purchase in their shopping baskets. The key question was whether Boots was breaking the law by allowing customers to do this. In other words, was the sale completed when the customer placed the medicines in their baskets? Now, if goods on shelves were to be regarded as ‘offers’, Boots would indeed be breaking the law because customers would be deemed to be ‘accepting’ these ‘offers’ by placing the goods in question in their baskets.

If, on the other hand, the sale was concluded elsewhere i.e. at the cash register where there was always a registered pharmacist on duty, Boots would be fully complying with the Act.

The Court of Appeal concluded that it was the customer who made the offer by presenting the goods at the cash register. The sales assistant (properly supervised by the pharmacist) could conclude matters i.e. accept the offer by ringing the sale up on the cash register. Furthermore, it was always open to the assistant to refuse the customer’s offer. Goods on shelves were, therefore, merely an invitation to treat.

In more normal times, a customer’s offer would and should be refused by retailers because they are an underage person who is attempting to purchase e.g. alcohol, cigarettes or video games or DVDs which are age specific.

So, in this way, retailers are generally within their rights to impose strict limits on the numbers of certain items that customers wish to purchase. The customer can offer to buy 20 bottles of hand gel or sanitiser, but the store will have the right to refuse.

Presently, retailers are putting these sorts of restrictions into place in order to protect and promote public health by giving as many customers, as possible, reasonable access to basic hygiene products. If we co-opt the language of the Equality Act 2010, retailers are putting restrictions in place because these are a proportionate means of achieving a legitimate aim. So, hopefully, such restrictions – if fairly implemented and monitored – will not be subject to a legal challenge on grounds of discrimination.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/12/06/tis-the-season-of-special-offers/

https://seancrossansscotslaw.com/2019/03/27/special-offers/

https://seancrossansscotslaw.com/2019/03/14/too-good-to-be-true/

Copyright Seán J Crossan, 26 March 2020

Welcome to Austria?

Photo by rashid khreiss on Unsplash

Willkomen (welcome) to Austria? Not if you’re Italian or someone travelling across the Austro-Italian frontier last weekend.

Why? The dramatic escalation of Coronavirus (COVID-19) outbreaks in Italy is the short answer.

The Austrian Government is very nervous about this and took emergency action by, arguably, suspending free movement provisions – if only briefly. On Sunday 23 February 2020, the Austrian authorities refused entry to its territory of a train coming from Italy for several hours. The Italian railway authorities had informed their Austrian counterparts that at least two of the passengers were exhibiting signs of a fever. The Austrians were taking no chances. The train was eventually permitted to cross the frontier.

The crisis is far from over with controls between Austria and Italy being currently considered by the Government in Vienna to deal with this public health issue.

A link to an article about this incident can be found below:

https://www.dw.com/en/coronavirus-austria-briefly-halts-trains-from-italy-over-covid-19-concerns/a-52493063

What are the legal implications of an EU member state suspending freedom of movement rules?

Italy and Austria are both member states of the European Union and free movement of persons is a key provision or fundamental freedom of the EU’s Single Market. Both countries are also part of the Schengen Agreement (from which the UK opted out whilst in the EU) which allows visa free travel between participating states. This Agreement has seen the abolition of frontier controls, to a a greater or larger extent, in many parts of Europe.

The imposition of frontier controls between EU member states is not a measure which is considered lightly.

Freedom of movement is a right which is fundamentally based on a person holding EU citizenship (or being related to a person who has citizenship). As Article 20 of the Treaty on the Functioning of the European Union (TFEU) which establishes the concept of citizenship states:

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

Article 21 TFEU declares in the following terms:

Every citizen of the [European] Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

These freedom of movement provisions would be meaningless and ineffective if EU citizens faced discrimination on the grounds of their nationality in the host member state. Article 18 of the TFEU prohibits discrimination on the grounds of nationality (see Case 197/84 Steinhauser v City of Biarritz).

According to Article 45(5) TFEU, the free movement provisions can be derogated from i.e. disregarded on the following grounds:

  • Public security
  • Public policy
  • Public health

For its part, the Italian Government has since publicly stated that it will not be reintroducing frontier controls as an emergency measure to combat the spread of the Coronavirus:

https://www.schengenvisainfo.com/news/italy-refuses-to-suspend-schengen-agreement-amid-coronavirus-outbreak/

Attempts by member states to derogate or withdraw from the free movement provisions will not be automatically approved and the affected individuals will always be able to challenge such restrictions in the national courts or, ultimately, before the Court of Justice of the European Union (CJEU) (see, for example, Cases 115-116/81 Adoui & Cornaille; Case 41/74 Van Duyn v Home Office; Case 36/75 Rutili v Minister of Interior).

In 2009, Geert Wilders, the far right Dutch politician was refused entry to the UK because the British Government argued that his presence in the country could undermine public safety by harming race and cross-community relationships. Wilders had made a short film, Fitna, which was highly critical of Islam. He had intended to present a showing of his film at the Westminster Parliament.

Please see a link below to an article in The Guardian about the incident involving Wilders’ attempted visit to the UK:

https://www.theguardian.com/world/2009/feb/12/far-right-dutch-mp-ban-islam

The freedom of movement as originally given to EU (EEC) citizens in the Treaty of Rome had an emphasis on permitting free movement of workers and other economically active individuals. This was perhaps understandable given the labour shortages in certain EU/EEC member states immediately after the Second World War. The postwar economies of France and Belgium, in particular, benefited from hundreds of thousands of economic migrants coming from their partner state, Italy.

Although the UK was not, at this point, a member state, it faced many of the same challenges as the Six EU/EEC Founding Members, but British recruitment of labour would centre on the former (and existing) colonies of its Empire e.g. from the Caribbean (the so called ‘Windrush Generation’).

Some of the most important decisions of the Court of Justice of the European Union (CJEU) about free movement were about removing the barriers which prevented foreign (EU/EEC) nationals working or providing services in another member state (see Case 59/85 Netherlands v Reed (workers); Case 2/74 Reyners v Belgium (services); & Case 246/89 Commission v UK (Nationality of Fishermen) (establishment)).

Under the original Treaty of Rome (now to be found in the TFEU), EU citizens could take advantage of the free movement provisions by going to other member states to receive services: education, health and tourism (see Case 286/82 Luisi v Ministero del Tesero) – and many did just that.

Later, the CJEU would cement these rights by permitting family members of workers to claim entitlement to the free movement provisions of the Treaty of Rome.

That said, the freedom of movement provisions really only began to take on the dimensions of European citizenship as recently as the early 1990s after the stormy passage of the Maastricht Treaty (or the Treaty on European Union).

Underpinning the rights of free movement for individuals which are contained in primary legislation (the European Treaties) and decisions of the CJEU is the Citizens’ Directive (Directive 2004/38). This Directive really spells out (in a concrete way) the rights which EU citizens enjoy, namely, entry, residency, exit and the right to pursue employment opportunities in other member states.

Directive 2004/38 (Articles 4-14) also updated the older Directive 1612/68 (Articles 1-5) which guaranteed equal treatment and non-discrimination in employment to EU nationals residing and working in another member state.

Conclusion

The EU’s freedom of movement rules for its citizens and their dependants is a part of its fundamental law. A member state which derogates or withdraws from these rights does not do so for flimsy or superficial reasons. The TFEU does permit member states to suspend free movement provisions, but such action is always subject to the threat of possible legal action by the affected individuals; fellow member states and enforcement action by the European Commission.

Copyright Seán J Crossan, 25 February 2020

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

Photo by Kevin Hackert on Unsplash

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):

#flyingwhilstMuslim

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

Safe spaces?

Photo by Sanmeet Chahil on Unsplash

Another day in the toxic debate over proposals to liberalise the Gender Recognition Act 2004. Yesterday’s blog entry (Hate crime?) addressed the issue of limits on freedom of speech and expression in relation to extending transgender rights.

Today, the UK media is focusing on remarks made by Labour leadership contender, Rebecca Long-Bailey MP. In an interview with the BBC’s Andrew Marr, Ms Long-Bailey expressed her support for changes to the current Gender Recognition Act which would permit transgender women to gain access to institutions such as refuges for women who have experienced domestic violence at the hands of men.

As Mr Justice Knowles acknowledged in Miller v (1) The College of Policing (2) Chief Constable of Humberside [2020] EWHC 225 (Admin), the debate over transgender rights can be summarised as follows:

On one side of the debate there are those who are concerned that such an approach will carry risks for women because, for instance, it might make it easier for trans women (ie, those born biologically male but who identify as female) to use single-sex spaces such as women’s prisons, women’s changing rooms and women’s refuges. On the other side, there are those who consider it of paramount importance for trans individuals to be able more easily to obtain formal legal recognition of the gender with which they identify.

Knowles J went on to remark:

I should make two things clear at the outset. Firstly, I am not concerned with the merits of the transgender debate. The issues are obviously complex. As I observed during the hearing, the legal status and rights of transgender people are a matter for Parliament and not the courts. Second, the nature of the debate is such that even the use of words such as ‘men’ and ‘women’ is difficult. Where those words, or related words, are used in this judgment, I am referring to individuals whose biological sex is as determined by their chromosomes, irrespective of the gender with which they identify. This use of language is not intended in any way to diminish the views and experience of those who identify as female notwithstanding that their biological sex is male (and vice versa), or to call their rights into question.

A group within the British Labour Party, Labour Campaign for Trans Rights, has published a 12 point charter to push through changes to UK equality laws. Other women’s groups, such Women’s Place UK and the LGB Alliance, are bitterly opposed to this campaign.

Long-Bailey admitted that her position could set her at odds with many female members of the Labour Party who are deeply resistant to such developments. Many feminist opponents of reform to the current gender recognition rules have been given the acronym, TERF, or Trans- exclusionary radical feminists.

Gender reassignment is a protected characteristic in terms of the Equality Act 2010, but the legislation exempts women only refuges which currently exclude transgender women (i.e. those who were born male, but have undergone gender reassignment to become female). Although excluding transgender women would normally be regarded as an example of direct discrimination in terms of Section 13 of the Act, Parliament has provided the defence of objective justification. This means that permitting women only spaces in this instance – caring for the female victims of male domestic violence – is an example of a proportionate means of achieving a legitimate aim.

Conclusion

Much of the opposition to reform of the Gender Recognition Act 2004 appears to centre around proposals, in both England and Scotland, to permit individuals to self-identify in terms of their chosen gender without the need to go through physical changes. At the moment, anyone wishing to change gender must obtain a gender recognition certificate which will only be granted after the conclusion of the appropriate medical procedures.

It will, therefore, be for legislators in the UK and Scottish Parliaments to determine how far reforms to the Gender Recognition Act 2004 and, by extension the Equality Act 2010, will go. In the months to come, expect plenty of passionate arguments on both sides of the debate to be aired publicly.

A link to an article in The Independent discussing Ms Long-Bailey’s interview with Andrew Marr can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.170220/data/9338316/index.html

Related Blog Article:

https://seancrossansscotslaw.com/2020/02/16/say-what-you-want-continued/

Copyright Seán J Crossan, 17 February 2020

Hate crime?

Photo by Sharon McCutcheon on Unsplash

A famous saying about freedom of speech is often (rightly or wrongly) attributed to the eighteenth century French philosopher, Voltaire (François-Marie Aroue):

‘I disapprove of what you say, but will defend to the death your right to say it.’

Voltaire’s remark is, however, not without its problems. Freedom of speech is a contested concept. There’s no such thing as the right (in law) to say anything you like. The European Convention on Human Rights does, of course, recognise the right to freedom of expression in terms of Article 10, but European countries that are signatories to the Convention can restrict this right – quite legitimately.

Recently, in 2019, the European Court of Human Rights made it very clear that Holocaust denial is not a legitimate expression of free speech (see Pastörs v Germany ECHR 331 (2019)).

That said, the ability by signatory countries to restrict Article 10 rights are subject to very rigorous safeguards:

  • it must be prescribed by or in accordance with the law;
  • it must be necessary in a democratic society;
  • it is in pursuit of one or more legitimate aims specified in the relevant Article [of the Convention];
  • it must be proportionate.

Even in the United States of America, where lots of unpalatable things are tolerated under the free speech provisions of the First Amendment to the Constitution, there are limits (see the Miller Test formulated by the US Supreme Court in Miller v California 413 US 15 (1973)).

Our very own Miller case

In the various legal jurisdictions of the United Kingdom, there is also such a thing as hate speech (a criminal offence). No one is pretending that freedom of speech is an area of the law which is clear cut and unambiguous. It can be minefield and deciding what is legitimate (but perhaps disagreeable or offensive) expressions of free speech from hate speech can be extremely problematic.

We have just been reminded of this fact by a case which has just been decided by the English High Court.

Harry Miller, who is a former Police officer himself, was subject to Police scrutiny because he had posted a number of Tweets about proposed reforms to the Gender Recognition Act 2004. Let us just say that Mr Miller is clearly not in favour of changes to the legislation which would liberalise this area of the law e.g. by permitting individuals to decide their chosen gender by way of self-identification.

Someone complained about Mr Miller’s Tweets and the Police visited him at his work-place to discuss the matter. He was issued with a warning that his remarks could constitute a hate speech incident, but significantly the officers stated that no crime had been committed. This warning was issued to Miller in terms of the Hate Crime Operational Guidance 2014 (HCOG) issued by the College of Policing.

Mr Miller was not prepared to let this matter rest as he was strongly of the opinion that his right to freedom of expression had been violated by the actions of the Police.

He appealed to Humberside Police’s Appeals Body, but the appeal was rejected in June 2019. Mr Miller then commenced an action for judicial review of the actions of the Police.

Mr Justice Knowles sitting in the English High Court agreed with Mr Miller (see Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin)). It is perhaps highly significant that Knowles J prefaced his ruling with a reference to the unpublished introduction to George Orwell’s celebrated novel, Animal Farm:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

His Honour went on to highlight the remarks of Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375:

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …

It was also noted that Lord Bingham in R v Shayler [2003] 1 AC 247 had stated:

The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated …”.

A subtle judgement?

It is important to understand that the judgement issued by Knowles J is one of considerable subtlety and it is not giving the green light to people to say what they want – even if this would cause offence.

There are still limits to freedom of speech and expression. Critically, Knowles J rejected Mr Miller’s very broad challenge that his human rights in terms of Article 10 of the European Convention had been violated merely because the Police had recorded and classified the matter as a non hate crime incident.

Such measures are necessary in a democratic society (and supported by a wealth of evidence) because, amongst other things, they can:

  • provide evidence of a person’s motivation for subsequent hate crimes;
  • provide context to what divides the cohesion of communities when hate incidents take place and how the Police can deal with these matters more effectively; and
  • prevent escalation of crime particularly with school children who might be aware of the seriousness and consequences of committing hate incidents, recording of such behaviour can be a very effective educational tool.

Knowles J found in favour of Mr Miller on the basis of his narrower challenge to the Police actions. This part of Miller’s legal action could be summed up in the following terms:

He [Miller] contends that the combination of the recording of his tweets as a non-crime hate incident under HCOG; PC Gul going to his workplace to speak to him about them; their subsequent conversation in which, at a minimum, PC Gul warned him of the risk of a criminal prosecution if he continued to tweet; and the Claimant’s subsequent dealings with the police in which he was again warned about criminal prosecution, interfered with his rights under Article 10(1) in a manner which was unlawful.

In upholding part of Miller’s challenge on the narrower grounds, Knowles J explained his reasoning:

There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.

His Honour concluded by stating that:

“… the police’s treatment of the Claimant thereafter disproportionately interfered with his right of freedom of expression, which is an essential component of democracy for all of the reasons I explained at the beginning of this judgment.”

A link to the judgement in Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin) can be found below:

https://www.judiciary.uk/wp-content/uploads/2020/02/miller-v-college-of-police-judgment.pdf

A link to an article in The Guardian can be found below:

https://www.theguardian.com/society/2020/feb/14/transgender-tweet-police-acted-unlawfully

Conclusion

Proposals to liberalise the Gender Recognition Act 2004 are, undoubtedly, causing heated debate and much controversy across the United Kingdom. There are strong opinions on both sides of this debate and Knowles J acknowledged as much in the Miller case:

The Claimant’s Tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons. This conclusion is reinforced by Ms Ginsberg’s evidence [CEO of Index on Censorship] which shows that many other people hold concerns similar to those held by the Claimant.”

This case is, however, not a green light for people to say what they like – no matter how offensive their remarks may be. Freedom of speech and expression carry responsibilities and people should be mindful of this. That said, cases which have at their centre arguments over freedom of expression will turn on their facts. It is useful to realise that legitimate expressions of free speech will be protected and upheld. It’s a question of balance, but this is easier said than done – much more difficult to achieve in practice.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/

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

https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/

https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/

https://seancrossansscotslaw.com/2019/06/25/gender-neutral/

Copyright Seán J Crossan, 16 February 2020

Swiss surprise?

Photo by Chris Johnson on Unsplash

Last week I wrote a Blog about Stonewall’s list of 100 most inclusive UK employers for LGBTI people. The article summarised the advances in terms of the range of legal protection that the LGBTI communities now enjoy. From protection against discrimination in employment to same sex marriage, the turnaround in fortunes from a persecuted minority to part of the mainstream has been truly remarkable.

F. Scott Fitzgerald, the author of The Great Gatsby once remarked that “Switzerland is a country where very few things begin, but many things end.”

Today, the Swiss voted in a referendum to introduce laws which would extend protection from discrimination to LGBTI people. The proposal attracted support from 63% of Swiss voters and, finally, begins to bring the country into line with many of its neighbours who happen to EU member states. Switzerland is not part of the EU and, therefore, is not under any obligation to implement European laws which combat sexual orientation discrimination.

Critics of the Swiss proposal stated that the proposal was unnecessary because the country’s constitution already protected LGBTI individuals (and the country is a signatory to the European Convention on Human Rights). There were also concerns about what the proposal might mean for freedom of speech. Clearly, a majority of voters did not share these concerns.

Switzerland has a reputation for being a relatively conservative society (with a small ‘c’). After all, it was only in 1991 that the Swiss canton of Appenzell Innerrhoden finally permitted women to have the right to vote in cantonal elections. In federal (national) elections, woman had been given the right to vote since 1971.

We often forget this has been an incremental or gradual process in the UK and it did not happen overnight. Therefore, it is not advisable to be for British people to be smug or to have feelings of superiority about this issue. It was, after all, as recently as 2003 that the Employment Equality (Sexual Orientation) Regulations 2003 were implemented by the then Labour Government of Tony Blair. For the first time in UK employment law, LGBTI individuals were protected from discrimination in employment and training. This important law, critically, did not cover the provision of services and it was with the passage of the Equality Act 2010 that this area was eventually covered.

A link to an article on the BBC News app about the story can be found below:

Switzerland votes in favour of LGBT protection bill

Related Blog Article:

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

Copyright Seán J Crossan, 9 February 2020

Bad hair day

Photo by Jessica Felicio on Unsplash

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 DowellLee [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?

The colours of Pride

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.

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. 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.

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.

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/

Copyright Seán J Crossan, 15 February 2020

New Year, same old story …

Photo by Markus Spiske on Unsplash

It’s becoming depressingly predictable: the persistence of the gender pay gay in the United Kingdom.

This time last year, I was discussing with my students the struggle that City of Glasgow Council female employees were undertaking to win their claims for equal pay. After a period of industrial action, the women finally won their struggle:

https://www.theguardian.com/society/2019/jan/17/glasgow-council-women-workers-win-12-year-equal-pay-battle

We’ve just entered 2020 and it seems as if nothing much has changed in the wider world (more on this later).

Theoretically, the gender pay gap should be a thing of the past. We have had legislation in place for nearly 45 years in this country: the Equal Pay Act 1970 (which came into force in December 1975) and the current Equality Act 2010.

An info graphic which shows the number of Employment Tribunal cases in the UK involving equal pay claims (2008-2019) can be seen below:

Source: UK Ministry of Justice obtained from BBC News

True, the above figures show the number of equal pay claims in overall decline – effectively being halved (from a high of over 60,000 in 2008 to just over 30,000 in 2019); but my riposte to that would to say still too many.

In today’s edition of The Independent, new research, carried out by the Institute of Public Policy Research, indicates that female General Practitioners (physicians for our overseas readers) are paid up to £40,000 less than their male colleagues every year.

For each £1 that a male colleague earns, a woman earns 35 pence less. To reinforce this point, the article states that female GPs are effectively providing their services free of charge between September and December every year.

In language of the Equality Act 2010, the female GPs are carrying out ‘like work’ when comparing themselves to their male colleagues. There seems to be absolutely no lawful justification for this disparity in pay between the sexes.

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

https://edition.independent.co.uk/editions/uk.co.independent.issue.100120/data/9277336/index.html

The equal pay laws imply a sex or gender equality clause into every person’s contract of employment. Employers therefore have a legal duty to ensure gender equality in relation to terms and conditions of service.

It seems pretty simple, so why isn’t it happening in 2020?

An explanation for this situation in the medical profession has centred around the development of a ‘two tier’ system whereby more men are partners in GP surgeries whereas a large number of women take on the role of a salaried GP. Women tend to become salaried GPs because they feel that this allows them to work flexibly around their family commitments. So, again, what we appear to be seeing is women being penalised because they are trying to balance work and family (the so called ‘motherhood’ penalty).

Also on this day …

And purely by coincidence another equal pay story …

… Samira Ahmed, BBC journalist, wins her Employment Tribunal claim for equal pay (see below):

http://news.sky.com/story/samira-ahmed-tv-presenter-wins-sex-discrimination-equal-pay-claim-against-the-bbc-11905304

And if you’re still not convinced …

read the following article in The Independent about discrimination in pay between male and female apprentices (guess what?; it’s not the men who are the victims):

https://edition.independent.co.uk/editions/uk.co.independent.issue.150120/data/9283611/index.html

Copyright – Seán J Crossan, 10 and 15 January 2020

Pansexual

Photo by Sharon McCutcheon on Unsplash

A person’s protected characteristics in terms of the Equality Act 2010 seems to be the theme of the Blog today.

Sexual orientation is a protected characteristic in terms of Sections 4 and 12 of the Act. Most people these days are familiar with the following definitions in terms of an individual’s sexuality: e.g. heterosexual, homosexual (gay/lesbian) and bisexual.

What about a person who declares themselves to be pansexual?

According to Stonewall, the group which campaigns on behalf of the LGBTI community, this term refers to a person ‘whose romantic and/or sexual attraction towards others is not limited by sex or gender.’ Stonewall also makes the point that bisexual individuals can declare themselves to be pansexual.

An interesting story appeared in today’s British media about pansexuality. Layla Moran, Liberal Democrat MP and possible contender for the leadership of that Party, has declared herself to be pansexual. She is the first Member of the Westminster Parliament to define her sexual orientation in this way. Previously, she would have declared herself as heterosexual.

Andrew Adonis, Labour member of the House of Lords and former UK Government minister tweeted his reaction to the story:

The point that Adonis was trying to make is that it shouldn’t have been a story. As a society, the UK has supposedly become more tolerant and progressive towards people with different sexual orientations.

Ms Moran admitted herself that the decision to be open about her sexual orientation had caused friends and colleagues to worry that this might harm her career – and her aspiration to be the next or future leader of the Liberal Democrats. So much for a more tolerant and progressive society …

Explaining her reason for going public about her sexual orientation, Ms Moran stated that:

… I feel now is the time to talk about it, because as an MP I spend a lot of my time defending our community [LGBTI] and talking about our community. I want people to know I am part of our community as well.”

A link to the story in Pink News can be found below:

https://www.pinknews.co.uk/2020/01/02/layla-moran-liberal-democrats-mp-coming-our-pansexual-girlfriend-exclusive-interview/

You can also find below a link to the Sky News website where an individual discusses what pansexuality means to them:

https://news.sky.com/story/not-restricted-by-gender-or-sex-what-pansexuality-means-to-me-11900619

Copyright Seán J Crossan, 3 January 2020