Injury to feelings – Seán Crossan's Scots Law

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Since the introduction of the Race Relations Act 1976 (now repealed by the Equality Act 2010), we have seen a number of well known cases involving indirect discrimination being determined by Courts and Tribunals.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

Everyday experiences of racism

Photo by Markus Spiske on Unsplash

In several of my previous blogs (Stick and stones may break my bones, but names will never hurt me? published on 22 February 2019 and Hurt feelings published on 14 February 2019), I considered the psychological impact of racist behaviour on the victim.

A person’s race, of course, is a protected characteristic in terms of the Equality Act 2010.

Courts and Tribunals are permitted to factor into a compensation award an element for the injury to feelings that a victim of discrimination has suffered. This calculation is carried out by reference to a scale known as the Vento Guidelines.

Injury to feelings can encompass, amongst other things, sensations of isolation, exclusion, anxiety and depression, fear, loss of self-esteem and even post traumatic stress.

An interesting example of how black people can encounter racism on a daily occurrence was reported by the BBC today.

The writer, Derek Owusu talks about the fact that, very often, white people do not wish to sit beside him on public transport. Doubtless, these kinds of experiences have a very negative effect on the wellbeing of many individuals in Derek Owusu’s situation. What should otherwise be a routine commute can turn into a nerve-wracking experience.

A link to the article and a video on the BBC News site can be found below:

Derek Owusu: ‘There are always empty seats beside me’

Writer Derek Owusu says his commute on public transport reveals the everyday racist actions black men in particular are subjected to in the UK.

In UK academic circles, it would seem that less favourable treatment in relation to a person’s race is widespread with a looming ethnic pay gap as the story below demonstrates:

Ethnic minority academics earn less than white colleagues

BBC analysis shows a 26% ethnic pay gap at some of the UK’s best-known universities.

Sticks and stones may break my bones, but names will never hurt me?

Photo taken from The Guardian, Sunday 17 February 2019. Available at:

https://www.theguardian.com/uk-news/2019/feb/17/no-blacks-graffiti-painted-on-door-of-10-year-olds-salford-home

In a previous blog (Hurt feelings), I discussed the psychological and emotional damage of discrimination suffered by the victim.

A story that has been making headlines this week has been the racist graffiti that was daubed on the front door of a property in Salford, Greater Manchester.

To its great credit, The Guardian published the pictures of the graffiti on its front page in order to expose the true extent of racism in British society in 2019.

A 10 year old boy, David Yamba has spoken about how the offensive graffiti on the front door of his home has traumatised him:

‘Racist graffiti left me terrified’

Ten-year-old David Yamba’s new home was vandalised with the words “No Blacks” painted on the front door.