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:
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:
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:
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):
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:
Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.
We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports ).
It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.
Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.
The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.
Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.
So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).
In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.
Perhaps Amazon needs to go back to the drawing board …
A link to an article on the BBC News App can be found below:
… well now Jordi Casamitjana can believe officially. He has just won part of his Employment Tribunal case (Casamitjana v League Against Cruel Sports) which confirms that ethical veganism is a protected philosophical belief in terms of Sections 4 and 10 of the Equality Act 2010.
Please note, however, that the Employment Tribunal is yet to determine whether Mr Casamitjana was dismissed because of these protected beliefs – that is another matter.
The full Employment Tribunal judgement doesn’t appear to be available yet, but I hope to post a link to this very soon.
In the meantime, please find a link below to the BBC News App which is covering the decision:
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:
As of today (31 December 2019), heterosexual couples in England and Wales will be able to enter civil partnerships as an alternative to marriage.
This change does not yet extend to Scotland: the Scottish Government has introduced its own Bill to introduce civil partnerships for heterosexual couples.
An info graphic showing the current progress of this Bill in the Scottish Parliament (Stage 1) can be seen below:
When the Labour Government of Prime Minister Tony Blair originally introduced civil partnerships across the UK (as a result of the Civil Partnerships Act 2004) such legal unions were open to gay and lesbian couples only.
It was the first time in the history of Scots and English family law that gay and lesbian couples were entitled to enter a legally recognised relationship.
Fast forward a decade or so and we now have same sex marriage in Scotland, England and Wales – but not yet Northern Ireland (although the clock may be ticking here on this issue). Admittedly, same sex couples can enter civil partnerships in Northern Ireland, but since the Republic of Ireland made same sex marriage legal in 2015, pressure has been mounting for change in the North.
The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education EWHC 128 (Admin).
In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004) discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights. The ban on civil partnerships for heterosexual couples was also a potential breach of the Equality Act 2010 in the sense that it represented direct discrimination on grounds of a person’s sexual orientation.
Initially, the English High Court rejected the challenge brought by Steinfeld and Keidan, whereupon the case was allowed to proceed to the English Court of Appeal. Although expressing sympathy for Steinfeld and Keidan’s predicament, the Lord Justices of Appeal refused to overturn the ban (see Steinfeld and Keidan v Secretary of State for Education  EWCA Civ 81).
The couple were then given leave to appeal to the UK Supreme Court.
On 27 June 2018, the Supreme Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary)  UKSC 32.
Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:
“I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”
Following the Supreme Court’s decision, the UK Government of former Prime Minister Theresa May initiated steps to amend the Civil Partnership Act 2004 in respect of the law for England and Wales.
A link to an article about the change to the law in England and Wales on the Sky News website can be found below:
An interesting case which caught my attention recently seemed to raise many issues which I have been emphasising to my students who are preparing for their upcoming Discrimination Law exam this month.
The case (The Governing Body of Tywyn Primary Schoolv Aplin Case No 1600635/2016 ) seemed to cover (almost) the whole syllabus of the Discrimination Law unit:
A discrimination dismissal of a high flying professional employee (a head teacher)
A large sum of compensation awarded to the employee for the dismissal (nearly £700,000)
Direct discrimination on the basis of a protected characteristic (the employee’s sexual orientation) in terms Sections 4, 12 and 13 of the Equality Act 2010
The real problems faced by the employee in attempting to mitigate his losses (which the amount of the compensation award reflects)
Breach of disciplinary procedures by the employer
Breach of human rights i.e. Article 8 of the European Convention on Human Rights (right to privacy and family life)
Alleged reputational damage caused to the employer as a result of the employee’s conduct
The reversal of the burden of proof
The use of hypothetical comparators
Matthew Aplin is an openly gay man who was the head teacher of Tywyn primary school in Wales. He has been a teacher for 19 years and has an excellent professional reputation. In 2015, allegations about Aplin’s private life came to the attention of his employer (the School’s Board of Governors). It was alleged that Aplin had engaged in consensual sexual relationships with two 17 year old males that he had met through Grindr, the well known dating app. Users of Grindr must be aged 18 or over and, significantly, Aplin did not suspect the true age of the two males.
Aplin believed that the two young men were over 18 and, in any case, users of Grindr have to be aged 18 or over.
Following these allegations of alleged misconduct, Aplin was suspended and the Board of Governors commenced a disciplinary investigation.
At the request of the Governors, an investigating officer (Mr Gordon) was appointed by the local council. Mr Gordon’s terms of reference in respect of Aplin’s behaviour were as follows:
(a) had this brought the reputation of the School into disrepute?
(b) had it impacted on his ability to undertake the role of Head Teacher?; and/or
(c) had it demonstrated so gross an error of judgment as to undermine the School’s confidence in him and, therefore, to call into question his continuation in the role?
Mr Gordon quickly concluded that Aplin should be dismissed from his post despite the fact that this employee did not represent a possible threat to children. Local Police officers were briefly involved in their own investigation, but significantly they later concluded that no crime had been committed by Aplin.
Despite this, Aplin was dismissed for gross misconduct by the School Governors.
He promptly appealed against his dismissal, but the Governors did not deal with this matter efficiently or properly. Angered at the perceived lack of fair treatment of his appeal, Aplin decided to resign from his employment and claim unfair (constructive) dismissal; discrimination by reason of his sexual orientation; and interference with his right to respect for private and family life.
The Employment Appeal Tribunal (which became involved to deal with technical aspects of the case) later noted:
“There were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the disciplinary hearing.”
Ordinarily, the burden of proof lies upon the claimant (Aplin) to show that discrimination has taken place. In this case, there were enough factors present which meant that the burden of proof should shift to the respondent (the School Governors) who would now have to show that they had not discriminated against Aplin.
On the question of whether the burden of proof should be reversed, Judge Shanks in the Employment Appeal Tribunal had this to say:
“… in my view the thrust of it [the Tribunal’s reasoning] is clear and it provides a sufficient basis for the ET’s decision that the burden of proof had shifted on the question of whether Mr Aplin was treated unfavourably because of his sexual orientation.”
In arriving at this position, Judge Shanks was firmly of the view that:
“.. the Tribunal had rightly recognised that the background to the whole case was intimately connected with Mr Aplin’s sexuality; they then judge that the procedural failures by the School were so egregious that the inference could be drawn that there was more to it than simply the fact that he had had lawful sex with two 17 year olds; and they therefore considered that it would be possible, in the absence of any other explanation, properly to infer that he had been discriminated against because of his sexual orientation. That seems to me a perfectly acceptable line of reasoning.”
The decision of the Employment Tribunal
Aplin had been unfairly dismissed; and subjected to direct discrimination by reason of his sexual orientation.
As a point of interest, the case involved the use of hypothetical comparators to arrive at its decision, namely, would a heterosexual teacher (either male or female) who had sexual relations with two 17 year olds have been treated in the same way as Aplin? The Employment Tribunal concluded that such individuals would not have been treated any differently.
Interestingly, in its final judgement, the Tribunal found that, although a person’s sexual relationships are undoubtedly covered by Article 8 of the European Convention on Human Rights, it is not an absolute right. Such a right may be restricted or interfered with “where it is necessary for the protection of morals” in “a democratic society”:
“Thererefore, we consider that it is possible to conclude that in the circumstances of this case the claimant could have been disciplined for his admitted conduct within the qualification in Article 8(2). …
… However, a fair process would require the respondent to consider whether the claimant was aware that the individuals were 17 years of age. Further it would have to consider what the real risk of the issues becoming public were and therefore what the real potential for reputational damage was.”
The two 17 year olds were children in the eyes of the law and Aplin, as a Head Teacher, could be viewed as someone who was in a position of power and that position which could be abused by him.
As Aplin had admitted to his conduct (the relationships with the two males), the Employment Tribunal concluded that there was at least. 20% chance of him being dismissed successfully – had the proper disciplinary procedures been carried by the employer (which of course they were not). In this respect, Aplin suffered a 20% deduction in the overall compensation awarded to him as per the guidelines originally laid down in Polkey v AEDayton Services Ltd  UKHL 8.
Links to the decisions of the Employment Tribunal and the Employment Appeal Tribunal can be found below: