Employment Law Bulletin

November/December 2009

NEWS

In Trouble Again

The UK has again been taken to task by the European Commission for failing to implement fully directives concerning a wide spectrum of discrimination issues. The Directives concerned are 2002/73 and 2000/78. Readers will remember that despite the Sex Discrimination Act being a piece of home grown legislation, since coming into force in 1975, it has been periodically "tweaked" in order to bring it into line with EU directives. The current complaints, as far as Directive 2002/73 is concerned, are that the definition of indirect discrimination is too narrow; whereas the genuine occupational requirement defences are too wide, and exceptions dealing with office holders in political institutions are insufficiently precise. Also criticised for lacking clarity is the right of associations to support victims of discrimination before courts and tribunals.

In practice, whatever the UK Government's views on the criticisms of the Commissioner (Vladimir Spidla), the two latter points are relatively technical in nature and it is difficult to see that any amendments to the legislation are likely to cause employers much loss of sleep. The first two may be more problematic and it will be interesting to see the UK Government's response, although a vehicle already exists to deal with any legislative changes should they be necessary via the Equality Bill.

Without wishing to appear in any way Euro-sceptic, the application of indirect sex discrimination and how it is defined, and the acceptance or otherwise as a genuine occupational requirement as an excuse for indirect discrimination seems to me to be very much a matter for individual tribunals to deal with in individual cases looking at the merits of those cases. What we may be seeing here is the difficulty of reconciling contrasting intellectual approaches to the problems of applying law to society, differences which have their source not in any disagreements over the ultimate goal of law but in the means to achieve that goal. It is the old dichotomy between logic and experience, or if you like, a rerun of the difference in philosophy between Hobbes and Descartes.

Also up for criticism by the Commission are questions turning on the exceptions to the principle of non-discrimination on the basis of sexual orientation available for religious organisations, and on the prohibition on instructions to discriminate (see Directive 2000/78). Again, a similar stance can be taken with both these points: the law's effectiveness must in my view be judged by how it is applied in the tribunals.

It will be interesting to see the UK Government's reaction, and whether or not the Equality Bill becomes a vehicle by which these issues are addressed before the next election.

Those of you that think the United Kingdom is singled out by the Commission should also note that the criticism has also been directed to Slovakia, Malta and Denmark in a similar vein.

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Review of The Default Retirement Age

In our last newsletter we reported the outcome of the Heyday challenge of the default retirement age (R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336. Just before the case was heard, the Government announced its intention to bring forward its review of the default retirement age from 2011 to 2010. That announcement was influential on the Court's decision and in handing down its judgment, the Court commented that there does not presently appear to be a basis for maintaining the default retirement age at 65 as it is now.

The Government review will be conducted by The Department for Business Innovation and Skills and The Department for Work and Pensions. To gain insight into Employers' age based practices, the Government has commissioned a Survey of Employers' Policies, Practices and Preferences Concerning Age. Interested individuals have also been invited to submit evidence. The Government is particularly interested in:-

• The operation of the retirement age in practice.
• The reasons that businesses use mandatory retirement ages.
• The impacts on businesses, individuals and the economy of raising or removing the default retirement age.
• The experience of businesses operating without the default retirement age.
• How could costs of raising or removing the default retirement age be mitigated and benefits realised?

Submissions are requested by the 1st February 2010 and the information collected will be used in the forthcoming review. The fact that people are living longer and working for longer, along with the current economic circumstances, are likely to be significant factors in the review. If the Government decides that the default retirement age is to be removed changes are likely to be introduced in 2011.

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Guidance on the prevention of workplace harassment and violence

Employers, unions and the Government have joined forces in order to promote new guidance on preventing harassment and violence in the workplace. The guidance, issued on 17th November 2009, stems from a framework agreement reached between European Social Partners in April 2007 on the subject, which it now seeks to implement in the UK.

This guidance had brought about the collaborations of the UK Social Partner representatives of the Confederation of British Industry and the Partnership of Public Employers for employers in the public and private sector, and the Trade Union Congress for workers. It also has the support of the Health and Safety Executive and the Advisory, Conciliation and Arbitration Service as well as the Department of Business, Innovation and Skills.

The stated aim of the agreement is to:

• raise awareness and increase understanding of employers, workers and their representatives of workplace harassment and both internal and third party violence;
• provide employers, workers and their representatives with a framework in response to identify, prevent and manage problems of harassment and all forms of violence at work; and
• set out a basic framework of measures to assist employers in developing their policies and procedures

The guidance highlights the importance of the issues of workplace harassment and violence, with recent reports of workplace incidents standing at unacceptable levels. It makes the point that,

'Tolerance, diversity, dignity and respect are benchmarks for business success, so it is in employers' interests to identify and address the threat or occurrence of workplace harassment and violence'.

The guidance advises employers as to their responsibilities in terms of the provision of clear policies regarding harassment and violence, as well as providing a useful list of what employers must, should and could do when considering existing or developing new policies.

Such guidance is vital for employers, particularly following the recent publication of British Crime Survey figures. These indicate that there were 684,000 incidents of violence between 2006 and 2007, 288,000 of which were assaults, and 397,000 threats of violence.

The agreement and guidance are intended to complement existing legislation and guidance already available in the UK. In brief, under criminal law it is currently an offence to lay your hand on another person without their consent. Health and safety laws also apply to risk of violence, and failure to protect against this could constitute a breach of contract by an employer. Employers also have a 'duty of care' for all of their workers. Harassment and violence could lead to a breach of mutual trust and confidence between the employer and employee leading to an employee resigning and claiming constructive dismissal. Finally, workers subject to assault or abuse at work can seek legal remedies under civil law, claiming damages against the employer, for example, for personal injury.

The distribution and impact of the guidance will be evaluated in three years' time as the UK Social Partners continue to raise awareness of harassment and violence at work.

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LEGISLATION

Autism Act passes final hurdle

The Autism Act 2009 started as a Private Members' Bill sponsored by MP Cheryl Gillian. It was first presented to the House of Commons in January 2009, and recently cleared the final stage in the House of Lords. It received Royal Assent on 12 November 2009.

As the first disability-specific piece of legislation, the Act is referred to as 'groundbreaking' by the National Autistic Society. The Act introduces the requirement for the Secretary of State to prepare and publish an autism strategy, setting out the approach for meeting the needs of adults in England with autistic spectrum conditions. There are calls for the strategy to include provision for increasing the levels of employment of people with autism.

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CASES

EAT decision on associative discrimination

The Employment Appeal Tribunal has (EAT) has recently delivered its judgment in the long-running case of EBR Attridge Law LLP v Coleman UKEAT 0071/09.

The initial claim brought by Ms Attridge was that of unlawful disability discrimination against her employers in relation to her son's disability as opposed to her own (referred to as 'associative discrimination').

The wording of the Disability Discrimination Act 1995 (DDA) refers, in relation to direct discrimination, to discrimination being on the grounds of "a disabled person's disability" thus seeming to preclude claims based on associative discrimination.

Reference was made by the tribunal to the European Court of Justice which held that, although the European Framework Directive does not make express reference to associative discrimination, associative discrimination did fall within the terms of the Directive.

On returning back to the employment tribunal, it was held that the tribunal did have jurisdiction to consider the claim as the DDA could be construed so as to apply to associative discrimination and that it was obliged to interpret the DDA to conform with the effect of the Directive.

The case was appealed to the EAT. On appeal, it was argued that, by reading in words to the DDA, the tribunal had "distorted and re-written" the DDA. The EAT, in considering the case law, highlighted that "so far as possible" courts and tribunals must interpret domestic legislation to give effect to the obligation under EU legislation.

The EAT thus dismissed the appeal, finding that it was "possible" to add in words to the DDA in order to cover associative discrimination and to do so was not inconsistent with the scheme of the legislation or its general principals. Indeed, the EAT noted that other strands of discrimination legislation already prohibit associative discrimination.

The case is likely to have implications in areas not already covering associative discrimination particularly discrimination of the basis of both age and sex. Further, it is intended that associative discrimination will be put on a statutory footing across all the protected characteristics by the Equality Bill.

Having established that the tribunal has jurisdiction to consider the case, Ms Coleman's case has now been referred back to the tribunal by the EAT to consider the substantive merits of the case.

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New reasonable adjustment two stage test

The EAT has delivered its judgment in the case of Secretary of State for the Department of Work and Pensions v Alam (EAT 0242/09.).

The case considered the reasonable adjustments obligation in the Disability Discrimination Act 1995 (DDA) following a disability discrimination claim brought by Mr Alam against his employers. Mr Alam had been subjected to disciplinary action after he left the office early having not obtained permission to do so for which he received a 12 month written warning. The claim was subsequently brought by Mr Alam against his employers for failure to make reasonable adjustments under the DDA. It was conceded that Mr Alam had a disability falling within the DDA by virtue of his depression and the symptoms Mr Alam suffered arising from this which included a tendency to lose his concentration and his temper.

The tribunal at first instance held that the provision, criterion or practice applied by the Department of Work and Pensions was the requirement to ask for or get permission before leaving the work place or receive a disciplinary sanction of a 12 month written warning. The tribunal further held that, because Mr Alam could not control his actions and feelings sufficiently to ask for permission to leave and wait for an answer, Mr Alam was thus more likely than a non-disabled person to receive a formal disciplinary sanction. The tribunal therefore concluded that it was the duty of the Department of Work and Pensions to have refrained from giving Mr Alam the 12 month written warning.

On appeal, the EAT considered the provisions of Section 4A(3) and 4A(3)(b) of the DDA which provides that the duty to provide reasonable adjustments does not apply if the employer does not know and could not reasonably be expected to know that the person has a disability and is likely to be affected in the way specified.

The EAT held that, contrary to the test established in earlier case law (Eastern & Coastal Kent PCT v Grey [2009] IRLR 429) the correct test was in fact:

1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in Section 4A(1)? If the answer to that question is: "no" then there is a second question, namely,
2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in Section 4A(1)?

Applying this test to the facts of the case, the EAT found that the employer did not know of Mr Alam's disability and did not know that it was liable to have any affect on him.

In regards to the second element of the test, the EAT held that, although the employer ought to have known that Mr Alam was disabled as a consequence of his symptoms of depression, it could not be said that that put him at a substantial disadvantage as compared to a non-disabled person in relation to any provision, criterion or practice that was applied. None of the symptoms suffered by Mr Alam amounted to or implied a difficulty in asking for permission when required. The appeal was therefore upheld and Mr Alam's claim was dismissed.

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Genuine Belief in Climate Change Can Be a Philosophical Belief under Discrimination Regulations

The Employment Appeal Tribunal has confirmed that an individual's belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purposes of the 2003 Religion and Belief Regulations. In order to obtain this protection, the belief must be of a similar cogency or status to a religious belief.

The EAT judgment, provided on 3rd November 2009, relates to an appeal brought by the respondent employer Grainger plc against the tribunal's decision at a pre-hearing view in the ongoing case of Nicholson v Grainger plc (EAT/0219/09).

Regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003 ("the Regulations") provides that a person discriminates against another if on the grounds of religion or belief, they treat them less favourably than they would another. Regulation 2 defines "belief" as "any religious, or philosophical belief".

Mr Nicholson brought a number of claims against his employer, Grainger plc after being made redundant in June 2008. The claims included a claim of discrimination on the grounds of religion or belief on the basis that he had "a strongly held philosophical belief about climate change and the environment". The tribunal held a pre-hearing review in order to determine whether his belief was capable of being protected under the Regulations.

In respect of his belief, Mr Nicholson stated that "it is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I eat and drink, what I do with my waste and my hopes and fears". The tribunal held that Mr Nicholson's belief was a "philosophical belief" for the purposes of the Regulations, and that his claim would therefore be able to continue.

Grainger plc appealed the decision.

The EAT dismissed Grainger plc's appeal. It referred to the following criteria, as set out in previous case law, in placing limitations upon the definition of philosophical belief:

• The belief must be genuinely held.
• It must be a belief and not an opinion or viewpoint based on the present state of information.
• It must be a belief as to a weighty and substantial aspect of human life and behavior.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• It must be worthy of respect in a democratic society, not be compatible with human dignity and not conflict with the fundamental rights of others (thus for example, homophobic or racist philosophies would not be protected).

The EAT added to these, stating that:

• The belief must have a similar status or cogency to a religious belief in order to be protected.
• The belief need not be shared by others.
• A philosophical belief does not need to 'allude to a fully fledged system of thought' that governs the entirety of a person's life, provided it satisfies the criteria above therefore, one-off beliefs such as pacifism or vegetarianism can be protected.

It also noted that a belief in a political philosophy or doctrine, such as Marxism or Socialism could qualify as a genuinely held philosophical belief.

However, the EAT did note that Mr Nicholson must still give evidence and will need to be cross-examined as to the extent and genuineness of his belief. This is different to the case of a religious belief whereby the claimant need only show that they adhere to a particular religion. Mr Nicholson's claim may still, therefore, fail in this respect. Mr Nicholson will also need to adduce evidence from which a tribunal could conclude that the action taken by his employer was done so on the grounds of his belief and therefore constituted discrimination.

In previous cases involving an individual's religious (rather than philosophical) beliefs, employees have struggled to demonstrate that their treatment has been on the grounds of holding a particular belief, rather than any manifestation of that belief (such as the wearing of a cross by a Christian or a Registrar's refusal to conduct civil partnership ceremonies).

This decision, provided it is not successfully appealed, shows that individuals who hold a genuine belief in climate change can be protected from discrimination in the workplace. Such protection would extend, for example, to protection from being harassed by other employees on the basis of those beliefs.

It does not mean that an individual should necessarily be allowed to carry out their job in accordance with their beliefs, or should be allowed to impose such beliefs on other employees. An important question that may arise would be the extent to which it is discriminatory for an employer to treat an employee unfavourably for a reason related to the way in which they perform their job, where such performance is guided by a belief protected by the Regulations.

This case does not set a precedent that binds future tribunals, but it does provide useful guidance as to the scope of the Regulations. It is important to note that the tribunal warned that it "should not be seen as the thin edge of the wedge [for] similarly based complaints". We will therefore have to wait and see whether the scope of claims brought under the Regulations is in fact broadened as a result.

It is, however, important to remember that Mr Nicholson's case itself has yet to be determined. He will still have to show, like any claimant would, that he has been discriminated against on the basis of his belief.

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