Introduction

1. All things being equal…An update on the law of equalitiesbyJennifer Jones Head of Employment (Barrister)

2. Introduction • The Equality Act – recap on October implementation • The Equality Act – update on recent changes • The Equality Act – what the changes mean • Case-law developments on the different equality strands • What to watch out for www.everatt.co.uk

3. The Equality Act Recap on implementation: 1 October 2010 • majority of the Act came into force • consolidation of existing discrimination legislation • transitional provisions (before 1.10.10 = old law; after or spanning 1.10.10 = EQA) - “protected characteristics” and “prohibited conduct” www.everatt.co.uk

4. The Equality Act Protected Characteristics (section 4) • Age • Sex • Disability • Sexual Orientation • Race (Nb: slightly altered definition) • Pregnancy and maternity • Gender reassignment (Nb: slightly altered definition) • Marital status & civil partnership • Religion or belief www.everatt.co.uk

5. The Equality Act Prohibited Conduct • Direct discrimination (s13) (“because of” instead of “on grounds of”...; no justification other than age) • Associative discrimination • Discrimination by perception • Indirect discrimination (s19) • Pregnancy/maternity discrimination (s18) • Harassment (s 26) (including repeated harassment by 3rd parties) • Victimisation (s27) • Discrimination arising from disability (s15) • Failure to make reasonable adjustments (s20) www.everatt.co.uk

6. The Equality Act Disability Discrimination • “disabled” still means C has a physical or mental impairment which has a substantial and adverse long-term effect on C’s ability to carry out normal day-to-day activities (section 6) • “normal day-to-day activities” are no longer defined • past disabilities, disabilities with recurring effects, progressive conditions and treatable conditions are all still covered • Cancer, HIV and multiple sclerosis are deemed disabilities www.everatt.co.uk

7. The Equality Act Direct Disability Discrimination • Treating disabled persons more favourably is not direct disability discrimination (s13(3)) • No pre-employment health questions unless about assessment process or to find out if C can do something which is “intrinsic to the work concerned” (section 60) • If ask the question, need to be prepared to explain why – beware burden of proof provisions www.everatt.co.uk

8. The Equality Act Discrimination Arising From Disability • Replaces disability-related discrimination • A discriminates against B if A treats B unfavourably because of something arising in consequence of B’s disability which is not justified • Lack of knowledge of the disability is a defence • What about a lack of knowledge of the consequences, however? • Medical guidance about the consequences of a given disability will be wise www.everatt.co.uk

9. The Equality Act Other forms of Disability Discrimination • Failure to Make Reasonable Adjustments • Disability Harassment • Indirect Discrimination (nb: when assessing adverse impact compare those with the same disability to those without) • Victimisation (nb: not post-employment – section 108(7)) www.everatt.co.uk

10. The Equality Act What was not implemented on 1 October 2010: • Public sector socio-economic duty • Dual discrimination provisions • Gender pay gap information • Reasonable adjustments for leasehold premises • Specific public sector equality duties • General public sector equality duty 6.4.2011 • Positive action on recruitment 6.4.2011 www.everatt.co.uk

11. The Equality Act The Public Sector Equality Duty (section 149) • A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it… (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. www.everatt.co.uk

12. The Equality Act The Public Sector Equality Duty (section 149) (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. www.everatt.co.uk

13. The Equality Act The Public Sector Equality Duty (section 149) • Covers all protected characteristics except marital status/ civil partnership status • Consider implications regarding sexual orientation, gender reassignment, religion or belief etc. www.everatt.co.uk

14. The Equality Act The Public Sector Equality Duty • Original draft Regulations containing specific duties shelved as being too bureaucratic • Emphasis now on measuring outcomes rather than writing detailed plans • “a focus on performance, not process” (Government Policy Review Paper, March 2011) • New draft Regulations include 2 specific duties only - obligation to publish one or more equality objectives - publication of information to show compliance – in particular in relation to employees and “other persons affected by its policies and practices” • Consider implications regarding age, sexual orientation, gender reassignment, religion or belief and pregnancy/maternity www.everatt.co.uk

15. The Equality Act The Public Sector Equality Duty • New draft Regulations include 2 specific duties only - obligation to publish one or more equality objectives by 6.4.2012 & every 4 years - publication of information to show compliance with the general equality duty – in particular in relation to employees and “other persons affected by its policies and practices” • Consider implications regarding age, sexual orientation, gender reassignment, religion or belief and pregnancy/maternity www.everatt.co.uk

16. The Equality Act The Public Sector Equality Duty • Consultation on the new draft Regulations closes on 21 April 2011 • Implementation proposed for July 2011 www.everatt.co.uk

17. EHRC Codes of Practice Also in force from 6.4.2011 are the EHRC 3 new Codes of Practice on • Equal Pay • Service provision • Employment • Note their potential implications in discrimination litigation www.everatt.co.uk

18. Case Law Update Religion or Belief Discrimination • DRB not a shelter for employees with conduct issues: Power v Greater Manchester Police Authority (EAT) • Employer’s basic needs don’t have to flex to accommodate employees’ beliefs: Ladelle v The London Borough of Islington (CA) www.everatt.co.uk

19. Case Law Update Religion or Belief Discrimination • Indirect discrimination is about stopping discrimination against disadvantaged groups: Eweida v British Airways Ltd .(CA) • Complex overlap between discrimination law and the duty of care to prevent stress: Erica Connor v Surrey County Council (CA) www.everatt.co.uk

20. Case Law Update Sex Discrimination & Equal Pay • Administrative incompetence can be an advantage: Johal v Commission for Equality & Human Rights (EAT) • Hope for pay protection? Haq v The Audit Commission (EAT) • Beware the Walmart Women... www.everatt.co.uk

21. Case Law Update Age • The importance of evidence to justify differential treatment : O’Reilly v BBC & another (ET) • The importance of training re age discrimination Linda Sturdy v Leeds NHS Trust (ET) www.everatt.co.uk

22. Case Law Update Disability Discrimination • The use of medical evidence on the issue of disability Rayner v Turning Point (EAT) • What are not reasonable adjustments (or, the private sector has complex employees too) Marks & Spencer plc v Powell (EAT) www.everatt.co.uk

23. Coffee Break www.everatt.co.uk

24. ChangingTerms & Conditions and Redundancy - Updateby Michael StokesSenior Solicitor

25. Changing Contracts of Employment • To be lawful, this must be carried out by agreement • It may be necessary to consult individually or collectively www.everatt.co.uk

26. “By Agreement” • direct agreement with the employee • collective agreement • prior agreement in an existing document • agreeing to re-engagement on new terms following termination of contract • tacit agreement? www.everatt.co.uk

27. Individual Agreement • Agreement to vary contract with individual • Consensual variation of contract • No termination of existing contract – no dismissal • No breach of contract (e.g. unlawful deductions) when changes introduced • Need for clarity and record-keeping www.everatt.co.uk

28. Collective Agreement • Needs to be with trade union recognised for collective bargaining • Union has implied authority to bargain • Agreement with the union can vary terms with immediate effect • Only those covered by collective bargaining will have their terms changed • Covers members and non-members in bargaining group • No dismissal, no breach of contract www.everatt.co.uk

29. Prior Agreement • The contract contains a built-in right to vary • Commonly used to change shift patterns and hours of work in industry • Also a mechanism for implementing pay rises • Agreement to vary is already in the contract, so no new agreement required • See Bateman v Asda Stores [2010] IRLR 370 www.everatt.co.uk

30. Bateman v Asda Stores Company Handbook contained the following words:- “The Company reserves the right to review, revise, amend or replace the content of this handbook, and introduce new policies from time to time to reflect the changing needs of the business and to comply with new legislation.” The Handbook contained details of pay, sick pay, holiday entitlement, hours of work and notice periods. The EAT found that Asda were entitled to rely on this term in the Handbook to vary the contracts in relation to pay. www.everatt.co.uk

31. Dismissal & Re-engagement • If an employer terminates a contract on proper notice, and offers re-engagement on new terms, then an employee who accepts the new terms cannot claim for breach of contract • The employee might claim unfair dismissal • Be aware of the need to consult www.everatt.co.uk

32. Unfair Dismissal? • Dismissal in order to effect changes to a contract is capable of being “some other substantial reason” for dismissal • Was there a pressing economic need to make the change? • What is the effect on the employee, balanced against the benefit to the employer? • Has there been proper individual consultation with the employee? • Dismissal of employees to effect general changes to contracts are treated as “redundancies” for collective consultation purposes www.everatt.co.uk

33. “Tacit Agreement” • In other words, agreement by doing nothing in response to a unilateral variation of the contract • See the recent case of Morgan v Network Europe Group [2011] • The more immediate the impact of the unilateral variation, the more quickly an employee might be taken to have acquiesced www.everatt.co.uk

34. Redundancy • Dismissals brought on by a reduced need for employees to carry out work • Even if work is not reducing, but headcount must be reduced, a dismissal for this reason will be treated as by reason of redundancy www.everatt.co.uk

35. Selection for Redundancy • Last in, first out (“LIFO”) • Rolls Royce v Unite [2009] IRLR 576 • Selection Criteria • Selection by application and interview • See Morgan v Welsh Rugby Union [2011] EAT www.everatt.co.uk

36. Selection Criteria • Often a combination of objective, measurable criteria and more subjective opinions • Length of service can be included • Consultation – Pinewood Repro v Page [2010] • What is the pool for selection? • Fulcrum Pharma v Bonassera [2010] www.everatt.co.uk

37. Collective Consultation • Applies to actual redundancies and deemed redundancies (including dismissal and re-engagement cases) • Collective consultation is relevant when the employer is proposing to dismiss in a 90 day period 20 or more employees • Section 188 Trade Union and Labour Relations (Consolidation) Act 1992 www.everatt.co.uk

38. Collective Consultation • 20-99 employees – at least 30 days’ consultation • 100 + employees – at least 90 days’ consultation • Can be ended sooner by agreement • It must be accompanied by prescribed information, must cover specified topics and must be carried out with a view to reaching agreement www.everatt.co.uk

39. Collective Consultation • Consultation must be with recognised trade union if there is one, or with elected representatives if no union is recognised • Consultation must be completed before the first dismissal takes effect (1992 Act) • ECJ cases (Junk, Akavan) say that consultation must be concluded before notice of termination is issued • Compensation for failure to arrange elections for representatives or for failure to consult is up to 90 days’ pay for each affected employee www.everatt.co.uk

40. The Default Retirement Age (“DRA”) -Finally put out to pastureby Charlotte CooperPartner

41. Brief History • Employment Equality (Age) Regulations 2006 • Age discrimination – unlawful in the workplace • DRA of 65 years old general exception • Retirement procedure – “notify” and “consider” stages • Schedule 9 Equality Act 2010 • Dismissal of an employee at or over the age of 65 shall not be unlawful age discrimination “if the reason for the dismissal is retirement”. • Retirement • Potentially fair reason for dismissal S98(2) ERA 1996 www.everatt.co.uk

42. Abolition of DRA • Exemption – repealed on 6 April 2011 • The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 • Drafting anomaly rectified “the person must have attained the relevant age before 1 October 2011 (regulation 5(1)(b)). • Paragraph 9 Schedule 9 Equality Act 2010 – permitting age discrimination against job applicants approaching retirement age – also repealed. www.everatt.co.uk

43. Reason for Removal of DRA • Policy decision based on ageing population • People living longer (in 2008 16% of the population was over 65, predicted to rise to 23% by 2033) • Increasing dependency ratios • Heyday: DRA described as having a “greater discriminatory effect than is necessary on a class of people who both are able and want to continue their employment” www.everatt.co.uk

44. Transitional Provisions (1) www.everatt.co.uk

45. Transitional Provisions (2) • Employee must reach 65 (or the normal retirement age if greater) on/or by 30 September 2011. • Right to be accompanied continues to apply. • The short notice provisions (which currently enable an employer to give less than 6 months’ notice) will be abolished from 6 April 2011. www.everatt.co.uk

46. Where does that leave us? Open to employers to: • Abandon fixed retirement age; or • Implement a contractual retirement age, which is objectively justified. S13(2) Equality Act 2010 “If the protected characteristic is age, A does not discriminate again B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.” www.everatt.co.uk

47. The Consequences • “65” no longer a safe age at which to retire employees. • 6 potentially fair reasons for dismissal will revert to 5. • No longer a legitimate point at which to have a discussion about “retirement”. • In the absence of a framework clumsy “without prejudice” meetings. • Younger workers disgruntled about “bottleneck”. • Concerns about addressing declining health and ability. • Increased risk of age discrimination, unfair dismissal and disability discrimination claims. www.everatt.co.uk

48. Working without a Retirement Age (1) • Regular workplace discussion about an employee’s future plans. • All employees. • Possibly built into the appraisal system. • Avoid asking discriminatory questions. • Open questions about short, medium and long term plans. www.everatt.co.uk

49. Working without a Retirement Age (2) • Performance management of capability and health issues. • Understand obligations under Equality Act 2010 for disabled employees (duty to make reasonable adjustments, duty to provide auxiliary aids etc). • Consider “flexible retirement options”. • Employer will need to show on a case by case basis that it acted reasonably in dismissing employee and decision not tainted by age discrimination. • Employee may resign or leave by mutual agreement. www.everatt.co.uk

50. Working with a Contractual Retirement Age (1) • A fixed age for retirement (above or below 65) • may be organisation wide; or • may be role specific Consider: • What is the business need you are trying to achieve (i.e. legitimate aim) ? • Does having a particular retirement age meet that aim? • Is it proportionate to use the retirement age as a means of meeting that aim? • Is the discriminatory effect on the employee outweighed by the benefits achieved for the business? www.everatt.co.uk