Equality Law Round Up 2014 Claudia Bennett Senior Solicitor

1. Equality Law Round Up 2014 Claudia Bennett Senior Solicitor

2. Equality Quiz • 1.How many people in Scotland have a disability? • 2. What percentage of people are born with their disability? • Women still earn 5% less than men for work of equal value. Yes/No

3. What we will cover • The Equality Act • Recent case law in relation to: • Protected characteristics • Prohibited conduct • The EHRC • Our legal strategy • Contact us

4. Age (s.5) • Where the Act refers to the protected characteristic of age it means a person belonging to a particular age group. • An age group includes persons of the same age and people of a particular range of ages • Only protected characteristic which allows direct discrimination to be justified.

5. Age McCririck v Channel 4 (application of Seldon) Age discrimination but C4’s drive for a wider audience for horse racing justified his dismissal

6. Age • Lockwood v Department for Work and Pensions [2013]EqLR 1190 CA • Specht v Land Berlin

7. Disability (s.6) • A person has a disability for the purposes of the Act if he or she: — - has a physical or mental impairment, and - the impairment has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities. • Schedule 1 and Regulations on meaning of disability • Interpretation in line with UNCRPD

8. Disability (s.6) Knowledge • Gallop v Newport City Council [2013] • Employer needs to have knowledge of certain facts • NCC could not rely on unreasoned assertions by adviser about what was really a legal question = an employer cannot ‘rubber stamp’ a health adviser’s opinion • McCubbin v Perth and Kinross Council [2013] EAT

9. Disability (s.6) • Walker v SITA UKEAT/0097/12 • Kaltoft v Municipality of Billund (C-354/13)

10. Prohibited conduct • Direct discrimination (s 13) • Indirect discrimination (s 19) • Harassment (s 26) • Victimisation (s 27) • Disability only: • Discrimination arising from disability (s 15) • Duty to make reasonable adjustments (ss 20 & 21)

11. Direct discrimination A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others • Preddy & Hall v Mr and Mrs Bull • Discrimination by association or perception included • Direct discrimination can never be justified however age discrimination remains justifiable

12. Indirect discrimination • A applies a provision, criterion or practice (PCP) to B • A applies, or would apply, the PCP to persons with whom B does not share the relevant protected characteristic • the PCP puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share the characteristic • the PCP puts, or would put, B at that disadvantage and • the PCP is not a proportionate means of achieving a legitimate aim. • Azmi v Kirklees Metropolitan Borough Council

13. Association and perception Discrimination by association • Less favourable treatment because associated with someone with a PC • Does not need to be permanent • Mr and Mrs Gyenes v Highland Welcome (UK) Ltd • Peaden v Methodist Church Discrimination by perception • Less favourable treatment because perceived to have a PC

14. Victimisation ‘A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’ Removes the need for the tribunal to construct an appropriate comparator. • Rowstock Ltd v Jessemey [2013] IRLR439 • Onu v Akwiwu [2013] EqLR577; [2013 IRLR523

15. Harassment • a person (A) harasses another (B) if A engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. • Case example: Wijesundera v Heathrow 3PL Logistics Ltd and Another UKEAT/0222/13

16. Reasonable adjustments • Where a disabled person is placed at a substantial disadvantage to non-disabled people, there is a duty to make changes to: • Provisions, criteria or practices • Physical features • And a duty to provide auxiliary aids and services (such as a hearing loop or a special computer service) Johnson v Topshop/Topman Ltd [2014] EqLR 480

17. The Commission’s powers • Intervene in Commission’s name (s30) [equality or human rights or both] • Judicial Review proceedings in Commission’s name (s30) [equality or human rights or both] • Provide legal assistance to an individual bringing proceedings under the EA (s28) [equality or both, but not human rights alone] • Also other enforcement powers eg inquiries, investigations

18. EHRC strategic priorities for using litigation powers • Consultation on Commission’s Strategic Litigation Strategy

19. Further information EHRC website information on Equality Act http://www.equalityhumanrights.com/legal-and-policy/equality-act/ Law Society of Scotland http://www.lawscot.org.uk/about-us/equality-and-diversity

20. The Commission’s legal team in Scotland • Legal Team Bulletin: www.equalityhumanrights.com/scotland/legal-news-in-scotland/equality-law-bulletin/ • Requests for assistance: • legalrequestscotland@equalityhumanrights.com Tel: Claudia Bennett 0141 228 5965 Email: Claudia.Bennett@equalityhumanrights.com

21. In the state of nature...all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law. Charles de MontesquieuFrench lawyer & philosopher (1689 - 1755)