Equal Pay and Discrimination Update Andrea Tishler and Joanna Lada-Walicki 28 April 2009 - PowerPoint PPT Presentation

Equal Pay and Discrimination Update

Andrea Tishler

and

Joanna Lada-Walicki

28 April 2009

• Equal pay
• Equality Bill
• Sex Discrimination
• Sexual orientation
• Disability Discrimination
• Race Discrimination
• Religious Discrimination
• Age Discrimination

• Most complex employment cases
• Prohibitively expensive to run
• 17.1% gender gap for hourly earnings excluding overtime (April 1997 – April 2008)
• 44,000 equal pay claims in 2008 – rise of 50% on 2005

• Right to equal pay contained in:-
• Article 141 of the EU Treaty
• Equal Pay Act 1970
• Codes of Practice (published by European Commission/Equality and Human Rights Commission) – not legally binding but may be used in evidence

• Four stage approach
• Select appropriate comparator of opposite sex
• Prove they carry out “equal work”
• Compare terms and conditions of employment
• Assess whether any discrepancy in pay can be justified (“genuine material factor defence”)

• Working “in the same employment” – at same establishment or common terms apply AND employed by the same or associated employer
• Can use predecessor as comparator but cannot speculate about likely future pay increases
• BUT cannot use more highly paid male successor - Walton Centre for Neurology NHS Trust v Bewley (EAT)

• A “like work” claim
• A “work rated as equivalent” claim
• Rated the same under job evaluation scheme (JES)
• JES must:-
• be “thorough in analysis and capable of impartial application” (Eaton Ltd v Nuttall 1977 EAT)
• cover the claimant and comparator
• be free from discrimination
• A “work of equal value” claim
• Usually evaluated by independent expert

• All elements of contractual pay including overtime, bonus, allowances and benefits
• Under EU law non contractual benefits may also be covered e.g. travel concessions and discretionary bonuses
• If claimant demonstrates work is equal then an equality clause is implied into her contract to bring her contractual terms in line with her comparator

• Employer’s reason for the pay difference must be:-
• Genuine
• Significant and relevant
• Not due to sex discrimination
• A material difference
• If evidence of indirect sex discrimination in pay system employer has to objectively justify by showing that the pay practice:-
• Corresponds to a real need of the business
• Is appropriate and necessary to achieve that need
• Is proportionate to that need
• Focus on aim of employer (Blackburn and Anor v Chief Constable of West Midlands Police 2008 Court of Appeal)

• Claim must be lodged within 6 months less 1 day of termination of contract of employment
• Termination includes:-
• substantial change in terms
• TUPE transfer
• Sodexo Ltd v Gutridge & Ors EAT
• Successive contracts (Slack & Ors v Cumbria County Council 2009 Court of Appeal)

• Action started before 6 April 2009 -SGP applies
• Employee must lodge written grievance and wait 28 days before submitting claim
• 3 month extension to time limit
• Action started on or after 6 April 2009 – SGP does not apply
• Employee can still raise grievance
• No extension to time limit

• Equality clause
• Back pay
• Up to a maximum of 6 years (5 in Scotland)
• Interest on back pay
• No compensation for injury to feelings

• Unions get a bloody nose - Allen v GMB (2008 Court of Appeal)
• Union heavily criticised for “mis-selling and manipulation” in promoting compromise deal
• Deal affected more women than men
• Unions less likely to want to broker deals?

• NHS “Agenda For Change” pay system validated - Hartley and Ors v Northumbria NHS Foundation Trust and Ors (2009 ET)
• Pay protection is a risky strategy-Redcar & Cleveland Borough Council v Bainbridge & Ors (Court of Appeal)
• “It’s time for new legislation, fit for this century, to help sort out this age old problem” (The Equality and Human Rights Commission)

• To “fight discrimination in all its forms and help to make equality a reality for everyone” (Government Equalities Office)
• To be enacted during the next year?
• 4000 responses received to Government consultation

• Consolidate discrimination legislation and simplify law on discrimination and equality
• Extend protection against associative discrimination
• Create Equality Duty on public bodies
• To tackle discrimination, promote equality of opportunity and encourage good community relations
• Not an absolute duty but should consider and address equality duties in all their functions

• Ban age discrimination in the provision of goods, facilities or services
• Further consultation and transition period expected
• Increase transparency
• Introduce compulsory gender pay audits
• Companies with 250 staff or more/public sector bodies with 150 staff or more
• Have until 2013 to comply
• Comparison of average hourly earnings in annual report
• Ban secrecy clauses that prevent colleagues comparing their salaries

• Require public bodies to report on equality issues
• Extend scope for positive action e.g. when choosing between two candidates of equal merit
• Extend period during which women-only shortlists are allowed
• Allow ET’s to make wider recommendations in discrimination cases

• Relevant legislation
• Sex Discrimination Act 1975
• Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001
• Sex Discrimination Act 1975 (Amendment) Regulations 2003
• Employment Equality (Sex Discrimination) Regulations 2005
• Sex Discrimination Act 1975 (Amendment) Regulations 2008

• Four types of discrimination:-
• Direct
• Indirect
• Harassment
• Victimisation

• Less favourable treatment on grounds of :-
• sex or marital status (s.1(2)(a)SDA) – comparator required
• pregnancy/maternity leave (s.3A SDA) – no comparator required
• No defence available

• Applying a provision, criterion or practice that:-
• Puts women at a particular disadvantage compared with men
• AND disadvantages the claimant
• AND is not a proportionate means of achieving a particular aim
• Defence of objective justification available – “proportionate means of achieving a legitimate aim”

• Three grounds:-
• Unwanted conduct related to your sex that has purpose or effect of violating dignity/creating intimidating, hostile, degrading or offensive environment (broader definition under Reg. 3 SDA 1975 (Amendment) Regulations 2008)

OR

• Unwanted verbal, non verbal or physical conduct of a sexual nature that has the same purpose or effect

OR

• Less favourable treatment due to rejection of unwanted conduct
• No financial/other loss required
• Liability for harassment by a third party – Reg. 4 SDA 1975 (Amendment) Regulations 2008

• Unlawful to treat less favourably for “Protected Act”
• Brought/intends to bring discrimination claim;
• Gives evidence/information in connection with claim;
• Made allegations/raised a grievance of discrimination

• Employer must establish that:-
• Requirement for a person of a particular sex is a genuine and decisive requirement for the job
• Requirement is proportionate
• The person does not meet the requirement/employer not satisfied that they meet it

• Positive Action
• Not the same as positive discrimination (more favourable treatment on grounds of sex)
• Can provide training to/encourage recruitment of a particular sex if in past 12 months there were none or very few of them doing that particular work
• Employment for the purposes of religion
• Employment limited to one sex to comply with doctrines of religion/avoid offending significant number of followers

• Burden of proof
• Employee establishes, on balance of probabilities, that there has been discrimination
• Burden shifts to employer to show they did not discriminate
• Use of questionnaires
• Time limit and effect of repeal of SGP

• Remedies
• Declaration – states rights of claimant and unlawful acts of employer and/or any employee
• Compensation for injury to feelings and financial losses - unlimited
• Recommendations – limited to actions that will benefit individual employee and lessen effect of the discrimination
• Applies to other areas of discrimination

• Discrimination on grounds of gender reassignment
• Same rights during AML and OML (Reg. 5 SDA 1975 (Amendment) Regulations 2008)
• Extension to flexible working rights
• Right to request extended to parents/carers of children under 17
• Territorial scope – cannot claim for act committed outside of UK but may be relevant as supporting evidence (Tradition Securities And Futures SA v X And Anor EAT 2008)

• The Employment Equality (Sexual Orientation) Regulations 2003
• Prohibit discrimination on grounds of sexual orientation in:-
• Employment
• Training
• Provision of goods, facilities and services

• Covers direct/indirect discrimination, harassment and victimisation
• Exceptions:-
• Genuine Occupational Requirement (only likely to apply in limited circumstances)
• Working for organised religion
• Positive action
• Benefits dependant on marital status – can still provide certain benefits to opposite sex/same sex married couples e.g. survivor benefits in occupational pension schemes

• Competing protected rights (London Borough of Islington v Ladele EAT 2009)
• Protection includes discrimination due to perceived sexual orientation
• Heterosexual subjected to homophobic taunts protected (English v Thomas Sanderson Ltd Court of Appeal 2008)

What is a disability under DDA?

A person is disabled if they have “a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities”

Effect of medical treatment is disregarded

Certain impairments excluded:

Alcohol/drug addiction

Certain personality disorders

Hay fever

• To have a long term effect the disability must:
• Have lasted at least 12 months; or
• Be likely to last at least 12 months; or
• Be likely to last for rest of life
• Sufferers from cancer, HIV, MS are disabled from the point of diagnosis

Mobility

Physical co-ordination

Manual dexterity

Continence

Ability to lift, carry or move everyday objects

Speech, hearing, eyesight

Memory or ability to concentrate, learn or understand

Perception of risk of physical danger

NB Activities in daily life relevant not generally activities at work

(2) Disability related Discrimination i.e.

For a reason that relates to the disabled person’s disability the employer treats the employee less favourably than they treat or would treat others to whom that reason does not or would not apply i.e. the comparator

The employer cannot show that the treatment in question was justified

N.B. House of Lords decision in the case of London Borough of Lewisham v Malcolm (2008) overturned long-established case law on 'disability-related discrimination'

• Pre Malcolm
• Comparator = non-disabled person to whom the reason did not apply e.g. disabled person absent from work on long term sick leave was compared to someone not absent when considering difference in treatment
• Post Malcolm
• Comparator = non-disabled person to whom the reason does apply e.g. someone else who was absent and on long-term sick leave by reason of an illness which is not a disability

• Effect of Malcolm:
• Much harder for disabled employee to bring disability related discrimination claim i.e. much less likely that employee will be able to show less favourable treatment
• Claimants will now need a direct claim BUT
• Reasonable adjustments claims will cover most situations
• Government consultation proposing to rectify difficulties caused by Malcolm in Equality Bill

• (3) Duty to make reasonable adjustments where a provision, criterion or practice and/or any physical features of premises cause a substantial disadvantage for a disabled person in comparison with persons who are not disabled
• Duty to adjust only applies where the employer either knows or reasonably ought to know of the disabled person’s disability
• Objective reasonableness test
• Good practice to conduct assessment of adjustments and consult the employee

• Examples of adjustments:
• Altering working hours – flexitime /avoiding rush hour travel
• Allowing time off for rehabilitation or treatment
• Allocating some of the disabled person’s duties to someone else – changing job description
• Different work place – ground floor or different building
• Giving or arranging training to the disabled person or others
• Providing a reader or interpreter
• Modifying reference manuals or procedures
• Adjusting the premises – ramps, lifts, signs

• What is “reasonable”? Consider:
• Effectiveness
• Does it work?
• Practicality
• Is it practical and affordable?
• Would it be affordable with assistance? Investigate this.
• Size and resources of employer are important
• Best evidence from an assessment and trial period

• (4) Harassment
• A person is unlawfully harassed for a reason related to their disability if they are subjected to unwanted conduct that has the purpose or effect of violating their dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment
• (5) Victimisation
• It is unlawful for employers to victimise someone because they brought a discrimination claim, gave evidence in a case or made an allegation of disability discrimination

• In Coleman v Attridge Law the ECJ held in July 2008 that ‘discrimination by association’ can be illegal – direct discrimination not limited to those who are disabled
• Sharon Coleman claimed she was forced to leave her job after she requested time off to look after her disabled son
• Implications for other areas of discrimination
• Equality Bill will make discrimination by association unlawful

It applies to:

arrangements for deciding who should be offered a job inc. refusal of a job

terms on which employment offered

Access to promotion, transfer or training or benefits

Dismissal where someone subjected to other disadvantage

Employers are liable for acts of employees whether they knew or approved of them UNLESS they can show they took all reasonable steps to prevent the behaviour from happening

• (1) Direct discrimination – employer treats employee less favourably than another employee on racial grounds
• No defence
• (2) Indirect discrimination – employer operates a ‘provision, criterion or practice’ which applies to all but works to disadvantage of a racial group

• Irrelevant whether employer intended to discriminate
• Justification defence if provision, criterion or practice is a proportionate means of achieving a legitimate aim – balancing exercise between importance of employer’s aim and discriminatory effect of the means chosen to achieve it
• Amendment to Regulations (December 2008) makes it clear that a “deterred” applicant is now protected i.e. a person who would have applied for a job for which he/she was qualified but was deterred from doing so because of a discriminatory provision, criterion or practice

• (3) Harassment
• A person is unlawfully harassed if they are subjected to unwanted conduct that has the purpose or effect of violating their dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment and the treatment is on the grounds of race, national or ethnic origin
• This will include abusive language, excessive monitoring or criticism of an employee’s work

• A comment by a manager to an employee of Indian ethnic origin who tendered her resignation that “we will probably bump into each other in the future, unless you are married off in India” was held to amount to racial harassment – intention of perpetrator was irrelevant (Richmond Pharmacology v Dhaliwal)
• (4) Victimisation
• It is unlawful for employers to victimise someone because they brought a discrimination claim, gave evidence in a case or made an allegation of race discrimination

• Genuine Occupational Requirement (GOR)
• Employer must establish that:
• A requirement for a person of a particular race or ethnic or national origin is a genuine and decisive requirement for the job
• The requirement is proportionate
• The person either does not meet the requirement or the employer is not satisfied that they do

• Genuine occupational qualification (GOQ):
• Drama - the job involves participation in a play or other entertainment in a capacity for which a person of that racial group is required for reasons of authenticity; or
• Models - the job involves participation as an artist’s or photographic model for which a person of that racial group is required for reasons of authenticity; or
• Restaurants - the job involves working in a restaurant and a person of that racial group is required for reasons of authenticity; or
• Personal welfare services - the holder of the job provides persons of that racial group with personal services promoting their welfare

• N.B. Employer cannot rely on GOQ exception if it already has enough staff from the specific racial group who could undertake the duties of the job – this means employer cannot use GOQ to implement positive discrimination

• Employment Equality (Religion or Belief) Regulations 2003 prohibit discrimination, harassment and victimisation on the ground of religion or philosophical belief
• Regulations cover not just believers of organised religions but anyone who holds any religious or ‘philosophical belief’ such as paganism and humanism
• Employers are liable for acts of employees whether they knew or approved of them UNLESS they can show they took all reasonable steps to prevent the behaviour from happening

• Direct discrimination
• (1) Direct discrimination – employer treats employee less favourably than another employee on grounds of religion or belief
• No defence UNLESS employer can show GOR
• (2) Indirect discrimination – employer operates a ‘provision, criterion or practice’ which applies to all but disadvantages people of a particular religion or belief

• Irrelevant whether employer intended to discriminate
• Justification defence if employer is able to show there is a real business need for the practice and there is no alternative to it
• (3) Harassment
• A person is unlawfully harassed if they are subjected to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment and the treatment is on account of the person’s religion or belief

• Intention of harasser is irrelevant – may be banter that the person finds offensive
• (4) Victimisation
• Treating an employee less favourably because they made or intended to make an allegation about discrimination on the ground of religion or belief, brought a claim or gave evidence in a claim

• Genuine occupational requirement (GOR) – defence to claim of direct or indirect discrimination
• Employer must establish that:
• Having a particular religious or other belief is a genuine and decisive requirement for the job
• It is proportionate to apply that requirement to this particular role
• The person either does not meet the requirement to be of a particular religion or belief or the employer is not satisfied that they do and this is a reasonable belief

• E.g. of GOR - hospital appointing a chaplain of a particular faith to minister to patients of a particular faith
• N.B in relation to religious organisations
• subscribing to a particular religion need not be a decisive requirement of the job e.g. school appointing a Catholic teacher to a Catholic school, but unlikely to succeed in relation to maintenance staff or caretaker
• Positive action
• Employers are entitled to take positive action in favour of members of a particular religion or belief if this is reasonable to compensate for past disadvantages that they faced

• It is indirect discrimination to require a Sikh to wear a safety helmet on a construction site and may not be justified
• Dress codes must ensure they do not give rise to an indirect discrimination claim unless this can be objectively justified
• A teacher claimed indirect discrimination when she was not allowed to wear a veil in class
• EAT held school was justified in its refusal because the children needed to see her facial expressions as part of the learning process (Asmi v Kirklees Metropolitan Borough Council)

• Religious items – refusal to let employee wear a cross openly was not religious discrimination
• BA had a uniform policy which provided a religious item could only be worn openly if this was a mandatory religious requirement e.g. Hijab, turban, skull cap
• A Christian employee argued that wearing a cross fell into this category
• EAT disagreed and held that for a claim to be established the employee must give evidence of a ‘group disadvantage’ (Eweida v British Airways)
• N.B. BA has since changed its uniform policy to allow staff to display a ‘faith or charity symbol’ on their uniform

• Employment Equality (Age) Regulations 2006 in force since 1 October 2006
• Benefit employees, the self-employed, contract workers and office holders
• Age discrimination tribunal claims have increased significantly.

• Figures from the Tribunal Service show the increase from 972 in 2006/07 to 2,949 in 2007/08
• Key provisions of the Regulations:
• Prohibition of age discrimination in employment, recruitment, promotion and training (including ageist harassment and victimisation)
• Default retirement age of 65 – lower age must be objectively justified (difficult in practice)

• Removal of upper age limit of 65 for unfair dismissal and redundancy rights
• Retirement procedure:
• Employer must give written notice of retirement to employee between 6-12 months prior to intended retirement date
• Duty for employer to consider an employee’s request to continue working beyond retirement

• Direct and indirect discrimination are both prohibited
• Direct discrimination:
• when a person is treated less favourably on grounds of age e.g. advertisement for a security guard who is over 30
• Ryanair recently lost a claim in Ireland which related to an advertisement for “a young and dynamic professional”
• The claimant must show that a person of a different age (either younger or older) i.e. the comparator would have been treated more favourably

• Less favourable treatment based on a perception of a person’s age is unlawful even if their actual age is unknown or an assumption about their age was incorrect
• Indirect discrimination:
• when an employer’s provision, criterion of practice has an adverse proportionate effect on a person or particular group e.g. job applicants must be “bright and bubbly” or have “gravitas”
• Irrelevant whether employer intended to discriminate

• Both direct and indirect discrimination may be justified when the discrimination is “a proportionate means of achieving a legitimate aim”
• e.g. fixing a maximum age for recruitment based on need for a reasonable period in post prior to retirement
• e.g. health and safety

• Harassment
• A person is unlawfully harassed if he/she is subjected to unwanted conduct that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment and the treatment is on account of the person’s age
• Intention of harasser is irrelevant – may be banter or jokes that the person finds offensive e.g. jokes associating older people with ill health or inability to cope with technology
• Victimisation
• Treating an employee less favourably because they made or intended to make an allegation about discrimination on the ground of age, brought a claim or gave evidence in a claim

• Genuine occupational requirement i.e.
• possessing a characteristic relating to age is a genuine and determining occupational requirement AND it is proportionate to apply the requirement in the particular case e.g. for an acting role
• BUT very limited application
• Positive action i.e.
• to compensate for disadvantages to particular groups relating to employment opportunities e.g. computer training course restricted to over 60s

• Minimum wage –Differential wage rates based on age are exempted from the Regulations
• Pay and benefitslinked to length of service such as holiday entitlement or pay linked to length of service are potentially discriminatory BUT:
• Complete exemption where benefits are based on no more than 5 years’ length of service AND criterion applies to all employees in the same situation
• General exemption if:
• Aim is to reward experience, loyalty or encourage motivation

• The criterion is applied to all employees in the same situation
• Employer reasonably concludes there is a business benefit
• Exemption will not apply to an age related benefit e.g. gold watch at the age of 60
• Occupational pensions are largely unaffected
• Retirement – provided statutory procedure is followed

• Heyday’s challenge of default retirement age (DRA) of 65
• ECJ has ruled that a DRA does nor in principle contravene the EU Equal Treatment Framework Directive
• Although the DRA is discriminatory it is capable of being justified as being a proportionate means of achieving a legitimate aim
• National Courts will need to decide whether a DRA may be justified in England – policy objectives such as those related to the labour market may be “legitimate”
• Government is due to review DRA in 2011

• Lawfulness of a redundancy selection criterion based on length of service has been considered recently by the High Court (Rolls Royce v Unite)
• Such a criterion is potentially discriminatory
• HC held it was objectively justified as a proportionate means of achieving a legitimate aim i.e. the aim being to achieve a peaceable process of selection
• HC held the use of length of service as a selection criterion in this case respected the loyalty and experience of the older workforce
• However, HC suggested that a selection process that was based solely on the criterion of length of service could be objectionable

Any Questions?