Is sacking an employee who has miscarried an act of pregnancy-related discrimination?

Employment Law book Earlier in my legal career, I helped advise an individual who was subjected to detrimental treatment by her employer due to time off linked to a miscarriage. Naturally, I won’t identify the individual or the specific facts here but, save to say, their employer’s conduct made a very difficult situation even more stressful.

The biggest surprise I experienced during that case was their employer trying to argue that a miscarriage wasn’t pregnancy-related under the Equality Act 2010 because the employee wasn’t pregnant anymore. This is completely incorrect. Why?

Disability Discrimination: Adjustments for candidate with Asperger’s Syndrome

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination.

Background

The facts of the case were that the Government Legal Service (GLS) was recruiting lawyers in what the EAT later called “a fiendishly competitive recruitment process”. Applicants would be required to complete and pass a multiple choice ‘Situational Judgment Test’ (SJT), in order to be invited for interview.

Prior to commencing the test the Claimant, Ms Brookes, contacted the GLS and asked if adjustments could be made due to her Asperger’s – in particular, she asked if she could give her answers in a short narrative format rather than multiple choice so that she was not placed at a disadvantage.

Unfortunately, the GLS advised her that an alternative test format was not available, however did state that additional time allowances might be permitted for tests taken at a later stage following the successful completion of the entry tests.  The Claimant therefore completed the SJT in its existing format and failed, albeit she scored just 2 points under the pass mark required.

Ms Brookes brought claims of indirect disability discrimination and failure to make reasonable adjustments at the ET, arguing that the multiple-choice format of the test placed her at a disadvantage in comparison to other candidates who did not suffer from Asperger’s.  She further claimed that there could be no justification for this, and no reasonable adjustments had been made to the process.

The decisions

Does a ban on wearing headscarves amount to direct discrimination?

In a somewhat surprising decision, given the views expressed in some other recent cases, the Court of Justice of the European Union (CJEU) has decided that a ban on wearing headscarves at work does not (necessarily) constitute direct discrimination with reference to religion or belief. In  Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions the European Court was asked to consider a case which was referred from the Hof can Cassatie (Court of Cassation) in Belgium, where the respondent, G4S, operated from 2006 a policy of neutrality which prohibited the visible wearing of any political, philosophical or religious signs.

Samira Achbita, a Muslim, was employed as a receptionist with G4S in 2003. In 2006 she told her employer that she wanted to start wearing an Islamic headscarf during working hours. After a period of absence due to illness she notified her employer on 12 May 2006 that she was returning to work on 15 May and would be wearing the headscarf. On 29 May the G4S works council approved an amendment to workplace regulations which provided that, with effect from 13 June 2006 “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”. On 12 June Ms Achbita was dismissed because she refused to accept the new policy.

The CJEU noted that G4S’s rule covered any manifestation of political, philosophical and religious beliefs without distinction. The rule was not applied to Ms Achbita in a way which was different from the way in which it would be applied to any other employees. Consequently, there was no direct discrimination.

However, such a prohibition could constitute indirect discrimination if the apparently neutral obligation in fact resulted in people adhering to a particular religion or belief being put at a particular disadvantage. Even if that was the case there could nonetheless be a legitimate aim such as the pursuit of a policy, in relation to customers, of political, philosophical and religious neutrality, provided that the means of achieving that aim were appropriate and necessary. In that case the policy might be maintained, for example, by allowing Ms Achbita to wear hear headscarf at work, but not in a role which involved any visual contact with customers, as an alternative to dismissal. The matter was referred back to the Belgian court for further consideration accordingly.

Also reported at the same time was the case of Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers. In this case, prior to being recruited by Micropole, Asma Bougnaoui was told that wearing her headscarf might pose a problem if she was in contact with customers of the company. Initially Ms Bougnaoui wore a bandana during her internship. Thereafter she wore a headscarf. A customer complained and, relying on the principle of neutrality, the employer asked her to stop wearing the headscarf.

Subconscious motive for discrimination

The Equality Act 2010 states that it is against the law to discriminate against an employee on the grounds of their race, sex, age, marital status, religion, sexual orientation, disability, age or pregnancy (protected characteristics).

The discriminatory act is straightforward to establish where there is an obvious or direct act of discrimination however what is not so clear is the approach to take in the event that no direct intent can be established.

It has long been accepted that proof of intent is not required to prove an unlawful act of discrimination. However the application of these rules has proven to be problematic in practice. This issue again arose in the recent case of Geller v Yeshurun v Hebrew Congregation in which the Employment Tribunal failed to explore the possibility of subconscious discrimination despite, on the facts, there being good cause to do so.
The facts
Mr and Mrs Geller both worked for the Yeshurun Company. Mr Gellar was an employee and Mrs Gellar worked on an ad hoc basis for which she submitted time sheets. In 2013 the couple began to receive a joint salary. Mrs Gellar was not paid for the work that she had done previously.

Mr Gellar was provisionally selected for redundancy and Mrs Gellar argued that she too should have been involved in this process as an employee. They were subsequently both made redundant. Mrs Gellar brought a claim for sex discrimination on the basis that both the unlawful deduction of wages and the fact that the company had failed to recognise her as an employee were both acts of discrimination which related to her sex.
The Employment Tribunal
The Employment Tribunal dismissed the claim. They found no evidence that she had been treated unfavourably on either ground commenting that she had actually been treated more favourably as a result of being married to Mr Gellar and that the deductions of wages were as a result of an administrative oversight not as a result of her sex.
The appeal

Indirect religious discrimination

Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?

 

This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination) [2016] UKEAT 0238 15 2903.  The facts of this case were that the Claimant’s (Mrs Pendleton’s) husband was the headteacher of a local school.  The Claimant herself was also a teacher employed at another local school where she was teaching a Year 6 class, had an unblemished disciplinary record and was highly respected both in school and also within the Anglican Christian community (being a devoted and practising Anglican Christian).

 

In January 2013 the Claimant’s husband was arrested on suspicion of downloading indecent images of children and voyeurism.  He was later convicted of these offences and sentenced to ten months’ imprisonment.

 

The Claimant initially left her husband and went to stay with her parents, taking leave from work – at this point the headteacher of the school where she was employed assured her that her position would remain open for when she returned.  Although there was no evidence that the Claimant had any knowledge or involvement in her husband’s actions, the headteacher had also stated that the school couldn’t support her if she stayed with her husband.

 

During her period of leave the Claimant decided that whilst she did not condone what her husband had done, she placed importance on her marriage vows and would therefore stay with him if he could show unequivocal repentance.

 

The school subsequently dismissed the Claimant summarily, stating that she had “… chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role … have been eroded. Furthermore, the choices [she had] made in [her] personal life are in direct contravention to the ethos of … the … School”.

 

The Claimant’s appeal against her dismissal was unsuccessful and she therefore brought claims of unfair dismissal, wrongful dismissal and indirect religious discrimination against the Respondent based upon her religious beliefs as noted above.

 

The Employment Tribunal agreed with the Claimant’s submission that she had been unfairly dismissed, stating that the reason for her dismissal was not some other substantial reason (SOSR) – she had not committed an act of misconduct let alone gross misconduct – but rather the Respondent’s view that the Claimant had used poor judgment in staying with her husband despite him being a convicted sex offender.  The Claimant’s claim of wrongful dismissal also succeeded in light of the above.

 

With regards the indirect discrimination claim however, the Tribunal noted that the claimant held a belief for the purposes of section 10(2) Equality Act 2010, that: “her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith”.  The Tribunal further accepted that the Respondent had applied a provision, criterion or practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, however concluded that the Claimant would have been dismissed whether she believed in the sanctity of marriage or not as another individual in the same situation would have also been dismissed, even if they did not share the Claimant’s religious belief.  The tribunal did comment however that had they needed to consider the question of proportionality, they would have found that the Respondent did not show that the dismissal was a proportionate means of achieving a legitimate aim.

 

The Claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that making her choose between her marriage vows and her career was enough to show she had been placed at a disadvantage, especially given she had been required to act against her religious beliefs.

Discrimination claim against Newcastle United

The former Newcastle United midfielder Jonas Gutierrez has won a disability discrimination claim against his former club after being dropped from the club as a result of his battle with testicular cancer.

Gutierrez who has previously been described as one of Newcastle’s most valuable players signed a new four year deal with the club in 2011. His contract provided a clause providing for an automatic one year extension if he played 80 premier league games. Gutierrez was a regular first team player although following his cancer diagnosis and subsequent treatment the club informed him that he wasn’t going to be retained given that he had only reached 78 of the 80 games that were required to trigger the extension.  Gutierrez argued that the club purposely didn’t select him for premier league games in an attempt to manipulate the extension trigger as they no longer wanted him at the club.

Gutierrez made four claims under the Equality Act 2010 which makes it unlawful to discriminate against workers on the grounds of mental or physical disability which are as follows.

A claim under section 13 for “direct discrimination”
A claim under section 15 for “unfavourable treatment”
A claim under section 21 for failure to make reasonable adjustments.
A claim for disability-related harassment.

The tribunal dismissed claims two and four largely because the effects of his cancer were no more disruptive to his ability to work that the common injuries suffered by footballers. Claim 1 was upheld because the tribunal inferred from the facts that the club were deliberately managing the claimant’s selection to prevent him triggering the option of extension. They further went on to say that the reason why the respondent had managed the claimant’s selection was because they had no longer wanted him at the club because of his cancer.

Age Discrimination & Permanent Health Insurance

Since the abolition of the default retirement age some time ago, questions have arisen regarding what happens to employee benefits should they decide to remain in employment over a certain age.

In the recent case of Smith v Gartner UK Ltd, Ms Smith (the Claimant) was absent from work on the grounds of sickness and had been receiving payments under Gartner UK Ltd’s (the Respondent) Permanent Health Insurance (PHI) scheme during this time.  In line with the terms of the PHI policy that the Claimant had originally signed up to in 2003, these payments were stopped when the Claimant reached the age of 60.

Of further note is the fact that the Respondents had in fact introduced a new PHI scheme in 2007 which provided employees with cover until the age of 65.

In response to the cessation of her benefits, the Claimant brought a claim for direct age discrimination against the Respondents, arguing that by not continuing the payments beyond the age of 60 they had treated her less favourably as a result of her age and could not justify this decision.

Ms Smith’s claim was rejected by the Employment Tribunal and she subsequently appealed to the Employment Appeal Tribunal (EAT) who rejected her appeal on the basis that the reason her payments ceased at the age of 60 was purely because the terms of the policy she had signed up to dictated that this be the case.  This was therefore not a decision made by the Respondent and as such could not be deemed an act of discrimination.

The EAT further decided that the Respondent’s decision not to extend the benefits of the PHI policy introduced in 2007, could similarly not be deemed discriminatory.  As the Claimant was already receiving benefits under the old PHI policy and was not actively working, she did not satisfy the conditions of the new scheme.

In light of the above, Employers could be advised that they are not under an obligation to offer additional benefits in excess of PHI schemes simply to avoid discrimination claims and that cases such as these may very much depend upon the terms of the PHI policy in question.  It should also be noted that the Equality Act 2010 does allow Employers to cease offering PHI in addition to other insured benefits, at the age of 65 or the employee’s state pension age (whichever is the higher).

Beware however that this area of the law may well be subject to change in the future given the very different decision reached by the Employment Tribunal in 2013 in the case of Witham v Capita Insurance Services Ltd.

Online assessments and discrimination

There is an increasing tendency for employers to use online services in order to carry out HR related functions, including assessments, job interviews and appraisals. This can be daunting even for the most confident and well-equipped candidates and employees. I have recently witnessed such a process in action, with an international employer using an American Company to carry out initial interviews on a system similar to Skype but with time limits for replies in the style of a TV quiz show.

While this may be something that many candidates and employees will just have to get on with, it has the capacity to present fairly obvious problems for those who are disabled or have other protected characteristics within the meaning of the relevant sections of the Equality Act 2010. As an aside, it also seems to provide almost the polar opposite of providing fair opportunities by anonymising applications for employment.

The issue of discrimination and online assessments was to the fore in the recent Employment Appeal Tribunal case of Muzi-Mabaso v Commissioners for HMRC. Mr Muzi-Mabaso joined HMRC as a Grade AA employee in September 2004. As was known to the employer he suffered from depression and was a disabled person for the purposes of the Equality Act 2010, thereby obliging the employer to make reasonable adjustments where necessary to take into account the effects of the disability.

In 2010 Mr Muzi-Mabaso was temporarily promoted to Grade Band O and undertook training over two years with a view to possible promotion to Grade HO. He did not pass the required module and therefore reverted to Grade AA with effect from 28 November 2011. However there was little available work for Grade AA employees. Mr Muzi-Mabaso was on sick leave from 14 November 2011 to 22 April 2012, having been certified as suffering from stress and depression. Efforts were made to find a post for him but he was told that promotion opportunities could arise only as a result of open competition. Shortly before he returned from sickness absence he was place in a redeployment pool. After six months in the pool, if a job had not been found, an employee would be deemed surplus, thereby opening the possibility of redundancy.

In April 2012 Mr Muzi-Mabaso brought to the employer’s attention his phobia of the job application process. He said that going through the process was very stressful for him and therefore put him at a disadvantage by reason of his disability. He submitted an application for a Grade O vacancy. However, he said that he could not complete the online test as part of the process because he was too stressed due to his disabilities, specifically his frame of mind and phobias.

An offer was made for his manager to sit in with him and talk him through the questions. He was also offered a private room with a computer and extra time to complete the form. There was also a discussion about doing a paper test. However all these options were rejected by him. His application was kept open pending further medical reports. The employer took the view that excepting him from the online process was not a reasonable adjustment, not least because of the high number of applicants, many of whom needed reasonable adjustments for medical reasons.

Mr Muzi-Mabaso brought two claims before the Employment Tribunal: indirect disability discrimination on the basis that he was part of a disadvantaged group and direct disability discrimination on the basis of alleged failure to make reasonable adjustments in his case. Both claims failed and a costs order of £5000 was made in favour of HMRC.

On appeal it was held that Mr Muzi-Mabaso had not suffered any particular disadvantage by being placed in the redeployment pool. The main issue was the online test and Her Honour Judge Eady QC had trouble with the Employment Tribunal’s reasoning in concluding that Mr Muzi-Mabaso was not placed at a substantial disadvantage in this regard.

Victim of caste discrimination awarded £184,000

The Equality Act 2010 does not include specific protection for individuals who are victims of discrimination as a result or associated with their caste. However, it does include provisions for protection from caste discrimination to be added at some time in the future.

Nonetheless a claim based on such discrimination has been brought successfully by Pamela Tirkey against her employers, Mr and Mrs Chandhok, and she has now received compensation amounting to nearly £184,000.

Ms Tirkey was recruited as a cleaner and nanny by Mr and Mrs Chandhok, initially in India and subsequently in the United Kingdom. There is no doubt that her terms of employment were appalling. For example she was paid just 11p an hour. She said that she was treated in a demeaning way and she was more in a state of servility than service. She was required to work 18 hours a day, seven days a week. She was required to sleep on a mattress on the floor, prevented from bringing her bible to the UK, not allowed to contact her family and given a bank account which was controlled by her employers. Her employment ended in November 2012. She brought an employment tribunal claim alleging direct or indirect race discrimination and compensation for discrimination based on religion or belief. Incidentally, the Legal Aid Agency refused funding for representation for 17 months on the basis that the case was “not of sufficient importance or seriousness” and it was “just a claim for money”.

Although the ET1 was very lengthy it made no direct reference to caste discrimination. In May 2013, with the permission of Employment Judge Ward, she amended her claim. Paragraph 53 of the claim initially stated “The Claimant contends that the reason she was treated as complained of was that she is of Indian nationality and/or national origin”. It was amended by adding the word “ethnic” after Indian nationality. This was followed by a new paragraph:
For the avoidance of doubt the Claimant avers that her ethnic and/or national origins includes (sic) but is not limited to her status in the caste system as perceived by the Respondents.  The International Convention on the Elimination of All Forms Racial Discrimination (“ICERD”) prohibits discrimination on the grounds of “descent”:  its principles are adopted by the Race Framework Directives and, it follows, the Equality Act.  Thus s13 EA 2010 must be taken to prohibit caste discrimination.  The Claimant avers that the and/or a reason why she was recruited and treated in the manner alleged was that the Respondents concluded that she was of a lower status to them: this view was tainted by caste considerations.
Ms Tirkey’s family are Adivasi people who are frequently referred to as being of “low caste” although her caste was not expressly pleaded. Although they had not objected to the amendment at the time, Mr and Mrs Chandhok subsequently applied for it to be struck out. Their application was rejected by Employment Judge Sigsworth in January 2014 who stated that “the claim of caste discrimination as set out in the amended statement of claim is not struck out and the claim will proceed to a merits hearing”. That was not strictly correct since there was not an express pleading that there had been caste discrimination; nonetheless its meaning was clear. Mr and Mrs Chandhok appealed to the Employment Appeal Tribunal.

Mr Justice Langstaff was critical of Judge Sigsworth for reading into the ET1 a caste discrimination claim that was not actually there as such. Nonetheless he went on to consider the grounds of appeal. First, it was contended that to allow the claim would amount to “ousting the will of Parliament”. Section 9(5) of the Equality Act (as amended by the Enterprise and Regulatory Reform Act 2013) states that “A Minister of the Crown…(a) must by order amend this section so as to provide for caste to be an aspect of race; (b) may by order amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste, or to apply or not to apply, to caste in specified circumstances”. It was initially proposed that there would be a full consultation in 2014 with draft legislation being introduced to Parliament in summer 2015 but this has not happened. Accordingly it was not for a tribunal to anticipate legislation not yet introduced.

Second, judgments which applied a purposive interpretation of the meaning of “ethnic origin” (so as to give effect to what was intended), as in the cases of Jews and Sikhs, were not comparable because Parliament had specifically singled out caste for statutory provision.

Third, the EU Race Directive was not applicable because the case was between individuals and did not involve the State or emanations of the State.

Fourth, the judge as in error to hold that caste could come within the scope of discrimination of the grounds of religion and belief.

Mr Justice Langstaff identified two key questions. First, does the law of discrimination provide a remedy for discrimination in the factual circumstances which the claimant was offering in her claim form to establish in evidence? Second, does the fact that the Equality Act as originally enacted envisaged (but did not implement) the addition of protection from caste discrimination mean that any claim asserting less favourable treatment for “caste reasons” must be precluded until the legislation is amended?

Can a limited company be a victim of discrimination?

An important but potentially confusing aspect of English law is the concept of the “legal person”. As well as individuals a limited company is a legal person in the sense that it has its own legal status. It can be a claimant or defendant in proceedings and can enter into contracts, whereas the position with a partnership (a collection of individual persons trading together) is more nebulous.

Perhaps the obvious reaction when considering whether a company can be a victim of discrimination is to say that it cannot since discrimination is specific to a human being who can, for example, suffer injury to feelings. However, as confirmed in the case of EAD Solicitors LLP and others v Abrams the legal answer is not so straightforward.

Mr Garry Abrams was formerly a partner/member in EAD Solicitors LLP, based in Liverpool. Indeed, the firm was previously known as Edwards Abrams Doherty. As he approached retirement Mr Abrams set up a limited company in which he was the sole director. The company replaced him as a member of the LLP. It was, for all intents and purposes, a service company which provided the services of Mr Abrams and was, in return, entitled to share in the profits of the LLP.

There was no obligation requiring personal service and therefore no employment relationship. The LLP objected to the company providing Mr Abrams’ services once he reached the age when, had he been a member of the LLP, he would have retired. There was an ongoing dispute about whether the company remains a member of the LLP notwithstanding the claim and that apparently remains unresolved.

Part 5 of the Equality Act 2010 provides that an LLP (limited liability partnership) must not discriminate against a member as to the terms on which he is a member, by expelling him, or by subjecting him to any other detriment. Section 4 of the Limited Liability Partnership Act 2000 provides that a corporate body may be a member of an LLP. This is therefore the legal basis on which a corporate LLP member does, on the face of it at least, enjoy protection from discrimination. Any such claims must be brought before an employment tribunal (section 120 Equality Act).

In the Employment Tribunal Employment Judge Ryan clearly struggled with the concept of a company being a victim of discrimination because it is so intensely personal. However, he was persuaded by the legal argument that it could. President of the Employment Appeal Tribunal Mr Justice Langstaff agreed.