Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

This post was written by Joanna Whiteman and Ruth Bonino.

In this Q&A, we have attempted to cover some of your most frequently asked questions on the UK Equality Act 2010.  This is not intended to be a comprehensive guide of the new provisions, so if you would like further information, please do not hesitate to contact us.

The Equality Act 2010 has been in the press a lot recently. Should we already have taken steps to ensure that our systems are in compliance with it?

The Equality Act 2010 ("the Act") received Royal Assent in April, just before the general election and after a period of intense discussion and debate.  The new coalition government has recently announced that most of the Act's provisions are due to take effect, as planned, from October 2010. However, despite this, questions remain over the more controversial provisions, such as the socio economic duty, gender pay reporting and positive action.

Employers need to act now in order to prepare for the Act, and the action we recommend is set out at the end of this note.  As regards those provisions of the Act where a question mark remains, there is no need to jump the gun - keep a close eye on developments, but be prepared to act as soon as any announcements are made.

I've heard that the Act makes it easier for employees to show they have suffered disability discrimination. Is this true?

The Act introduces some significant changes in the law concerning disability discrimination, and the government has said that these will come into force in October.  The changes have come about because of a recent decision of the House of Lords (London Borough of Lewisham v Malcolm (2008)), which rendered the existing protections against disability-related discrimination inadequate.  The changes make it easier for people to show they are disabled and are protected by disability discrimination law.  Two new types of disability discrimination are recognised as unlawful by the Act:

• Indirect discrimination - under Section 19 of the Act, a person will be indirectly discriminated against if the employer applies a "provision, criterion or practice" that puts people sharing that person's specific disability, at a particular disadvantage. This means, for example, that a job applicant or an employee with dyslexia could claim that a rule that employees must be able to type at a certain speed disadvantages people with dyslexia. Unless the employer can justify this, it would be unlawful.
• Discrimination arising from disability - under Section 15 of the Act, an employer discriminates against a person when it treats that person less favourably, not because of the disability itself, but because of something arising "in consequence of that person's disability," such as the need to take a period of disability-related absence. For this type of discrimination to occur, the employer must know, or reasonably be expected to know, that the disabled person has a disability. This type of discrimination will be easier for an employee to show since there will be no need to make a comparison with a person who does not have a disability (as is currently the position). It will, however, be possible for an employer to defend a claim by showing that the treatment is justified as being a proportionate means of achieving a legitimate aim.

Some aspects of disability discrimination law are not changed by the Act. For example, the Act still requires employers to make reasonable adjustments for disabled employees and does not change the extent to which these are required. However, it may be necessary to review your organisation's policies to ensure that they are up to date and compliant with the current interpretation of "reasonable adjustments."  It will also be advisable to review your policies and practices to ensure that they cover the new definitions of disability discrimination referred to above.

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The European Court of Justice (ECJ) has ruled that the protection of patients from declining performance of dentists due to their age may be a legitimate aim justifying difference in treatment on the grounds of age. However, whilst setting a maximum practising age of 68 for German national health service dentists is potentially lawful under the EC Equal Treatment Directive, it was not justifiable because German law permitted private dentists to practice beyond 68. The age limit was justifiable, however, on a different basis, namely because it gave opportunities to younger workers to join the health service(see Petersen v Berufungsausschuss für Zähn für den Bezirk Westfalen-Lippe). In another decision, the ECJ held that a German law which restricted applications to join the fire service to those under the age of 30 could be defended as a genuine occupational requirement. (see Wolf v Stadt Frankfurt am Main)

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In Ladele v The London Borough of Islington and Liberty, the Court of Appeal has confirmed the decision of the Employment Appeal Tribunal (EAT) that Ms Ladele, a Registrar of Births, Marriages and Deaths at Islington Council who held strong Christian beliefs, had not suffered discrimination on the grounds of her religion or belief when she was required by the Council to perform same sex civil partnership ceremonies. The Court made it clear that the Council had a legitimate aim to provide the full range of civil partnership services without discrimination and so was entitled to require Ms Ladele to perform the ceremonies despite her objections to doing so based on her Christian belief. Moreover, having been designated a Registrar, it was unlawful under the Equality Act (Sexual Orientation) Regulations 2007 for the Ms Ladele to refuse to perform such ceremonies.

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In Grainger plc and others v Nicholson the EAT has given guidance on what might qualify as a ‘philosophical belief’ for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (the “Regulations”). In the case, the Employment Appeal Tribunal (“EAT”) held that a belief in the existence of man-made climate change and the need to cut carbon emissions was capable of amounting to a philosophical belief which would qualify an employee holding that belief for protection from discrimination under the Regulations. However, importantly, the EAT made clear that it would be necessary for any claimant to establish that their adherence to the philosophical belief in question is genuine.

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In Rolls Royce Plc v Unite the Union, the Court of Appeal has ruled that using length of service as a criterion in a redundancy selection policy can be lawful in some circumstances. Although the use of length of service amounts to indirect age discrimination, it can be objectively justified where it pursues the legitimate aim of maintaining a stable workforce during a redundancy exercise and rewarding loyalty, and is a proportionate means of achieving that aim. In this case, the means of achieving that legitimate aim were proportionate because the criterion was one of many criteria used in the selection process and the means used were consistent with principles of fairness.

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The UK Government has published the long awaited Equality Bill, the aim of which is to harmonise and consolidate discrimination legislation and also tackle inequality and discrimination which continues to persist in employment and in the provision of services. Aspects of the Bill which have attracted media attention include the new public sector duty to consider reducing socio-economic inequalities and the banning of “gagging clauses” in employment contracts so that employees can be free to talk about their pay packages. The Bill also extends the concept of positive action to enable employers to recruit or promote people who are from groups which are under-represented in their workforce. Despite concerns of commentators and employers about the difficulties employers may face, the real practical impact of some of these provisions might be low. Other proposals may however have a greater impact. Large employers should note the proposed requirement to report on their gender pay gap, and the recasting of the definition of disability related discrimination should help to redress the balance between the protection of disabled persons and providing employers with the opportunity to defend the treatment that they have given. Many aspects of the Bill fall outside the employment law field but the main issues which will affect employment law are as set out below.

http://services.parliament.uk/bills/2008-09/equality.html

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The European Court of Justice has decided that the UK's retirement age of 65 is not necessarily in breach of EU law. However, that is not the end of the matter because the case must now return to the UK Court to decide if the UK's compulsory retirement age of 65 can be justified. This will require the High Court to assess if the retirement age pursues a legitimate aim (such as social policy objectives), and whether the means to achieve such an aim, i.e. a blanket mandatory retirement age of 65, is proportionate in achieving that aim.

Click here to view the Judgement of the European Court:

curia.europa.eu/jurisp/cgi-bin/form.pl

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The Advocate General of the European Court of Justice has rejected the claim by Heyday (an offshoot of Age Concern) that UK law, which entitles employers to retire employees compulsorily at or after reaching 65, is contrary to EU law.  In 2007, Heyday brought a claim in the High Court against the UK Government that the national default retirement age of 65 under the Employment and Equality (Age) Regulations 2006 was incompatible with the EU Law. The High Court referred certain questions regarding the lawfulness or otherwise of the Age Regulations to the European Court of Justice (ECJ). Before the ECJ can give its judgement, the Advocate General must give a preliminary legal opinion which is usually (but not invariably) followed by the ECJ. The AG’s opinion is therefore significant because it is more than likely to be followed.  Click here for a link to the opinion:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007C0388:EN:HTML

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In the case of Tradition Securities & Futures SA v X & Y, the Employment Appeal Tribunal clarified the Employment Tribunals’ jurisdiction in sex discrimination cases.

Whilst this case relates to sex discrimination, its implications are relevant to other types of discrimination as well and will be of interest to large multi-national organisations whose employees work in various jurisdictions throughout their employment.

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In the eagerly awaited case of Coleman v Attridge Law & Steve Law, the European Court of Justice (ECJ) has ruled that the EC Equal Treatment Directive (‘the Directive’) prohibits direct discrimination and harassment by association. This ruling will have wide-reaching consequences for employers.

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The Government has published its White Paper, Framework for a Fairer Future – The Equality Bill, setting out its proposals for a Bill to be published in the next Parliamentary session.

Many of the White Paper’s proposals fall outside the employment law field. The main issues which will affect employment law are set out below.

Click to view the White Paper

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In the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm, the House of Lords has made potentially major changes to the law on disability-related discrimination. Although the case concerns issues to do with housing, the Lords’ decision will make it more difficult for employees to bring certain DDA claims. Particularly noteworthy is that the House of Lords concluded that the well-established ‘comparator’ test for DDA purposes, laid down by the Court of Appeal in the 1999 Clark v Novacold case, is incorrect.

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