On 5 April 2011 the public sector equality duty (psed) came into force in England, Scotland and Wales. This duty replaces the existing race, disability and gender equality duties.
In the UK we have a ‘common law’ legal system. In a common law legal system statute law (rules enacted by a legislative body such as parliament) is interpreted and clarified by the judgements of the higher courts, which then set a precedent to be followed by all courts in deciding subsequent cases with similar issues or facts. These judgements are known as case law.
Below is a selection of updates on key case law interpreting the Equality Act. Click the links below to view case law relating to each protected characteristic. We will be updating this section regularly, so please come back to view recent case law.
Race discrimination – harassment
Religion or belief discrimination – harassment
The Claimant, of Algerian-Arab racial origin and a practising Muslim, worked for the Respondent in the supply of Halal meat. The Claimant resigned on the basis of religious and racial harassment caused by a number of text messages received from the general manager containing racist jokes and including references to “Pakis” and describing inspectors visiting the premises as “wogs”. The Employment Tribunal held that the texts were “highly likely to be offensive to racial and national minorities including Pakistanis and Arabs and/or Muslims generally” In deciding the level of award, the Employment Tribunal took into account the fact the offensive texts had been sent by the general manager and that the power imbalance meant the comments were even more offensive.
Derradji v Peter Howarth Ltd , North Shields Employment Tribunal, Equality Law Reports, Michael Rubenstein Publishing Ltd, December 2013, EQLR 1201 – 1203.
3 September 2013
Race - victimisation
Mr. McCammon, the Claimant was a professional footballer employed by Gillingham Football Club (GFC), the Respondent. Following an incident where there was a difference in treatment between himself and two other players who were black or of mixed origin, and a white player, the Claimant went in to the manager’s office and made a complaint in general terms to the manager and assistant manager that they were racist.
The Claimant was dismissed for acting in a violent, aggressive and threatening manner towards the team manager and because, in the terms set out in the dismissal letter, “you made very serious accusations of racism against both the team manager and the assistant manager”. The Claimant brought proceedings before the Employment Tribunal alleging victimisation under s.27 of the Equality Act 2010. This is because the Claimant complained about unfavourable treatment on the grounds of race and as a result faced a detriment. The Respondent defended the victimisation claim on the basis that the reason for dismissal was not because the Claimant had complained of racism but due to the aggressive and abusive words and conduct that accompanied the complaint.
The Tribunal concluded that because the Respondent stated in the dismissal letter that a principal reason for the dismissal was that he had made the allegation, and the dismissal letter had not qualified in any way that the Claimant had made the accusation in bad faith, the dismissal was an act of victimisation. The Respondent appealed to the Employment Appeal Tribunal (EAT). The EAT upheld the decision of the Employment Tribunal and dismissed the appeal.
Gillingham Football Club Ltd v McCammon  UKEAT/0559/12, Equality Law Reports, Michael Rubenstein Publishing Ltd,  EqLR 4-12.
07 February 2014
Public Sector Equality Duty
UNISON – supported by the EHRC as the intervener – challenged the lawfulness of the Employment Tribunals and Employment Appeal Tribunal Fees Order on four grounds.
- The first was that the requirement violated the EU principle of effectiveness. This is the principle whereby member states must not make it virtually impossible or excessively difficult to exercise rights conferred by EU law, e.g. discrimination law.
The High Court ruled that it was not enough that the fees made lodging a complaint 'daunting'. It had to be shown that people were unable to pay. The Court felt it too soon to assess the impact. Evidence as to how the system works in practice, such as a dramatic fall in claims, may show that the principle of effectiveness is being breached.
- The second ground on which the claim was brought was that the fee regime breached the EU principle of equivalence. This principle places an obligation on member states to not make the process of bringing claims based on rights derived from EU law harder than the process governing similar domestic claims. The comparison used was a claim in contract brought in the County Court.
The High Court rejected this argument, as in the County Court the unsuccessful party is ordered to pay the legal costs of the successful party, whereas in the Employment Tribunal parties bear their own costs. This was said to be a disincentive to Claimants of limited means bringing a case in the County Court, compared to the Employment Tribunal.
- The Third ground was that the Lord Chancellor was in breach of the Public Sector Equality Duty. The High Court rejected this argument. It held that the duty only required that the public authority collect, collate, and consider all relevant information as to the likely impact of the proposals. The weight given to the relevant information and the conclusions reached is a matter for the public authority to decide on and not for the Court, unless it can be challenged on public law grounds of being outside the range of reasonable conclusions. However, the Court held that the public sector equality duty is a continuing one and the Defendant is under an obligation to assess the impact of the fee regime on the basis of evidence revealed in practice. This leads to the Claimant’s fourth ground.
- The Claimant’s fourth ground is that the fee regime amounted to indirect discrimination against women, ethnic minorities and the disabled. The Court strongly suspected that the requirement to pay a higher fee for discrimination, harassment, and victimisation cases under the Equality Act would have an adverse impact on women and workers with other protected characteristics as they were more likely to bring discrimination cases.
However, the Court held that once remissions for the lowest income claimants were taken into account, it was not possible to say what the impact would be and to reach a conclusion on whether the fee regime can be objectively justified. If in the coming months there is evidence of the fee regime having an adverse impact on those within a protected class, the Defendant would be under a duty to take remedial measures to remove that adverse impact.
R (on the application of Unison) v The Lord Chancellor  EWHC 218 (Admin), Equality Law Reports, Michael Rubenstein Publishing Ltd,  EqLR 215 - 229.
11 February 2014
Race Discrimination - harassment
Mr. Brown who is black was employed as a supervisor in a pub managed by Mr. Gavriloae. On St. Patrick’s Day 2013 the staff were trying on some promotional hats. Comments such as “you look sexy” and “you look like Robin Hood” were being made. When Mr. Brown tried on one of the hats, Mr. Gavriloae said “you look like a pimp”.
Mr. Brown was hurt and offended by this remark but did not complain immediately. Three weeks later he was informed that a disciplinary investigation had begun against him in relation to allegations of theft. He raised a formal grievance with the Respondent’s operations manager, which was rejected. He then brought a Tribunal claim alleging race discrimination and racial harassment.
Mr. Brown argued that the word “pimp” had racial connotations, which was denied by Mr. Gavriloae who claimed that he used the word because of the style of the hat and the way Mr. Brown tipped it down when wearing it. The Respondent referred to the Oxford English Dictionary, which identified a pimp as “a man who controls prostitutes and arranges clients for them taking a percentage of their earnings in return”. The Employment Tribunal referred to the Wikepedia entry that included the etymology for the word “pimping” that said the definition paid homage to hip-hop and its connection to street culture, although it has now entered common mainstream commercial use. Furthermore, the Tribunal noted that more than 50% of the men that showed from a Google search of the word were black.
The Tribunal held that the word “pimp” was a racially stereotyping word and accepting that the use of the word was unwanted by the Claimant, whose perception was that his dignity had been violated, upheld the complaint of harassment. The Tribunal also concluded that they would have found the incident to have amounted to one of direct discrimination.
Brown v Young & Co’s Brewery plc, East London Employment Tribunal, Equality Law Reports, Michael Rubenstein Publishing Ltd, May / June 2014, EqLR 349.
Disability discrimination – Failure to make reasonable adjustments
Police officers searched Bryan Finnigan, the Appellant’s home on three occasions, once in 2010 and twice in 2011. The Appellant is profoundly deaf and therefore disabled and the police officers were not accompanied by BSL interpreters. This led to him bringing a claim of disability discrimination and a failure to make reasonable adjustments. The provisions of the Disability Discrimination Act 1995 (DDA) s.21 applied to the first search and the Equality Act 2010 s.20 applied to the second two.
Where a practice, policy or a procedure of a public authority makes it
- impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred; or
- unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected,
the DDA imposed a duty on public authorities to take reasonable steps in order to change that practice, policy or procedure so that it no longer has that effect.
Similar provisions are set out in the Equality Act 2010.
The County Court judge held that the relevant policy, practice or procedure (PPP) is the requirement that police executing search warrants on suspected offenders ‘attempt to establish effective communication with those persons’. He concluded that at every stage of the three searches the police officers had achieved effective communication with the Appellant, and therefore did not trigger the duty to make reasonable adjustments.
The Court of Appeal held that the county court judge incorrectly assessed whether theduty to make adjustments had been complied with. The County Court Judge made two errors:
- He incorrectly identified the relevant policy, practice, or procedure (PPP). He conflated the Respondent’s aim – namely, the policy of achieving effective communication – with the means of achieving it. The policy of attempting to achieve effective communication cannot have an adverse effect on deaf persons, but the means to achieve effective communication may be discriminatory. In this case the relevant PPP was conducting searches in spoken English.
- He incorrectly assessed whether the need to make reasonable adjustments was complied with by making reference to the Applellant’s needs alone, not by reference to the needs of deaf people as a class as he should have done. The judge failed to consider the anticipatory nature of the duty to make reasonable adjustments, which cannot be discharged simply by treating everyone as individuals and adapting communication styles on an ad hoc basis. The police had a duty to take reasonable steps to adapt the PPP to eliminate or reduce the detrimental effect on deaf persons.
However, the Court of Appeal held that this did not mean that the police must always use a BSL interpreter when conducting a search where a person is known or believed to be deaf. There may be other reasonable steps that can be taken to achieve the same result and provided the example of officers trained in lip-reading and sign language.
In the present case the Court of Appeal found that Appellant did not, in fact, suffer a detriment by the absence of a BSL interpreter during the searches as they could communicate effectively when not behaving obstructively.
Finnigan v Chief Constable of Northumbria Police  EWCA Civ 1191, Equality Law Reports, Michael Rubenstein Publishing Ltd, December 2013, EQLR 1201 – 1203.
22nd October 2013
Sex - Equal pay
Elizabeth Wallace and Susan McKillop, the Claimants, are employed as port assistants by Calmac Ferries Ltd, the Respondent. The Claimants brought claims for equal pay under the equal terms provisions of the Equality Act 2010 (EqA) and identified a male outport clerk as their comparator. The Claimants alleged that they were paid less than their male comparator who carried out like work to them.
The claimants stated that they did not allege that the pay arrangements are directly discriminatory but indirectly discriminatory. The Claimants had not identified a practice provision or criterion on which they intended to rely. The Respondents asserted that in order to succeed the Claimants had to establish a prima facie case of discrimination. As such the Respondent applied to strike out the Claimants’ claims or alternatively for an Order for an order that the Claimants should pay a deposit.
It was held by the Employment Appeal Tribunal (EAT) that where a pay disparity arises for examination in a claim of equal pay, the statute requires an explanation for the difference which is for the Respondent to prove. This involves considering why the Claimants are paid as they are and the comparator (the male outport clerk) is paid as he is. It is for the Respondent to prove that there is a genuine material factor, which is the cause of the disparity, and the less favourable treatment is not because of her sex. It is then for the Claimant to show that the factor identified by the Respondent results in disadvantaging women as a group doing equal work equal to hers, compared to men doing equal work. The EAT also held that it is not helpful when considering the equality of terms provision of the EqA to talk in terms of direct and indirect discrimination.
Calmac Ferries Ltd v Wallace  UKEATS/0014/13, Equality Law Reports, Michael Rubenstein Publishing Ltd,  EqLR 115-121