The Problem with Positive Action

Published by DarrenN on June 1, 2010 in Employment Law. 0 Comments

I think that there is a serious problem with the positive action provisions in the Equality Act.

The problem lies not in the principle of positive action (or positive discrimination if you prefer, I don’t care what you call it) but in how the provisions are drafted and what the coalition government is going to do about implementing them. Remember, the Equality Act does not come into force automatically, each provision needs to be brought in to force by Ministerial order. The Ministers responsible for this are the dream team of Theresa May of the Conservatives and Lynne Featherstone of the Liberal Democrats. In Parliament the Conservatives strongly opposed the positive action measures while the Liberal Democrats supported them – but that’s not the problem.

Positive Action is dealt with in two sections. Section 158 allows the employer to take any action ‘which is a proportionate means of achieving the aim of’ overcoming the disadvantage faced by people with a protected characteristic, meeting a specific need of such people or encouraging underrepresented groups to participate in the activity. That is potentially very wide but there is a key limitation -  and the particular way in which this has been drafted is crucial. S.158(4) says that S.158 does not apply to ‘action within section 159(3)’ (not a helpful way of putting it you may think, but what can you do?). Turning to S.159(3) it defines the action as ‘treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not’.

Passing over the algebra, what we can see is that this is referring to direct discrimination to do with recruitment or promotion. Indirect discrimination (advertising vacancies in the ethnic minority press, for example) will be covered by S.158 and be lawful if the action is proportionate, but direct discrimination in connection with recruitment or promotion can only be lawful under S.159.

S.159 is not drafted as well as we might have hoped. Apart from the motive of the employer there are two key requirements for positive action to be lawful. The first is that ‘A is as qualified as B to be recruited or promoted’ (s.159(4)(a)). But there is no definition of what ‘as qualified as’ means! I’m sure you can imagine how much legal hay can be made seeking a judicial interpretation of that phrase. Consider a job for which the employer specifies that candidates must have 5 GCSEs. Is a person with 5 GCSEs as qualified or less qualified than a person with 10 GCSEs? If you exceed the minimum level of qualification are you automatically better qualified than someone who just meets it? The employee with 10 GCSEs would certainly say so, but the employer might take the view that 5 GCSEs is enough and any more is not necessarily helpful. No doubt the case law will, after a couple of years, settle on the right approach, but its maddening that such an important requirement is  left so vague in the legislation.

The next requirement is that the employer ‘does not have policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it’ (S.159(4)(b)). Feel free to read that a couple of times. If it still doesn’t make sense – don’t worry. It doesn’t make much sense to me either. What the Government was seeking to get at here was that fundamentally selection must be on merit and positive action should only be taken as a tie-breaker. However the drafting does not clearly convey that meaning. If an employer has a policy of taking positive action where candidates are equally qualified – isn’t that a policy of treating people with the protected characteristic more favourably? If that is so, then does that mean that positive action can only be something improvised by the employer to deal with a tie between candidates? Does the Government think that managers conducting recruitment exercises are allowed to make up selection criteria on the spot? Most employers will only use positive action if there is a clear policy to do so, and this provision suggests that if there is a clear policy then you can’t do it.

So frankly, S.159 is a bit of a disaster area. It is simply too vague for any employer to use with confidence and since, without S.159, positive action is unlawful discrimination I can’t imagine any employers will want to dive in until the case law has teased out just what the whole thing actually means.

But, do you know what? That’s not even the worst problem.

This is. Under current discrimination law, employers can take positive action by offering training on a discriminatory basis to fit individuals for work where members of their group are underrepresented (See S.47 of the Sex Discrimination Act, S.37 Race Relation Act, Reg 26 of the Sexual Orientation Regulations 2003, and so on). This means that an employer, seeing that women were underrepresented in senior management, could offer a ‘key skills for senior managers’ course exclusively to female employees. This has always been permissible since discrimination legislation was first introduced, and is a common feature of many positive action programs.  So it is a bit infuriating that this well established form of positive action will be made unlawful by the Equality Act.

But it will be. This is because such a training course is clearly being arranged in connection with recruitment or promotion and that means that S.158 does not apply and we must turn to S.159. But allowing Julie to go on a course connected with promotion, but not Frank, will only be allowed under S.159 if Julie is ‘as qualified as’ Frank to be recruited or promoted and if the employer ‘does not have a policy of treating persons who do not share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it’. If the course is being run for women only, then even if Julie is as qualified as Frank (and she might well not be), the employer surely has a policy of treating women more favourably in connection with recruitment or promotion than men because they are being offered a training course and men are not. The training course will amount to unlawful discrimination.

This last problem is the worst because it can’t be solved. We could take the view that S.159 is badly worded (I certainly think so) and that it therefore should not be brought into force. Perhaps we might prefer the broader, but less problematic positive action allowed for in S.158. But that isn’t straightforward. We saw above that S.158 specifically refers to S.159, so it is in a sense dependent upon it, it can’t just stand on its own. Even if it could we would still have the problem that S.158(4)(a) excludes direct discrimination in connection with recruitment or training.

So perhaps we could just avoid bringing both S.158 and S.159 into force altogether? That was certainly Conservative party policy prior to the election, although we have yet to see any word from the coalition on what their plans are.

But if we don’t bring in S.158/159 there is still no way of keeping the positive action that we currently have. The Equality Act repeals the current legislation (Schedule 27) as a whole. You can’t repeal most of the Sex Discrimination Act but keep the bit on positive action in training. If the operative parts of the Equality Act come into force than all the current legislation, including the bits about positive action, get repealed. If Ss 158-159 are left out then we will simply have abolished all current forms of lawful positive action.

If I were the Minister of Equalities, I would find all of this a bit of a quandary. Should I:

  • bring in the Equality Act including S.158/159 with all of their problems – including the fact that much current practice around positive action will be made unlawful.
  • bring in the Equality Act without S.158/159 which definitely outlaws all current practice around positive action or
  • delay implementation until the positive action measures can be amended ?

The last option might appeal to some, but politically I don’t see how a Lib Dem minister can be responsible for delaying what she herself has described as a ‘big step in the right direction’.

It’s a tricky one, don’t you think?

 

Why BA got that injunction

Published by DarrenN on May 18, 2010 in Employment Law. 1 Comment


You can see why Unite the Union would be cross. To have had the long and winding process of organizing large scale industrial action end in an injunction granted over 11 spoilt ballot papers out of the thousands returned seems downright bizarre. Welcome to the world of industrial action law.

The starting point for understanding what went on in the High Court yesterday is to understand that in the eyes of the law industrial action starts out as an illegal activity. Individual employees are breaching their contracts of employment in taking part in a strike (whether or not there is a ballot) but suing each individual for that is not practicable because of the difficulty in showing that one individual has caused the employer any loss. After all, if that individual had turned up for work instead, there would still have been a strike.

The union, on the other hand, is the one who has induced all of these individuals to break their contracts and that is an illegal act in itself. If statute law did not intervene, therefore, strike action would always involve the union committing the tort of inducing a breach of contract (plus a few others we needn’t go into) and the employer could prevent it by getting an injunction against the union preventing it from calling the strike.

In the 19th Century however it was acknowledged that the right to take strike action was an essential – or at least unavoidable – aspect of a free society and so unions were granted immunity from actions in tort that were committed in contemplation or furtherance of a trade dispute.

Fast forward to 1979 and the incoming Conservative Government was of the widely shared view that the untrammeled power of trade unions to take industrial action was being abused and was harming the national interest. Over the next 18 years the Government whittled away at that immunity, providing that it would be lost if the union failed to comply with a number of procedural requirements, chief of which was the holding of a ballot subject to independent scrutiny.

And here is the point. Those provisions – which are now to be found in the Trade Union and Labour Relations (Consolidation) Act 1992 – are incredibly detailed and onerous. They dictate precisely how the ballot is to be conducted, who should be entitled to vote, what the ballot paper should say, what notices must be given to the employer and how the results of the ballot should be communicated. These are, by and large, all or nothing provisions. If they are breached then the Act expressly provides that immunity is lost. One low key, but important, change introduced by the last Government provided that in the conduct of the ballot, small accidental failures that would not affect the result should be disregarded.

That small exception does not apply, however, to S.231 of the Act which requires the union to take all reasonable steps to inform employees who were entitled to vote in the ballot of its outcome. That section says explicitly that informing employees of the result means telling them the number of votes cast infavour, the number cast against and the number of spoilt ballot papers. It seems that the information given by Unite to its members did not include the number of spoilt ballot papers and was therefore in breach of the clear requirements of S.231. Accordingly, immunity is lost, the strike is an unlawful inducement to breach contracts of employment and BA are entitled to prevent the union from taking the action.

It is of course a technicality – but the law is full of technicalities. The last Conservative Government thought up as many technicalities as they could and made them a legal requirement in order to reduce a union’s ability to take industrial action.  The breach does not affect the overall fairness of the balloting process – but overall fairness is not a requirement of the Act, slavish compliance is. In considering whether to grant an injunction I don’t see how the court can take into account the minor nature of the breach when the Act is so clear that if the information is given then immunity is lost. Without that immunity it is unarguable clear that the union is unlawfully inducing a major breach of contract and BA is entitled to be protected from that.

Now if, I were writing industrial action law, I wouldn’t write it this way - and there are arguments that our law breaches ILO Conventions and possibly the European Human Rights Convention . But Unite has to deal with the law as it is, rather than as they would like it to be. With the stakes so high, and with one injunction against them already in this dispute, I would have thought that extra care would be taken to get it right. Who signed off the email to the members giving the ballot result? Which lawyers were involved and why didn’t they have S.231 open in front of them when they signed off that communication?

Yes I can see why Unite are cross – but they should also be asking some serious questions about their internal processes. It’s starting to look like they can’t organize a lawful strike and that sort of reputation can be fatal for a union.    

The Equality Act 2010 – when will it come into force?

Published by DarrenN on April 7, 2010 in Employment Law. 0 Comments


The Equality Act 2010 received Royal Assent at about 5.30 on Thursday 8th April in a rather archaic ceremony in the House of Lords.

However the substantive provisions of the Act will not come into force automatically. They have to be brought into force by a Ministerial Order and that can now only happen after Parliament returns on 18th May. If a Labour Government is returned then everything will be quite straightforward and the bulk of the Act is likely to come into force this October.

However, it is just possible that we will have a Conservative Government – so it’s worth considering what will happen to that Act if David Cameron becomes PM  (just a bit of fun – not saying he will).

While Labour and the Lib Dems are perhaps more enthusiastic about the whole equality agenda (we’re talking about you Chris Grayling) in all fairness the Conservatives – despite an attempt to deny it a Second Reading in the Commons - have welcomed rather than opposed the Act. Indeed, most of the Act is uncontroversial and is widely welcomed as a tidying up measure. Nevertheless the Conservative front bencher Mark Harper, speaking in the Commons on Tuesday, pointed out that there are three aspects of the Act that the Conservatives are against and will not bring into force. These are:

·         the socio-economic duty

·         the provisions on positive action and

·         ‘the mistaken way in which the Government are tackling equal pay’

Let’s look at each in turn

The socio-economic duty is the most political part of the Act – as shown by the fact that it is set out in the first three sections. All it requires is that public bodies should, in carrying out their functions have due regard to the ‘in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage’

 

On close examination this creates no meaningful obligation whatsoever. The fact that a Conservati ve Government would not implement it is unsurprising – but no big deal.

 

Next we have positive action. The Act’s provisions on this are problematic in many ways and I would advise any employer to steer well clear of them – at least in relation to recruitment where the phrase ‘as qualified as’ is ambiguous at best. It is not surprising that the Conservatives are unwilling to bring these provisions into force.

 

However it is worth bearing in mind that the Equality Act repeals (and replaces) the whole of the current scheme of equality – including the current provisions allowing limited positive action in relation to training and targeted recruitment campaigns. There is no way of bringing the Equality Act into force but keeping the old positive action provisions – it is the new provisions or nothing. Whether the Conservatives would regard this as a big enough reason to delay the overall implementation of the Act may be doubtful. Maybe the Act could be brought in and then amended with new positive action measures later – or maybe the whole concept of positive action – which has always been part of the law albeit rarely used – will just be dropped.

 

On the equal pay point – he can’t (can he?) mean that the Conservatives will leave out the whole of equal pay law as that would be crazy and a breach of EU law. I think what he means is that the Conservatives will not bring into force the regulation-making powers relating to gender pay gap information. Even the current Government intends to do nothing about that until 2013 so that whole issue is safely over my ‘I might have won the lottery by then’ horizon.

 

So subject to these three pretty minor points, it seems as though the Conservatives (if the get in) are committed to bringing the Equality Act into force. The next question is when? Will the same timetable be followed as Labour proposes or will a new Government want to undertake a fresh round of consultation before bringing the changes in? Don’t expect any quick answers to that one.

 

In any event we can at least now start looking closely at exactly what the Equality Act does – but that’s for another post (or two). Let’s just say that the most important changes may surprise you and do not feature in many of the ’10 things employers need to know about the Equality Bill’ articles currently appearing in the HR press.

 

 

Update on an Employment Law Update

Published by DarrenN on March 24, 2010 in Employment Law. 0 Comments


Employment law moves more quickly than any other legal area I know. Last week I presented three separate employment law updates and by the end of the week one of the cases I mentioned had been overturned by the Court of Appeal.

The case is Sarkar v West London Mental Health NHS Trust  and if you were on one of the courses you may remember that that was the case where the employer originally dealt with bullying allegations by invoking their informal ‘fair blame procedure’ but then decided that following further allegations and the employee refusing to accept the outcome of the  procedure they moved to the formal procedure and dismissed him. The EAT reversed the tribunal’s finding of unfair dismissal and held that the employer was entitled to act in the way that it did.

To be honest I didn’t think of it as a particularly important or controversial case – I mainly included it to take the mickey out of the employer for calling their informal procedure the ‘fair blame procedure’ which is, lets face it, a rubbish name. However, I also saw the case as a useful pointer that the employer can explore the informal resolution of disciplinary issues without forfeiting the ability to pursue a formal procedure if the informal one does not work out.

However the Court of Appeal ruling has cast doubt on that. The Court held that the tribunal were entitled to take the view that by starting out with the fair blame procedure the employer had demonstrated that they regarded the conduct as rather minor, justifying no more than a written warning. Contrary to the EAT’s view that the new allegations were important, the Court of Appeal held that actually they were merely further incidents of a similarly minor nature (one of them involved the claimant in bullying someone else by deliberately parking in the wrong place!). The tribunal was also entitled to find that the reason the fair blame procedure failed was that the employer threw in a requirement at the last minute that the employee’s conduct should be referred to the General Medical Council. 

On that basis the Court of Appeal held that the tribunal was entitled to find that the dismissal was outside the band of reasonable responses. So despite the fact that the formal disciplinary procedure was followed in a fair way, dismissal was simply too harsh a penalty.

It’s quite rare to get a finding of this sort. Usually unfair dismissal claims turn on the fairness of the procedure followed rather than whether dismissal was an appropriate penalty. However the tribunal in this case do seem to have directed themselves very carefully.

If I were to draw an overall lesson from the case, I would say that if an employer starts to use an informal procedure following allegations of bullying or other misconduct then that would suggest that dismissal is not an appropriate response to that behaviour. However if in the course of the informal procedure the employer genuinely discovers new facts which cast a significantly different light on the misconduct alleged then it is still open to the employer to end the informal procedure and begin formal action. Whether it would be fair to dismiss in those circumstances depends on whether the seriousness of the new facts discovered moves the conduct from being minor to something that puts dismissal within the band of reasonable responses.

As far as I’m aware, everything else I said last week is still right!

Trade unions funding the labour party

Published by DarrenN on March 16, 2010 in Employment Law. 0 Comments


The trade union Unite has been in the news over the last few days in the context of the forthcoming strike at British Airways which has in turn led to a lot of noise being made about the way in which the union funds the Labour party.  While slightly off my usual beaten track of employment law, the rules governing union funds were something I wrote about quite a lot when I was a writer on IDS Brief and so I thought it might be worth summarizing the rules on political donations from trade unions. It turns out that union funding is about the most well regulated and democratic kind of political donation you could wish for.  

The first point to make is that a union is not permitted to spend any money out of its general funds for ‘political objects’ which include, among other things, any donations to a political party or funding of a holder of political office.  Any such expenditure must be made from a specially set up political fund (to avoid getting bogged down I don’t intend to refer to individual statutory provisions after each point, but those keen enough can turn to Sections 71-96 of the Trade Union and Labour Relations (Consolidation) Act 1992).

To set up a political fund, the union must pass a ‘political resolution’ which must be passed through a fully postal ballot of the entire membership of the union. That ballot must be conducted by post and is subject to independent scrutiny. Once the political resolution is passed the union can then set up the political fund which must be kept separate from the general fund. Money paid in to the fund must represent contributions by individual members or outside organisations and cannot include payments made from other sources of union income.   

The union must inform all of its members that they have the right to be exempt from contributing to the political fund and any member that chooses to be so has the right not to be victimized as a result. To ensure that exempt members do not pay into the fund the union must either operate a separate political fund levy from which members can be exempt or give exempt members a discount on their union membership subscription. If the latter, the union must make it clear what proportion of the membership subscription represents a payment to the political fund.

Under changes introduced by the Trade Union Act 1984 a political fund will lapse automatically after 10 years if it is not renewed in a fresh ballot of all union members. Again the rules of the ballot are strict requiring a fully postal balloting process and being subject to independent scrutiny. All members are entitled to a vote in the ballot – including those who are exempt from contributing to the fund in the first place

To summarise, a union can only donate to a political party if the majority of its members have voted to allow a political fund to be set up within the previous ten years. Even if the ballot approves the political fund, individual union members have an absolute right to opt out of it. If the rules are breached, the Certification Officer has the power to intervene and require the union to remedy the situation.

Whatever your view of the Labour movement, it is difficult to see how anyone could regard payments made under this system as being at all problematic, much less ‘dodgy’. What influence a union then has over the Labour Party is of course a separate matter but – bit of politics here – at least that influence is open. The Labour party and the unions are, after all, part of the same movement (the clue is in the name) though that has never seemed to stop them coming to blows when Labour is in power.

As for the British Airways strike, I shall remain aloof – unless the dispute drags on until June when I’m due to fly to Seattle.

The thing about workplace bullying

Published by DarrenN on February 22, 2010 in Employment Law. 0 Comments


Workplace bullying seems to be in the news this week – can’t think why.

As an employment lawyer I have a problem with bullying. Let me rephrase that. I find it difficult to talk about bullying because there is no legal concept of bullying as such.  An employee can’t put ‘workplace bullying’ on an employment tribunal claim form and expect to get anywhere.  Proving that you have been bullied at work – whatever that means – does not in itself mean that you have any legal claims at all.

Harassment

Bullying should not be confused with harassment. There are two types of harassment. In employment law we are most used to the harassment that consists of unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment. However this sort of harassment is a form of discrimination and is only unlawful if the treatment is linked to either sex, race, religion or belief, disability, sexual orientation or age. If I subject you to intimidating treatment (by grabbing you by the lapels for example) that is not harassment if my reason for doing that is nothing to do with one of those protected characteristics.

Then there is harassment under the Protection from Harassment Act 1997. Harassment in this context is nothing to do with discrimination. The Act makes it a criminal offence to subject an individual to a ‘course of harassment’ and also creates a civil right to sue for damages. Although the Act was aimed at stalkers and oppressive neighbours it has been held to apply in the context of employment as well. The case law discourages, however, relying on this act for relatively minor issues. To amount to harassment behavior must be sufficiently serious to sustain criminal liability – although the recent case of  Veakins v Kier Islington Ltd shows the sort of situation where liability can arise. That was a case of sustained serious and deliberate humiliation of a subordinate which led to her suffering a serious bout of depression. The Court of Appeal held that the managers conduct had crossed the line from being merely unattractive or unreasonable treatment to being oppressive and unacceptable.

Personal Injury

That leads us to the next context in which bullying might be relevant – claims for personal injury. Ever since the High Court case of Walker v Northumberland County Council (transcript not available but there are lots of summaries of it online) employers have known that employees can sue for personal injury when their mental health is damaged at work. However it is only in very serious cases that ‘bullying’ can lead to this sort of claim. It is true that if a manager ‘bullies’ a subordinate that could amount to a breach of the duty of care. However for a claim to succeed the employee needs to show that the breach caused a reasonably foreseeable injury – and that is a high hurdle for the employee to jump.

Constructive dismissal

The final employment law arena for bullying is a claim for constructive dismissal. If the employee resigns as a result of a fundamental breach of contract by the employer then that can amount to a constructive dismissal which is usually held to be unfair. In this context the most common breach relied upon is a breach of the implied term of mutual trust and confidence. Bullying behavior can certainly amount to a breach of that term but usually only when the bully is the claimant’s manager rather than just a colleague. The majority of cases are actually about how the employer handled the employee’s complaint of bullying rather than being based on the bullying itself. In both types of case the test is not whether there is bullying but whether the employer’s behaviour is so serious that it fundamentally undermines the trust and confidence at the heart of the employment relationship. In any event, compensation is limited to loss of earnings and does not cover injury to feelings or emotional distress

Bullying is just a word

Note that in none of these legal arenas does the court or tribunal need to consider the definition of bullying. An employee who establishes that he or she is being bullied will not automatically succeed in any of these claims. Each has its own technical requirements and merely establishing that someone has been bullied does not of itself meet the requirements for any of these claims.

That’s why I have a problem with bullying. The plethora of bullying charities, helplines and consultancies out there can give the impression that bullying is a concrete term referring to a recognized legal phenomena. It isn’t. Bullying is just a word which can be used and abused to cover a very wide range of phenomena from the trivial to the extremely serious. In employment law situations we need to look beyond this label at the actual conduct complained about so that we can characterize it and fit it into the right legal category. This is not an attempt to minimise the seriousness of the things that can be done to employees by unpleasant or insecure colleagues, just a recognition that we need to focus on the detailed reality of what has happened and that the label of ‘bullying’ does not help us do that.

If anyone wants to set up a national breach of mutual trust and confidence helpline, I’d be happy to support it.

 

Political Correctness Gone Mad!

Published by DarrenN on February 21, 2010 in Employment Law. 0 Comments


I think I first remember hearing the phrase ‘its political correctness gone mad’ in a spitting image sketch in the 1980s. I can’t remember what the sketch was about – but the Daily Mail was mentioned.

As an employment lawyer who spends a lot of time training managers on discrimination issues, I know that ‘PCGM’ features strongly in many of their initial concerns about getting to grips with discrimination law and I hope that the training I give helps to dispel some of the myths that have grown up around what, I insist, is a very common sense area of the law.

Sometimes, however, the equality industry (and there is one) is its own worst enemy.  An article in the Sunday Times today reports that the Equality and Human Rights Commission is warning schools that a uniform policy that requires girls to wear skirts is potentially unlawful because it discriminates against transsexual pupils. The article goes on to bring in ‘Harriet Harman’s Equality Bill’ and rather gives the impression that one of its main provisions is to interfere in the right of schools to have a uniform policy.

This is not a made up story – well not exactly. The Equality Commission has indeed published guidance for local authorities that seems to make this claim and the guidance is being issued in anticipation of the Equality Bill which does change the law in relation to transsexuals. But a bit of context and perspective is needed.

First, the Equality Bill. The Bill widens slightly the definition of gender reassignment to remove the need for the process to be carried out under medical supervision. It also extends the public sector duty to promote equality (which currently covers only race, gender and disability) to cover gender reassignment (among other protected characteristics). Most importantly the concept of indirect discrimination is extended to cover people who have the protected characteristic of gender reassignment.

Indirect discrimination

This is relevant to the uniform issue because a school requiring girls to wear skirts is not directly discriminating against transsexual people – they are not being treated less favourably on the grounds of gender reassignment. Rather, the school has a rule which is applied to everyone – ‘wear gender specific clothes’ - which places transsexual people at a particular disadvantage (although the definition of transsexual may be a problem here - see below). This is potentially indirect discrimination and will be unlawful unless the school can show that it is a ‘proportionate means of achieving a legitimate aim’. This means that provided the school can explain the aims behind its uniform policy and show that the policy is a proportionate way of achieving that aim then the rule will be lawful even if it disadvantages transsexual people.

Equality Commission Guidance

The guidance that the Sunday Times focuses on comes in a 63 page document dealing with the provision of goods facilities and services to trans people and much of what it says is useful common sense stuff. Only six pages deal with schools.  Only 3 paragraphs and a good practice case study deal with the uniform issue. Congratulations are due to the Sunday Times for finding the ‘PCGM’ story tucked away in such a large document.

There is a problem with the guidance, however. It states ‘Requiring pupils to wear gender-specific clothes is potentially unlawful’ (page 43). Leaving aside the obvious qualification in ‘potentially’ the startling thing is that while the guidance seems to be saying that such a policy is unlawful because of its effect on transsexual people the reference it gives for that statement is a previous piece of guidance relating to sex discrimination not gender reassignment discrimination. Even that guidance is more than a little suspect as in a work context the courts have consistently upheld dress codes and rules of appearance that have different requirements for men and women. To suggest that they would take a different view in relation to school uniforms is entirely speculative.

 

Closely examined, then, the Equality Commission guidance does not in fact argue that a uniform requirement can amount to unlawful gender reassignment discrimination. And it is a good thing that it does not because there is a serious flaw in such an analysis. A transsexual person is defined in Clause 6 of the Equality Bill as a person who:

 

‘is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’.

 

It is not just someone with gender dysphoria – it is someone who has at least decided to undergo gender reassignment. The Sunday Times quotes the Equality Commission as saying that individuals are protected “regardless of whether or not they intend to undergo, are undergoing or have undergone gender reassignment”  however  that phrase does not refer to the Equality Bill but the protection given by the Human Rights Act – you can tell because the phrase comes seven lines below the title ‘Human Rights Act’.

 

Blurring Human Rights and Discrimination Law

 

The Human Rights Act certainly protects people with gender dysphoria – but only in so far as it protects everyone. There is no specific human right being quoted here and there is no reasoned argument given to the effect that a school uniform actually interferes with the human rights of transsexual pupils or students. There is certainly nothing in the case law of the European Court of Human Rights which suggests that they would take such an approach.

 

Those parts of the guidance that describe ways in which schools can be sensitive to the needs of young trans people are absolutely fine and most open minded people would have no problem with them. However it is wrong to suggest that there is a realistic legal basis for saying that school uniform policies are illegal and yet the news story is based entirely on that suggestion.

 

So the Sunday Times have got it wrong – but the Equality Commission have not made their advice as clear as they should. Unable to say that a requirement for girls to wear skirts was unlawful they have hinted that it might be and then fudged the legal issue.  By overegging the legal side of the argument they have allowed another ‘PCGM’ story to hit the press and have everyone rolling their eyes and laughing cynically at the antics of the PC brigade. When that happens the cause of true equality suffers another blow.

Equality Bill Bombing Through The Lords

Published by DarrenN on February 1, 2010 in Employment Law. 0 Comments

The Lords Committee Stage of the Equality Bill has been making rapid progress and barring something dramatic happening it is clear that the Bill does now have time to make it onto the statute books. A number of amendments have been made - perhaps most notably a measure making it unlawful for employers to ask employees about their health prior to offering them a job unless the employer can show that the question is necessary to ensure safety, make adjustments or ensure that the employee is capable of performing key tasks.

A breach of this rule is not an act of discrimination, however, and is enforced by the Equality Commission rather than the individual employee - much like the current rules on discriminatory advertisements.

There was some news coverage of the Government being defeated on the issue of religious discrimination - particularly the ability of religious bodies to specify requirements related to sexual orientation as genuine occupational requirements. The Government wanted to limit the scope of the exception and also require the application of the requirement to be ‘proportionate’. This was defeated but in practice tribunals will have to apply the proportionality test in applying the requirements of the directive so the argument is somewhat academic.

The Government have also so far refused to extend discrimination to cover caste. While something may yet be included in the Report stage, the Government’s response so far has been rather weak - arguing that there is insufficient evidence that such discrimination is widespread. IF the Bill does not eventually include provisions on caste we can expect attempts to be made in the Courts to have the concept of race given a wide enough interpretation to include ‘descent’ as required by the UN Convention on the Elimination of all Forms of Race Discrimination.

The final area of controversy - yet to be debated -is the provision on positive action (feel free to call it positive discrimination - it makes no difference). This may well be given a rough ride as it is probably the aspect of the Bill most vehemently opposed by the Conservatives.

Once the Bill is passed the next issue is when will it come into force? The Conservatives are no longer voting against the Bill and have said a number of things in the House of Lords indicating that they are keen for it to be passed. Does this mean that they will be happy to bring the Bill into force in the Autumn 2010 as currently scheduled? The answer may depend on the fate of the positive action provision.

Legal Challenge to the BA strike

Published by DarrenN on December 15, 2009 in Employment Law. 0 Comments


As someone planning to fly with BA on 23rd December I’m more than usually keen to know the basis on which BA is planning to challenge the industrial action in the courts – see the news story here.

On this basis BA seems to be relying on the fact that ballot papers were sent to some people who should not have been sent them. However they may have a problem with S.232B of the Trade Union and Labour Relations (Consolidation) Act 1992. This provides that accidental failures in a ballot which are on a scale ‘which is unlikely to affect the result of the ballot’ must be disregarded in assessing its legality. Since the ballot favoured strike action by nine to one it is difficult to imagine the scale of balloting errors needed to get around this provision

Nevertheless BA may think a legal challenge is worth a go. They could argue that there is evidence that the failure was deliberate for example. They would not need to prove the point because an injunction could be granted before the issue is actually tried – all they need to do is show an arguable case. On the other hand, industrial action injunctions should only be granted having regard to the likelihood of the claim succeeding at trial – see S.221 1992 Act.

Normally I am against companies seeking to find a semi-conscious duty high court judge who has just had a full dinner and is asked to grant a quick injunction despite his lack of expertise on the legal issues he is being asked to rule on. However since my Christmas holiday is at stake I’m prepared to make an exception.

Equality Bill Clears the Commons

Published by DarrenN on December 2, 2009 in Employment Law. 0 Comments

The Equality Bill completed its Report Stage and Third Reading in the House of Commons today. It is now off to the House of Lords.

I havn’t been able to check all of the amendments that were made but the proceedings of the Bill published so far show the Government proposing two new clauses - which I presume were adopted.

The first is a complicated provision which seems to provide that where an employer asks an employee about his or her health prior to offering employment and then does not make an offer of employment then the burden of proof will switch to the employer to prove that the refusal of employment was not an act of discrimination.

Hmmm. Not sure about this. Nothing wrong with the provision in itself - but why single out disability for special treatment here? The purpose of the Bill is at least in part to harmonise the way in which discrimination works accross the different strands and this is one added way in which disability discrimination will work differently. In any event its a pretty complicated provision which doesn’t do all that much - it only shifts the burden of proof. It does not prevent an employer from using medical questionnaires and does not make refusing employment based on health unlawful in itself. I think it is bound to cause confusion and certainly will not help to ’simplify and clarify’ the law.

Another new clause makes it clear that in a discrimination case the fact that the discriminator shares the same protected characteristic as the claimant does not prevent a claim of discrimination. In other words it is possible for a woman to discriminate on the grounds of the sex of another woman, or a white person to racially discriminate against another white person -etc.

I’m a bit puzzled by this. Who on earth  has ever suggested otherwise. I certainly wouldn’t have read the current Bill in any other way. Maybe I’ve missed something?

When the full proceedings are published I’ll post a full list of the subnstantive amendments that have been made. I’ll also plough through the Hansard debates to see if there are any indications of future developments from  the Government -both the current one and the next one!