This annual Bulletin describes the key developments in equality law that have taken place during the last 12 months. Part 1 focuses on the protected characteristics of sex (including equal pay cases), pregnancy, race, religion/belief and sexual orientation. Both changes to legislation and case law are included.
Part 2 of the Bulletin, which will be published next month, covers developments in the areas of disability and age discrimination.
Burden of proof
In cases of alleged discrimination, the burden of proof falls initially on the complainant who must establish facts from which the tribunal may reasonably conclude that he or she has been the victim of unlawful discrimination. In other words, the complainant must provide some evidence that he or she has been treated less favourably than another person in similar circumstances, and that the less favourable treatment may have been on the ground of one of the protected characteristics.
Once such primary facts have been established, the burden of proof shifts to the employer who must (if it is to succeed in defending the claim) prove, on the balance of probabilities, that no discrimination occurred. To do this, the employer must either show that the action complained of did not happen at all, or that there was genuinely an alternative explanation for its treatment of the complainant which had nothing to do with the particular protected characteristic (eg sex, race, age, etc). If the case is one of indirect discrimination, the employer may seek to justify the discriminatory provision, criterion or practice. If the employer cannot provide evidence to support its contentions, or if the tribunal finds the employer’s evidence to be lacking in credibility, the complainant will win his or her case. These principles were confirmed recently in Ayodele v Citylink Ltd and anor  EWCA Civ 1913 (which overturned the earlier decision of the Employment Appeal Tribunal (EAT) in Efobi v Royal Mail Group Ltd UKEATS/0011/15).
Unlawful indirect discrimination occurs where an employer, without justification, applies a provision, criterion or practice to everyone which, on the face of it, is non-discriminatory but which puts people who have a particular protected characteristic at a disadvantage when compared with people who do not have that characteristic and which puts an individual at that disadvantage.
The phrase provision, criterion or practice has a wide meaning and, as well as including an employer’s policies, rules, contractual terms, conditions and requirements, will include practices that are not contractual, but which are applied in practice. In United First Partners Research v Carreras  EWCA Civ 323, for example the Court of Appeal upheld an employment tribunal’s decision that an employer’s expectation that an employee should work long hours amounted to a provision, criterion or practice for the purpose of the Equality Act 2010. When the employee objected to this, he was told that if he was unhappy, he could leave — which he did. This case will be reported fully in Part 2 of this Bulletin.
In an important judgment, the Supreme Court held (in Essop and ors v Home Office  UKSC 27) that there is no requirement for an employee bringing a claim for indirect discrimination to explain why a particular provision, criterion or practice puts him or her at a disadvantage compared with others. It is sufficient for the claimant to show that a particular provision, criterion or practice has a disparate impact generally on people who share the particular protected characteristic and that he or she is a member of the affected group.
The case of HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School  EWCA Civ 1426 was not an employment case, but the principles are nevertheless of relevance to the field of employment. The case concerned a Muslim faith school that operated a policy of segregating male and female pupils from age 9 to 16. The segregation was absolute and boys and girls had no opportunity to interact, even during lunchtimes. Following an Ofsted inspection, a report was published listing concerns about the segregation policy, including the assertion that it limited pupils’ social development, and that it was discriminatory under theEquality Act 2010. As a result, the school brought a judicial review challenging these conclusions.
The school put forward the logical argument because it treated boys and girls in exactly the same way, there could be no sex discrimination. The Court of Appeal, however, noted that the Equality Act 2010 defines direct discrimination in relation to an individual person and not to a group, and it was therefore necessary to view any alleged less favourable treatment from the perspective of an individual pupil. When viewed in that light, the result was that an individual pupil (whether male or female) was disadvantaged because of his or her gender on account of being prevented from mixing with pupils of the opposite sex. The school’s segregation policy treated both boys and girls less favourably on grounds of gender and the absence of opportunity for girls to mix with boys (and vice versa) amounted to a detriment.
It is interesting to note the Court of Appeal’s finding that, even where the detrimental treatment of both males and females is the same, a claim for direct sex discrimination can nevertheless be valid, depending on the circumstances. Although schedule 3 to the Equality Act 2010 contains some exceptions which permit single-sex services (provided that certain conditions apply), this does not mean that separate but equal treatment cannot constitute unlawful sex discrimination. If a man is treated less favourably than a woman in some respect, this does not mean that a woman is not also less favourably treated than a man.
It is unlawful to treat a woman unfavourably because she is pregnant, absent for a pregnancy-related reason or she has indicated an intention to take, is taking or has taken maternity leave. There is no defence to this type of discrimination, no matter how much inconvenience may be caused to the employer as a result of the employee’s pregnancy or absence on maternity leave.
It is also unlawful to treat an employee unfavourably because she is breastfeeding. In Elda Otero Ramos v Servicio Galego de Saúde ECJ Case C-531/15, the European Court of Justice (ECJ) ruled that a failure to conduct a risk assessment, or performing a defective or inadequate risk assessment, for an employee who is breastfeeding amounts to direct sex discrimination.
According to the employment tribunal in McFarlane and anor v easyJet Airline Company Ltd ET Case No. 1401496/15, indirect sex discrimination can occur where an employer unjustifiably refuses to agree to a revised rota for a female employee who is breastfeeding. Two female cabin crew members succeeded in their claims after their employer, a well-known airline, refused to accede to their requests for a tailored roster that would guarantee that they would not have to work longer than eight continuous hours while they were still breastfeeding. Their requests were supported by doctors’ notes. The employer claimed that agreeing to a bespoke roster would create operational and logistical difficulties and so would not be workable. The tribunal, however, did not find this assertion convincing and upheld the employees’ claims.
It is not often that a case alleging marriage discrimination comes before an employment tribunal, but one such recent case was Gould v Trustees of St John’s Downshire Hill UKEAT/0115/17. The claimant was a minister at a north London church which attached a great deal of importance to the institution of marriage. When the minister’s own marriage got into difficulties, he was warned that if he could not resolve these difficulties, he could not continue in his position as minister. Less than three months later, his employment was terminated with immediate effect on the grounds that the relationship of trust and confidence between him and the church had broken down. He brought claims against the trustees of the church for both direct and indirect discrimination on the grounds of marriage.
At a preliminary hearing, the case was struck out as the judge accepted the employer’s argument that the dismissal was on the grounds of the claimant’s marriage difficulties rather than on the fact that he was married. The minister appealed.
The EAT found that the dismissal was rooted both in the fact that the minister was married and in his marital difficulties. The fact that the minister was married (rather than just being in an unmarried relationship) was a key element in the circumstances of the case. Under the Equality Act 2010, if a protected characteristic (in this case married status) is not the only reason for an individual’s dismissal, but it has nevertheless played a part in the decision to dismiss, ie sufficient for a claim (potentially) to succeed. The EAT therefore overturned the judge’s decision to strike out the claim and ruled that it should be listed for a full hearing.
Shared parental leave and pay
Claimants in some earlier cases have attempted to argue that a man taking shared parental leave can compare his treatment with that of a woman on maternity leave; and so any employer that pays enhanced maternity pay to female employees taking maternity leave, but not enhanced shared parental pay to men taking shared parental leave will be guilty of direct sex discrimination.
The latest case to bring this argument to tribunal was Ali v Capita Customer Management Ltd Case No. 1800990/16. Mr Ali’s employer declined to pay him enhanced shared parental pay in circumstances where female colleagues on maternity leave were contractually entitled to enhanced maternity pay (the first 14 weeks on full basic pay). He argued that after the first two weeks of a woman’s maternity leave (compulsory maternity leave period), the position of a father is comparable to that of the mother in that any leave taken is for the primary purpose of caring for the child rather than protecting the health of the mother. He asserted that, although s.13(6)(b) of the Equality Act 2010 provides that “no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth” (ie men cannot claim sex discrimination as a result of special treatment afforded to women on account of maternity leave), this exemption allowing for special treatment of women in connection with pregnancy or childbirth is no longer applicable in respect of periods of leave after the compulsory maternity leave period.
The tribunal in the first instance upheld Mr Ali’s claim, accepting that the comparison with a female employee taking maternity leave to care for her child after the two-week compulsory leave period was valid. This decision was, however, overturned on appeal (Capita Customer Management Ltd v Ali and anor UKEAT/0161/17). The EAT held that the correct comparator for a man taking shared parental leave was a woman taking shared parental leave and not a woman on maternity leave. Additionally, the EAT held that it was lawful to provide more favourable treatment to women on maternity leave in line with the exemption in s.13(6)(b) of the Equality Act 2010. The EAT noted that EU law draws a distinction between the rights of workers who have given birth and the rights of parents (of either sex) to take leave to care for their child. The former is for the purpose of ensuring the health and wellbeing of the birth mother, while the latter focuses on the care of the child. It follows that the purposes of maternity leave and shared parental leave are different, as are the circumstances in which they are available. The EAT thus held that the employer’s practice of paying enhanced maternity pay but not enhanced shared parental pay was lawful and Mr Ali had not therefore experienced any sex discrimination.
It is worth noting, however, that the EAT also stated that after the first 26 weeks of a woman’s maternity leave, it could be that the purpose of that leave may change from being to ensure the health and wellbeing of the mother to being to care for the child; therefore it may be possible at this point to draw a valid comparison between a man taking shared parental leave and a woman on maternity leave. This leaves the door open for further cases to examine this somewhat controversial issue.
Still on the subject of shared parental leave, the Department for Business, Energy & Industrial Strategy (BEIS) plans to review the law on shared parental leave and there is a proposal in the pipeline to extend shared parental leave to working grandparents. However, no indication has yet been given as to when we might expect this provision to be formalised or to come into force.
Earlier legislation governing sex discrimination is distinguished between claims that are based on discrimination in contractual terms (which could only be brought under the Equal Pay Act 1970) and claims about benefits or treatment that are not governed by the contract of employment (which could only be brought under the Sex Discrimination Act 1975). This distinction is maintained under s.70 of the Equality Act 2010 which has the effect of rendering the two types of claim mutually exclusive.
This principle was confirmed recently in BMC Software Ltd v Shaikh UKEAT/0092/16. The EAT ruled that an employee who resigned on account of her employer’s failure to pay her at an equivalent level to a male comparator could legitimately bring a claim for constructive dismissal (based on her employer’s alleged breach of contract) but could not also claim (based on the same set of facts) that the dismissal was discriminatory on the grounds of sex.
Where two jobs have been rated as equivalent under a job evaluation study, this is normally sufficient to defend a claim for equal pay, unless it can be shown that the study is tainted by sex discrimination or is otherwise not to be relied upon. In order to provide an employer with a robust defence, however, the job evaluation scheme must be one that was objectively carried out using analytical methods. Employment tribunals are likely to regard non-analytical methods used to grade jobs as unreliable.
In Armstrong and ors v Glasgow City Council and another  CSIH 56, the Court of Session held that the onus to show that a job evaluation scheme was valid for the purposes of an equal pay claim lay with the employer and it was not up to the claimant to prove otherwise. In this case, the method of job evaluation used by the employer was “bespoke, novel and untested” (as described by the employment tribunal) and, in the absence of any independent evidence to support its methodology, it could not be regarded as valid.
Last year we wrote about the highly publicised and potentially far-reaching case of Asda Stores Ltd v Brierley and ors  EWCA Civ 566. A group of more than 7000 claimants (mainly female employees working in Asda’s supermarkets), brought equal pay claims, arguing that they were entitled to be paid the same rates of pay as Asda’s distribution depot employees, who are mainly male. The first stage of the case was a challenge as to whether the employment tribunal was the correct forum for the case to be heard, with the employer arguing that the High Court would be more suitable and asserting that the tribunal should therefore impose a stay on the proceedings. The employer’s argument failed as the Court of Appeal upheld the original tribunal’s decision that the claimants had a clear statutory right to choose to pursue their equal pay claims in the employment tribunal. Furthermore, it would have been inappropriate to impose a stay on the proceedings because the employment tribunal was the “obvious and appropriate forum” for equal pay claims.
The case has now progressed to the next stage. In Asda Stores Ltd v Brierley and ors UKEAT/0011/17, the EAT was tasked with deciding whether the female claimants working in the supermarkets could legitimately compare themselves with the male employees working at distribution depots. The EAT had to consider whether:
Article 157 of the Treaty on the Functioning of the European Union (TFEU) has direct effect in a claim of equal value
the “single source” test (ie whether a single body holds responsibility for the pay of both the claimants and their comparators) required the claimants and their comparators to be employed in the same establishment
the employees working in the supermarkets and in the distribution depots were in the “same employment” under domestic law, which — because they worked at different establishments — depended on them being engaged on “common terms and conditions”.
The EAT has upheld the employment tribunal’s decisions that Article 157 has direct effect in a claim for equal value and that there was a single source responsible for the pay of both the claimants and their comparators — because the employer’s executive board was capable of rectifying any discrepancies in pay. The EAT further ruled that the single source test does not require the claimants and their comparators to be employed at the same establishment, as the presence of a single source for pay decisions is enough to permit a comparison to be made. As regards domestic law, the EAT judged that in general, common terms and conditions did apply between the claimants and their comparators. Any differences in their terms were relatively minor and did not prevent a valid comparison from being made.
Now that it has been established that the claimants can legitimately compare themselves with their chosen comparators, the next stage will be to address the core issue of the case, ie to determine whether the work the two groups of employees perform is in fact of equal value. In the meantime, however, the EAT’s decision has been appealed to the Court of Appeal (and is due to be heard in October 2018) and so this will inevitably delay matters further.
Following on from the Asda case, employees of Tesco have indicated an intention to bring similar legal proceedings. Employees working in the predominantly male-dominated distribution centres are paid considerably higher rates of pay than the mainly female employees working in Tesco stores. It has been reported that the supermarket chain, Sainsbury’s, is facing similar claims. These claims are all of very high value and, if ultimately successful, could result in millions of pounds of backpay having to be paid out, plus a substantial increase to the wage bills of the respondent companies.
Gender pay gap reporting
The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 require large organisations (those with 250 or more “relevant employees”) to publish information, on an annual basis, about the average and median overall pay of their male and female employees. The regulations were brought into force in April 2017 and require organisations that are in scope to publish specified information within 12 months of the “snapshot date” each year. The snapshot date for public sector organisations is on 31 March. For organisations in the private and voluntary sectors, the snapshot date is on 5 April each year. The first reports were therefore due by 31 March 2018 and 5 April 2018 respectively. The stated aim of the gender pay gap reporting legislation is to introduce greater levels of pay transparency.
The term “relevant employees” is defined as including not only direct employees of the organisation but also anyone else who is working for the employer on the relevant “snapshot date”. This includes workers such as casual staff and contractors who provide their services personally to the employer. Employees who, as at the relevant date, are on leave and are consequently being paid at a reduced rate or are not being paid at all can be excluded. Examples include those on maternity leave who are receiving only statutory maternity pay or no pay, and employees on sick leave who are being paid only statutory sick pay or whose sick pay has expired.
The published information must list the average and the median overall pay for men and women throughout the organisation, together with the proportions of men and women in each of four quartiles of the employer’s pay distribution (which each have to contain the same number of employees). Overall pay means the gross hourly rate of pay based on an employee’s normal working hours. The difference between men’s and women’s average hourly pay rates must be expressed as a percentage of the full-time male hourly rate. The information must be accompanied by a written statement signed by an individual in a senior position.
Bonuses awarded to men and women respectively must be included in the published information, but employers may calculate the amounts of such payments in proportion to the relevant pay period (for example where bonuses are awarded annually).
The published information must remain on the employer’s website for at least three years, and must be in a form that is accessible to all the employer’s workers and to the general public. There is also a requirement to upload the information to a Government website where the information is listed according to sector and is available to the public at large.
At present, race discrimination is defined as discrimination because of colour, nationality, ethnic origins or national origins. Caste which means characteristics determined by a person’s class or descent is not included.
In Chandhok v Tirkey UKEAT/0190/14, however, the EAT ruled that the definition of “ethnic origins” is wide enough to include elements of caste identity and so those discriminated against on caste grounds may, depending on the nature of their treatment, be protected.
In the meantime, the Government has carried out a consultation on whether caste should be added to the list of subheadings of “race” in the Equality Act 2010. The consultation closed on 18 July 2017 and a response from the Government is awaited.
Religion or belief
In Trayhorn v Secretary of State for Justice UKEAT/0304/16, the claimant, a Pentecostal Christian, resigned on being given a final written warning for stating during a service given to a congregation of prisoners, many of whom were sex offenders, that homosexuality was a sin. The claimant brought complaints to tribunal of indirect religious discrimination and unfair constructive dismissal. In respect of the discrimination claim, he asserted that Christians, either singly or as a group, were put at a disadvantage by the application of the prison’s disciplinary and equality policies, and also by the unwritten practice of not speaking out about homosexuality in connection with Christian ethics.
The employment tribunal dismissed these arguments, holding that the application of the employer’s disciplinary and equality policies to the claimant in the circumstances did not constitute indirect religious discrimination. The claimant was disciplined because of the manner in which he manifested his religious belief, and not because of the belief itself. Furthermore the tribunal held that the restriction on the expression of the claimant's religious beliefs was a proportionate means of achieving the legitimate aim of maintaining order and safety in the prison. The claimant appealed but the EAT dismissed the appeal.
This case is one of a series in which tribunals have drawn a distinction between an individual’s religious beliefs and the manner in which he or she manifests these beliefs.
The Equality Act 2010 contains a specific religious occupational requirement which may be applied where the employment in question exists “for the purposes of an organised religion”, and where its application is done so as to comply with the doctrines of the religion or to avoid a conflict with the strongly held religious convictions of a significant number of the religion’s followers. Where this occupational requirement can be shown to be applicable, the employer may lawfully apply a requirement that the holder of a particular job must, among other things, not be gay or lesbian.
There is no definition of when employment will be “for the purposes of an organisation religion”, but the rule operates as a narrowly drawn exception to the principle of equal treatment.
In Pemberton v Inwood  EWCA Civ 564, however, the Court of Appeal upheld a decision that the Church of England had lawfully applied the religious occupational requirement when it declined to grant an ordained priest an Extra Parochial Ministry Licence (EPML) which was necessary for him to take up a post as hospital chaplain. The decision not to grant the licence was taken because the priest had married his same-sex partner. As it was an essential requirement of the employment as hospital chaplain that the jobholder had to be a properly accredited and licensed minister of religion, the refusal of the licence meant that the priest could not be appointed to the role. He consequently brought a claim for direct sexual orientation discrimination to tribunal.
The Court of Appeal held that, although the refusal to grant EPML constituted an act of direct sexual orientation discrimination, the licence was a qualification for employment “for the purposes of an organised religion”, and it had been refused in order for the Church of England to comply with its doctrine that marriage is a union between one man and one woman. On appeal, the claimant argued that the occupational requirement could not lawfully be applied to employment in a hospital (rather than in a church). However, the court rejected this argument as it is the purpose of the employment that is the key factor, not the nature of the organisation in which it is carried out.
It followed that the Church of England had not acted unlawfully when applying the religious occupational requirement to the post of hospital chaplain.
When the Civil Partnership Act 2004 came into effect on 5 December 2005, this had the effect that same-sex couples who entered into a civil partnership gained the right not to be treated less favourably than people who were married. Among other things, this meant that employers had to treat registered civil partners in the same way as spouses as regards pensionable benefits and service, eg on the death of one of the partners. However, a provision in schedule 9 of the Equality Act 2010 meant that this only applied in relation to pensionable service as from 5 December 2005, the date on which the Civil Partnership Act 2004 came into effect.
This time limitation was challenged in the recent case of Walker v Innospec Ltd and ors  UKSC 47, in which the Supreme Court ruled that the claimant’s partner would be entitled on his death to a survivor’s pension that reflected the whole period of his pensionable service. Mr Walker, who had been employed by the respondent employer since 1980, had entered into a civil partnership with his male partner in 2006 (they later married). When he enquired of his employer about the amount of survivor’s pension that his partner would receive in the event of his death, he was informed that this would be calculated in respect of service after 5 December 2005 only. Conversely, if Mr Walker had been married to a woman, she would have been entitled, on his death, to a full pension based on his entire length of service.
The Supreme Court ruled ultimately that the exemption in the Equality Act 2010 allowing for same-sex partners’ pension benefits to apply only to pensionable service from 5 December 2005 was in breach of EU equality law. It followed that the respondent’s pension scheme arrangements were discriminatory on the grounds of sexual orientation and were therefore unlawful. Same-sex partners are entitled to benefit from the same occupational pension rights as opposite-sex partners in every respect.
This ruling in effect means that the provision limiting same-sex partners’ pension benefits has been disapplied with immediate effect and organisations whose pension scheme rules include this provision will need to revise their schemes’ rules.
Part 2 of this Bulletin, to be published next month, will cover developments in the areas of disability and age discrimination.
Last reviewed 30 May 2018