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7th July 2016: Subconscious Direct Discrimination

Is failing to address, or make a finding, in relation to subconscious or unconscious discrimination an error of law?
Sometimes, held the EAT in Geller v Yeshurun Hebrew Congregation. A husband and wife worked for a joint salary and were made redundant. Mrs Geller brought claims including direct sex discrimination. The factual matrix was far from gender neutral, however an employment tribunal found that Mrs Geller had not been treated less favourably because of her sex.
The EAT overturned the decision because:
(1) Despite facts from which discrimination could be inferred, the tribunal failed to consider subconscious or unconscious discrimination. Only if discrimination is inherent in the act complained of is the tribunal released from the obligation to enquire into the mental processes of the alleged discriminator; and;
(2) Whilst there is no requirement to apply the two-stage test in the burden of proof provisions (section 136 Equality Act 2010) in a mechanistic or formulaic way or even at all, the tribunal\'s treatment of the reverse burden provisions in the case was rudimentary at best.
The decision could not stand and was remitted.

22 June 2016: Does the Acas Code of Practice on Disciplinary and Grievance Procedures apply to ill health dismissals?

No it does not, held the EAT in Holmes v QinetiQ.
The Claimant was dismissed on the grounds of ill health. It was conceded that the dismissal was unfair because of the failure to obtain an up to date occupational health report. At the remedy hearing, the Claimant contended that the Acas Code applied and that due to the unreasonable failure to follow the code he was entitled to an uplift under s.207A TULR(C)A 1992.

11 January 2016: In force today, The Exclusivity Terms in Zero Hour Contracts (Redress) Regulations 2015

The regulations provide that:- any dismissal of a zero hour contract employee is automatically unfair, if the principal reason is that s/he breached a contractual clause prohibiting him/her from working for another employer no qualifying period is required to bring such an unfair dismissal claim; and, it is also unlawful to submit a zero hour worker (note: worker not employee) to detriments if they work for another employer in breach of a clause prohibiting them from doing so.

1st October 2015: National Minimum Wage (Amendment) Regulations 2015

The following hourly rates of national minimum wage apply from 1 October 2015:
The standard adult rate (workers aged 21 and over) is £6.70.
The development rate (workers aged between 18 and 20) is £5.30.
The young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices) is £3.87.
The rate for apprentices is £3.30.
From 1 October 2015, the accommodation offset is £5.35 each day.

25th September 2015: - Employment Law Changes

On 1 October 2015 several key employment law changes will be introduced by the Deregulation Act 2015, including removing the power for employment tribunals to make wider recommendations in discrimination cases, and extending the right for Sikhs to wear a turban instead of a safety helmet in almost all workplaces. There are also proposals to change the law on apprenticeship. This follows on from the independent review undertaken by Doug Richard. His recommendations included creating a new and simpler form of apprenticeship with more emphasis on outcomes and closer co-operation with industry in designing the best and most appropriate qualifications. The detail still has to be decided.
The new national minimum wage rates will also come into force on that date.

1st September 2015:
Expanding equal treatment: unintended consequences?

The European Court of Justice has found that an individual who does not possess a protected characteristic is still able, in certain circumstances, to bring a claim for indirect discrimination if he suffers together with those who do. (CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsias).

The ECJ observed that the wording of the Directive permitted this wide interpretation. It defines indirect discrimination as occurring where an apparently neutral provision, criterion or practice (“PCP”) would put persons of as racial or ethnic origin at a particular disadvantage compared with other persons (unless that PCP is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary). There is nothing in this wording stating that a victim of indirect discrimination must share the race or ethnic origin of the protected group.

While this case was concerned with the Race Discrimination Directive, a very similar definition of indirect discrimination is used in other EU equality directives. Accordingly, it is very likely that the ECJ’s ruling will apply in relation to other protected characteristics.

Implications for UK discrimination law

The concept of indirect discrimination is implemented in the UK by section 19 of the Equality Act, which plainly requires the claimant to share the relevant protected characteristic. however, as we have seen in several employment law contexts, Employment Tribunals are obliged to interpret UK statutory provisions consistently with any underlying EU directive so far as is possible. So, it is surely only a matter of time before we start to see claims arguing that the Equality Act should be interpreted “purposively” in line with the ECJ’s ruling in this case.

Employers may find themselves facing indirect discrimination claims from unexpected quarters, which may require them to objectively justify particular PCPs in unpredictable contexts.

28th August 2015
Tribunal fees: Unison's challenge to employment tribunal fees dismissed

The Court of Appeal has dismissed the challenge brought by Unison against the introduction of fees in the employment tribunals and the EAT. Unison unsuccessfully argued that fees prevented claimants from having access to justice, that the regime was indirectly discriminatory and that the Lord Chancellor had failed to satisfy the public sector equality duty. In particular: Unison's appeal failed due to lack of evidence as to the impact of fees on individual claimants, and, although the Court of Appeal did seem to be struck by the dramatic decline in the volume of claims being brought in the tribunal, it agreed with the High Court that the figures on their own were insufficient to establish that claimants were unable to pay the fees and therefore were unable to have effective access to justice.

The Court of Appeal concluded that it was objectively justifiable to have a two-tier fees system. Although a larger number of women then men may be obliged to pay the higher rate fees which apply to discrimination claims, this reflected the greater demand such claims placed on tribunal resources.

Unison has sought permission to appeal to the Supreme Court. In the meantime, a formal review on the impact of tribunal fees by the Ministry of Justice is underway with completion of the review expected later in the year. (R (Unison) v Lord Chancellor and another [2015] EWCA Civ 935.)