Concepts and Issues in Contemporary Employment Law Coursework

Introduction

The UK has probably had more influence in giving the desired shape to the European Commission anti-discrimination legislation (Bernard). There have been several legislator measures and judicial pronouncements primarily in the six main strands of discrimination legislation. These strands cover sex, race, disability, sexual orientation, religion and age. The growing number of issues in these areas has given rise to an unremitting flow of litigation and judicial pronouncement. The volume of such litigation and judicial pronouncements might likely grow further when the other intended equality legislation covering flexible working, part-time worker, and fixed-term employee regulations are made a reality. This paper examines the main developments in the areas of age, religion and sexual orientation where there have been particularly significant developments in the last decades based on certain decided cases.

Law on Age discrimination

Overview

During the time when the Employment Equality (Age) Regulations 2006 came into force, a significant number of tribunal claims were pending disposition with few of them yet to reach the forum of Employment Appeal Tribunal (EAT). The Age Regulations provide apparent scope to the employers to defend their discriminatory conduct because of the presence of some controversial and uncertain elements in the Regulations. More specifically the Age Regulations provide for an objective justification defense for both direct and indirect discrimination by the employers. They also provide for several more specific exemptions from the prohibition on discrimination, the important one providing for the retirement of employees of 65 or over. There have been a number of court decisions, which are concerned with the defense of objective justification applied in the context of both indirect and direct discrimination. Apart from the court decisions there is a current legal challenge mounted by Heyday, an organization linked to Age Concern, which contends the validity of the retirement exemption, which is worth noting.

Key ideas on Age-related Discrimination

There are specific provisions in the Age Regulations that prohibit discrimination on the grounds of the age of a person who is an employee. However, an employer can defend his position against direct discrimination as well as indirect discrimination under the Age Regulations, if he can prove that he adopted the action of retiring the employee to achieve a legitimate aim in his business and that action is in proportion to the desired end. In every other type of UK discrimination legislation covering race, sex, religion or other issues there is scope for justifying only indirect discrimination in this way. It is not possible for the employer to justify direct discrimination like harassment and victimization.

Exemptions to Age Regulations

UK has implemented the EU Equal Treatment Framework Directive through the Age Regulations. The EU Framework Directive required the Regulations to establish a general rule, which provides that discrimination on grounds of age is not permissible in the work and vocational training environment. Nevertheless, article 6 of the Directive has allowed the member countries to provide for certain exemptions from this general principle. The exemptions have to be “reasonably and objectively justified by a legitimate aim”.

UK Government has relied on article 6 to incorporate several exemptions in the Regulations. Of these exemptions, the one based on the “default” retirement age of 65 is worth discussing. This exemption allows employers to make employees retire when they reach the age of 65 or over. The employers can also make the employees retire at younger normal retiring age, if they have valid grounds for justifying this action. In these cases, when the employers are able to provide justifications, they will not face any claims for age discrimination or unfair dismissal. There are certain mandatory notice provisions to make these exemptions apply. The employees are given a right to request continuance of employment and the right to appeal if their request is denied. However, this exemption does not apply to non-employees such as partners and other workers who do fall within the purview of the definition of employees.

The Heyday challenge

The default retirement age contained in the Age Regulations is one of the most controversial features of the Age Regulations. Therefore, Heyday, an organization linked to Age Concern has petitioned for judicial review proceedings in the high court to decide on the legality of this provision. The most important argument against the default retirement age is that the Government was beyond its jurisdiction to create the retirement exemption since the creation of one retirement age for all employments falls outside the scope of article 6 of the EU Directive.

Since there is the need to refer to a number of questions on the interpretation of the Framework Directive for deciding on this challenge, the high court has directed the matter to be referred to ECJ. The scope of article 6 on the allowance to governments to create exemptions needs to be revisited and decided. According to the Advocate General, making exemptions in respect of retirement did fall within the scope of the Directive like the UK’s retirement exemption; however, there should be enough justification. Based on the ECJ decision, the High Court ruled in September 2009 that though the Default Retirement Age was not unlawful when introduced in 2006, now there are compelling circumstances for the scrapping of the provision. This leads to a situation that for the time being the employers have the legal allowance to retire their employees at the age of 65. Approximately 800 employment tribunal cases were pending for this ruling across England, Scotland and Wales. These cases will no more have any legal ground to be pursued. A review of the DRA is due any time and the review will scrap the retirement age. Then the employers will be called upon to provide justification of the direct discrimination because of age and any justification will depend on the circumstances affecting the individual employees. Most of the employers may not have valid grounds to justify retrospectively their decisions to retire and hence will lose their claims.

Recent Cases on Age-related claims

The recent cases in the forum of Employment Appeal Tribunal and its decisions on redundancy schemes prove that the discrimination laws have not been effective to protect the position of the less favored and they have to fight in courts of law to have their protection from discrimination. In two of the recent cases, EAT considered the objective justification defense in the matter of operation of enhanced redundancy schemes.

Regulation 33 of Age Regulations provides for an exemption from the general rules of non-discrimination in respect of enhanced redundancy schemes. However, this exemption applies to only schemes, which resemble the statutory regime. “In MacCulloch v Imperial Chemical Industries the employer operated an enhanced scheme under which payments depended (in a complex way) on both age and length of service.” This scheme did not satisfy the requirements for the statutory exemption. Miss MacCulloch, who was aged 37 when the redundancy happened, claimed that she received unfair treatment as compared with her older colleagues under the terms of the scheme. She argued that the scheme was directly and indirectly discriminatory of her position. Even though it was recognized that there really was discrimination on grounds of age and the question to be decided was whether the discrimination could be justified. EAT thought that the tribunal had not properly considered the proportionality in the case and ordered for remission of the case to the same tribunal.

In the case of Loxley v BAE Systems, the EAT ruled on “a redundancy scheme which only paid benefits to those who were under 60 at the date of the redundancy and provided for a gradual tapering off of payments to those who were 57 or over.” The EAT thought that the employer is justified in preventing an employee from receiving a windfall on redundancy in which case the employee is in a position to claim pension payments immediately. Although there is enough justification for the act of the employer in such circumstances, the ability to make a claim for pension immediately was relevant factor for consideration. The acceptance of the trade unions of the particular scheme was a potential consideration in determining proportionality. The case was remitted to the tribunal, without any final determination by the EAT.

Default Retirement Age for partners

The decision of EAT in Seldon v Clark, Wright & Jakes is on the first case at appellate level. It provides a clear understanding to all classes of employers even though the claimant was a partner in a legal firm. This case provides the grounds on which a compulsory retirement age can be justified. The EAT had to take into account a clause in the partnership deed of the firm making the retirement of the partners at the age of 65 compulsory. EAT expressed the opinion that while all other reasons for specifying a compulsory retirement age may find justification, the firm was not in a position to support its claims that the performance of partners tended to decline at the age of 65. Therefore EAT sent back the case to the employment tribunal for a re-assessment of the evidence in that light. However, the EAT upheld the decision of the tribunal about the legitimacy of the claims of the firm behind the compulsory retirement age to:

1. ensure reasonable promotion opportunities for associates,
2. facilitate succession planning
3. limit the need to expel partners thus encouraging a collegiate atmosphere.

In the course of the proceeding, EAT has prescribed a number of principles on the justification of age discrimination. These principles form the basis for deciding future cases.

• Same test can be used for justifying direct and indirect age discrimination in the context of different employment
• The legitimate aims would still be valid justification even if they have not been considered at the relevant time.
• There is a need to justify the overall policy. It is not essential that its application to any one individual is to be justified. This principle recognizes the fact that an employer can begin to justify age discrimination only based on such genera; policy.
• The fact that the claimant consented to the policy at the time of introduction does not alter the decision of the case, though it is a relevant factor in the case.
• Although a partnership may justify a retirement age based on the collegiality principle, there can be no stereotypical assumptions in selecting the retirement age. The firm must choose the retirement age based on evidence.

Tribunal claims in Age-related Discriminations

Apart from the cases referred to EAT, a number of cases have been brought at the employment tribunal level for decision. Although, most of the claims were from people nearing retirement age, a few cases were concerned with the age of the people who have been perceived as being too young for the job they applied for. It appears that tribunals follow Age Regulations strictly according to letter of the legislation. The action of the employer who implemented a retirement of an employee on the day before the employee’s 65th birthday was not considered as within the retirement exemption.

Some of the cases show inadequate grasp of the employers of the implications of the Age Regulations. Because of this, they still follow the practice of hiring and firing employees for age-related reasons and are facing legal battles because of such behavior. There are instances where the employer advertised for “youthful enthusiasm” and the employer who terminated the services of an 18-year-old ostensibly because of capability reasons with no proper evidence to back it up were both found to have exercised unlawful discrimination. In Rainbow v Milton Keynes Council the refusal of a school to employ a 61-year old teacher on the ground that it would be uneconomical to employ older workers was found to be incompatible with justification defense by the Bedford Tribunal. The Tribunal remarked the employer had not provided sufficient evidence to prove budgetary constraints nor the employer has demonstrated that the discrimination led to substantial cost-savings.

Discrimination based on Religion or belief

UK has a complex web of over 100 pieces of legislation to deal with the issues of discrimination. The gradual accretion to the obligations under EC law and the fine-tuning of the provisions already laid down were the main reasons for such a large number of legislations. Based on the EC directives on religion, belief, sexual orientation, disability and age (2000/78) the situation in the UK concerning discrimination on the grounds of religion and belief was changed. Prior to this time, there was no prohibition against discrimination on the grounds of religion and beliefs. Nonetheless, there is an increasing amount of litigation in respect of the new strands of discrimination, some of which are dealt with below.

Dress codes while in Employment

There have been a number of recent court decisions on the rights of employees to wear jewelry and clothing of religious significance. The most publicized is that of Azmi v Kirklees Metropolitan Borough Councill. In this case the EAT held that indirect religious discrimination was justified. In this case, a school insisted on a female Muslim teacher t remove her veil whilst teaching. The school provided the justification that the veil interfered with her ability to communicate properly with the children while teaching, as the pupils were not able to see the teacher’s face. This argument was significant in supporting the school’s justification. This case was a highly publicized political case, in which the EAT upheld the decision of the Tribunal stating that there was no direct discrimination since Azmi had not been treated less favorably and the requirement not to teach with her face covered was indirect discrimination, as it could be justified by the school.

Subsequent decisions in various other cases show that the claims in this respect will depend on the facts of the individual cases and therefore the employers have the obligation to consider any justification for their acts in insisting on any dress codes carefully to avoid claims of direct and indirect discrimination.

Religious Grounds

Eweida v British Airways plc

This is another well-publicized case. Here, Ms. Eweida, who was a Christian employee, claimed that she should be permitted to wear small silver, cross which is a religious symbol outside her uniform. This request was contrary to the employment policy of British Airways, which applied restrictions on the jewelry being worn by the employees openly. The tribunal found there was no discrimination on the part of the employer. This decision has been upheld by the EAT. Ms. Eweida’s argument was that wearing the cross visibly was an important belief on religious grounds. However, the court found that this personal belief was not supportive enough for a claim under the Religion or Belief Regulations. The court also observed that the policy of BA in restricting wearing of jewelry openly did not infringe the Regulations, based on the fact it was not possible for Ms. Eweida to provide evidence that the act of BA has put a significant body of Christians to a particular disadvantage.

Glasgow City Council v McNab

In this case, the legal point to be decided was whether the action of a Catholic school under the control of the Council leads a direct discrimination when the request for an interview from an atheist teacher employed by the Council was refused. The interview was for the post of the “Principal Teacher for Pastoral Care”. “The Tribunal had been entitled to conclude that the post was not on the list of posts for which a Roman Catholic Church required a teacher to be Catholic and therefore the Council should not have presumed that the church would not have approved the appointment.” (Steptoe & Johnson) Therefore, the Council meted direct discrimination against the teacher under the provisions of Religions or Belief Regulations Act, 2003.

Conscientious objection to Terms of Employment

McClintock v Department for Constitutional Affairs

“Mr. McClintock was a magistrate who resigned when his request not to be involved in adoptions by same-sex couples was refused. His claim failed because the evidence did not show that his objection was rooted in a philosophical or religious belief. Even if it had been both the tribunal and the EAT thought that imposing a requirement that a magistrate sits on every case he or she is allocated, regardless of personal objections, was justified.” (Mills and Reeve)

Ladele v London Borough of Islington

Ms. Ladele, who is a practicing Christian and a Registrar of births, deaths and marriages was expected to conduct civil partnership ceremonies along with her other duties. Her terms were changed without consultation. Since she refused to attend her duties in connection with civil partnerships on the ground that it was against her religion, the Council took action against her. “Despite being offered a compromise (of simply signing the register and not conducting the ceremony itself) Ms. Ladele still refused to participate in the ceremonies. Eventually she was subject to disciplinary action and threatened with dismissal. She complained that she was not being supported and brought a claim for harassment and discrimination on the grounds of her religion.” (Mills and Reeve) Even though the tribunal decided in her favor, the Council chose to appeal. EAT was of the opinion that there had been no religious discrimination. EAT also did not find any direct discrimination with less favorable treatment. EAT found that the Council had behaved as it did base on her actions and not because of her religious belief and even if the Council’s response had been unreasonable in some respects, such actions could not be attributable to the religious belief of the claimant. Therefore, ETA rejected her claim that she had been subjected to harassment.

In relation to indirect discrimination, the EAT accepted that the policy of the Council in insisting the registrars to conduct civil ceremonies had a legitimate aim in seeking to promote equal opportunities and fight discrimination. This act of the Council might have put Ms. Ladele at a disadvantage as compared to others who were not holding any religious beliefs like her. However, EAT considered the action of the council as a proportionate means of achieving a legitimate aim.

Genuine occupational requirements

“In Sheridan v Prospects for People with Learning Disabilities ET Case no: 2901366 an employment tribunal found that there was religious discrimination when a charity had required one of its managers to only employ Christians and not to promote its existing non-Christian employees.” (Mills and Reeve) The tribunal ruled that the action of the charity to rely exclusively on a religious organization cannot be considered as genuine occupational requirement, since the charity did not carry out a job evaluation for every post. Therefore, it was not proportionate to consider that all persons to be employed must be Christians. This is a clear case of discrimination based on religion.

Sexual Orientation

The Sexual Discrimination Act, (SDA) 1975, which is the seminal piece of anti-discrimination legislation, prohibits discrimination on grounds of sex and marital status. This Act covers those employment matters not covered by the Equal Pay Act, 1970 in respect of recruitment, promotion, non-contractual pay matters, dismissal and other detriments to the employees. The Act was amended several times most notably to bring aspects of its provisions into line with EC directives. However, different aspects of discrimination owing to sexual orientation and sexual discrimination are governed by separate legislation. The two legislations are similar to each other in some respects. For example, both the legislations deal with discrimination under the same types.

UK introduced the principal legislation governing discrimination on the grounds of sexual orientation for the first time in the year 2003. This legislation was enacted to give effect to sexual orientation aspects of EC General Framework Directive (2000/78). “The regulations make discrimination on the grounds of sexual orientation unlawful,” (CIPD).

“Sexual orientation is defined as having a sexual attraction to:

• persons of the same sex (lesbians and gay men)
• persons of the opposite sex (heterosexual)
• persons of both sexes (bisexual).” (CIPD)

Sexual orientation discrimination is addressed on the same principles of sexual discrimination with four different types of discrimination – direct, indirect, victimization and harassment. Employment Equality (Sexual Orientation) Regulations, 2003 extends protection to employees by prohibiting discrimination based on sexual orientation in employment.

Sex Discrimination (Gender Reassignment) Regulations were introduced to give effect to the court ruling in P v S¹⁰. In this case, the court ruled for the extension of protection to persons who have opted for a “gender reassignment”. Sexual orientation covers cases of discrimination against heterosexuals, homosexuals and bisexuals. However, it has to be stated that the UK law is not consistent in the matter of protection against discrimination on grounds of sexual orientation.

Reaney v Hereford Diocesan Board of Finance covers the case of discrimination on the grounds of sexual orientation. “In that case, the employment tribunal held that where a homosexual was committed to working for the Church of England, he should expect to discuss the perceptions of homosexuality within the Church during a job interview, and that this did not constitute harassment.” (JILPTReportNo.6) The denial of employment to him even after he was found to be the preferred candidate after the competitive interview was considered an act of discrimination on the ground of sexual orientation.

In the case of Stephen English v Thomas Sanderson Limited, the Court of Appeal decided that “homophobic banter” directed at English, the heterosexual claimant can be treated as harassment under Regulation 5 of the Sexual Discrimination Regulations and treated as discrimination.

The Scottish case of MacDonald v Ministry of Defence 2 was an example of the position that existed in the UK before the recent EC directive on discrimination based on sexual orientation. This case has not considered the decision in the case of Grant v South West Trans. In this case, the argument of MacDonald was that his dismissal on the grounds of homosexuality contravened the provisions of the Sex Discrimination Act 1975. His argument was based on the reasoning a dismissal would not have arisen in the case of a woman being sexually attracted to a man and the same reasoning should be applied in his case. The dissenting opinion of Lord Prosser of the Court of Session confirmed the presence of a breach. However, the majority of the House of Lords confirmed that the provisions of the Sex Discrimination Act 1975 could not be interpreted to apply expansively to include discrimination on the grounds of sexual orientation rather than sex as has happened in this case (Pollar).

Conclusion

The UK has now more than thirty years of experience in handling anti-discrimination legislation and the resulting legal battles. Despite the efforts of the government to ensure protection to the masses, the volume of cases continues to increase and as a result, the government has to indulge in continuous amendments and modifications to the existing regime of legislation. EC directives on anti-discriminatory laws have also influenced the change of the legislative landscape in this area. The nature and number of cases the Courts, Tribunal and Appellate Tribunal handle as evidenced in this paper, signify that despite over thirty years of legislation and the commitment of so many in employing organizations and beyond, equal treatment law remains complex and unable to overcome the disadvantage of so many.

Bibliography

Bernard, A. A European Litigation Strategy: the Case of the Equal Opportunities Commission in Shaw and Moore (eds). Oxford : Calrendon, 1996.

CIPD. Sex discrimination, sexual orientation, gender reassignment and employment. 2010. Web.

JILPTReportNo.6. New Developments in Employment Discrimination Law. Tokyo: The Japan Institute for Labour Policy and Training, 2008.

Mills and Reeve. Discrimination. 2009. Web.

Pollar, David. Sexual Orientations Discrimination and Pensions. 2003. Web.

Steptoe&Johnson. Employment Law Update. 2010. Web.