Law and Labour » Discrimination

Gender-critical views were part of protected belief

Law and Labour — Sun, 13 Jun 2021 11:22:47 +0000

Facts

Maya Forstater was a researcher hired by CGD Europe Limited (CGD) in November 2016 to carry out consultancy work and appointed a visiting fellow. She regularly posted social media comments on the “transgender debate” – the rights of transgender persons in wider society. In autumn 2018, staff at CGD raised concerns about Ms Forstater’s posts, which they felt expressed transphobic views. CGD investigated the complaints and decided not to offer Ms Forstater further consultancy work. Her visiting fellowship was not renewed.

Ms Forstater subsequently lodged a claim at the Employment Tribunal alleging direct discrimination and harassment on grounds of belief.

Employment Tribunal

A preliminary hearing was necessary to decide whether Ms Forstater’s views were capable of protection under the Equality Act 2010 as a philosophical belief.

The first step was to define Ms Forstater’s views. The Tribunal summed up these as a “gender-critical belief” that “sex is biological and immutable”.

Next, the five-part test from the case of Grainger plc v Nicholson was applied to determine whether Ms Forstater’s belief was capable of protection under the Equality Act. The Grainger test requires the belief to be:

genuinely held; not a viewpoint based on the present state of information available; a belief as to a weighty and substantial aspect of human life and behaviour; capable of attaining a certain level of cogency, seriousness, cohesion and importance; and worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The Tribunal found that all of the “Grainger criteria” applied except for the fifth criterion (“Grainger V”), therefore Ms Forstater’s views did not amount to a protected belief. Ms Forstater appealed this decision.

Employment Appeal Tribunal (EAT)

The EAT disagreed with the Tribunal’s decision. It held that Grainger V should only exclude “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. The EAT acknowledged that only a very few beliefs would hit that threshold. Of Ms Forstater’s views, the EAT said:

It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Employment Appeal Tribunal

Ms Forstater’s appeal was therefore successful.

Anticipating that its judgment could be open to misinterpretation, the EAT took the unusual step of making its position on transgender issues clear. It stressed that its findings did not mean it was expressing any views on the merits of either side of the transgender debate. It said the judgment was not licence for persons to “misgender” trans persons (use non-preferred pronouns or gender) with impunity. The EAT pointed out that the Equality Act continues to prohibit harassment on grounds of gender reassignment.

Comment

In this ruling, the EAT has set a high threshold for the operation of Grainger V. It deems only the most abhorrent views or those capable of inciting others to be unworthy of protection. Some will feel that the threshold has been set far too high.

It remains to be seen whether CGD will appeal the decision to a higher court. [...]

Gender reassignment includes non-binary and gender fluid persons

Law and Labour — Sun, 06 Dec 2020 20:01:13 +0000

It’s not often that the Employment Tribunal is the site of a landmark decision, but that is the case with Taylor v Jaguar Land Rover.

Facts

The case concerned an employee of Jaguar Land Rover (JLR), Rose Taylor, who joined the company in 1999. Ms Taylor was considered to be a high performer and very competent at her engineering job.

By 2017, Ms Taylor had notified JLR that she was gender-fluid and transitioning, but she had no intention of undergoing surgery to reassign her gender. She retained her male birth name but chose to dress in a male style on some days and a female style on other days.

Ms Taylor was subjected to a sustained campaign of harassment on grounds of gender reassignment over a long period. Although she submitted a grievance to JLR about her treatment, the company did not take any action to prevent the discriminatory treatment from occurring or continuing. Ms Taylor’s employment by JLR ended in June 2018 shortly after she had contacted Acas to start early conciliation.

Employment Tribunal

Following the ending of Ms Taylor’s employment, she brought claims of constructive unfair dismissal and discrimination on grounds of sexual orientation and gender reassignment, and victimisation.

The key question for the Tribunal to decide was whether a non-binary, gender-fluid person has the protected characteristic of gender reassignment. The definition of gender reassignment in the Equality Act describes a person who is undergoing or has undergone a process (or part of a process) to reassign their sex by changing “the physiological or other attributes of sex”.

The Employment Tribunal decided that a person need not have (or intend to have) surgery in order to identify as a different gender to their birth sex. Starting to dress or behave like someone who is changing their gender or is living in the identity of the opposite sex would be sufficient to qualify for protection from gender reassignment discrimination.

We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex. Employment Tribunal

Ms Taylor accordingly succeeded in her various claims.

The Employment Tribunal considered it appropriate to award aggravated damages in this case because of the “egregious way” in which Ms Taylor was treated and the “insensitive stance” taken by JLR during the legal proceedings. This was in addition to a 20% uplift on damages due to JLR’s “complete failure” to comply with the Acas Code of Practice when handling the grievance. The parties eventually agreed compensation of £180,000.

Comment

The Employment Tribunal was scathing of JLR’s treatment of Ms Taylor which it found to be “unconscionable”. It took pains to stress that the fault did not rest with individual managers, [...]

Reason for indirect discrimination need not be proven

Law and Labour — Sun, 09 Apr 2017 09:52:59 +0000

In two important judgments on the scope of indirect discrimination relating to race, age and religion – Essop and Naeem – the Supreme Court has decided that there is no need for claimants to prove the reason why a provision, criterion or practice (PCP) puts them at a particular disadvantage. The Court held that it was sufficient to show that there was a causal link between the PCP and the disadvantage suffered.

The Essop case

The Essop case concerned age and race discrimination involving staff at the Home Office who were required to pass a Core Skills Assessment (CSA) in order to gain promotion to higher grades in the civil service. Investigation into CSA pass rates had revealed that candidates who were aged 35 and over or who were non-White had lower pass rates than White or young candidates. However, the reason for this disparity was not known.

The disadvantaged candidates brought an employment tribunal claim arguing that the CSA amounted to indirect discrimination on grounds of age and race. The PCP they relied upon as causing the indirect discrimination was the requirement to pass the CSA as a pre-requisite to promotion. The case passed through the tribunals and lower courts before eventually arriving at the Supreme Court.

The key question for the Supreme Court to decide was whether in order to succeed in their indirect discrimination claim the disadvantaged candidates needed to establish the reason why the group had lower pass rates than their comparators. The Supreme Court decided that it was only necessary to show that the requirement to pass the CSA had caused the candidates to suffer from disadvantage, namely that the group failed the CSA disproportionately. It was not necessary to establish the reason for this particular disadvantage.

The Naeem case

Mr Naeem was a prison chaplain who brought claims of race and religious discrimination in respect of the Prison Service pay scheme for chaplains. The scheme provided that the pay of chaplains increased over time so that pay was linked to length of service. However, the average pay of Muslim chaplains was less than that of Christian chaplains because Muslim chaplains had only been employed in the Prison Service since 2002.

Mr Naeem argued that the pay scheme was indirectly discriminatory against Muslim and Asian chaplains due to their having shorter lengths of service on average than Christian chaplains. The Supreme Court considered two issues:

whether the reason for the disadvantage suffered by Mr Naeem had to be related to his religion or race; and whether the matter concerned all prison chaplains or only those employed since 2002.

The Supreme Court disagreed that there had to be any relation between Mr Naeem’s race or religion and the reason why the PCP in the case – the Prison Service pay scheme – put him at a disadvantage. The Supreme Court also decided that all the workers affected by the PCP should be taken into account, not just those employed after 2002.

The PCP identified was the incremental pay structure which affected all the chaplains employed by the Prison Service. [...]

How might Brexit affect employment law?

Law and Labour — Sun, 15 May 2016 10:26:02 +0000

On 23 June 2016, a referendum will be held in the United Kingdom to decide whether this territory should leave the European Union (‘Brexit’). If Brexit were to take place, this development could have a significant impact on employment law.

Much of the legislation relating to employment rights has its foundation in European law. In addition, UK courts have to abide by the decisions of the European Court of Justice when interpreting any employment law that has its basis in EU law.

In the table below, we summarise which areas of law are likely to change.

Area of law Likely to change? Reasons Equality No It would be difficult to get rid of the existing law in this area. Working time and holiday pay Yes Workers and trade unions would complain if too many changes were made to their rights in this area. However, the law relating to holiday pay might be amended to simplify its application and clarify some unpopular rights that have arisen as the result of EU case law. Transfer of undertakings (TUPE) No Although the law in this area is unpopular with businesses, it is unlikely to be repealed because it is a key part of many commercial agreements. Instead, minor amendments might be made. Redundancy No The obligations are not onerous such that removal would be sought. Agency workers Yes The law governing agency workers’ rights is complex and unpopular, making it ripe for amendment. Immigration Yes If Brexit goes ahead, then nationals of the UK and the EU will lose the right to freedom of movement between each others’ states. It is likely the Government would put in place transitional arrangements allowing EU nationals already working in the UK to remain for a time as long as reciprocal arrangements applied to UK citizens working in EU countries. Data protection No EU states will demand that the UK have adequate data protection measures in place should their businesses need to transfer personal data to the UK. Maintaining the current legislation will provide such security, but the legislation will need to be updated to take into account upcoming changes to EU data protection legislation.

Despite the concerns noted above, any changes are unlikely to take place immediately following Brexit. The rules governing EU membership mean it will take two years for the UK to leave the EU. The Government would therefore be more likely to retain current legislation for a period of time before making changes to individual legislation on a piecemeal basis as and when necessary.

“European Union flag” by Flikr user Yanni Koutsomitis used under Creative Commons Attribution 2.0 license

Pension scheme did not discriminate against employees taking ill-health retirement

Law and Labour — Fri, 31 Jul 2015 10:16:13 +0000

A pension scheme operated by Swansea University did not discriminate against disabled employees by failing to base their pension on full time salary, the Employment Appeal Tribunal (EAT) has found. During the case, the EAT considered the meaning of “unfavourable” treatment in the context of discrimination arising from disability and found that it is not the same as being subjected to a detriment or to less favourable treatment.

Background

Mr Williams worked as a technician at Swansea University and was a member of his employer’s pension scheme. He suffered from a number of complaints which rendered him disabled. From July 2011, he halved his hours of work in order to better cope with his disability. Despite this reduction in his hours, he gradually became incapable of carrying out his job and he took ill health retirement in June 2013.

The claim

Under the terms of the pension scheme, Mr Williams received both a pension and an enhanced pension calculated on the basis of his final pay. However, Mr Williams claimed that the terms of the pension scheme were discriminatory. He argued that had he been employed on a full-time basis at the time of his retirement, his enhanced pension would have been double that he received. He noted that his disability had caused him to work reduced hours, therefore he argued he had been unfavourably treated because of something which had arisen in consequence of his disability. The Employment Tribunal agreed that he had been discriminated against on those grounds.

The appeal

The pension scheme trustees appealed against the Tribunal’s decision. The EAT considered the meaning of the word “unfavourably” in the equality legislation and disagreed with the Tribunal that “unfavourably” could be equated with the concept of being subjected to a “detriment”.

“The determination of that which is unfavourable involves an assessment in which a broad view is to be taken and which is to be judged by broad experience of life. Persons may be said to have been treated unfavourably if they are not in as good a position as others generally would be.” Employment Appeal Tribunal

The EAT found that there was little evidence to support the interpretation of “unfavourably” adopted by the Tribunal. The pension scheme provided significant benefits to disabled persons, therefore the EAT found it difficult to see how the Tribunal had arrived at its conclusion that Mr Williams had been treated unfavourably.

The EAT felt Tribunal might have applied a “less favourable treatment” test and concluded that Mr Williams was treated less favourably than another disabled person whose disability might not have required him to work reduced hours by the time of his ill health retirement. However, this was the wrong test to apply and it did not mean that Mr Williams had been treated unfavourably.

“Since the Tribunal applied the wrong test, adopted the wrong approach, failed to recognise that anyone who could legitimately claim ill-health retirement under the scheme had to be disabled, and reasoned from inappropriate analogies, its decision that the Claimant was unfavourably treated because of something arising in [...]