Law and Labour » Race discrimination

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. [...]

Airport beauty consultant is not an employee

Law and Labour — Sat, 01 Nov 2014 10:30:49 +0000

The Court of Appeal has confirmed that a beauty consultant who operated an airport concession was not an employee.

Ms Halawi ran an outlet in the duty free section of Heathrow Airport which stocked cosmetics produced by Shiseido. The arrangement by which this outlet was set up and run involved five parties:

1. WDF – responsible for management of the site in which the outlet was located; they ran all the outlets at that site, including the one run by Ms Halawi. 2. Shiseido – manufacturer of the beauty products sold at the outlet. 3. CSA – a service company who provided sales staff to sell Shiseido products. 4. Nohad Ltd – a service company set up and controlled by Ms Halawi for the provision of her services to CSA. 5. Ms Halawi – claimant.

As the outlet was located beyond the security-controlled gates, Ms Halawi required an airside pass to work there. This pass was authorised by WDF. In June 2011, WDF withdrew Ms Halawi’s pass meaning she could not longer work at the outlet.

Ms Halawi complained that WDF’s actions amounted to race and/or religious discrimination. However, in order to bring a claim against WDF she needed to show that she was an employee of WDF.

On the face of the facts, the complicated arrangement of relationships appeared to show no direct contractual relationship between Ms Halawi and WDF. Ms Halawi sought to rely on the business partner guidelines issued to her by WDF as amounting to a “contract personally to do work”. This, she argued, would make her an employee for the purposes of equality legislation. However, neither the Employment Tribunal nor the Employment Appeal Tribunal was convinced that she was indeed an employee of WDF.

At the Court of Appeal, Ms Halawi argued changed her tune and instead argued that a contract between the parties was not necessary. It sufficed that there had been a relationship of subordination between WDF and her.

The Court of Appeal disagreed. It found that the true test of whether she was an employee was to look at the level of her integration into WDF’s business. It noted that WDF did not control the way in which she carried out her work, which reflected her lack of integration into WDF. The only control WDF had was over the place where she worked.

A further strike against Ms Halawi’s status as an employee was the fact that she was not required to staff the outlet herself. If need be, she could get another person to run the outlet on her behalf. She had in fact done so in the past.

Despite its decision, the Court of Appeal was uneasy that if Ms Halawi had indeed been a victim of discrimination (an issue which had never been determined) she would be left without a means of seeking redress.

CASE Halawi v WDFG UK Ltd t/a World Duty Free, Court of Appeal, 28 October 2014

Virgin Atlantic job applicant who changed name fails in race claim

Law and Labour — Tue, 23 Apr 2013 10:34:16 +0000

A Liberian man who submitted two job applications under different ethnicities has failed in his race discrimination claim against Virgin Atlantic after the Employment Tribunal decided that his original application was rejected because it was a poor match for the job and not because of his race.

Mr Kpakio twice applied for a customer service job with Virgin Atlantic in October 2012. In the first application, he used his own name and gave his ethnicity as Black African. When this application was rejected, he submitted a second application in which he used the false name Craig Owen and gave his ethnicity as White British. The second application was selected for telephone interview. He subsequently brought a claim for direct race discrimination, arguing that his original application had been rejected because of his ethnicity.

The Employment Tribunal found that Mr Kpakio’s application and CV had been rejected because they did not match the requirements for the job. Furthermore, it noted that there were significant differences between the two applications. It found that Mr Kpakio had tailored the second application so that it provided a better fit with the job.

“The Claimant did not merely change the names and ethnicity in the two applications; they were different applications and the false application was clearly designed to meet the Respondent’s criteria for the role.” Employment Tribunal

The Tribunal concluded that Mr Kpakio failed to show that he had suffered direct race discrimination and his claim was dismissed.

CASE Mr MS Kpakio v Virgin Atlantic Airways Ltd, Employment Tribunal, April 2013

Main photo: Arpingstone