Recent discrimination cases

PPMA WEBSITE EMPLOYMENT LAW UPDATE February 2010 (4)

Recent discrimination cases

As the Equality Bill continues to progress through Parliament, some recent cases under the existing separate discrimination legislation strands have raised a number of interesting issues, as summarised below.

Agency Workers
In the case of Muschett v HM Prison Service, the Court of Appeal considered the position of an agency worker who had made complaints of race, sex and religious discrimination, as well as unfair and wrongful dismissal, when his assignment doing laundry in a prison came to an end. His right to progress the discrimination complaints depended on his being able to demonstrate either that he was an “employee” of HMPS under a contract of employment, as defined in the Employment Rights Act 1996, or else in its “employment”, as set out within the wider definition provided for in the relevant discrimination legislation.

At a pre-hearing review, the employment judge found that he was neither an employee of the agency nor of HMPS (the end-user), nor did he come within the wider definition of “employment” as contained within the Race Relations Act and mirrored in the Sex Discrimination Act and Employment Equality (Religion or Belief) Regulations. The Tribunal therefore had no jurisdiction to hear his claims which were dismissed. He appealed to the Employment Appeal Tribunal (EAT) who also dismissed his claims.

The Court of Appeal has now upheld the decision that he was not an employee of HMPS. The Court also held that there was nothing in the evidence that necessitated implying a contract for services with HMPS which would bring him within the wider definition of “employment” and that, in this context, nothing less than necessity would do. The claimant was under no obligation to HMPS to work for them and he could terminate his engagement with them at any time by giving notice to the employment agency which had placed him there.

The employment status of agency workers and nature of their relationship with the end-user is an issue which has been considered on many occasions by the courts and on which there is a substantial body of case law. This case would appear to illustrate a potential gap in the protections afforded under discrimination legislation, with an agency worker only able to progress a discrimination complaint against an end-user organisation if they can demonstrate that it is necessary to imply either a contract of service with the end-user or relevant agency or a contract for services with the end-user, something which may be difficult to achieve.

Age Discrimination
The Employment Equality (Age) Regulations, provide protection against discrimination on the grounds of age at all stages of the employment process, including recruitment and selection. Recent media reports have suggested that employers may be vulnerable to complaints from “serial litigants” who lodge multiple age discrimination claims on the basis of job advertisements. For example, the Sunday Times carried a report of a 54 year old man who had lodged more than 60 claims against employers, with a view to “persuading” the relevant organisations to settle out of court. The case of Keane v Investigo & ors provides an illustration of this type of issue and perhaps serves as a salutary lesson to such individuals where the particular organisations decide to resist the claim rather than settle the matter.

The individual in this case was an experienced accountant in her early 50’s. She made around 20 applications for jobs which were advertised as suitable for recently qualified accountants, with responsibilities for someone of relatively limited experience. When it became clear that she was not to be offered an interview, she lodged age discrimination complaints against the agencies which had advertised the relevant jobs. A number of the agencies decided to settle her claims out of court but others decided to defend them on the basis that her applications were not genuine. The evidence suggested that she had deliberately sought out advertisements which indicated that newly or recently qualified candidates were being looked for.
At the tribunal hearing, and without previously consulting her, her representative conceded that the job applications needed to be genuine in order for her to have a valid claim. If her applications were not genuine, she could not be said to have suffered a disadvantage in accordance with the Regulations. The tribunal found that her applications were, indeed, not genuine and dismissed her claims. In addition, an award of costs was made against her.

The claimant appealed against the tribunal’s decision and also sought to withdraw the concession which had been made by her representative without her agreement. The Employment Appeal Tribunal (EAT) have now upheld the tribunal’s decision and dismissed her appeal, confirming that an applicant who is not considered for a job in which he or she is not interested cannot be said to have suffered a detriment, i.e. to have been comparatively unfavourably treated or put at a disadvantage. The EAT also refused to allow the withdrawal of the concession which had been made by her representative at the tribunal hearing. In addition, on the basis that the claims had been brought with an ulterior motive, the award on costs was “unimpeachable”.

The outcome in this case will no doubt be welcomed by employers and highlights the need to be alert to potential claims of this type. It does also perhaps serve as a useful reminder of the importance of avoiding any potentially discriminatory language within job advertisements and of ensuring that proper consideration is given to all candidates, with clear and objective reasons identified and recorded in respect of those who are not selected either for interview or appointment.

Establishing indirect religious discrimination
In the case of Eweida v British Airways Plc, the employee, a practising Christian, sought to establish that she had been subject to both direct and indirect discrimination by BA when she was suspended without pay following her refusal to conceal a silver cross she wore round her neck in accordance with the employer’s uniform policy. Her claims were dismissed by the employment tribunal, finding that, with regard to the alleged indirect discrimination, BA’s policy did not put her at a disadvantage when compared to others. However, it also went on to note that, if the policy had been found to be indirectly discriminatory, it would not have been justified as a proportionate means of achieving a legitimate aim.

The employee appealed to the Employment Appeal Tribunal (EAT) who also dismissed her claim of indirect discrimination, holding that for such a claim to succeed there must be evidence of group disadvantage. The tribunal had found that no-one but the claimant felt disadvantaged by the policy. BA’s appeal against the tribunal’s finding on the question of justification was also dismissed.

The Court of Appeal has now upheld the previous findings on her claim of indirect discrimination. There was no evidence that a sufficient number of persons other than the claimant were put at a "particular disadvantage" by not being allowed to visibly wear a cross. BA had not therefore acted in a way which amounted to unlawful indirect discrimination. The alleged detriment of which she had complained was suffered by her alone, neither evidentially nor inferentially was anyone else similarly disadvantaged. The Court went on to point out that if a solitary employee could be indirectly discriminated against then this could place "...an impossible burden on employers to anticipate and provide for what may be parochial or even factitious beliefs in society at large."

In addition, the majority of the Court indicated that, had the issue arisen, it would have been inclined to allow BA’s appeal on the earlier findings regarding justification.

Although the employee was unsuccessful in this particular case, it does illustrate the difficult issues which employers can face in seeking to balance the wishes of individuals, particularly in relation to the manifestation of religious beliefs and other equality considerations, against the needs of the particular business/organisation. Employers need to be confident that they can objectively justify any policy requirement, as well as ensuring it is fairly and consistently applied in individual cases.

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