Equality: An Overview of November 2014 Aileen McColgan

Transcription

1 Equality: An Overview of November 2014 Aileen McColgan

2 Scope of talk recent and forthcoming legislative changes: recommendations equal pay caste discrimination some interesting recent cases on: pregnancy disability victimisation retirement/ age discrimination

3 legislative reform abolition of tribunal power to make wider recommendations equal pay audits caste discrimination impending developments

4 Recommendations s124(3) Equality Act 2010: An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect of any matter to which the proceedings relate (a) on the complainant; (b) on any other person. S2 Deregulation Bill would remove the power in s124(3)(b)

5 Impact of s2 Deregulation Bill Williams v MOD ET April recommendations (and over 500k award following MOD s abject failure to follow EHRC Code of Practice incl: training monitoring and analysis of recruitment decisions ceasing admitted discriminatory promotion practices Conducting research and implementing ensuing recommendations on improved female representation. Boswell v MOD ET February 2014 discrimination against claimant as married officer tribunal made recommendation that the defendant review its Joint Service Publications in their entirety to ensure that no other parts of them discriminate on grounds of the protected characteristic of marriage/ civil partnership Ishaq v Ealing ET November 2013 training and monitoring of conscientious participation

6 Equal Pay audits Ironically, Tribunals must require equal pay audits on finding breaches of the equal pay provisions, as of October 2014, unless: The employer carried out an audit in the three years preceding the date of the Tribunal's judgment that it breached equal pay law. It is clear without an audit whether any action is required to avoid equal pay breaches occurring or continuing. The breach found by the Tribunal gives no reason to think that there might be other breaches, The disadvantages of an audit would outweigh its benefits The employer is a micro business or new business Gender pay gap for FT men and women widened in the year to April 2014

7 Caste discrimination CERD prohibits discrimination based on descent in 2002 GR 29 strongly reaffirms that this includes discrimination based on forms of social stratification such as caste Equality Act 2010 provides a legislative basis for regulation s9(5)(a) Pressure from UN Human Rights Commissioner and others resulted in an attempt to include caste within race for the purposes of the Equality Act 2010 s97 ERRA 2013 replaced power in s9(5)(a) with duty EHRC research but consultation document awaited Meanwhile caselaw: Tirkey v Chandok Jan 2014 ET, allowed caste as a form of ethnic origin

8 Pregnancy cases Pregnancy and surrogacy CT v ST ECJ Case 167/12 Post-natal depression and the protected period Lyons v DWP Jobcentre Plus EAT Jan 2014 Pregnancy and associative sex discrimination Gyenes & Gyenes v Highland Welcome (UK) Ltd ET January 2014

9 disability FOA, acting on behalf of Kaltoft July 2014 AG Jääskinen suggests that BMI in excess of 40 (morbidly obese) may be presumed to have limitations such as problems in mobility, endurance and mood amounting to a disability watch this space

10 Post-employment victimisation Rowstock Ltd v Jessemey [2013] EWCA Civ 185 [2014] 2 All ER 409 CA confirms Equality Act 2010 applies

11 Retirement/ age discrimination Seldon v Clarkson Wright & Jakes (No.2) EAT May 2014 mandatory retirement aged 65 justified though the employer could have met the same ends with a different retirement age

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