The interpretation of the Equality Act 2010 in everyday life continues to evolve and progress. Tribunal decisions and court cases are constantly adding layers to equality and diversity best practice. One important general update employers should bear in mind is that the £1,200 employment tribunal fee was scrapped by the Supreme Court last month.
This roundup of the latest rulings will help you review equality policy and practice in your workplace.
If at first you don’t succeed…
In January 2017, the Supreme Court ruled in favour of a wheelchair user who had been denied a space on a Leeds bus operated by FirstGroup by a woman with a pram. Although the driver asked her to move, she refused and the driver took no further action. As a result, the wheelchair user had to wait for the next bus and missed his train.
While the Court of Appeal had overturned his initial victory, the Supreme Court accepted that FirstGroup’s policy should have gone further than simply requesting that the woman remove the pram, then giving up when she refused. The Court said the driver should have taken further steps to pressure the woman to vacate the space.
What to check: How far are your staff required to go to ensure compliance with equality policies?
Ours is not to reason why…
An employee of the UK Border Agency challenged a rule that, to be eligible for promotion, he must pass a particular assessment that BME and older candidates consistently performed poorly at. In another case, the average pay of a Muslim prison chaplain was lower than a Christian one. The prison service argued that pay scales were dependent on length of service and that Muslim chaplains had only been employed since 2002.
The Supreme Court ruled in both cases that there is no need for someone claiming indirect discrimination to show why the disadvantage is related to the protected characteristic. Just the fact that the rule they are challenging does disadvantage the group, for whatever reason, is sufficient.
What to check: What are the processes around someone challenging a rule based on indirect discrimination and is there a requirement to show why something is discriminatory?
A worker by any other name…
Mr Smith worked for Pimlico Plumbers for six years as a self-employed contractor. He took them to an employment tribunal claiming unfair dismissal, discrimination and that he was owed holiday pay.
The Court of Appeal agreed that Mr Smith is a worker despite his tax status, and therefore entitled to the rights of workers. This follows on from the raft of employment rulings dismantling the fictitious nature of a number of gig economy employment practices championed by companies such as Uber and Deliveroo.
What to check: Is the relationship with any freelancers a genuinely temporary one or could they be considered as a worker?
Equal marriage, equal pensions
John Walker, a former army officer, 65, has been with his now husband since 1993. They entered into a civil partnership right after its establishment of the Civil Partnership Act in 2005, and later converted it into a marriage. His former employer refused to grant Mr Walker’s husband an entitlement to a spouse’s pension, relying on an exemption in the Equality Act for pre-2005 benefits.
The Supreme Court found this inconsistent with EU law. It ruled that even benefits accrued before the passage of the Civil Partnership Act cannot be denied to a lawful spouse. Therefore Mr Walker’s husband has the same entitlement to the £45,000 per year pension that a wife would.
What to check: Does your company offer any marriage related benefits and do they apply equally to same-sex married couples?
Unsurprisingly, pregnancy discrimination is still illegal
A woman in Northern Ireland who was sacked by her employer shortly after returning from maternity leave has accepted a settlement before it went to an employment tribunal.
The company she worked for hired two new workers to cover her role during her maternity leave. When she returned, she was moved to another role before being made redundant a few months later. The company paid her £9,000 in damages after she took a case against them for unfair dismissal and unlawful discrimination on the grounds of sex and pregnancy.
What to check: Review policies or actions relating to workers and maternity/ paternity leave to ensure they are not discriminatory.
VinciWorks’ e-learning diversity course
VinciWorks’ 30 minute course on diversity provides an overview of the key obligations and best practice impacting day-to-day work. It digests the material into concise principles, featuring media stories and legal precedents that bring the topic to life. You can learn more about the course by clicking on the button below.