BIS shows its hand

BIS has published its Second Statement of New Regulation. It can be found here: http://goo.gl/bD9aO (many thanks to Paul Callaghan at Taylor Wessing for the tip off). There are two points bound to catch the eye of Employment Lawyers. The first is a reinstatement of the two year qualifying period for unfair dismissal:

“To cut the regulatory burden facing British businesses the Government has … consulted on changes to employment law that will give business the confidence to take on staff. We are increasing the qualifying period for employees to be able to bring a claim for unfair dismissal from one to two years and introducing fees for lodging employment tribunal cases to tackle vexatious claims.”

The one year period was introduced because the longer period was found indirectly to discriminate against women. It seems likely that there is going to be some close statistical scrutiny to be done in the near future. Indeed, the excellent agediscrimination.info are already on the case: http://goo.gl/DQASu.

Note, also the introduction of fees. This is supposed to “tackle vexatious claims”. One would need to know how much it was proposed to charge in order to assess the extent to which the fees will discourage commencement of claims but one can see an immediate difficulty with the rationale: the effect of a fee is to discourage claims from those who cannot afford the payment rather than specifically those who have unmeritorious claims. That means its greatest impact will be on the low-paid and recently dismissed; precisely those that the “informal” tribunal process was supposed to assist.

The second proposal of interest is:

“[Consultation] on removing Equality Act requirements for businesses to take reasonable steps to prevent harassment of their staff by third parties. This is something that businesses have no direct control over and will save them £0.3 million.”

This is a puzzle. First, £300k seems a paltry saving to justify taking a step that will result in people being exposed unnecessarily to harassment in the course of their work. It’s the cost of an individual banker’s bonus spread across all employers in the country. Secondly, it is far from clear what BIS means by “this is something that businesses have no direct control over”. The point of the duty (EA 2010, s. 40(2)) is compel an employer to act where there is a sufficient degree of control. The duty is, in any event, set very low and only requires an employer to take such steps as are “reasonably practicable”.

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Reasonable Adjustments for Disability

Reasonable Adjustments – The Origin and Scope of the Duty

1. The idea which underpins the duty to make reasonable adjustments is “mainstreaming”. The idea is to compel those under the duty to remove, wherever reasonable, the obstacles that hinder the involvement of people with disabilities in mainstream employment.

2. The duty is set out at Equality Act 2010, ss. 20 to 22 . It is a close cousin of the prohibition of indirect discrimination. Until the Equality Act 2010 came into force, there was no prohibition of “indirect disability discrimination” in the ordinary sense. That situation has been altered by EA 2010, s. 19 which lists disability alongside the other protected characteristics in defining unlawful indirect discrimination.

3. What are the differences between the two duties? Both deal with circumstances where an employer’s provision, criterion or practice disadvantages someone because of their disability. However:

(1) The duty in s. 19 imposes no duty on the employer to remove the disadvantage, merely to compensate for the disadvantage;

(2) S. 20 is engaged where the employee is put at a “substantial” disadvantage. S.19 requires a “particular” disadvantage. It is not clear if the difference in wording is intended to denote a difference in threshold. What is certainly different, however, is that to succeed in an indirect discrimination claim, the employee must establish not simply that he is disadvantaged but that he is a member of a class of people sharing the protected characteristic that would be disadvantaged;

(3) S.20 covers not just “PCPs” but also physical features and absence of auxiliary aids.

4. EA 2010, s. 20 provides:

20 Duty to make adjustments

(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A’s costs of complying with the duty.

(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.

(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to—

(a) removing the physical feature in question,
(b) altering it, or
(c) providing a reasonable means of avoiding it.

(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—

(a) a feature arising from the design or construction of a building,
(b) a feature of an approach to, exit from or access to a building,
(c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or
(d) any other physical element or quality.

(11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.

(12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.

(13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column.

5. Even where the employee is disabled and a PCP, physical feature or want of auxiliary age puts them at a substantial disadvantage, the duty will not arise where an employer does not know (and could not reasonably be expected to know) that:

(1) a job applicant is disabled; or
(2) an employee is disabled and is likely to be placed at the relevant disadvantage. [EA 2010, Sch 8, Pt 3, Para 20]

6. The case of Eastern and Coastal Kent PCT v Grey [2009] IRLR 429 had created some uncertainty as to how this exception was to be applied. The case concerned the old wording under the Disability Discrimination Act 1995. The EAT appeared to suggest that in order to escape the application of the duty the employer had to establish all four of the following:

(1) He did not know of the disability;
(2) He could not reasonably have been expected to know;
(3) He did not know of the substantial disadvantage; and
(4) He could not reasonably have been expected to know.

This interpretation seemed to mean that an employer might be subject to the duty even where it was unaware (and could not reasonably have been expected to be aware) of the disability. That possibility has now been eliminated by the EAT decision in Wilcox v Birmingham CAB Services Ltd [2011] EqLR 810. Mr Justice Underhill takes the view that unless the employer had actual or constructive knowledge of the disability, the question of substantial disadvantage did not arise.

7. The case raised an interesting question about when an employer may be said to know that an employee is disabled. The context was a dispute over the exercise of a mobility clause. Cutting a long story short, the claimant said that travelling on public transport made her anxious. Her Cognitive Behavioural Therapist agreed, producing a report saying that she was at risk of panic attacks and should work somewhere she could drive to. The Respondent obtained a report from an Occupational Health Consultant who concluded that there was “no substantial evidence of psychiatric diagnosis” nor were there medical grounds for alternative travel arrangements.

8. There was a very drawn-out grievance process which ended with the claimant resigning and commencing proceedings. It was only at that point that an opinion was obtained from a Consultant Psychiatrist who diagnosed Agoraphobia. On the basis of that diagnosis, the claimant was clearly a disabled person. Was the respondent to be taken to have had actual or constructive knowledge of that fact? The EAT decided that the respondent did not have the requisite knowledge at the relevant time. It was not a question of their having lacked the specific diagnosis – an employer can appreciate that an employee has a disability even if a precise diagnosis of their condition is not available. The tribunal should ask whether the employer has actual or constructive knowledge of an impairment that had the necessary substantial and long term adverse effect. In the present case, it was felt that it had been difficult to disentangle what the claimant was saying about her condition from the broader dispute between the parties. There was also evidence that the claimant had not been co-operative in relation to obtaining a report and that was a factor relevant to the question of constructive knowledge.

 The Content of the Duty

9. The employer must take such steps as it is reasonable to have to take either to avoid the disadvantage or, in auxiliary aid cases, to provide the aid (EA 2010, s. 20 (3) to (5)). The employer cannot require the employee to pay of its costs of complying with the duty (EA 2010, s. 20 (7)).

10. EA 2010, s. 22 allows for regulations to further define the duty including defining what would and would not be reasonable in particular circumstances. No regulations have yet been issued that apply in employment cases.

11. The DDA 1995 had, at s. 18B guidance as to what sorts of measures might be required and what factors might be taken into account in determining reasonableness. The factors that were identified included:

(1) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(2) the extent to which it is practicable for [the employer] to take the step;
(3) the financial and other costs which would be incurred by [the employer] in taking the step and the extent to which it would disrupt any of his activities;
(4) the extent of [the employer’s] financial and other resources;
(5) the availability to [the employer] of financial or other assistance with respect to taking the step; and
(6) the nature of [the employer’s] activities and the size of his undertaking.

12. The steps that might be taken included making adjustments to premises; allocating some of the disabled person’s duties to another person; transferring him to an existing vacancy and altering his hours of work and training.

13. The reasonableness factors and example adjustments do not appear to have been carried across to the EA 2010. However, there is no doubt that they remain relevant and they have been substantially reproduced at Chapter 6 of the EHRC’s Code of Practice on Employment.

14. Clark v Novacold [1999] IRLR 318, EWCA was authority for the proposition that the duty to make reasonable adjustments did not apply to a dismissal. Following Aylott v Stockton on Tees BC [2010] EWCA Civ 910, that would seem no longer to be the cases. In an admittedly obiter consideration of the issue, Mummery LJ was inclined to accept that the effect of Framework Directive 2000/78/EC, Art 3(1)(c) was to require dismissals to fall within the scope of the duty.
15. In Gomez v Glaxosmithkline Services Unlimited [2011] EqLR 804, the EAT considered the case of a claimant who suffered from severe depression and panic attacks. The claimant was found to have been leaving the site at which he worked without authorisation and by using a colleague’s security pass. He was dismissed for gross misconduct. He argued that the penalty should have been “adjusted” and that he should have been given a warning instead. The EAT concluded that the employer could not be reasonably required to take such a step as it risked the employer appearing to condone the practice.

16. Burke v College of Law and another [2011] EqLR 454 EAT is a further recent example of an employer determining that a proposed adjustment would not have been reasonable. It is a case concerning a “qualification body” – one of the categories of non-employers covered by the Act. The claimant, who has MS, was re-sitting LPC exams. A series of adjustments were made including allowing them more time. However, the claimant had asked for still further time and the opportunity to take the exams at home. Those adjustments were declined. The EAT concluded that the examination’s purpose was to “assess the ability of the candidate to demonstrate their competence and capability in the subject matter under time pressure.” The time restriction was, therefore, a competence standard.

17. Lowe v Cabinet Office [2011] EqLR 803 is an employment tribunal case which takes a similar line to that in Burke. The claimant had Asperger’s Syndrome. She applied for admission to the Civil Service Fast Stream. The selection exercise involved application of a criterion that required a high standard of communication skills and assessment by group exercise. The tribunal accepted that no adjustment was reasonably required. The exercise was to find high quality applicants and the proposed adjustments would have destroyed the essence of the exercise.

18. Noor v Foreign and Commonwealth Office [2011] EqLR 448 EAT is a case in which a claimant was successful in contending that a selection exercise should have been adjusted. The claimant has dyslexia and dyspraxia. He responded to a job advertisement that identified 4 key competencies. Unfortunately, the advertisement contained a mistake. It had included “problem solving and judgment” as a competency whereas it had been intended to include a competency that dealt with “strategic awareness”. At the interview he was asked questions about strategic awareness and was unprepared to deal with them. Because of his impairments he was at a substantial disadvantage in responding to the changed circumstances. He as ked for a re-interview but was told that his scores measured against the other competencies were so low that even if the score against the disputed competency was disregarded he still would not have been appointed. The EAT concluded that it may be reasonable to make an adjustment even when that would not prevent the disadvantage. The question whether the adjustment would have made any difference went to remedy.

19. In Clark v Newsquest Media [2011] EqLR 932 an employer required a diabetic employee to test her blood an inject herself in private. The tribunal concluded that employer was acting in breach of the duty.

Constructive Dismissal, Swords, Shields and Grumpy Toddlers

What binds lawyers together is that we are all afflicted with a similar way of thinking. Whilst we like to talk in high-falutin’ terms of “legal-reasoning” and “jurisprudence”, the truth is that we are really in thrall to a toddler’s model of fairness. If you are a lawyer then, like me, you probably spent much of your early life enraged by your parents’ casual inconsistency in enforcement of rules relating to everything from bed times to portion size. You craved fairness more than Haribo.

I tell you this in the hope that it will explain to you why I remained so consistently bothered by an apparent inconsistency in approach taken by authority to the consequences of a party to a contract of employment committing a repudiatory breach. A repudiatory breach is one which is so bad that the law allows the other party to say “that’s it, I’ve had enough, I am terminating this contract right now!” It is a legal licence to flounce.

Where an employee commits such a breach, the employer is entitled summarily to dismiss the employee. Usually (though not invariably) a repudiatory breach on the part of an employee will be said to amount to “gross misconduct” or “gross incompetence”. The word “gross” means, effectively, “bad enough for me not to have to bother giving you notice”.

What if it turns out, however, that the employer has got it wrong and the employee did not commit the repudiatory breach relied on as a justification for terminating the contract? The answer, at Common Law, is that the employee will have an action for breach of contract. The measure of damages will be the money he would have received during the notice period. This type of claim is called “wrongful dismissal”.

Usually what happens when an employee is summarily dismissed is that the employer will scrabble around checking to see whether there were any other grounds that would have justified summary termination. A long hard look at expense claims, for instance, is often fruitful. What if something turns up? Can an employer rely upon a breach by the employee which is identified only after the employee has been dismissed? The good news for the employer is that you can. The principle was established in in Boston Deep Sea Fishing v Ansell (1888) 39 ChD 339. The net effect is that the employer will succeed in seeing off a wrongful dismissal claim provided that he can show that the employee committed a repudiatory breach even if he cannot show that it was that particular breach that he relied upon when terminating the contract of employment.

So what about the employee? Is what is sauce for the goose also sauce for the gander? If an employer commits a repudiatory breach of contract, the employee can generally terminate the contract without notice. So far, so good. Where the employee summarily terminates a contract of employment in response to a breach it is known as “constructive dismissal”. Constructive and wrongful dismissal are twins.

Does Boston also apply? Can an employee resign and then rely upon a breach they only find out about after the resignation? The approach taken by the authorities has been that the employee must show that they have resigned in response to the alleged repudiatory breach if they wish to establish that they have been constructively dismissed (see for instance, Meikle v Nottinghamshire County Council, [2004] EWCA Civ 859 Per Keene LJ at para 30). Since you can’t rely on a breach you don’t know about, it seemed that you could not have what one might call a “Boston Constructive Dismissal”.

It was this point that scratched at my toddler sense of injustice for many a year. Weren’t employers being cut some slack that employees were not? I appreciated that for employers a late discovered repudiation was a shield (i.e. a defence to a claim of wrongful dismissal) whereas as for employees it was potentially a sword (the basis for a claim of constructive dismissal) but there was a nagging sense of asymmetry.

Then in RDF Media v Clements [2008] IRLR 207 HC the Deputy High Court Judge said the following:

“… as a matter of principle, an employee who claims constructive dismissal on the grounds of breach of the implied obligation may, if he fails to establish the breach on which he purported to claim that his employment ended, rely on any matters constituting a breach which he has discovered only since he resigned. This seems to follow from the application of general contractual principles laid down in the case of Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339.”

My little toddler heart glowed with happiness. Then in Tullett Prebon v BGC Brokers LP [2010] IRLR 648, the issue came up again. Again, the judge (in that case Jack J) was prepared to allow an employee to rely upon Boston:

“Turning to the situation with which I am concerned, the converse of that in Boston Deep Sea Fishing, it follows that an employee may justify his refusal to perform his contract of employment by any grounds which existed at the time of his leaving. So, if he simply walks out without apparent justification, but later discovers that his employer was fraudulently deducting from his pay on account of tax more money than he should, his employer would fail in any action brought against him, whether for damages or for an injunction to restrain him on the basis that the employment was continuing” [at Para 79]

Note, however, that the learned judge is talking about using Boston as a shield. He also considered whether it could be used as a sword and makes an excellent point: a claimant wanting to rely upon a late discovered repudiatory breach to found a claim has a problem with causation (see Para 77 of the decision):

“the employee has to establish that his loss was caused by the conduct which he relies on as constituting the constructive dismissal, that is the employer’s breach of the duty not seriously to damage the relationship of trust and confidence between him and his employee. If the employee had left for some other reason, he cannot establish the necessary causation.”

Put another way, the loss claimed in constructive dismissal claims is loss caused by the employment coming to an end. If the late discovered breach is not the reason for the resignation it equally cannot be the reason that the loss was suffered. The Claimant would have a claim but it would usually be worthless.

As the penny dropped for me and then rolled irritatingly round on the desk in front of me, it occurred to me that for many years I had been troubled by an inconsistency that ultimately had very little real world significance. Of course, as a lawyer, that hardly bothered me at all.

Equality Act 2010: Combined Discrimination

Moira and her twin brother Muir apply for jobs as newsreaders. They have both just turned 40. Muir gets a job but Moira is told that whilst the corporation are perfectly happy to employ female newsreaders, they don’t employ women in their forties. Muir’s new colleague is Kirsty – a perky 25 year old.

What would Moira’s prospects of success have been had she brought a sex discrimination claim? Obviously one would not want to be too bullish (for the sake of one’s insurer’s peace of mind) so let’s go with a conservative 99.9%. Using her twin as a comparator she is able to demonstrate that the only material difference between them is that he is a man and she is a woman. Put another way, everything else being equal, had she been a man she would have got the job.

The corporation protests: “If she had been 25 she would have been appointed, so you could equally say that the reason she did not get the job was her age”. That is true. However, and this is the key point, the fact that it is true that she would have been appointed were she younger does not stop it also being true that she would have been appointed had she been a man. Moira could equally bring a claim for age discrimination, using Kirsty as a comparator and her prospects of success would be, again, very good.

Those who drafted the Equality Act 2010 apparently take a different view. Their understanding seems to be that Moira would be bound to fail in her claims. Their perspective is that Moira is the victim of an act of “combined discrimination”. Her sex discrimination claim, for example, would fail because the reason she doesn’t get the job is not her sex but a combination of her sex and her age. That this must be their view is to be inferred from their creation of a prohibition on dual discrimination at EA 2010, s. 14 which provides:

“A person (A) discriminates against another (B) if, because of a combination of two relevant protected charateristic, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics”

The only conceivable reason for enacting this protection would be if the Govt does not believe that someone in Moira’s position would be otherwise protected. I have to say that I have yet to come across a representative brave enough to say to a tribunal: “The Claimant’s sex discrimination claim must fail since we also discriminated against her on grounds of her age. Can we go now?” The extraordinary consequence of combining the Government’s reasoning with the fact that the section only allows you to claim where two relevant protected characteristics are engaged is that if Moira were black, the corporation would be able to tell her that they don’t employ older black women with complete impunity. It creates a perverse incentive to really spread one’s wings and discriminate more broadly.

The flaw in the Government’s reasoning is that it appears to assume that in order for less favourable treatment to be “because of” a protected characteristic, it has to be the sole or principal cause of the treatment. However, caselaw has long since steered us to a position where it is accepted that the protected characteristic needs only to be a “part of the reasons for the treatment in question” (Barton v Investec Henderson Crossthwaite Securities Ltd [2003] ICR 1205 EAT). Was Moira’s gender part of the reason she was not appointed? The answer must be yes.

Looking at the Equality Unit’s website combined discrimination has snuck onto the list of things the Government wants to think about. This is an encouraging prospect. Perhaps this unnecessary measure will now not see the light of day.

Medical Expert Witnesses

Medical expert witnesses are, it goes without saying, impeccably independent. It is one of those unexplained statistical quirks that, notwithstanding that independence, their opinions tend consistently to reflect the case of the party that is paying their fees. However, that is no more suspicious than a coin coming up heads 420,000 times in a row – it can happen; probabilities work that way.

This week a colleague and I found ourselves sat in the depressing surroundings of a business centre in a Premier Inn at Heathrow, waiting to deliver a lecture . We shared the room with a doctor and his friends. The doctor had booked a room so as to enable him to see a large number of whiplash victims with a view to providing them with letters giving his prognosis for their recovery for use in claims.

I got the impression from his grumpy demeanour that his practice was not thrilling him as once it did. He had a problem with his patients. He was explaining the problem and his eyebrow-raising solution at considerable volume to his companions.

The essence of the problem was that if, as often happened, he examined a patient with whiplash and determined that the prognosis was a full recovery within 6 to 7 months, his patients would get shirty, start talking about their “rights” and insist on waiting the period out in the hope that their neck would still hurt and their compensation might be bigger. This was inconvenient for him as it meant having to perform a second examination and, as he explained in a tone of gathering outrage, he wouldn’t be able to bill the file until he had done so.

His solution? Careful experimentation had revealed that if he untruthfully estimated prognosis as 12 months or a little more, patients were not prepared to wait and he found it easier to persuade them to take whatever money was being offered to them. This, in turn, allowed him to “clear the file from [his] desk and bill for the work” promptly.

It was all I could do not to go over, shake his hand an introduce myself (untruthfully) as a member of the General Medical Council’s disciplinary panel.

Equality Act 2010: The Section 13 Pregnancy Discrimination Mystery

Jane is an FX trader working at a bank. In November 2010 she gets married. Returning from her honeymoon, she shudders at the thought of resuming the boozy lunchtime drinking sessions of her past. Come Friday, the desk decants to the wine bar and Jane orders a fizzy water. Her male companions exchange knowing looks. The next day she is summoned to a meeting with the Head of Desk: “You know me, Jane. I am the first to promote the interests of girls in this bank. I can’t have you being pregnant though luv, so here are your belongings.”

Jane is the victim of an act of perceived pregnancy discrimination. What must she prove to establish her claim? The answer to this question requires us to solve some mysterious drafting in the Equality Act 2010.

The old days

Until 2005 there was no specific prohibition on discrimination on grounds of pregnancy. Pregnancy discrimination claims would be dealt with as cases of direct sex discrimination (SDA 1975, s.1). To treat a woman less favourably on grounds of her pregnancy was to treat her less favourably on grounds of her sex. Logically, being treated less favourably because your employer believed that you were pregnant would fall to be treated in the exactly same way.

Back in the 1980s, the Tribunal would have decided the question of “less favourable treatment” by identifying a suitable male comparator. Their efforts to devise a male analogue for a pregnant woman were by turns amusing and disturbing.They were saved from all that by the European Court of Justice which, in a series of cases beginning with Dekker (177/88), made it clear that pregnant women are in a unique and sex-specific position and that identifying a male comparator is neither necessary nor appropriate.

From that point forward, a woman would succeed in her claim if she could show that she had been treated unfavourably because of her pregnancy (or perceived pregnancy).In 2002, the Equal Treatment Directive 76/207/EC was amended to introduce a specific protection for pregnant women. In due course the SDA 1975 was amended to implement the change to the Directive and SDA s. 3A was born. In its original form S. 3A(1) prohibited an employer from treating an employee less favourably than he would have treated her had she not been pregnant:

“… a person discriminates against a woman if –

(a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably than he would treat her had she not been pregnant.”

Had Jane been dismissed in 2006 she would not have been able to rely on S. 3A(1) for two reasons. The first is that the protection only applies during the so-called “protected period”. The protected period begins “each time she becomes pregnant” (S. 3A(3)(a)). Since Jane was never pregnant, no protected period ever began. The second reason is that the comparison is expressly between a pregnant Jane and a hypothetical non-pregnant Jane. However, all was not lost for Jane because she could still have brought a claim for direct sex discrimination under SDA 1975 s. 1. Since there was no reason to suppose that the introduction of S. 3A was intended to make it harder for victims of perceived pregnancy discrimination to bring successful claims, it must be assumed that there would still have been no need for a male comparator to be identified.

The drafting of S. 3A was subject to a successful challenge on the basis that it still required a comparison even though there was no such requirement in the Directive. In 2008 the Government had another go:

“… a person discriminates against a woman if –

(a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably than he would treat her had she not been pregnant.”

The re-draft is not going to win any prizes. The hypothetical non-pregnant auto-comparator vanishes into oblivion but the section still seems to require “less favourable” treatment, which begs the question “less favourable than what?”

The Brave New World of the Equality Act 2010

The new model pregnancy discrimination protection is to be found at EA 2010 s. 18. It rinses away the last of the comparative language:

“(2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably –

(a) because of her pregnancy …

The statutory language thus finally implements the protection that has existed in practice since the early nineties: you cannot treat a woman unfavourably because of her pregnancy.The section goes further and, at sub-section (7), disapplies “Section 13, so far as relating to sex discrimination” where the complaint concerns unfavourable treatment because of pregnancy during a protected period. EA 2010, s. 13, as we will see below, is the prohibition on direct discrimination.

Returning to Jane’s predicament, it is immediately clear that she can no more rely on EA 2010  s. 18 than she could on SDA 1975 s. 3A because, again, no protected period has come into play. Equally, s. 18(7) does not bite, so can she do what she would have done in the old days and bring a direct sex discrimination claim inviting the tribunal to disregard the requirement for a comparator?

Direct sex discrimination is dealt with by EA 2010, s. 13. The section is a general discrimination prohibition:

“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

The “protected characteristics” are listed at EA 2010, s. 4 and include “sex”. Significantly, the list also includes “pregnancy and maternity”. This is where the mystery begins.

Jane has been dismissed for perceived pregnancy so the obvious choice for her is a S. 13 pregnancy discrimination claim. It is worth noting, in passing, that since s. 18(7) only disapplies S. 13 “relating to sex discrimination”, it would appear to be possible to bring a s. 13 pregnancy discrimination claim during the protected period.The test of liability under S. 13 is expressly a comparative one. There needs to be “less favourable treatment”. The point is emphasised by EA 2010, s. 23(1) which provides:

On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.

Sub-sections 23(2) and (3) then make special provision for disability comparisons and sexual orientation comparisons. There could have been a further subsection disapplying the need for comparison in S. 13 pregnancy discrimination cases but there is not. Either we are faced with some very very bad drafting or else the Government actually wants Jane to have to identify a comparator. If the requirement for a comparator is intentional, Jane will be worse off under the new regime than she was under the old one.

In favour of the approach being intentional is that S.13 creates a brand new express protection against pregnancy discrimination unqualified by any need for it to have occurred within a protected period. It has been created against the background of decades of wrangling about the need for a comparator in pregnancy discrimination cases and it seems unlikely that the Government  decided, whilst being so careful in drafting S. 18, just to assume that everyone would understand that no comparator was necessary or appropriate under S. 13 when the protected characteristic at issue was pregnancy.

On the other hand, there are sections in the Act which suggest that the Government may not have had it in mind to create a s. 13 pregnancy discrimination cause of action at all. Take a look at EA 2010, s. 25. That section defines what is meant by each form of discrimination. Let’s start with Age Discrimination as an example:

“(1) Age discrimination is –

(a) discrimination within section 13 because of age …”

Next on the list is Disability Discrimination:

(2) Disability discrimination is –

(a) discrimination within section 13 because of disability

Now let’s look at what it says about Pregnancy Discrimination:

“(5) Pregnancy … discrimination is discrimination within section … 18

As “spot the difference” challenges go, this is not the hardest. There is no reference of any kind to EA 2010 s. 13. Why not? There are really only two possibilities. The first is that EA 2010 s. 25 is very badly drafted and should refer to S. 13. The second possibility is that EA 2010 s. 13 is very badly drafted and it should exclude pregnancy discrimination leaving sex discrimination to pick up the slack.

There is a chance to amend the Act before it comes into force. This is what I think they should do:

(1) Create a direct form of pregnancy discrimination in addition to s. 18 which covers perceived pregnancy discrimination, associative pregnancy discrimination and pregnancy-related discrimination outside the protected period (where, for instance, an employee is dismissed for announcing an intention to try start a family). This can be done by leaving EA 2010, s. 13 as it is presently drafted;

(2) Make sure the S. 13 and S. 18 claims do not overlap by amending S. 18(7) so as to preclude S. 13 claims during the protected period whether they are on grounds of sex or pregnancy or maternity;

(3) Amend S. 23 so as to make it clear that S. 13 pregnancy discrimination claims should not require a comparator; and

(4) Amend S. 25 so as to make reference to S. 13 in the definition of pregnancy discrimination.I appreciate that others may take a different view.

A bonus mystery

Does really it matter whether S.13 pregnancy discrimination exists or not? The issue does have an unexpected and potentially significant side-effect.

EA 2010, S. 26 prohibits harassment consisting of unwanted conduct relating to “a relevant protected characteristic”. A protected characteristic is only a “relevant” one if it appears at the list in S. 26(5). “Pregnancy and Maternity” do not appear in the list. The omission is plainly deliberate. The use of the phrase “relevant protected characteristic” limits the scope of the protection against harassment to a subset of the protected characteristics. There would be no warrant, therefore, for trying to argue that unwanted conduct relating to pregnancy should be treated as a form of sex harassment.

Until the week before Royal Assent it seemed that the Government was determined to make it lawful to harass pregnant women. Putting it mildly, this seemed like a very odd thing for the Governement to want. At the last minute S. 212 was amended.

EA 2010, s. 212 is the general interpretation provision. It defines detriment so as to exclude “conduct which amounts to harassment“. The point of the provision is to ensure that if you are complaining about being harassed you must bring your claim under S. 26 and not under S. 13.The amendment made the definition subject to a new S. 212(5) which provides:

Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic”

Those who are long in the tooth will remember that this was how all cases of harassment were once dealt with, i.e. as a form of direct discrimination. Shoe-horning harassment into direct discrimination led to some unfortunate side effects including the fact that since you had to show less favourable treatment it allowed an employer to run the “bastard” defence. Provided the employer harassed everyone, he got off.

Pedants will ask whether not including “pregnancy” in the list of “relevant protected characteristics” at S. 26(5) amounts to a “disapplication”. Fie!

However, even if we ignore the pedants, that leaves two questions.The first question is why the Government wanted to deal with it this way rather than just including pregnancy in the list at S. 26(5). Again, if I were free to redraft the legislation, that is what I would do. Why should employees harassed because they are pregnant have to show less favourable treatment when those harassed because of their sex do not?

The second question brings us back to the one discussed at length above. If there is no S. 13 pregnancy discrimination liability, S. 212(5) won’t help the harassed pregnant employee. This is another good reason, therefore, for taking S. 13 at face value and hoping that the other apparently inconsistent provisions are amended to remove any uncertainty.

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