Wednesday, 24 February 2010

Shifting the Burden of Proof in Discrimination Claims

Where an employee claims unlawful racial discrimination it is not enough to show that conduct is unreasonable or unfair for the burden of proof to be shifted to the employer to demonstrate that there was no racially motivated reason for the action complained of. For the burden of proof to shift it must be shown that there was some racial motivation.

In the case of, Commisioner of Police of The Metropolis & Anor v Osinaike EAT on 22nd February 2010On 3rd June 2009 the London South employment tribunal dismissed most of the harassment claims of Ms Osinaike claims save one. The tribunal found in her favour that her complaint of racial harassment was well founded in that she was told in June 2007 by the Senior Management Team that she needed to see a psychiatrist. The tribunal concluded that had Ms Osinaike been white, the Police "would have readily understood the difficulties of her continued placement within Southwark and addressed those matters as opposed to seeing her as irrational and in need of psychiatric intervention".

At the EAT The Respondents were successful with their appeal:

The EAT said that simply showing that conduct is unreasonable or unfair is not, by itself, enough to trigger the transfer of the burden of proof. There was no evidence to suggest any racial element in the actions taken by the Police, which would be a pre-requisite for transferring the burden of proof to make the Police liable unless they showed a non-discriminatory explanation for what happened. In this case it was "notable that the Tribunal nowhere considered the reasons why the [police] acted as they did. The only finding made was the acceptance of [the police occupational health adviser's] view that this was an example of an occasion on which the [Police] 'found it more convenient to medicalise the situation and refer the Claimant to Occupational Health'. This on the face of it has nothing to do with race."

In short, if one is considering an appeal the findings of fact made by the ET must point to a discriminatory motive before the burden is shifted to the employer under the Igen V Wong principles.

Tuesday, 16 February 2010

Request to Remove Cross did Not amount to Religious Discrimination

BA's 'no visible jewellery' policy not discriminatory

In Eweida v British Airways Plc, Ms Eweida has lost before the Court of Appeal in her challenge to the EAT's decision that BA's uniform policy, which required E to remove or conceal her cross, did not amount to indirect religious discrimination. In dismissing the appeal, the Court of Appeal noted that where an employer is faced with conflicting responses to a provision, criterion or practice from people of different beliefs, a blanket ban may sometimes be the only fair solution.

E, a practising Christian, worked for BA as a member of check-in staff. For most of the time she was employed, BA's uniform policy permitted employees to wear any jewellery they wished provided it was not visible. Items deemed to be a mandatory religious requirement which could not be concealed could be permitted by management. After refusing to conceal a silver cross she wore on a necklace, E was sent home without pay. She brought a number of claims against BA, including direct and indirect discrimination under the Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660.

The tribunal dismissed all of E's claims. The indirect discrimination claim failed as BA's policy did not put E at a particular disadvantage when compared to others. However, the tribunal went on to note that if BA's policy was indirectly discriminatory, it would not have been justified as a proportionate response to the legitimate aim of achieving brand uniformity. On appeal, the EAT (Brief 867) held that in order for an indirect discrimination claim to succeed there must be evidence of group disadvantage. Given that the tribunal had found that no one but E felt disadvantaged by BA's policy, her claim must fail. BA's appeal against the tribunal's finding on justification also failed. Both BA and E appealed. E argued that BA's policy was indirectly discriminatory even if only she was disadvantaged by it.

The Court of Appeal observed that, for an indirect discrimination claim to be successful, there must be a provision, criterion or practice (PCP), applied to all employees, which puts 'or would put' persons who share the claimant's religion or belief at a disadvantage compared to other persons. In the Court of Appeal's view, there was no reason to depart from the natural reading of 'persons' in Reg 3(1)(b)(i). There was nothing in the EU Equal Treatment Framework Directive (No.2000/78) to suggest that its use of the word 'persons' was intended to include solitary disadvantage within the scope of an indirect discrimination claim. The Court therefore endorsed the EAT's statement that, in order to establish indirect discrimination, it must be possible to make some 'general statements' about a religious group such than an employer ought reasonably be able to appreciate that a PCP may have a disparate adverse impact on that group. The use of 'would put' in Reg 3(1)(b)(i) could not be read so as to require the tribunal to create a hypothetical peer group who suffer the same disadvantage from the PCP as E. The tribunal's finding was that the disadvantage suffered by E was suffered by her alone: neither evidentially nor inferentially was anyone else similarly disadvantaged. This meant her claim had to fail.

The Court also rejected E's argument based on Article 9 of the European Convention on Human Rights. Cases such as Kalac v Turkey 1997 27 EHRR 552 showed that Article 9 does not protect every act motivated by religion or belief.

As to justification, the majority of the Court of Appeal indicated that, had the point arisen for consideration, it would have been inclined to allow BA's appeal and overturn the tribunal's finding that the policy could not be justified. When considered on the footing that the indirect discrimination claim was advanced in the Court of Appeal - the disadvantage to a single individual stemming from the policy - the tribunal's finding of facts showed that the policy was a proportionate means of achieving a legitimate aim. Furthermore, Lord Justice Sedley indicated that he would have had difficulty with the tribunal's decision even on the alternative basis that the policy disadvantaged Christians as a group.

This report is from IDS Employment Law Brief.

Further information:

Monday, 15 February 2010

Shocking Statistics on Violence Suffered in the Workplace

The HSE has today published the ‘Violence in the Workplace’ report, which interrogates Home Office ‘British Crime Survey’ results and presents findings on work related violence.
HSE publishes this report as part of its responsibility for developing and implementing policy on work-related violence.

Estimates from the 2006 Fit3 employee survey suggest that 16% of workers have been subject to abuse or violence in the last three months. For 67% of these victims this happened more than once and 66% of victims knew the person who was abusive or violent towards them.