1. Discrimination
Key Cases and Developments
Morag Hutchison and Mel Sangster
Thursday 21 May 2015
Aberdeen
Edinburgh
Glasgow

2. Race Discrimination

3. Race discrimination: caste
What is the definition of “caste”?
Is it covered by the Equality Act 2010?

4. • Not one of the "protected characteristics" in the
Equality Act 2010
• BUT….
• The definition of race is non-exhaustive and includes
"colour; nationality; ethnic or national origin"

5. Caste: legislation?
Consultation on
proposed
legislation
making caste
discrimination
unlawful was
planned to take
place in the
autumn of 2014
but has not yet
begun
This power was
introduced on
25 June 2013
but has not yet
been exercised
by the
government
In February, the
Government
confirmed that
it has no
"immediate"
plans to
introduce
legislation
making caste
discrimination a
form of race
discrimination

6. Chandhok and another v Tirkey
Facts
• Ms Tirkey worked for Mr and Mrs Chandhok
between 2008 and 2012 as a domestic worker
• Her caste is the Adivasi, which is known as a "servant
caste"
• Adivasis have been recognised as being at the lowest
point of almost every socio-economic indicator

7. Chandhok and another v Tirkey
Facts
• After bringing other claims in the tribunal, Ms Tirkey
added a complaint of caste discrimination
• She claimed that the reason why she was recruited,
and treated in the manner alleged, was that the
Chandhoks thought she was of a lower status to them,
which was infected with considerations of caste

8. Chandhok and another v Tirkey
Decision
The EAT dismissed the appeal and permitted the caste
discrimination claim to proceed to full hearing.
Mr and Mrs Chandhok appealed, arguing that caste was not included
as a protected characteristic in section 9(1) of the Equality Act 2010
The Employment Tribunal refused to strike out the claim for caste
discrimination.

9. Impact
The EAT has
expanded the
protected
characteristics to
include caste, even
where the
Government has not
yet elected to make
caste discrimination
unlawful
Employers should
therefore consider
caste to be a
protected
characteristic
under the
definition of race.

10. Disability Discrimination

11. Is obesity a disability?
No?Yes?
Disability discrimination: obesity

12. Karsten Kaltoft v The Municipality of Billund
Facts
• Mr Kaltoft worked as a childminder in Denmark for 15
years
• He was dismissed, on grounds of redundancy, following a
downturn in work
• Mr Kaltoft had a BMI of 54
• People with a BMI in excess of 40 are considered
severely, extremely or morbidly obese.

13. Karsten Kaltoft v The Municipality of Billund
Facts
• Mr Kaltoft claimed that he had been dismissed
because of his obesity
• He brought discrimination proceedings in a Danish
District Court
• The District Court asked the ECJ whether obesity be
can classified as a "disability” under European law

14. Karsten Kaltoft v The Municipality of Billund
Decision
• The European Court of Justice held:
– No general principle under EU law that prohibits
discrimination on grounds of obesity itself
– BUT
– the effects of obesity, may, in certain
circumstances, mean that a person is disabled and
protected against discrimination

15. Disability discrimination: obesity
• Critical issue is the effect of any impairments rather
than their cause

16. Things to consider
Be aware of these issues
when managing sickness
absence or determining
fitness for work
Duty to consider
reasonable adjustments to
working practices and/or
workplaces?
Duty to help employee
lose weight?
Obesity in oil and gas
sector: regulations
prohibiting passengers
with certain body size

17. Disability discrimination: diabetes
Is type 2
diabetes a
disability?

18. Metroline Travel Ltd v Stoute
Facts
• Mr Stoute was employed as a bus driver 21 years before he was
dismissed for gross misconduct
• He suffered from Type 2 diabetes and brought a claim for disability
discrimination
• He followed a diet designed to avoid sugary foods such as fizzy
drinks (but had no other treatment)
• At a preliminary hearing, it was held he was disabled
• At the full hearing his complaints were all dismissed

19. Metroline Travel Ltd v Stoute
Decision
• Metroline appealed as it had a workforce with a
number of people who suffered from Type 2 Diabetes
• They were worried the decision would be used by
other employees to support an argument they were
disabled
• The EAT held that “treatment” was not wide enough
to encompass an abstention from sugary drinks…

20. Metroline Travel Ltd v Stoute
"...while a particular diet may
be regarded as something which
is to be ignored when
considering the adverse effects
of a disability, I do not consider
that abstaining from sugary
drinks is sufficient to amount to
a particular diet which
therefore does not amount to
treatment or correction”

21. Things to consider
Employers should not automatically
assume an employee with a serious
condition is disabled for the purposes of
the Equality Act
If a condition can be eliminated or
minimised by taking very simple steps,
then the condition will not amount to a
disability
However, it is a surprising decision given
the terms of the guidance on diabetes

22. Disability discrimination: withholding bonus
• Can operating a bonus scheme which does not pay
out to employees who had received a warning for
high levels of sickness absence be disability
discrimination?

23. Land Registry v Houghton and others
Facts
• The Land Registry operated a discretionary bonus
scheme
• Under the scheme, employees receiving a formal
warning during the year would not receive a bonus
• Formal warnings for a misconduct could be ignored,
at a manager's discretion
• No discretion to ignore a warning in relation to
sickness absence

24. Land Registry v Houghton and others
• Five disabled employees were absent due to sickness
during the year
• In all cases as a result of their disabilities
• Each received a warning
• No bonus was paid to them
• They brought claims for disability discrimination

25. Land Registry v Houghton and others
Decision
• The tribunal rejected the Land Registry's submission
that the link was too remote
• The EAT dismissed the appeal, finding that:
– automatic disentitlement to a bonus following
disability-related absences was unfavourable
treatment in consequence of the disability
– without the disability each claimant would not
have had the same level of sickness absence

26. Land Registry v Houghton and others
Employers should
consider incorporating a
degree of flexibility into
bonus schemes which
are linked to attendance
Reasonable
adjustments may not
be enough
Employers should be
able to pay bonus
entitlements where it
might be seen as
discriminatory to
withhold these

27. Disability: reasonable adjustments
• Is an employer's duty to make reasonable adjustments
triggered where a sick employee had not given any
sign that they will be returning to work?

28. Doran v Department for Work and Pensions
Facts
• Miss Doran worked for Department for Work and
Pensions as an administrative officer
• She commenced sickness absence due to stress
• She provided medical certificates, but did not suggest
a possible return if adjustments were made
• She was offered administrative duties and part time
hours to support her return
• She was dismissed a few months later

29. Doran v Department for Work and Pensions
Miss Doran brought a
claim alleging (among
other things) that DWP
had failed to make
reasonable adjustments
She said that the
suggestion they made
was unreasonable as a
demotion would have
reduced her salary

30. Doran v Department for Work and Pensions
• The employment tribunal held that DWP's attendance policy placed
Miss Doran, a disabled person, at a substantial disadvantage
• Nevertheless, the tribunal rejected her claim
• The DWP's duty to make reasonable adjustments had not been triggered
because Miss Doran had not informed it of a return date or given any
other sign that she would be returning to work at a particular time
• The EAT agreed

31. Doran v Department for Work and Pensions
Implications
• The duty on employers to make reasonable
adjustments is only triggered where an employee
indicates:
– that they might be fit to return; OR
– that they would be fit if reasonable adjustments are
made

32. Things to consider
Ball is still in
employer’s court
to make
adjustments
Good practice
would be to ask a
disabled employee
about possible
adjustments
Other claims are
now available to
employees in these
circumstances

33. Religion or Belief

34. Discrimination Update: Religion or belief
• Is a “a profound belief in the proper and efficient use
of public money in the public sector” protected as a
philosophical belief?

35. Harron v Chief Constable of Dorset Police
Mr Harron was
employed by Dorset
Police
He became angry and
frustrated at seeing
money he thought was
being wasted (on
bureaucracy,
administration, various
projects, over paying
staff)
Trust
Faith
Belief
Values

36. Harron v Chief Constable of Dorset Police
While the judge was satisfied
that Mr Harron's belief was
genuinely held, it was not a
belief as it was entirely
confined to the workplace.
It failed to satisfy the
“weighty and substantial
aspect of human life and
behaviour” test.

37. Philosophical belief
• The belief must be genuinely held
• It must be a belief and not an opinion or viewpoint based on
the present state of information available
• It must be a belief as to a weighty and substantial aspect of
human life and behaviour
• It must attain a certain level of cogency, seriousness, cohesion
and importance
• It must be worthy of respect in a democratic society, be not
incompatible with human dignity and not conflict with the
fundamental rights of others

38. Age Discrimination

39. Age discrimination
• Is a requirement to sign up to new contractual terms
and conditions indirectly discriminatory by
disadvantaging older workers, including the
claimants?

40. Braithwaite v HCL Insurance BPO Services
Facts
• Mrs Braithwaite and others became employees of
HCL following a TUPE transfer
• There was a disparity between the terms and
conditions in the workforce
• After suffering financial losses, it sought to
harmonise all employees’ terms and conditions, to
reduce staffing costs

41. Braithwaite v HCL Insurance BPO Services
Facts
• It was proposed to:
– remove their right to a number of benefits (eg
private health insurance);
– increase their working hours; and
– reduce their annual leave entitlement

42. Braithwaite v HCL Insurance BPO Services
Facts
• The changes put the claimants at a disadvantage as
they were older workers and had built up greater
entitlements by virtue of their longer service
• They claimed, amongst other things, age
discrimination on the grounds that the requirement to
sign up to new terms and conditions was indirectly
discriminatory on the grounds of age

43. Braithwaite v HCL Insurance BPO Services
Decision
• The EAT held that it was not indirectly discriminatory
because it could be objectively justified
• Although the PCP put older workers at a particular
disadvantage, it was a proportionate means of achieving a
legitimate aim
• HCL's aim to "reduce staff costs to ensure its future
viability and to have in place market-competitive, non-
discriminatory terms and conditions" was legitimate
• The PCP was reasonably necessary because there were no
less discriminatory means that would achieve HCL's aim

44. Things to consider
Employers will
need to bear this in
mind when
changing terms of
employment that
may have
discriminatory
effect.
Remember a
change in
terms and
conditions is
capable of
being a PCP

45. Age discrimination
• Is it discriminatory to dismiss after relying upon the
reports of colleagues motivated by discrimination?

46. CLFIS (UK) Ltd v Reynolds
Facts
• Dr Reynolds was appointed Chief Medical Officer of
CLFIS (UK) in 2006 under a consultancy agreement.
• There was a presentation highlighting deficiencies in
her performance
• The General Manager decided to terminate the
agreement
• Dr Reynolds was 73 at that point. She raised a claim
for direct age discrimination

47. CLFIS (UK) Ltd v Reynolds
Facts
• The ET rejected the claim on the basis that there was an
adequate non-discriminatory explanation
• The ET focused on the mental processes of the General
Manager in reaching his decision, although it was
common ground that this had been informed by views of
other employees
• The ET held that the General Manager genuinely believed
that Dr Reynolds was not performing to the required
standard

48. CLFIS (UK) Ltd v Reynolds
Decision
• The EAT overruled the decision, holding:
– Discrimination can be made out where a protected
characteristic has a significant influence on the outcome
(even if the person who made the final decision was not
aware of this)
– The views of others had played a part
– As CLFIS could not demonstrate their views were not on
grounds of age, they had not discharged their burden

49. CLFIS (UK) Ltd v Reynolds
Decision
• The Court of Appeal reversed the decision in
the EAT
• It found that, even if the mental processes of
others were relevant, Dr Reynolds had not
advanced her claim on that basis
• Her claim was on the basis that the General
Manager’s conduct had been discriminatory
• It is fundamental that the employee responsible
for the discriminatory act was motivated by that
protected characteristic

50. Things to consider
• The conduct of the person supplying information is
treated separately from the person who acted on it
• However, if the claim identifies the people who
supplied the information as respondents, that is likely
to be sufficient
• May lead to increased requests for information and
disclosure

51. Discrimination by Association

52. Discrimination by association
• Does an employer have a duty under the Equality Act
2010 to make reasonable adjustments for a non-
disabled employee whose daughter has Down's
syndrome?

53. Hainsworth v Ministry of Defence
Facts
• Ms Hainsworth was employed by the Ministry of
Defence in a teaching role
• She was based in Germany
• Her daughter has Down’s Syndrome
• The MoD provided facilities to educate children of
employees, but these were not designed for children
with “significant needs”

54. Hainsworth v Ministry of Defence
• Ms Hainsworth requested a transfer to the UK to help her
meet her daughter's needs
• The MoD rejected the request
• Ms Hainsworth brought a claim saying that the MoD should
have made the reasonable adjustment of transferring her to
the UK owing to her daughter's disability

55. Hainsworth v Ministry of Defence
Decision
• The tribunal held that the Equality Act only requires
an employer to make reasonable adjustments for an
employee or job applicant who is disabled
• There is no obligation to make adjustments for a non-
disabled employee who is associated with a disabled
person
• On appeal, the EAT upheld the tribunal's decision

56. Hainsworth v Ministry of Defence
The Court of
Appeal agreed
with the tribunal
and the EAT
Employers are not
obliged to make
reasonable adjustments
for employees who are
associated with disabled
people

57. Things to consider
No obligation, but good practice for
the employer to do what it can to
assist?
An employee struggling to cope
because of family reasons can make
a request for flexible working.
Could raise a claim for indirect sex
discrimination?

58. Things to Look Out For

59. Things to look out for
Caste discrimination
Equal pay reporting duties
Disability-related absence – reasonable
adjustments
Age discrimination – mass compulsory
retirement
Discrimination by association

60. Caste discrimination
• Regulations amending the Equality Act 2010 requires
the government to provide that caste is an aspect of race
• This power has not yet been exercised by the
government
• Consultation was planned for last year but has not yet
taken place
• In February, the government confirmed that it has no
"immediate" plans to introduce legislation

61. Equal pay reporting duties
The government
will bring in
mandatory gender
pay gap reporting
in the next 12
months

62. Griffiths v Secretary of State for Work and
Pensions
Do employers need to
disregard absence triggers
in their attendance policy
as a reasonable adjustment
for disabled staff?
No, held the employment
tribunal and EAT in
Griffiths.

63. Griffiths v Secretary of State for Work and
Pensions
Facts
• The tribunal found the duty to make reasonable
adjustments was not triggered because no "substantial
disadvantage" had been established.
• The adjustments sought by the claimant (disregarding
long periods of absence) were also not reasonable
adjustments.
• The claimant has appealed to the Court of Appeal.

64. Harrod and others v Chief Constable of West
Midlands Police and others
Is enforced
retirement of
police officers
unlawful age
discrimination?
Yes, according to
the employment
tribunal in
Harrod.

65. Harrod and others v Chief Constable of West
Midlands Police and others
Facts
• The tribunal ruled that seven police forces had acted
unlawfully in requiring the compulsory retirement of
officers to meet budget cuts imposed by central
government.
• Although cost saving and increased efficiency were
legitimate aims, the police forces had not adequately
considered alternatives for those who wanted to
remain in post.
• The police forces have appealed to the EAT.

66. Can the concept of
discrimination by
association be extended
from direct discrimination
to indirect discrimination?
Yes, according to the
Advocate General in her
opinion in Chez
Razpredelenie Bulgaria
Discrimination by Association

67. Chez Razpredelenie Bulgaria
Facts
• Ms Nikolova runs a shop in Bulgaria
• Her district is predominantly populated by Roma,
although Ms Nikolova is not Roma herself
• The electricity supplier to the district fixed electricity
meters at a much higher height than other areas, due to
frequent tampering in the district
• Ms Nikolova complained that the height prevented her
from reading her meter and argued that her electricity
bills were excessive
• She complained of discrimination on grounds of ethnicity

68. Chez Razpredelenie Bulgaria
Decision
• The Advocate General's opinion is that the definition
of indirect discrimination in the Race Directive is not
inconsistent with the concept of associative
discrimination by association
• Ms Nikolova could therefore rely on the prohibition
of discrimination based on ethnic origin even though
she herself does not belong to the Roma ethnic group

69. Things to consider
• Relevant to the employment context
• The concept in the Equality Act is specifically
limited to direct discrimination so it would be a
major change
• Will the ECJ agree with the Advocate General?

70. Q A

71. Morag Hutchison
Partner
+44 (0)131 473 6029
+44 (0)7879 893 175
morag.hutchison@burnesspaull.com
Get in touch
Mel Sangster
Director
+44 (0)131 473 6013
+44 (0)7983 080 687
mel.sangster@burnesspaull.com