Discrimination

Philosophical belief discrimination

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The Equality Act 2010 protects people from discrimination based on their philosophical beliefs. In order to be protected, the belief must be:

  • Genuinely held;
  • Be a belief not an opinion or viewpoint;
  • Concern a weighty or substantial aspect of human life;
  • Have attained a certain level of cogency, seriousness or importance (in a similar way to a religion);
  • And must be worthy of respect in a democratic society.

In the high profile case of Forstater v CGD Europe, an employment tribunal has looked at whether the philosophical belief that humans cannot change sex is protected by the Equality Act 2010. The employee was a consultant charity worker. She tweeted extensively (in a private rather than work capacity) on proposed changes to the Gender Recognition Act 2004 (GRA). One tweet read ‘men cannot change into women’. Other employees complained and her contract was not renewed. She brought a discrimination claim, saying her contract was not renewed because of her belief about sex change.

The employment tribunal found that the belief met the thresholds set out above save for one aspect: her ‘absolutist’ belief was incompatible with human dignity and the fundamental rights of others. Her belief meant that she would refer to someone by their birth sex even if that violated their dignity or created an intimidating or hostile environment for them. This belief was not worthy of respect. She did not get protection under the Equality Act 2010 and could not bring a discrimination claim.

The judge in this case said that campaigning against changes to the GRA and calling for spaces for women assigned female at birth is one thing but insisting on calling transwomen men is something else entirely. It is this violation of someone else’s dignity that stopped her belief being protected in law. This case is an employment tribunal decision and not binding on other courts. It is likely to be appealed though and any binding decision could have a significant impact on freedom of speech.

Astons Solicitors
18th January 2020

Confidentiality or non-disclosure agreements in discrimination cases

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Hot on the back of the #MeToo movement, the Equality and Human Rights Commission (EHRC) has published some non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases. The guidance confirms that confidentiality clauses can be used in employment contracts to protect a business’s confidential information. However, they shouldn’t be used to stop a worker pursuing a discrimination claim in relation to future acts – those clauses will not be enforceable.

The guidance discourages the habitual use of gagging clauses when settling discrimination claims. It suggests they are only used in specific circumstances such as a case where a worker does not want the details of their discrimination case to become public. The guidance also advises employers to tailor the clause to the individual case rather than using a standard template. The guidance also suggests that employers might still need to investigate claims which are settled to show they have taken steps to prevent discrimination in the workplace.

Guidance to root out discrimination

The aim of the guidance is to ensure that discrimination in the workplace is rooted out. Employers should create an environment where employees feel they can speak out against discrimination and know that they will be supported. If people know they can raise issues, which will be taken seriously, gagging clauses are unlikely to be needed.

Find the guidance at https://www.equalityhumanrights.com/en/publication-download/use-confidentiality-agreements-discrimination-cases.

Discrimination: The ‘Innocent’ Discriminator

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In Metropolitan Police v Denby the EAT held that if a decision maker is influenced by another person in a discriminatory way then that person can be considered a joint decision-maker.

In this case, the claimant was a male police officer. The Claimant led a group within the police force and the Deputy Assistant Commissioner (DAC) was concerned that there was a lack of gender diversity in the group. The DAC treated the members of the group differently and less favourably to those in a group led by a female officer. It was found in the employment tribunal that the DAC had influenced another officer and convinced them to subject the Claimant to a criminal investigation. The EAT agreed that the finding was correct and that the other officer was not an ‘innocent’ party (see CLFIS v Reynolds) because he was completely aware of the discriminatory context.

On the sixth day of the hearing an amendment was permitted when the identity of the decision maker had been thrown into doubt by witness evidence. Another potential discriminator was added. The EAT stated that the CLFIS principle shouldn’t be a means of escaping any liability where decision making was not clear. When it is difficult, with good reason, to clearly identify the person responsible for the discrimination then an amendment can sometimes be allowed during the course of the hearing. In this instance it did not cause any unfairness on the facts of the case.

Written by

Edward Aston
23rd November 2017

Employment Tribunal can hear discrimination complaints by a doctor against the GMC

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In Michalak v General Medical Council the Supreme Court held that it is permissible for employment tribunals to hear discrimination claims against qualification bodies such as the GMC.

Dr Michalak had been employed by an NHS Trust but was found to have been unfairly dismissed. Before the unfair dismissal was determined she had been referred, by the Trust, to the General Medical Council (GMC) which began fitness to practice proceedings. Dr Michalak then complained, in a separate tribunal claim that the GMC had discriminated against her.

Section 120(7) of the Equality Act 2010 prevents employment tribunal claims agains qualification bodies when “by virtue of enactment” their decision is subject to “proceedings in the nature of an appeal”.

The Supreme Court found that the employment tribunal did have jurisdiction to hear the claim as, in the context of this case, judicial review was not “in the nature of an appeal”. Discrimination complaints cannot be answered by looking at the reasons why a discriminator acted in a discriminatory manner and then deciding whether that then lay within the range of reasonable responses. It also found that as judicial review was originally a common law procedure it was, therefore, not a solution provided “by virtue of enactment”.

Written by

Lorraine Emery
16th November 2017

Discrimination – Claims by unsuccessful Job applicants

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In the case of Meister v Speech Design Carrier Systems GmbH the job application of Miss Meister, a Russian National was rejected without interview even though her level of experience corresponded with the requirements of the post. In pursuance of her sex, age and race discrimination claims she sought production of the successful candidates file as she believed that this might show that she was more qualified than that person.

The Court held that she was not entitled to access to the successful candidate’s file but went on to say that the employer’s refusal to grant access to the information “may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been discrimination.” They added that a consideration of those factors “might also include, in the present case, the fact that Miss Meister was at least equally qualified but not even called to interview.”