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News from the EU

In three recent decisions, the Court of Justice of the European Union (CJEU) considers interpretation of different aspects of Framework Directive 2000/78 (“the Directive”). These cases demonstrate the broad scope of the Directive, which prohibits direct or indirect discrimination on four protected grounds; religion or belief, disability, age and sexual orientation.

In this month’s article, Lindsey Reynolds will discuss the implications of the decisions which cover:  

  • the meaning of “long-term” within the definition of disability,
  • age restrictions as a genuine occupational requirement, and
  • pension rights of people in same-sex unions.

Snell v Network Rail

In the recent case of Snell v Network Rail, a Glasgow Employment Tribunal held that Network Rail’s policy of paying enhanced shared parental pay to mothers whilst paying statutory minimum shared parental pay to partners amounted to indirect sex discrimination. 

In this month’s article, Alan Glazer, Senior Solicitor at the EHRC will explain the reasoning behind the judgment and offers an insight into the impact it may have on future employment practices.

One year on: an update on discrimination claims in the Employment Tribunal

On a quarterly basis the Ministry of Justice publishes Tribunal statistics, which include information about Employment Tribunal cases in Britain.  When they are published these statistics have, since the introduction of Employment Tribunal fees, prompted commentary in both the mainstream and legal media about the significant decline in the number of claims.

In the September 2015 edition of our Equality Law Bulletin we presented the results of our analysis of the Ministry of Justice (MOJ) Employment Tribunal statistics. One year on, Laura Hutchison, Senior Enforcement Officer at the Commission, presents the most recent annual statistics (2015/16) and discusses what has changed.

Wheelchair accessibility in taxis and private hire vehicles

Westminster Transport Minister Andrew Jones has announced that taxis will soon be under legal duties to carry wheelchair using passengers and will not be able to charge extra fares for doing so.

In this article, Alan Glazer, Senior Solicitor at the EHRC will explain the accessibility issues and the law around taxis and private hire vehicles in Scotland.

Iain Nisbet reports on the recent decision in DM v. Fife Council

In the recent appeal against a Sheriff's decision, the appellant local authority was partially successful, but was still found to have unlawfully discriminated. 

DM was a disabled pupil at an independent special school funded by Fife Council. As a result of his disability, his education had been interrupted and he struggled to make an effective transition to further education. 

DM's mother applied to Fife Council for funding for a seventh year at school. This application was refused, on the grounds that, having reached the age of 18, the Council owed no further duties to him in terms of the Education (Additional Support for Learning) (Scotland) Act 2004. DM raised an action of discrimination on the grounds of age and disability discrimination. The Sheriff found in DM’s favour and Fife Council appealed to the Court of Session. The Equality and Human Rights Commission intervened in that appeal.

Iain Nisbet, an education law specialist and consultant solicitor at Cairn Legal, was the pursuer's solicitor in this case and reports on the appeal court's decision.

Hurley v Secretary of State for Work and Pensions

The High Court in England ruled recently that including the Carers Allowance in the benefit cap is unlawful indirect discrimination against disabled people.

This case is about whether the UK Government’s decision to include the Carers Allowance in the calculations for deciding the amount of benefits a person can receive is discriminatory against 1) the carers and 2) the disabled people needing this care.  Laura Hutchison, Senior Enforcement Officer with the Commission, has written a short article to explain.

You can read the full judgment here.

The human rights of children in kinship care

Over the past two years the Equality and Human Rights Commission (EHRC) has been examining the support provided to children in kinship care in Scotland. We identified serious human rights concerns in relation to the financial support provided by some local authorities to looked after children in kinship care. To address these concerns, the Scottish Government is now providing an additional £10.1 million every year to councils to increase kinship allowances to the same level as foster allowances.

This month’s article provides an explanation of our work in this area including: our legal powers; the human rights issues and the positive change that this work has achieved.

Discrimination claims in Employment Tribunals: the Scottish perspective 

On a quarterly basis the Ministry of Justice publishes Tribunal statistics, which include information about Employment Tribunal cases in Britain.  When they are published these statistics have, since the introduction of Employment Tribunal fees, prompted commentary in both the mainstream and legal media about the significant decline in the number of claims.  However, despite this there has not been much analysis of discrimination claims in Scotland and whether this differs from the picture in England & Wales or the change in the total number of claims received by the Employment Tribunal.

This article presents the key findings from our analysis which has identified, for example, that there has been a more marked drop in discrimination claims in Scotland than in England & Wales and that the fall in discrimination claims in Scotland was substantially greater than for all claims. The article also looks at some of the findings in relation to early conciliation by ACAS; and concludes with some significant recent developments from government and in the courts.

Internet news portals - freedom of expression in moderation?

Online editors of internet news portals will need to act quickly to moderate offensive “below the line” comments according to guidance from the Grand Chamber decision in Delfi AS v Estonia.  The case was taken to Strasbourg by one of the largest Internet news portals in Estonia after the Estonian Courts found Delfi liable for failing to promptly moderate and remove threatening and defamatory comments made by third parties against a board member of a ferry company.

It was not disputed that there was an interference with Delfi’s freedom of expression and that Article 10 (1) of the Convention was engaged.  The Grand Chamber’s decision focussed on whether the interference was necessary in a democratic society in terms of Article 10 (2).  This article discusses the Grand Chamber’s reasoning as well as considering the scope and implications of the decision, in particular the need to put in place effective procedures allowing for rapid and appropriate means of balancing competing rights and interests. 

Eviction actions – the importance of considering discrimination

The Supreme Court recently handed down an important decision, which looked at the fundamental principles underlying disability discrimination law.  Akerman-Livingstone v Alster Communities Limited [2015] UKSC 15 concerned the proper approach of courts when a defender in an eviction action raises a defence of unlawful discrimination by the landlord.  Whilst the case concerns English housing law, the principles set out by the Supreme Court can be applied equally in Scotland.

The Supreme Court held that there was a difference  between Equality Rights and Convention rights when considering proportionately. The protection afforded by the Equality Act is stronger than the protection afforded by Article 8.  In most cases where there is a viable discrimination defence, a proper proportionality exercise in relation to the possession action will have to be conducted. The Commission intervened in the case.   In her article “Eviction actions – the importance of considering discrimination”, Claudia Bennett, Senior Solicitor at the Commission, summarises the judgment and explains why it is a positive development for many vulnerable people in social housing.

Positive action – your opportunity to advance equality

In a contributed article Muriel Robison, part-time employment judge and lecturer on employment and discrimination at the University of Glasgow, promotes the use of positive action measures under the Equality Act 2010 to tackle disadvantages and underrepresentation suffered by protected groups, not only in political parties but also in employment, and in society generally.    

Commission requires NHS Tayside to meet the communication needs of Deaf Patients

The Commission has signed a formal s.23 agreement with a Scottish Health Board to ensure that in future they will meet their duty under the Equality Act 2010 to the effect that all deaf patients have their communication needs met when accessing the Health Board's services.  The agreement comes after a deaf woman spent six days in hospital without any access to a sign language interpreter despite repeated requests for one to be provided.

This article discusses the case and how, by using their enforcement powers, the Commission reached an outcome that will have a positive impact for a large number of people:

Obesity in EU law- reaffirming the principles of defining disability

The Court of Justice of the European Union has recently considered whether or not it is contrary to EU law to discriminate on the grounds of obesity and whether obesity can be protected by the prohibition on disability discrimination.  The court held that, in deciding whether someone is disabled,  obesity can qualify as an impairment.  Whether that amounts to a disability would then depend on the effect which the impairment has on the individual.

This article  provides some legal analysis of the court’s decision in Kalsten Kaltoft v Kommunernes Landsforening and its implications.

Fife Council fail in their duties to disabled pupil by refusing seventh year at school

In a recent age and disability discrimination case at Kirkcaldy Sheriff Court, Fife Council was criticised for having failed to appreciate the nature of their responsibilities to a disabled pupil in terms of the Equality Act, their public sector equality duties and the Code of Practice (“supporting children's learning”).

M was a disabled pupil at a residential independent school.  He has an autism spectrum disorder and dyspraxia, and experiences severe social anxiety.  During his 6th year, a transition process to college was attempted, but it was concluded that M was not ready for a transition to college.  It was recommended that he remain at school for a seventh year, but Fife Council refused to provide funding, on the basis that he had reached the age of 18.  The court found he had suffered discrimination both on the grounds of age and disability.

Iain Nisbet, head of education law at Govan Law Centre, was the pursuer's solicitor in this case (which is being appealed by Fife Council).  

Parent A v. X School

Child B is aged 13.  He has dyslexia and is a disabled person in terms of section 6 of the Equality Act 2010.  His parents live in the catchment area for X School, a mainstream grant-aided school and applied for an S1 place for him to attend there after leaving primary school.  Assessments of B’s needs were carried out by various professionals at X School.  The School formed the view that B’s needs could not be met at X School without a substantial increase in their central funding, and refused to admit B as a pupil.  His parents challenged the decision by way of a disability claim before the Additional Support Needs Tribunal (ASNT), which held that X School unlawfully discriminated against B by refusing to offer him a place at the school.   

Driving away candidates?  Advertising an intention to discriminate

Do you really need to be a man to be handy?  Do the young have the monopoly on being dynamic?  Is being Scottish a genuine occupational requirement of working as a nanny?  Do you need a driving licence to be mobile and willing to travel?  The Commission has recently considered a number of complaints regarding the wording of job advertisements which potentially advertise an intention to discriminate across the range of protected characteristics.  The most common complaint relates to posts where having a driving licence is advertised as an essential requirement, which may deter, and discriminate against, disabled applicants. 

Court of Session judgment in Glasgow City Council ALEO equal pay appeal

On 21 March 2014, the Court of Session issued its judgment in Glasgow City Council v Unison and Fox Cross Claimants [2014] CSIH 27.

The Court has upheld the judgment of the Employment Appeal Tribunal that Glasgow City Council are associated employers for the purposes of equal pay law and that the female claimants working for City Parking and Cordia can compare their pay with that of men still working for the Council.

Disabled or not disabled: that is not the only question

One of the unique aspects of disability, compared to the other characteristics protected by the Equality Act 2010, is that there is often disagreement between the employer and employee about whether the employee is in fact disabled and whether the employer was aware, or should have been aware, that the employee was disabled.  This is because, for an employer to be answerable for alleged disability discrimination, they must have known, or be in a position where they should have known, that the employee is disabled. This article will consider three disability discrimination cases in 2013. All three have provided further clarity on these preliminary yet often critical points in disability discrimination claims. 

Bull v Hall: why the Supreme Court found direct discrimination for civil partners and no breach of human rights for hotel owners

The Supreme Court recently dismissed the appeal by Mr and Mrs Bull against the finding of the Court of Appeal that they had discrimination against Mr Preddy and Mr Hall, civil partners, when they refused them a double room in their hotel. All 5 judges of the Supreme Court agreed that Mr Preddy and Mr Hall had been discriminated against.

Julie Wyper v North Lanarkshire Council

Following the Commission providing legal help to Ms Wyper, North Lanarkshire Council have withdrawn their appeal, which had challenged an Additional Support Needs Tribunal's finding of disability discrimination.  The case involved a 7 year old boy who is diabetic and who needs help with managing his condition while at school.    The Tribunal case had been the first to deal with the administration of medicine in schools, since the introduction of the new duty on schools to provide auxiliary aids and services.

The case was supported by the Commission and the Appeal defended. Following negotiations, the Appeal has been withdrawn.

A ship called Dignity: Increased protection for disabled passengers travelling by sea

As it stands currently, part 3 of the Equality Act 2010, providing protection from unlawful discrimination in the provision of services and exercise of public functions, does not extend to transport by sea or air. But while services on ferries, ships and cruises are not covered by the Act, carriers, travel agents and tour operators are not wholly exempt and still have a duty to avoid discrimination in respect of matters such as timetables, booking facilities

Charities and equality law

Research into charities and equality law in England and Wales, recently published by Liverpool University, found that charities are largely unaware that equality law has implications for their service delivery or charitable objects.  This could mean that charities who restrict their services to particular groups of people may not have given any consideration to whether they need to make changes to their service delivery or objects.

Sobhi v Commissioner of Police of the Metropolis

Sobhi v Commissioner of Police of the Metropolis is an interesting case, not only in its facts, but because the EAT held that it required to apply EU law and to interpret the Framework Directive in a way which was consistent with the United Nations Convention on the Rights of Persons with Disabilities.  And interesting too that this is the second significant case involving the Metropolitan Police, on what “normal day-to-day activities” means in defining disability.

Catherine Pettigrew on behalf of Thomas –v- South Lanarkshire Council

In the first case of its kind, the Additional Support Needs Tribunals for Scotland has ruled in favour of a disabled pupil in an auxiliary aids and services case.  Iain Nisbet, solicitor and head of the Education Law Unit at Govan Law Centre acted for the claimant and has written this article on the case.

Case comment North v Dumfries and Galloway Council [2013] UKSC 45

An article setting out a Scottish equal pay case decision which found that domestic equal pay law does not limit the right to equal pay to situations where a women can point to a man who is doing equal work in the same workplace and that under EU law the right to equal pay is not limited to women and men working for the same employer.

Calling time on dismissal on grounds of political belief

This article discusses the case of Redfearn v the UK, heard in the European Court of Human Rights, in which Mr Redfearn was dismissed from his job because of his political beliefs (in this case membership of the BNP) and was unable to bring a claim for unfair dismissal.

The Enterprise and Regulatory reform Act 2013 and the Equality Acts

This article discusses changes brought about by the Enterprise and Regulatory Reform Act 2013, on caste discrimination, third party harassment of employees, obtaining information for proceedings, equal pay audits and dismissal for political opinions.

Women put at a particular disadvantage by the requirement to work full time

This article discusses this decision of the London Central Employment Tribunal in the recent case of Cooper v House of Fraser (Stores) Ltd [2012] in a judgement that chose not to follow the Scottish EAT in the case of Hacking and Patterson v Wilson.

Women, men and part time work

A briefing paper presenting some of the key facts and evidence about the proportions of women and men working part-time in Britain.

Age discrimination in Services

From 1st October 2012 age discrimination will be unlawful in the provision of services and in the exercise of public functions, as well as in the activities of private clubs and other associations. This article explains these provisions.

Coleman Revisited

Kulikauskas v Macduff Shellfish and Another, raising the question of whether a man can bring a sex discrimination claim on the basis that he has been treated less favourably due to his association with a pregnant woman.

Scottish PSED

Understanding the Scottish specific Public Sector Equality Duties.

Employment Tribunal recommendations

An article on Employment Tribunal's use of their power to make wider recommendations.

Job evaluation fails to stop equal pay claims

A report on Ms Russell and others v South Lanarkshire Council.

Last updated: 12 Jan 2017

Further Information

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