Scotland Equality Law Bulletin - May 2017

Articles

Insight from Brussels on dress codes and religious symbols at work

The Scotland Legal Team is delighted to present an article from our guest contributor in Brussels, Imane El Morabet.  Imane is a legal advisor at Unia, the Interfederal Centre for Equal Opportunities.  UNIA supported the claimant and was a party in the much anticipated case of Achbita at the European Court of Justice (CJEU).

In Achbita and Bougnaoui, the CJEU ruled that a business’ internal policy which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination, but is capable of constituting indirect discrimination.

The Commission is grateful to Imane for offering her unique perspective on the cases.  In this in-depth article, Imane analyses the Court’s decision against the background of the conflicting opinions from Advocate General Sharpston and Kokott.  She gives an insight into the practical implications of the decisions for employers and the impact so far in Belgium.  

Imane has a law degree from the University of Antwerp and a Masters in International and European Law of the Free University of Brussels.  As part of her legal studies, she specialised in social and labour law.  She currently works as a legal advisor at UNIA, specialising in religious discrimination and discrimination in the field of employment.  She is a member of the Equinet legal working group on equality.  Read the full article here.

Two important Supreme Court cases on indirect discrimination

Essop and Ors v Home Office


The Commission funded Mr Essop and others in their discrimination claims against the Home Office UK Border Agency (UKBA).  Mr Essop, an Immigration Officer, claimed indirect discrimination on grounds of race and age.  The Home Office needed employees to pass an exam for promotion.  It was discovered that BME candidates and older candidates had lower pass rates than white candidates and younger candidates.

The Supreme Court decided that where there is a provision that might be indirectly discriminatory (such as this exam) there is no need for a claimant with a protected characteristic to show why he or she is at a disadvantage.  It is enough that he or she is at a disadvantage.  

Therefore, in this case, Mr Essop did not need to work out why BME candidates and older candidates had lower pass rates.  Read the judgment.

Naeem v Secretary of State for Justice


In Naeem, the Supreme Court also overturned an earlier Court of Appeal decision.  The case involved a claim of indirect religion or belief discrimination.

Muslim chaplains who worked for HM Prison Service were entitled to a lower average basic wage than their Christian counterparts.

This was because the employer used a length-of-service based pay progression system that disadvantaged Muslim chaplains who had only been employed on a full-time, permanent basis by the prison service since 2002.

The court ruled that the fact that Muslim chaplains had only been employed from 2002 placed them at a particular disadvantage as it meant they were paid less than others. The court also ruled however that the original decision by the Employment Tribunal which found that the disadvantage was a proportionate means of achieving a legitimate aim was correct and therefore the overall claim failed.  Read the judgment.

 

Multiple choice and disability discrimination

In Government Legal Service v Brookes EAT/0302/16, the Employment Appeal Tribunal (EAT) held that the Government Legal Service (GLS) unlawfully discriminated against a law graduate with Asperger’s Syndrome by requiring her to sit a multiple choice Situational Judgement Test (SJT) as part of her job application.  The law graduate, Ms Brookes, argued that, because of her Asperger’s, she was disadvantaged by the multiple choice method of testing and that the GLS should have granted her request to answer the SJT in the form of short narrative written answers.  The GLS accepted that Ms Brookes’ Asperger’s Syndrome amounted to a disability and that it was aware of her health condition.  However, it refused to adjust the format of the SJT in light of Ms Brookes’ disability.  At first instance, the Employment Tribunal held that this failure by the GLS amounted to indirect disability discrimination, failure to make reasonable adjustments and discrimination arising from disability.  All three claims were upheld by the EAT.
 
Recruitment systems and how they affect people with autism or learning disabilities have been an area of concern for some time.  The Commission welcomes the clarity that this decision brings.  Read the judgment.

Events

Making Change Happen:  Using the courts to make rights a reality - Thursday 1st June 2017
10am-4pm, Edinburgh City Chambers

Joint event with the Human Rights Consortium Scotland, that hopes to inspire your organisation to use the law and the courts to bring about social change.  

Speakers include:   David Hawkins, Public Interest Litigation Support (PILS) Project in Northern Ireland; Andrew Tickell, Glasgow Caledonian University and Carla Clarke, solicitor from the Child Poverty Action Group.

This event will provide:

  • Helpful information and advice from legal experts on possible legal tools and their pros and cons;
  • Learning directly from those with hands-on experience of using the courts to achieve change – the opportunities & challenges it creates, and their advice to others;
  • How to develop a test-case litigation strategy for your organisation;

The day will also be an excellent opportunity for lawyers and those in civil society organisations to network.  Our event is free but places are limited.

Publications

Equality Act 2010 - Handbook for Advisors

An updated version of our Equality Act 2010 handbook has been published.

The handbook covers the definition of the nine protected characteristics, an overview of different forms of conduct prohibited under the Act and then looks at how the Act applies in different contexts (services and public functions, premises, employment, education) as well as explaining the Public Sector Equality Duty.  Read the handbook.

Disability report:  Being disabled in Britain

The Commission has published a major disability report, which provides a comprehensive review across Great Britain into the barriers that disabled people face across every aspect of their lives.   

Our report finds that progress towards real equality for disabled people over the past twenty years has been insufficient and ‘littered with missed opportunities and failures’.  Read our report.

Last updated: 08 May 2017