Around 30,000 Asda staff, mostly female, have brought equal pay claims in the employment tribunal. Photo: Serge Cornu / Shutterstock
Ten years ago, the Equality Act 2010 consolidated discrimination laws into a single piece of legislation. We highlight 10 key employment-related judgments decided under the Act since its introduction on 1 October 2010.
The nine protected characteristics
1. Post-employment victimisation confirmed as unlawful
The Court of Appeal ruled once and for all that the Equality Act 2010 does protect individuals against victimisation after their employment has ended, resolving previous conflicting case law on this issue.
The decision has meant that employers have had be more careful than ever not penalise an ex-employee who is bringing proceedings against them under the Equality Act.
Typically, this would involve the employer refusing to provide a reference, or providing a poor reference, to an employee on the basis of a potential tribunal claim.
2. Associative discrimination: no duty to make reasonable adjustments
It is widely accepted that employers can be liable under the Equality Act 2010 for “associative discrimination” (aka “discrimination by association”). This is discrimination against an individual because of an association with someone who has a protected characteristic, such as an employee’s disabled child.
What was less clear was whether or not the concept extends to an employer’s duty to make reasonable adjustments for disabled people, or is limited to instances of direct discrimination and harassment.
The Court of Appeal made clear that, while the duty on employers to make reasonable adjustments for disabled employees and job applicants is wide, it does not extend to non-disabled staff and potential recruits.
This means that the reasonable adjustments provisions do not place any extra burden on employers when dealing with an employee’s flexible working arrangements purely on the basis that the employee’s child is disabled.
3. Negative verbal reference and job offer withdrawal were discriminatory
In the last decade, “discrimination arising from disability” has been a key battleground in equality cases.
The Equality Act 2010 makes it unlawful for an employer to treat an individual unfavourably because of something “arising in consequence of” a disability. An employer can successfully defend a claim if it can justify the treatment as a proportionate means of achieving a legitimate aim.
As this case demonstrates, giving negative verbal references because of a former employee’s disability-related absence may amount to discrimination arising from disability. So too can the subsequent withdrawal of a job offer by a prospective employer.
Here, the employee’s disability meant that she had a number of lengthy absences and regularly needed to work at home. The EAT held that her former employer’s negative verbal reference and prospective employer’s subsequent withdrawal of a job offer both amounted to discrimination arising from disability.
4. Discounting triggers in attendance policy not reasonable adjustment
This is an important decision because it establishes that the duty to make reasonable adjustments under the Equality Act 2010 is likely to be engaged in any case in which a disabled employee has disability-related absences that trigger the application of an attendance policy.
Here, the Court of Appeal held that it would not to be reasonable for the employer to disregard 62 days of disability-related absence and extend the trigger point under its attendance policy.
The Court of Appeal emphasised that, while an employer may not be required to make adjustments to an absence management procedure, a dismissal could constitute discrimination arising from disability if dismissal was not a proportionate response in all the circumstances.
5. Immigration status does not equate to nationality
The Supreme Court held that the mistreatment of migrant workers on the basis of their immigration status did not amount to direct race discrimination.
In other words, the Supreme Court accepted that an individual’s “immigration status” is not necessarily equated with their “nationality” under the Equality Act 2010.
The alleged mistreatment included taking the migrant workers’ passports from them on arrival in the UK and requiring them to work very long hours for little pay.
While the outcome was harsh for these claimants, it is important to remember that the focus in this case was direct discrimination. On the right facts, claims for indirect direct discrimination and harassment might succeed.
In 2021, this controversial decision could take on great significance if employers find themselves having to dismiss workers who lose the right to work in the UK because of Brexit.
6. Long-term sick leave dismissals: guidance on borderline cases
In this case involving a teacher who was off sick for more than a year, the Court of Appeal provided guidance on when employers can dismiss an employee on long-term sick leave. The decision is particularly valuable for HR professionals faced with employees on long-term sick leave whose diagnosis and timeframe for recovery are uncertain.
The Court made it clear that employers are not expected to wait forever for an employee to recover from illness, and dismissal is a valid possibility even where there is a vague promise from an employee of an imminent return.
However, the Court went on warn employers that, when balancing whether the time has come to dismiss, the employer needs to have considered the disruption to the business that the absence is causing.
7. Indirect discrimination: no need to explain why claimant disadvantaged
In Essop, and its companion case Naeem v Secretary of State for Justice, the Supreme Court removed some of the barriers that have built up for claimants bringing indirect discrimination claims.
In particular, the cases remove the requirement to show a tribunal why a neutral policy or rule puts the affected group at a disadvantage.
The practical effect for employers is that employment tribunals are able to move more swiftly to the issue of justification, which should be at the forefront of HR professionals’ minds when creating or reviewing workplace policies and rules.
Employers can still defeat claims of indirect discrimination if they can show that the policy or rule is justified, and that it is a proportionate means of achieving a legitimate aim.
8. Employment tribunal fees system discriminatory
The Equality Act 2010 was invoked in this landmark victory for trade union Unison against the Government’s employment tribunal fees regime.
The Supreme Court agreed wholeheartedly with Unison’s arguments that paying up to £1,200 to bring a claim against an employer was a serious impediment to access to justice.
The Government was forced to cease employment tribunal fees immediately after the judgment and introduce a repayment scheme for claimants who paid fees.
9. Equal pay: shop workers could compare themselves with warehouse staff
In recent years, court battles for equal pay have moved from the public sector towards the private sector. While there is a long way to go in these cases, this Court of Appeal ruling was an important landmark.
Thousands of shop workers, mostly female, claimed that they have historically been paid less for work of equal value to the work undertaken by their predominantly male colleagues working at depots as part of Asda’s distribution operation.
Here, the preliminary issue was whether or not the shop workers were able to compare their pay with the pay of workers at the depots. The Court of Appeal had little doubt that workers in Asda supermarkets were entitled to compare their pay with the pay of depot workers because common terms of employment apply.
10. No sex discrimination where shared parental pay not enhanced
The common consensus is that one of the main reasons that shared parental leave has not been more popular is that employers that enhance maternity pay are not legally obliged to enhance shared parental pay.
In these two cases heard together in the Court of Appeal, male workers claimed that their employers discriminated against them because of their sex by denying them the opportunity to take shared parental leave on full pay. The employers in both cases enhanced pay during maternity leave, but not during shared parental leave.
The Court of Appeal rejected their claims, reducing the risk of sex discrimination or equal pay claims by male employees against employers that operate a policy of enhancing maternity pay but paying shared parental leave at the statutory minimum.
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