Equal Opportunities Review Issue 194 - November 2009

Our focus on racial equality in this issue is well-timed – as we carried out research into best practice on race equality,
some worrying findings on race discrimination have been published. ...(more)

Diary: Conservative proposals for tribunal reform

Author: Michael Rubenstein

A policy paper published by the Conservative Party, Regulation in the post-bureaucratic age, promises that the
Conservatives “will consult carefully on changes that may be required to the employment and discrimination tribunals
system to ensure that the system offers fast, cheap and accessible justice, and that it is fair to all sides.” ...(more)

Diary: Strictly racist

Author: Michael Rubenstein

Hot on the heels of the row over ageism on Strictly Come Dancing, with the replacement of the venerable
choreographer Arlene Phillips by the grammatically challenged contest winner Alesha Dixon, comes the highly
publicised off-air remark by professional dancer Anton Du Beke (born Tony Beke) to his dance partner, actress Laila
Rouass. ...(more)

Diary: ILS annual conference

Author: Michael Rubenstein

Mid-September to mid-October is conference season, and conferences have dominated my diary over the past month.
In September, I went to Oxford for the annual conference of the Industrial Law Society, an event I have attended for
more than 30 years.

Diary: Equality Bill conference and employment law feminisation

Author: Michael Rubenstein

I have previously written about the growing numbers of women in the world of discrimination law. This was
dramatically reflected at the Butterworths conference on the Equality Bill I chaired and introduced in September.

Diary: Farrer's debate

Author: Michael Rubenstein

The annual Farrer & Co Laurence Stracey Memorial Debate this year was on the motion “Religion or belief has no
place in the workplace”.

Diary: Discrimination Law in 2010

Author: Michael Rubenstein

The 2010 version of this acclaimed updating conference will be held at the Millennium Knightsbridge Hotel on Friday
29 January. ...(more)

Pearson: embracing ethnic diversity

Topic(s): Race: policies/best practice
Author: Carol Foster

Media and education company Pearson is convinced of the compelling business case for an ethnically diverse
workforce. Carol Foster looks at the range of measures adopted by the company to promote diversity within the
organisation, including its successful internship programme aimed at attracting ethnic minority graduates.

Supporting ethnic minorities into work

Topic(s): Race: statistics & reports
Author: Jane Aston

The Government-funded programme, Partners Outreach for Ethnic Minorities, was successful in attracting almost
10,000 individuals from Bangladeshi, Pakistani and Somali communities and giving them the skills and confidence to
join the job market. Jane Aston explains the findings of an evaluation of the programme.
Working Families: supporting parents and employers
Topic(s): Flexible working

Working Families supports families and employers in achieving a balance between caring and work. We look at the
work of the campaigning body and consider, in particular, the proposals in its most recent publication on the future of
work.

Lovells: the benefits of mentoring

Topic(s): Sex: policies/best practice
Author: Sue Johnstone

Women in law firm Lovells can benefit from a mentoring scheme launched by its Women’s Network. The pilot scheme
aims to provide support for women in developing their careers, through guidance from experienced lawyers and
managers. Sue Johnstone looks at how it works.

AG Opinions on age discrimination

Topic(s): Age: justification
Author: Michael Rubenstein

In his judgment in the Age UK case on the default retirement age, Mr Justice Blake refers to views expressed by three
Advocates General of the European Court of Justice on age discrimination to support his conclusion that “use of a
specific age as the basis for social policy decisions … is somewhat different from use of other criteria such as race,
sex, religion or sexual orientation which have either been, or have become now regarded as particularly suspect
grounds.”

Retirement age challenge fails

Topic(s): Age: justification, retirement
Author: Michael Rubenstein

The Administrative Court has ruled that the Government was justified in imposing a default retirement age of 65 as
part of the Age Discrimination Regulations 2006. R (on the application of Age UK) v Secretary of State for Business,
Innovation & Skills (25 Sep 2009, AC) ...(more)

Avoiding double recovery

Topic(s): Compensation
Author: Michael Rubenstein

The EAT has emphasised that in awarding compensation in a serious case of unlawful discrimination, tribunals must
guard against overlap or double recovery between aggravated damages, exemplary damages, compensation for
injury to feelings and cost awards. They must also take account of the totality of the awards for non-pecuniary
compensation. Ministry of Defence v Fletcher (9 Oct 2009, EAT)

Recommendation in relation to ex-employee

Topic(s): Race: harassment, remedies
Author: Sue Johnstone

This case illustrates the problems that can arise when employees use instant messaging at work. The case involves a
dialogue with references to Arabs and terrorists which was seen by a third party, an Arab employee. The tribunal also
makes creative use of the power to order the employer to take action in the form of a recommendation. This must be
to obviate the effect of the discrimination on the claimant. In this case, the claimant was no longer in employment, but
the tribunal recommended that some of the respondent’s employees undergo training on discrimination issues on the
basis that it would be a consolation to the claimant and help alleviate his injury to feelings. Ghali v Transperfect
Translations Limited (5 Aug 2009, ET/3201752/08)

One-off comment amounts to racial harassment

Topic(s): Race: victimisation, harassment
Author: Sue Johnstone

A manager who used problems with performance as an excuse to discipline an employee who had made a complaint
against him for making a racist comment resulting in him being disciplined, is found to have victimised the employee
by the way in which the performance review procedures were applied. Briscoe v The Organic Pharmacy Ltd (23 Jun
2009, ET/2330124/08)

Employer’s conduct not on racial grounds

Topic(s): Race: direct discrimination
Author: Sue Johnstone

Although an employer had been abusive towards the claimant, deducted wages and then dismissed him without
following any kind of procedure, an employment tribunal finds that there was nothing to suggest that any of the
respondent’s actions were on racial grounds, and that it employed a diverse workforce any of whom would have been
treated in the same way in the circumstances. Moore v PJB Motorhome Conversions Ltd (26 Aug 2009,
ET/1302848/09 and others)

Employee who overstayed permitted leave was not treated less favourably
Topic(s): Race: direct discrimination
Author: Sue Johnstone

An employee who took three weeks’ leave to go to India, but did not return until more than two months later than
expected, was not treated less favourably on grounds of race when she was dismissed because she failed to keep her
employers adequately informed of when she would be able to return to work. During her absence, she sent emails
referring to her ill health but did not send any medical certificates. Kalia v Fashion Accessories Ltd (22 Apr 2009,
ET/5586/63)

Caution over applicant’s immigration status was not race discrimination

Topic(s): Race: direct discrimination, harassment
Author: Sue Johnstone

Where an employer had previously had problems over applicants’ immigration status, and had reasonable suspicions
about the claimant’s qualification to work in the UK, it was not race discrimination or harassment to make enquiries
about the claimant’s qualifications or to make allegations about his declared nationality. Miranda Dos Santos Filho v
(1) Lord Moser plc (2) Priost (17 Jun 2009, ET/2330350/08)

Balancing prejudice to the parties

Topic(s): Race; Tribunal procedures: time limits
Author: Sue Johnstone

A claimant who delayed submitting her race discrimination claim could not establish that it was just and equitable to
extend the time limit. Although she had received conflicting advice, her advisor was not legally qualified or
experienced in bringing cases and the claimant had found the correct information herself on the internet. Johnson v
(1) Ark-Burlington Danes Academy (2) Coates (22 Jun 2009, ET/3300180/09)

No reason given for short delay in submitting claim

Topic(s): Tribunal procedures: time limits
Author: Sue Johnstone

Although in this case the delay in submitting a race and age discrimination claim was only 12 days, and therefore the
prejudice to the respondent in terms of defending the case not great, the tribunal concluded that as there was no clear
reason given for the delay and the claimant’s case was weak, it would not be just and equitable to extend the time
limit. Kansal v Kirklees College (11 Jun 2009, ET/1800893/09)

Different approaches to integration in the workplace

A study of age, sexual orientation and religion or belief policies, carried out for the Equality and Human Rights
Commission (EHRC), reveals that, although no one policy or approach is appropriate for all employers, there are
many common elements to these policies.

Fall in equal pay and sex discrimination claims

Topic(s): Compensation

The latest report from the Tribunals Service shows that equal pay cases no longer make up the largest category of
claims to employment tribunals, with unfair dismissal cases reclaiming the top spot.

No retirement age for senior civil service

Topic(s): Age: retirement
The senior civil service is to completely abolish its retirement age from April 2010, allowing employees to carry on
working for as long as they like.

EHRC publishes disability work plan

Topic(s): Disability: policies/best practice, statistics and reports; Equality & diversity: Equality and
Human Rights Commission

Promoting ways to make workplaces more open and accessible to disabled people, particularly people with mental
health conditions and people with autism and other “neuro-diverse” profiles, will be one of the key activities of the
Equality and Human Rights Commission’s Disability Committee in 2009–10.

Barriers to disabled people volunteering

Topic(s): Disability: statistics and reports

Disabled people are 9% less likely to volunteer than the rest of the population, according to new analysis published by
the Office of the Third Sector in the Cabinet Office.

Disability award winners announced

Topic(s): Disability: Employers Forum on Disability

BT and the British Library are the joint winners of the Employers’ Forum on Disability’s (EFD) Disability Confidence
award 2009.

Met not held to account on race and faith

Topic(s): Race: statistics & reports

The Metropolitan Police Authority (MPA), responsible for overseeing performance on equality and diversity by the
Metropolitan Police Service (MPS), has failed to challenge the police service sufficiently and hold it to account,
according to the interim report of the Race and Faith Inquiry Panel of the MPA.

Councils spend millions fighting equal pay

Topic(s): Equal pay: government policy/action

A survey of 50 local authorities has found they spent more than £11.5 million between 2003 and 2009 on legal fees to
fight equal pay cases.

Applicant name affects job chances

Topic(s): Race: statistics & reports

Ethnic minority job applicants had to send 16 applications to be successful in being shortlisted compared with nine
applications by white applicants, finds research carried out on behalf of the Department for Work and Pensions in a
study of racial discrimination in the recruitment process.

Wales launches project to boost under-represented groups

Topic(s): Equality & diversity

Thirty-four participants from under-represented groups in Wales have been given the opportunity to shadow Welsh
National Assembly members and local councillors over six months, in a bid to increase their involvement in the
democratic process and community activities.

Employers key to arthritis sufferers staying in work

Topic(s): Disability: policies/best practice

Employer support is a key deciding factor in helping workers with arthritis to keep their jobs, reveals a new survey by
the charity Arthritis Care.

9.5 million working days lost to MSDs

Topic(s): Disability: policies/best practice
Musculoskeletal disorders (MSDs) account for nearly half (49%) of all absences from work and 60% of permanent
work incapacity in the European Union, finds a new study from the Work Foundation. It estimates that this costs the
UK economy £7 billion every year and costs Europe £240 billion each year.

Fathers fear asking for flexible working

Topic(s): Flexible working: right to request flexible working; Parental rights: paternity rights

Fathers want to take a more active role in caring for their children, but two in five men fear that asking for flexible
working arrangements would result in their commitment to their job being questioned and would negatively affect their
chances of promotion, according to new research from the Equality and Human Rights Commission (EHRC).

Older unemployed people face forced early retirement

Topic(s): Age: retirement

Long-term unemployed older people are at risk of never working again unless tailored support is offered to help them
back into work, warns a TUC report.

More support needed for female doctors

Topic(s): Sex: statistics and reports

Despite large numbers of women now entering the medical profession, they remain under-represented at consultant
level. A report from the National Working Group of Women in Medicine makes recommendations to address the
changes needed to enable women to progress in the profession.

Sex industry undermines women’s equality at work

Topic(s): Sex: statistics and reports

The use of lap-dancing clubs and display of pornography is a major threat to women’s equality at work, according to a
report from women’s rights group the Fawcett Society.

New employment rights helpline launched

Vulnerable workers will be able to seek advice about their workplace rights and report abuses of those rights through
a new Government helpline.