Employment Essentials 2024 review of the year: part two

Following our ERA's tour in Part 1 of our year review, we now offer our pick of the new 2024 legislative provisions and case law developments under equalities legislation in our 2024 =ities Tour.

Later in Part 3 we will be offering our "Reunion Tour".

The 2024 "=ities Tour"

Preserved EU rights

We begin our =ities Tour with six new Equality Act 2010 (EqA) provisions which saved key equality protections that would otherwise have been lost on 1 January 2024 under the Retained EU Law (Revocation and Reform) Act 2023.

The Shape of EU

The Equality Act 2010 (Amendment) Regulations 2023 and related The Pensions Act 2004 and Equality Act 2010 (Amendment) Equal Treatment by Occupational Pensions Schemes) Regulations 2023 amended the EqA and preserved:

1. The 'single source' test for establishing an equal pay comparison

The new section 79(4A) provides that an equal pay comparison can be made where there is a single body that is responsible for setting or continuing the terms on which the claimant and comparator are employed, and which is in a position to ensure equal treatment between them.

2. The right to claim indirect discrimination by association

The new section 19A provides that indirect discrimination can be established if the claimant is put (or would be put) at 'substantively the same disadvantage' as persons who share the relevant protected characteristic.

3. The definition of disability and participation in working life

The new paragraph 5A Schedule 1 provides that the reference to a person's ability to carry out normal day-to-day activities is to be taken as including a reference to the person's ability to participate fully and effectively in working life on an equal basis with other workers.

4. Pregnancy, maternity and breastfeeding

Retention of aspects in relation to pregnancy, maternity and breastfeeding by amending s13 and s18 so that:

• women can continue to receive special treatment in connection with maternity;
• protections for women against less favourable treatment at work because they are breastfeeding;
• protections for women against unfavourable treatment after they return from maternity leave where that treatment is in connection with a pregnancy or a pregnancy-related illness occurring before their return; and
• protections for women against pregnancy and maternity discrimination where they do not have a statutory right to maternity leave but have similar rights under alternative occupational schemes.
5. Protections against discriminatory recruitment conditions

The new section 60A makes the making of public discriminatory statements by an employer about access to opportunities in their organisation, may amount to direct discrimination even in the absence of an active recruitment process and without an identifiable victim.

6. Pensions equality

Preservation of rights in relation to equalisation of guaranteed minimum pensions between men and women and the provision survivor benefits for couples in same sex legal relationships (amends ss 64-67 and para 18 Sch 9).

Duty to prevent sexual harassment

The next stop on our =ities Tour is The Worker Protection (Amendment of Equality Act 2010) Act 2023 ('Worker Protection Act').

You need to protect me, I don't need your apologies

On 26 October, the Worker Protection Act came into force. The Act introduces a new positive legal obligation on employers to take 'reasonable steps' to protect their workers from sexual harassment. If an employer breaches the preventative duty, the Equality and Human Rights Commission (EHRC) will have the power to take enforcement action against the employer. In addition, employment tribunals will have the power to increase compensation by up to 25% where an employer is found to have breached the new duty.

It will remain the case that to establish the existing statutory defence in a sexual harassment claim involving harassment by a colleague, the employer will still need to show that it took 'all reasonable steps' to prevent the sexual harassment. But where a claim is upheld and the employer fails to establish the statutory defence, the employer may still potentially be able to avoid a 'failure to prevent claim' and the corresponding 25% uplift to compensation if the employer can show it took 'reasonable steps' to prevent sexual harassment of employees – a lower threshold. The EHRC will also have the power to investigate and take enforcement action.

During a difficult passage through Parliament, the originally proposed provisions of the 2023 Act were significantly diluted. The Employment Rights Bill published on 10 October contains provisions to revert to the original proposals, which would make employers responsible for taking 'all reasonable steps' (a higher threshold) to prevent sexual harassment in the workplace and also to provide protection from third party harassment (in relation to all protected characteristics).

Associative discrimination

Next on our =ities Tour is indirect associative discrimination. Prior to s19A being introduced on 1 January this year (see above), for indirect discrimination to be established, the wording of section 19 required the claimant to both personally suffer the disadvantage and to have the protected characteristic in question. As such, can associative discrimination arise in an indirect discrimination claim under the EqA?

The Associative Team

This year the Employment Appeal Tribunal (EAT) in Rollett & others v British Airways PLC, confirmed that following the pre-Brexit CJEU's decision in CHEZ, the EqA must be read to dispense with the requirement that a claimant bringing an indirect discrimination claim must have the same protected characteristic as the disadvantaged group. In other words, indirect discrimination claims can be brought where claimants do not have the protected characteristic of the disadvantaged group but share the same particular disadvantage.

While a significant extension of indirect discrimination protection, this does not open the door to all potential types of indirect associative discrimination claims. As made clear by the EAT, there is a clear distinction between CHEZ-type 'same disadvantage' indirect discrimination (where a claimant can show that the employer applied a PCP which put people with a particular protected characteristic at a disadvantage and the claimant can show that they were put at the same disadvantage) and indirect associative discrimination claims based on simply being associated with a person with a protected characteristic.CHEZ simply omits the requirement for the claimant to have that particular protected characteristic. It does not extend to a broader concept of a claimant who does not have the protected characteristic but who associates with a person who does, suffers a disadvantage that is unique to their association with the person with the protected characteristic

Religion or belief discrimination

Next on our =ities Tour is a 'hot topic' before many tribunals: conflicting beliefs. Belief or manifestation of belief? A belief worthy of respect in a democratic society or not? The belief, the manifestation or something else? Lawful protest or unlawful inducement? The questions appear endless.

Thinking before manifesting out loud

Gender beliefs

While those holding a gender-critical belief are protected under the EqA (as are those holding a gender identity belief), the manifestation of such a belief may, depending on the circumstances, be restricted. We are currently awaiting Court of Appeal guidance on this important distinction following the hearing of the further appeal in Higgs v Farmor School which took place in early October. As for judgments handed down in 2024.

• Orwin v East Riding of Yorkshire Council provides an example of an unacceptable manifestation. A public facing council employee objected to a new policy to add pronouns to email signature on the basis that it promoted a political ideology of self-identification. In protest he added the words 'XYchromosomeGuy/AdultHumanMale' to his email signature. Having refused numerous management instructions to remove the words, a tribunal found his dismissal was not on the grounds of his beliefs, but instead an inappropriate manifestation of his beliefs.

• The tribunals have continued to remind employers that the law imposes a duty on both sides to tolerate each other in the workplace (see Adams v Edinburgh Rape Crisis Centre and Phoenix v The Open University).

Lawful protest or unlawful inducement?

In 2022, a barrister succeeded in her claim against her chambers that she had been discriminated against for holding gender critical beliefs and a belief that gender theory, as articulated by Stonewall, is severely detrimental to women and to lesbians. However, she failed in her claim against Stonewall for instructing, causing or inducing that discrimination.

This year the EAT upheld the finding that Stonewall did not cause or induce her discriminatory treatment. Although 'but for' Stonewall's complaint, the discrimination would not have occurred, it was not reasonable to hold Stonewall liable for the discriminatory outcome. The responsibility for determining the complaint in a discriminatory way lay only with the chambers. Further, the tribunal found that the complaint was made without any specific aim in mind, simply in protest, and was not intended or taken to be a threat to discontinue Stonewall's relationship with the chambers (Bailey v Stonewall Equity Ltd). A further appeal to the Court of Appeal is currently pending.

The belief, the manifestation or something else?

In Omooba v Michael Garrett Associates Ltd and another, the EAT held that there had been no direct religion or belief discrimination or harassment when a Christian actor was dismissed from a role and her agency terminated her contract, following a social media storm over her historic publicly expressed beliefs that homosexuality is a sin. The EAT upheld the finding that her treatment was not due to her beliefs per se or their manifestation, but separable commercial reasons (adverse publicity impacting ticket sales, audience reaction and impact on other actors).

A belief worthy of respect in a democratic society or not?

• In Thomas v Surrey and Borders Partnership NHS Foundation Trust, the EAT upheld a finding that a worker's belief in English nationalism, which included a desire to forcibly remove Muslims from the UK, was not a protected philosophical belief as it was not worthy of respect in a democratic society, was incompatible with human dignity and in conflict with the fundamental rights of others.
• In Legge v Environment Agency, a tribunal held a male claimant's anti-feminist views were not protected under the EqA as his beliefs were not worthy of respect, or compatible with human dignity” and were in “conflict with the rights of others”.

Pregnancy discrimination

Next on our =ities Tour, is the assessment of injury to feelings awards under s 119 EqA.

Lego House of pain

The EAT judgment in Shalil v Samsons Ltd, is a useful reminder of the considerations when assessing injury to feelings in the context of a pregnancy discrimination claim brought against a small property development company:

• In a case where there is a series of detriments (reduced hours, sham redundancy process and false assertions of lack of capability and misconduct) placing an injury to feelings award in the lower Vento band will usually be inappropriate.
• Tribunals should consider whether the injury to feelings was exacerbated by the fact that the employee was pregnant and was concerned about her unborn child. The pregnancy is correctly to be regarded as a component of her individual circumstances.
• The resources of the employer are not relevant in assessing injury to feelings. As the EAT point out, "if a claimant suffered a loss of earnings, it obviously would not be appropriate to reduce the award of compensation for loss of earnings to take account of the limited resources of [an employer]. The loss suffered by a claimant is the same however rich or poor [an employer] may be. Similarly, an award of injury to feelings should not be reduced because the means of the [employer] may be limited".

Race, sex & disability discrimination

Next stop on our =ities Tour are three protected characteristics that have long had protection stemming from pre-EqA legislative provisions and now contained in sections 6, 9, and 11 EqA.

Don't just don't

In 2024 we learnt:

• Comments about employee's accent could be 'related to' race for harassment purposes, even if not motivated by race (Carozzi v University of Hertfordshire and another).
• Comments about an employee's baldness were harassment related to sex (British Bung Manufacturing Company Ltd and another v Finn).
• An employer's strict approach to unauthorised leave during the pandemic indirectly discriminated on the basis of race against non-UK nationals (NSL Ltd v Zaluski).
• A trial period in a new role for a disabled employee can be a reasonable adjustment (Rentokil Initial UK Ltd v Miller).
• Where an employer is found to be vicariously liable for the acts of its employees or agents under s109 EqA, the tribunal must find the employee or agent concerned liable under s110 EqA. A tribunal cannot dismiss the claim against the named perpetrator employee/agent as being "merely misguided attempts to address a complex situation" (Baldwin v Cleves School and ors).

Part time workers discrimination

We now head over to The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW Regs) which allow part-time workers to challenge less favourable treatment on the ground of their part-time status if the treatment cannot be objectively justified.

Perfect part?

This year in Augustine v Data Cars Ltd, the EAT considered the correct approach to causation in claims for less favourable treatment under reg 5 PTW Regs. In particular, whether a worker's part-time status must be the sole reason for the less favourable treatment.

In this case, the EAT held that due to the lack of pro-rating of a flat rate 'circuit fee', a part-time private hire driver was treated less favourably than a full-time comparator. The EAT then looked at whether the less favourable treatment was because the claimant worked part-time. The EAT's view was that the correct test should be whether part-time status was an effective cause of the treatment (on which basis the claimant would succeed). However, the v considered itself bound by the earlier judgment of the Scottish Court of Session (equivalent to the Court of Appeal) in McMenemy v Capita Business Services which held the test was only if the treatment was solely for the reason of being a part-time worker. On that basis the claim failed.

Given the strong steer in this case, it is unsurprising that a further appeal to the Court of Appeal is currently pending.

Settlement agreements

We end our =ities Tour, with a stop at s147 EqA and case law on settling claims under the EqA. Please note the lessons from these cases also apply to settling claims under the Employment Rights Act 1996  (ERA) under s203(3).

Everything has not changed

Can you negotiate a deal with an employee to settle a future claim which hasn’t arisen yet? At the very end of 2023 (29 December), the Scottish Court of Session (equivalent to the Court of Appeal) overturned the controversial EAT judgment in Bathgate v Technip Singapore PTE. The Court of Session held that the various protections for the employee built into section 147 EqA do not exclude the settlement of future claims so long as the types of claim are clearly identified and the objective meaning of the words used is such as to encompass settlement of the relevant claim. Accordingly, a waiver of future claims is possible provided the waiver is plain and unequivocal that this was intended.

In June the EAT in Clifford v IBM confirmed that the position on settling future claims as set out in Bathgate was correct and equally applies in England and Wales. In this case, the claimant was moved onto the employer's Disability Plan and received disability salary payments at a specified level. The terms of the Plan indicated that an increase in these payments was discretionary. Under the terms of the settlement agreement, the claimant waived the right to bring various specified claims, including disability discrimination claims, whether or not they were or could be in the contemplation of the parties at the date of the agreement. When years later the claimant later tried to bring proceeding as to the level of the disability payments, the EAT agreed with the tribunal that his claim was barred under the terms of the valid settlement agreement.

While both Bathgate and Clifford concern settlement agreements under s147 EqA, the same principles would also apply to settlement agreements under s203(3) ERA.

To discuss any of the points raised in this article in relation to employment law developments, please contact Connie Cliff or Jonathan Chamberlain.

In the third and final part of the review, we look at our pick of the new 2024 legislative provisions and case law now turning to collective issues.