Discrimination case law update
Key Contact: Claire Knowles
Author: Dan Evans
Asda Supermarkets v Brierley and others – Equal pay in retail
In October 2016 the Employment Tribunal decided that Asda shop workers (who are mostly women) were entitled to equal pay to Asda warehouse workers (who are mostly men). It was held that both roles were comparable and of equal value and the decision to pay the warehouse workers more than the shop workers indirectly discriminated women, who were more likely to work on the shop floor than in the warehouse. The decision was upheld by the Court of Appeal on 31 January 2019.
Asda appealed to the Supreme Court. The appeal was heard on 13 July 2020 and the parties are waiting for the Supreme Court’s judgement.
The Supreme Court’s decision will be of great public interest. It is estimated it could be worth £10 billion in backdated pay claims to UK supermarket workers and will impact many other industries, particularly those in manufacturing, food and hospitality, and retail. It is essential employers consider how workers are paid in different areas of the business. If there are examples of a group of workers in your business who are mostly male, being paid more than another group who are mostly female, then the business is exposed to an equal pay claim. If the Employment Tribunal considers the job roles to be comparable, of equal value, and there is no other reason other than sex discrimination as to why the roles are not paid equally, the group of workers will be entitled to equal pay. An equal pay claim decision can have significant financial implications for the employer as workers can claim back the difference between what they received and what their comparators received. The maximum period that back pay can be awarded is usually 6 years but in certain circumstances, it can go back further.
Page v Lord Chancellor/Secretary of State for Justice and another – Victimization for religious belief
The Claimant was a practicing Christian who held the position of lay magistrate. The Claimant had made it known to fellow magistrates that he had issues with the concept of same sex couples adopting children. He subsequently contravened guidance by expressing such views to the media. He was dismissed for misconduct. He brought claims for discrimination, harassment, and victimization. The Employment Tribunal rejected his claims.
The Claimant appealed the decision to reject his victimization claim. The claimant submitted his statement to the media was a protected act, and to be dismissed because of this statement was unlawful victimization. The EAT held the Claimant’s statement was not a protected act. The Claimant had not alleged that his employer had contravened the Equality Act 2010, but rather expressed his views on why same sex adoption was wrong. The claim that the decision to dismiss him contravened his right to freedom of expression was also rejected.
It is difficult for employers to navigate the growing list of conflicting beliefs that are protected under the Equality Act. If an employer is presented with a worker expressing beliefs that are considered discriminatory towards other protected characteristics, it should be addressing these issues with the worker. An employer will not be acting unlawfully by reminding a worker that expressing such beliefs at work is not acceptable and could amount to unlawful discrimination. It is a balancing exercise to ensure a working environment that promotes equality and diversity. An employer should acknowledge that the worker is entitled to its own beliefs but inform the worker it is not appropriate for the beliefs to be expressed in the workplace when the belief discriminates or criticizes others. If following a reasonable verbal warning the discriminatory conduct continues, an employer can consider more serious sanctions and in the case of employees, it can apply its disciplinary policy accordingly.
Efobi v Royal Mail Group Limited – Discrimination initial burden of proof
The Court of Appeal held it is the responsibility of the claimant to establish a complaint of discrimination, by producing necessary evidence to support its claim. The burden is not on the Claimant to prove the discrimination happened, but it must establish that there is an alleged discrimination claim to be heard. This is known as the evidential burden. When the Claimant has satisfied the evidential burden, the burden of proof shifts to the employer to demonstrate, on the balance of probabilities, that its actions did not amount to unlawful discrimination. The Employment Tribunal should not draw adverse inferences against an employer who has not provided information to support its case, until the Claimant has satisfied the Employment Tribunal that there is a case to be heard.
VL v Szpital Kliniczny im. dra J. Babińskiego, Samodzielny Publiczny Zakład Opieki
The European Court of Justice (the ‘ECJ’) confirmed that providing favourable treatment to one disabled worker, and not to another disabled worker, could amount to unlawful discrimination. Ordinarily, an appropriate comparator is a person (or group of persons) who has the protected characteristic, in comparison with another person (or group of persons) who does not share that characteristic. The ECJ held that establishing appropriate comparators could be established within a group of persons who share a protected characteristic. The ECJ decision was considering disabled groups of workers but applied the principle to all protected characteristics.
In the UK, the Equality Act confirms that an employer does not discriminate against a worker if it treats disabled workers more favourably than it treats the worker. This is because an employer is under an obligation to make reasonable adjustments for workers with disabilities. The ECJ’s decision that favourable treatment to one disabled worker and not another disabled worker is discriminatory contradicts the duty to make reasonable adjustments. The decision is likely to face criticism and require further refinement.
The judgement is not binding in the UK, but the ruling could be used to persuade an Employment Tribunal to widen the scope of comparators in discrimination claims. It is anticipated that if the principle was adopted in the UK, it would be applied in limited indirect discrimination claim scenarios. In the case which was referred to the ECJ, the employer introduced a new policy that financially rewarded workers who notified the employer of a disability that had not previously been disclosed. The policy was argued to be unfavourable to workers with more obvious physical disabilities, who were much more likely to have already notified the employer. Although this policy was more than likely introduced to incentivise openness and to increase the employer’s awareness of disabilities in its workforce, employers should be aware that such policies could amount to unlawful discrimination. It would be prudent for employers to consider their own policies to ensure it is not unreasonably excluding certain workers within a protected group.
If you require any support or advice on any discrimination issues in your business please do get in touch with Claire, Dan or Adam in our Employment Team.