Circular No: NCP/153/18
Our Ref: LA/09/08/2018
9TH August 2018
To: Branches, Regional Councils & Regional Offices
Summer II Legal 2018 Update:
1. Caste off
The government has announced that, following a consultation on caste discrimination, it will not make caste an aspect of race discrimination under the Equality Act 2010.
The consultation, which received over 16,000 responses, considered two different options to protect people from this form of discrimination. The first (which it has now rejected) was to implement a duty introduced by Parliament in 2013 to make caste an aspect of race discrimination under the Equality Act 2010. The second was to rely on emerging case law showing that a statutory remedy against caste discrimination was already available through existing provisions in the Equality Act.
Just over half of the respondents to the consultation (53 per cent) wanted to rely on the existing statutory remedy and repeal the duty, while 22 per cent rejected both options (mainly because they wanted the government to proscribe the concept of caste in British law altogether), while about 18 per cent of respondents wanted the duty to be implemented.
The government has now said that it is clear from the judgment of the Employment Appeal Tribunal in Chandhok v Tirkey (weekly LELR 409) that someone claiming caste discrimination can rely on the existing statutory remedy under section 9(1)(c) of the Equality Act if they can show that their caste is related to their ethnic origin.
The government therefore intends to legislate to repeal the duty for a specific reference to caste as an aspect of race discrimination in the Equality Act once a suitable legislative vehicle becomes available. Whilst recognising that this is an area of domestic law which may develop further, the government has also said that it will monitor emerging case law in the years ahead. To make clear that caste discrimination is unacceptable it will, if appropriate, support a case with a view to ensuring that the higher courts reinforce the position set out in Tirkey.
In order to ensure that people know their rights and what sort of conduct could be unlawful under the Equality Act, the government also intends to produce short guidance before the repeal legislation is introduced. Although it is mainly aimed at individuals who feel they may have suffered discrimination on grounds of caste, it should also help employers, service providers and public authorities who are outside those groups most concerned with caste and who may have little awareness of caste divisions.
Our lawyers advise that the Equality Act 2010 was amended on 25 June 2013 to put a clear duty on Government to specifically include caste as a form of race discrimination. This followed a Government commissioned report by the National Institute of Economic and Social Research which found evidence of caste discrimination and concluded that the Equality Act “cannot cover caste discrimination and harassment as effectively as caste specific provisions would”.
The Government should have included protection from caste discrimination then. It didn’t. Instead, it launched a public consultation between March and September 2017. The decision not to include caste discrimination as a specific form of race discrimination and instead rely on 'the flexibility of case law” provides limited, if any protection. To see a copy of the report you can visit the government website to read a copy of the government’s response and its analysis report
2. Consequence of disability (City of York v Grosset)
In this case the Court of Appeal has set down the proper interpretation of the legislation relating to “something arising in consequence of” disability; stating that it is not necessary that the employer knows that the ‘something’ arises from the disability. The law says it is discriminatory to treat a worker unfavourably (for instance, by dismissing them) because of “something arising in consequence of” their disability. In this case, the Court of Appeal held that it is still discrimination even if the employer was unaware of a link between the disability and the worker’s misconduct.
Mr Grosset, a teacher, suffered from cystic fibrosis. The school had made various reasonable adjustments but when a new head teacher took over, he was not told about them. He then increased Mr Grosset’s workload, putting him under severe stress.
While suffering from these high stress levels, Mr Grosset showed an 18-rated horror film to a class of 15-year olds without obtaining approval from the school or the pupils' parents. Mr Grosset agreed that it had been inappropriate to show it, but that he had done so because of the high levels of stress he was under as a consequence of his disability. The school summarily dismissed him for gross misconduct.
Mr Grosset claimed unfair dismissal and discrimination arising in consequence of his disability under section 15 of the Equality Act 2010.
Section 15(1) states that:
a) it is discrimination for an employer to treat a worker unfavourably because of “something arising in consequence of” their disability, and
b) the employer cannot show that the treatment was “a proportionate means of achieving a legitimate aim”.
Tribunal and EAT decisions
The tribunal dismissed his unfair dismissal claim, holding that it was within the range of reasonable responses for the school to reject his argument that he had shown the film because he was so stressed out.
However, it agreed with him that the school was in breach of its duty to make reasonable adjustments for his disability and that it had treated him unfavourably in consequence of his disability. Pointing out that he had never previously made a similar error, the tribunal said it was clear that he had shown the film when suffering from high levels of stress arising from his disability. As section 15 did not require an immediate causative link with that disability, the tribunal held that the error of judgment for which Mr Grosset was dismissed arose “in consequence of [that] disability”.
Although the school had the legitimate aim of protecting children and maintaining disciplinary standards, the tribunal held that, given the circumstances, a formal written warning would have achieved that aim as there was no real risk of him repeating the error, as long as the undue levels of stress were removed. On that basis, the tribunal found that his dismissal was not justified under section 15(1)(b) and was an act of disability-related discrimination.
The EAT upheld the tribunal’s decisions and the Council appealed on the basis that, under section 15, the school had to know that there was a link between Mr Grosset’s decision to show the film (the relevant “something”) and his disability.
Decision of Court of Appeal
Dismissing the appeal, the Court held that section 15(1)(a) did not require the school to be aware of the link between the decision to show the film and his disability. Instead, it consisted only of two questions. Firstly, did the employer treat the worker unfavourably because of an (identified) "something"; and (ii) did that "something" arise in consequence of the worker’s disability? The first issue involved an examination of the employer’s frame of mind, whereas the second was an objective matter, which, in this case, the tribunal found to be proven.
With regard to the issue of justification, the Court held that the tribunal’s assessment contained no error of law in terms of finding that dismissal was disproportionate in the circumstances.
The case is of enormous use to our members when considering whether a claim for disability discrimination arises. It also seems more unlikely that an employer would be able to justify the discriminatory act if they have failed to make reasonable adjustments.
3. Useful Numbers
RMT helpline (for advice on all work and non-work related and Union matters. The lines are open Monday to Friday 08.00 to 18:00 and 9.30 to 16:00 Saturdays)
England and Wales 0800 376 3706
Scotland & offshore 0771 841 6084
Criminal helpline (for members arrested and questioned under caution and for general enquiries related to criminal matters. Line open 24 hours per day 7 days per week. The member may use the helpline for family members; but the Union will not be responsible for any costs incurred as a consequence of the family member instructing the solicitors)
England and Wales: 0207 604 5600 (office hours)
0207 624 8888 (out of office hours and weekends)
Scotland & offshore: 0771 841 6084
Personal Injury line (for members involved in workplace and non-workplace accidents and road traffic accidents and work related diseases and conditions. Family members may use the service for non-work related accidents.)
0845 712 5495
Free Wills: 01513262188
Or email: firstname.lastname@example.org
Please bring this to the attention of activists and members.