Welcome to our July blog post in partnership with highly regarded employment team from 5 Essex Court.
Five from 5
Under our new partnership, Clare Harrington and Dan Hobbs, employment barristers from 5 Essex Court took over as editors of our employment law blog in April 2015. They add their ‘Five from 5’ articles to our blog, and will be adding other matters of interest also. Most months one of these articles will also link you through to a longer article on their own blog Five from 5 - In Depth.
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This month's '5 from Five'
The Court of Appeal rules on the use of statistics in establishing indirect discrimination - Home Office v Essop  EWCA Civ 609
John Paul Waite
The EAT had earlier held that indirect discrimination was established if (i) a Claimant fails a selection procedure; and (ii) reliable statistical evidence showed that members of a protected group were proportionately more likely to fail that procedure. It was therefore not necessary to identify the reason why the group or the individual Claimant were more likely to fail.
The Court of Appeal allowed the Home Office’s appeal, concluding that it was necessary for a Claimant in an indirect discrimination claim to demonstrate (i) why the act complained of disadvantaged their group; and (ii) that the same disadvantage was operative in their particular case (see paragraphs 57-72).
A qualification was, however, added in paragraphs 63-65 (which should be read in conjunction with paragraphs 31-34 and 62): where the precise reason for the group disadvantage cannot be established, the Tribunal retains a discretion to infer the existence of group and individual disadvantage from the statistical evidence of differential impact which is before it.
It appears that the relevant group and individual disadvantage in such circumstances is that “by reason of one or more [unascertained] factors relating to their shared protected characteristic, [the group and indeed the individual Claimant are] disproportionately more likely than the comparators to fail” – see paragraph 62 and 63 of the judgment, read in conjunction with paragraphs 31-34 (words in square brackets have been added). Precisely how and when the Tribunal should exercise that discretion is likely to be the subject of further litigation.
John Paul Waite of 5 Essex Court represented the Home Office. The Claimants are seeking permission to appeal to the Supreme Court.
Whose line is it anyway?: The Claimant’s duty to put his case in both the ET1 and at the final hearing
Over the past few months some interesting EAT decisions have been produced commenting upon the need for the claimant (commonly acting in person or assisted by a lay representative) to put his or her discrimination case effectively and fully before the employment tribunal.
In Chandhok v Tirkey  IRLR 195, Langstaff P emphasised the importance of the ET1 as setting out the claimant’s case rather than just being a starting point or something ‘to set the ball rolling’. He discouraged the attitude that parties should be free to augment the document by choosing to add to it or subtract ‘merely upon their say so’. He concluded ‘In summary, a system of justice involves more than allowing parties to, at any time, raise the case which best seems to suit the moment from their perspective’.
More recently in Joseph v Brighton & Sussex University Hospitals NHS Trust Appeal No. UKEAT/0001/15/JOJ, the claimant complained about the tribunal’s approach when considering her claim of disability discrimination. In particular, the claimant identified, on appeal, that there were documents within the tribunal bundle (to which the tribunal had not been expressly referred) which would have assisted her in proving a disability. It was the claimant’s case on appeal that the tribunal should have referred to this evidence and that it should have been proactive and inquisitorial.
HHJ Richardson confirmed that the tribunal was not required by law to be proactive and inquisitorial. Although it would have been permissible for the tribunal to have been more proactive and to have challenged and asked further questions, this was not the required approach.
This case law is helpful in attempting to redress what many have seen as a shift in recent years towards a greater leniency being shown to claimants in how and on what basis their discrimination claims may be advanced. Most particularly, a renewed emphasis on the contents of the ET1 will be refreshing to many respondents.
However the interplay between this and the extremely pragmatic approach taken at many preliminary hearings, which can often see a significant ‘recasting’ of a claimant's case is still the subject of debate.
The Afghan Interpreters case: Does the Equality Act 2010 have extra-territorial scope?
In claims for judicial review brought by two Afghan nationals who had served as interpreters with the British Forces in Afghanistan, the Administrative Court considered the extra-territorial scope of the Equality Act 2010.
In R (Hottak and AL) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 1953 (Admin) the claimants challenged the UK Government’s policies in respect of the financial benefits and relocation opportunities of locally-engaged interpreters who worked alongside British military personnel. The claimants argued inter alia that the Afghan policies were less generous than similar policies which applied to Iraqi interpreters engaged in Iraq.
In considering the reach of sections 39 (employees and applicants) and 29 (provision of services etc) of the Equality Act 2010, the Court noted that the Act itself is silent as to the territorial reach of these provisions. However, having regard to the case law on unfair dismissal (and in particular the trilogy of Lawson v Serco Ltd  UKHL 3, Duncombe v Secretary of State for Children, Schools and Families (No 2)  UKSC 36 and Ravat v Halliburton Manufacturing Services Ltd  UKSC 1) the Court concluded that neither provision applied to the claimants.
Noting that section 39 applies not only to those in work, but those who are seeking work, prohibits victimisation and imposes a duty to make reasonable adjustments, the Court observed that it “might…immediately appear extravagant to suppose that Parliament intended the law relating to reasonable adjustments to be applied to employees who are engaged in a foreign country and work exclusively abroad, and indeed those seeking work exclusively abroad”.
The case foreshadows further argument as to whether the territorial extent of the Equality Act is the same as the unfair dismissal provisions of the Employment Rights Act 1996. The Court felt that there “is much to be said for symmetry between the two statutory provisions” and rejected the argument that the Equality Act had a wider jurisdictional reach than the ERA. However, the Court proceeded to question whether the Equality Act’s non-discrimination rules which reflect the sensibilities and traditions of the UK can and should be applied where such provisions may conflict with local laws and customs.
In Martineau v Ministry of Justice  UKEAT 272/14, the Employment Appeal Tribunal agreed to hear an appeal from a non-party to the original Employment Tribunal proceedings.
The case arose from a claim by several fee-paid immigration judges alleging less favourable treatment compared to full time judges in respect of the payment advanced for hearing a list of cases and subsequently writing up the judgments.
A lead case (Ms James) was identified and the remaining cases were stayed pending its outcome, which would be binding on the other parties (under rule 36 of the Tribunal Regulations).
The Employment Tribunal found at a preliminary hearing that Ms James had not established less favourable treatment and dismissed the claim. Ms James decided not to appeal, so Mr Martineau and Ms Quigley (two of the claimants waiting in the wings) sought to appeal the decision of the Employment Tribunal.
The Employment Appeal Tribunal considered the question of whether it had jurisdiction to hear an appeal. Lewis J held that s.21 of the Employment Tribunal Act 1996 does generally permit an appeal by a person who was not a party to the proceedings.
The EAT noted that there are other rules to limit the bringing of unmeritorious appeals and that those provisions would prevent any abuse of the system. On the contrary there was a risk of real injustice if the Appellants were not permitted to appeal.
No indirect age discrimination where police forces cut costs by terminating the appointments of their longest serving officers
On 8 July 2015 the EAT handed down Judgment in CHIEF CONSTABLE OF WEST MIDLANDS POLICE AND OTHERS v MS DEBORAH HARROD AND OTHERS (The Honourable Mr Justice Langstaff, President, sitting alone).
Five Police Forces needed to make manpower savings to ensure continuing efficiency whilst suffering budget cuts. In particular, The Comprehensive Spending Review, following the election of the Coalition Government in 2010, required Police Forces to make 20% cuts in their budgets over the following 4 years. Since 80% of their costs related to staffing, it was inevitable that the Forces would look to reduction in staff numbers in order to achieve this efficiency.
Police Officers are not employees but office holders. They have security of tenure beyond that of typical employees: provided they are not found guilty of misconduct or proved to lack capability, for which purposes specific regulations apply, their office will terminate compulsorily only upon retirement at the age of 60 for ranks up to that of inspector, and 65 for more senior officers (the Police Pensions Regulations 1987, A18).
Those regulations do however allow for termination of office on grounds of disablement (provided for by A20); or in the general interests of efficiency (A19), which is the provision central to this case.
Under A19, no officer could be retired in order to secure efficiency unless he had an entitlement to a pension worth 2/3 of average pensionable pay, which an officer was only entitled to start receiving, after 30 years service. Accordingly, utilisation of the power provided by A19 had the effect of disadvantaging those over 48 who wished to continue in service. The Forces retired those officers who had such an entitlement. Age discrimination, which this constituted, is not unlawful where it is justified, whether it is direct or indirect in nature. The officers concerned complained that they had been indirectly discriminated against on the ground of age, and an ET upheld their claims.
On appeal, it was held that although what was in issue was the practice of the Forces in adopting A19, the ET (i) failed to have regard to the fact that the discriminatory element was created by Parliament; (ii) failed to consider whether the means adopted was appropriate and reasonably necessary to the scheme actually adopted by the Forces and (iii) thereby fell into the error of law exposed in the cases of Benson and Blackburn, wrongly took into account and criticised the process by which the Forces had adopted their schemes rather than asking whether to do so was justified objectively, applied too high a standard of scrutiny anyway, and suggested as alternative means of achieving the aim matters which could not provide that certainty of sa ving which the evidence had established was essential.
Since there was no way in which the Forces could have achieved their aims other than by use of A19 it was reasonably necessary to do so. The action was therefore appropriate. Consequently, the earlier Tribunal decision was reversed, and the claims were all dismissed.