The Public Sector Equality Duty minimising the risk

The Public Sector Equality Duty: minimising the risk of judicial review Bevan Brittan LLP Tuesday 24 February 2015 www. emlawshare. co. uk

Introduction • Speedy reminder of JR grounds • Public Sector Equality Duty: – What is it? – How is it engaged? – How is it properly discharged? • Messages from recent case law • Top tips for avoiding judicial review www. emlawshare. co. uk

Judicial review • Grounds: – Substantive grounds: e. g. illegality, irrationality, fettering discretion, abuse of power, etc. – Procedural grounds: e. g. failure to comply with statutory rules for decision making (such as compliance with the Public Sector Equality Duty), compliance with legitimate expectation, etc. www. emlawshare. co. uk

S. 149 Equality Act 2010 “A public authority must, in the exercise of its functions, have due regard to the need to: a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it. " www. emlawshare. co. uk 4

“Advance equality of opportunity” Advancing equality of opportunity involves: • Removing or minimising disadvantages suffered by people due to their protected characteristics. • Taking steps to meet the needs of people with certain protected characteristics where these are different from the needs of other people. • Encouraging people with certain protected characteristics to participate in public life or in other activities where their participation is disproportionately low. www. emlawshare. co. uk 5

“Foster good relations” Fostering good relations involves having due regard to the need to: • tackle prejudice; and • promote understanding www. emlawshare. co. uk 6

Protected characteristics • • Disability Race Religion and belief Sex Gender reassignment Sexual orientation Pregnancy and maternity Age www. emlawshare. co. uk 7

When? • “In the exercise of its functions” – equates to all powers and duties. • Decision-making is a critical point. • Private sector providers – are they exercising a public function on your behalf? – s. 149(2) www. emlawshare. co. uk 8

R (RB) v Devon County Council and Devon PCT (the Virgin Care case) • Lengthy procurement process to identify a provider for the outsourcing of integrated children’s services. • PSED engaged throughout the process, and at every decision within that process. • Challenge successful on the basis of failure to have due regard at the point of appointment of preferred bidder. www. emlawshare. co. uk 9

How is the PSED properly discharged? • The key principles have been established by case law – “the Brown principles” (see next slide). • Note that the duty is not to achieve the specified objectives but rather to “bring these important objectives relating to discrimination into consideration when carrying out […] public functions”. • These aims must be actively considered when making decisions. www. emlawshare. co. uk 10

The Brown principles • The decision maker(s) must be aware of the duty to have due regard to the identified goals. • The due regard must be fulfilled before and at the time that a particular decision is being considered. • The duty must be exercised “in substance, with rigour and with an open mind”. • The duty cannot be delegated. • The duty is a continuing one. • It is good practice to keep an adequate record demonstrating consideration of the duty. www. emlawshare. co. uk 11

Due regard • “Due regard” is the regard that is appropriate in all the circumstances. • This will depend on the specific facts. www. emlawshare. co. uk 12

Equality Impact Assessment (EIA) • An EIA is not necessary but it is highly recommended. • No prescribed form. • R(Domb) v London Borough of Hammersmith [2009] EWCA Civ 941 at para 52: “the test of whether a decisionmaker has had due regard is a test of the substance of the matter, not of mere form or box-ticking and that the duty must be performed with vigour and with an open mind”. • Finding a negative impact does not mean authority prevented from making the decision but must demonstrate that have considered how to avoid impact prior to proceeding – mitigation. www. emlawshare. co. uk 13

Timing of EIA • Brown at para 19: due regard must be given “before and at the time that a particular policy is being considered by the public authority”. • R (Luton LBC and others) v Secretary of State for Education [2012]: Secretary of State sought to rely on an EIA which was carried out after the decision which showed no impact. This was not accepted and the decision was quashed. www. emlawshare. co. uk 14

Timing of EIA (cont) • R (JG & MB) v Lancashire County Council [2011] EWHC 2295 (admin) at para 50: “What in fact, has happened in this case is that the decisionmaker has taken a preliminary decision in relation to its budget, fully aware that the implementation of proposed policies would be likely to have an impact on the affected users, in particular, disabled persons, but not committing itself to the implementation of specific policies within the budget framework until it had carried out a full and detailed assessment of the likely impact. In my view, there is nothing wrong in principle with such an approach and nothing inconsistent with the duties under the [Disability Discrimination Act]”. www. emlawshare. co. uk 15

Does this amount to a duty to consult? • Think about what information you have. • Do you understand how the decision will impact on people with protected characteristics? • If information is lacking, consider the need to engage with the public/ representative groups www. emlawshare. co. uk 16

Recent case law www. emlawshare. co. uk 17

R (Aaron Hunt) v North Somerset Council [2013] EWCA Civ 1483 • Council’s decision to approve financial plan following consultation. • Decision-makers provided with summary EIA and not guided to full version. • No inference that any “responsible councillor” would have read the full EIA as standard. • Decision unlawful. www. emlawshare. co. uk 18

Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 • Challenge to closure of ILF. • Lack of evidence - information in EIA did not give decision-maker an “adequate flavour” of responses from consultation and thus the impact of decision. • Lack of focus on precise provisions of the Act. • Decision unlawful. • Follow on case – R (on the application of Aspinall v Secretary of State for Work and Pensions) [2014] EWHC 4134 found PSED was met second time round. www. emlawshare. co. uk 19

Blake and others v London Borough of Waltham Forest [2014] EWHC 1027 (Admin) • Revocation of licence for soup kitchen. • Council failed to identify most likely impact of decision (closure). • Failure to gather sufficient evidence to assess the impact. • Substance of points of mitigation flawed. • Decision unlawful. www. emlawshare. co. uk 20

R (on the application of LH) v Shropshire Council [2014] EWCA Civ 404 (April 2014) • Shropshire conducted a wide-ranging consultation regarding the reconfiguration of adult day care for the disabled and the application of personalised budgets. • Court of Appeal found a failure to consult the service users and relatives of a specific day care centre regarding its closure. • This gave rise to breach of public sector equality duty. • Decision unlawful but not quashed. www. emlawshare. co. uk 21

Top tips to avoid judicial review www. emlawshare. co. uk 22

Bevan Brittan LLP – speaker profiles • Laura Brealey is a Senior Associate specialising in judicial review and procurement challenges. She has acted on multi-party judicial reviews and on the Virgin Care judicial review. laura. brealey@bevanbrittan. com • 0870 194 3070 Fran Mussellwhite is an Associate who specialises in judicial review and has acted for a number of local authorities in connection with challenges arising from failure to adequately consult or to discharge the Public Sector Equality Duty. She acted on the Building Schools for the Future litigation for Sandwell MBC involving the first legal challenge to the government's funding cuts and on the Virgin Care judicial review for Devon County Council. fran. mussellwhite@bevanbrittan. com www. emlawshare. co. uk 0870 194 3055 23

A Practical Employer’s Guide to Religion and Belief in the Workplace Weightmans LLP Tuesday 24 February 2015 www. emlawshare. co. uk 24

An interactive session looking at the definition of religion or belief and practical examples of problems and issues that may arise with employees’ religion or belief from recruitment to dismissal. www. emlawshare. co. uk 25

The session 1. Religion or belief – an introduction 2. Religion or belief – a definition 3. Religion or belief – practical scenarios www. emlawshare. co. uk 26

1. Religion or belief – an introduction • The Equality Act 2010 (Eq. A 2010) makes it unlawful to discriminate against employees on the grounds of religion or belief • EHRC Code of Practice and Eq. A 2010’s explanatory notes • Applies to all facets of employment: recruitment, terms and conditions, training, promotions, transfers and dismissals, religious observance • Standard definitions of direct, indirect, victimisation and harassment • Exceptions in very limited circumstances www. emlawshare. co. uk 27

Types of discrimination • • Direct discrimination – less favourable treatment Indirect discrimination – A applies a provision, criteria or practice (PCP), to persons not of the same religion or belief to B, which puts or would put B at a disadvantage and A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim Harassment – A engages in unwanted conduct which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B Victimisation – A subjects B to detriment because B has done, intends to do, or is suspected of doing or intending to do one of the protected acts. www. emlawshare. co. uk 28

2. Religion or belief – a definition “Religion” means any religion and a reference to religion includes a reference to a lack of religion. “Belief” means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief. (Section 10 Eq. A 2010) www. emlawshare. co. uk 29

Religious belief • The belief must be genuinely held. • It must be a belief, not an opinion or viewpoint based on the present state of information available. • It must be a belief as to a weighty and substantial aspect of human life and behaviour. • It must attain a certain level of cogency, seriousness, cohesion and importance. • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. Grainger plc and others v Nicholson [2010] IRLR 4 (EAT) www. emlawshare. co. uk 30

Philosophical belief • It must have “a similar status or cogency to a religious belief”. However it need not “allude to a fully-fledged system of thought”. • It need not be shared by others. • While “support of a political party” does not of itself amount to a philosophical belief, a belief in a political philosophy or doctrine might qualify. • A philosophical belief may be based on science. Grainger plc and others v Nicholson [2010] IRLR 4 (EAT) www. emlawshare. co. uk 31

Examples – would these beliefs attract protection? • • • Environmentalism and climate change Anti fox hunting and the sanctity of life The higher purpose of public service broadcasting That 9/11 and 7/7 were ‘false flag’ operations That a poppy should be worn in early November Membership of the British National Party (BNP) That mediums can communicate with the dead That lying is wrong In Wicca Veganism www. emlawshare. co. uk 32

3. Religion or belief – practical scenarios • We’re now going to look at some practical, real-life scenarios where an employee’s religion or beliefs might be at odds with an employer’s desire to run their business. • Not all of these scenarios have straightforward answers, but most come from existing case law so you will be able to see the sorts of situations that employers (and Tribunals) regularly have to deal with. • We’d love to hear your views on these, particularly if you have your own examples to share – and audience participation is positively encouraged! www. emlawshare. co. uk 33

Scenario 1 At a job interview it becomes apparent that an applicant is an orthodox Jew. The organisation decides not to offer him the job mainly because he would be the only Jewish worker at the predominantly-Muslim site and the employer was worried that there might be a clash of cultures and some friction in the workplace. Should the employer have taken this into account? www. emlawshare. co. uk 34

Scenario 2 An airline company operates a policy for its uniformed staff that prohibits the wearing of visible jewellery. A Christian woman wants to wear a twoinch high cross on a necklace visibly as a symbol of her faith but her employer refuses to allow it. Can an employer ban religious symbols or dress in its uniform policy? www. emlawshare. co. uk 35

Scenario 3 A Christian residential care worker at a children’s care home strongly believes that Sunday should be a day of rest and refuses to work on that day because it clashes with a Sunday church service. However, her employer introduced a requirement that all care workers work some Sunday shifts. Can an employer require a Christian to work during a rest day? www. emlawshare. co. uk 36

Scenario 4 A Muslim man is working as a security guard at a client site and would like to leave the site at lunch time to attend prayers. His employer refuses, however, on the basis that it will face financial penalties and be at risk of losing the contract if it fails to ensure the requisite number of security guards are on site throughout operational hours. Can the employer require the employee to miss prayers? www. emlawshare. co. uk 37

Scenario 5 Mr A is continually teased about his wife’s beliefs as a Jehovah’s Witness. He does not share his wife’s faith, but finds being subjected to such teasing offensive and complains to his manager. His manager tells him not to be silly and that the teasing is only harmless workplace banter and is nothing to do with the organisation. How should an employer deal with this sort of behaviour? www. emlawshare. co. uk 38

Scenario 6 It’s Christmas and an employer awards alcoholic drinks as incentives to improve sales performance over the festive period. At the same time, a Christian worker demands to have Christmas day as annual leave – in priority over everyone else – in order to attend a church service Can an employer offer alcohol as an incentive? How should employers handle annual leave around religious holidays? www. emlawshare. co. uk 39

Scenario 7 An orthodox Jewish worker tells her manager that the food she brings in for lunch cannot come into direct contact with other staff’s food in the workplace fridge as their food may contain pork, which is not kosher. What steps does the employer need to take to respond to this? www. emlawshare. co. uk 40

Scenario 8 An employee is dismissed by her employer at the end of a redundancy process. The scoring was very close, but this employee was ultimately chosen over and above her other at-risk colleagues because she was felt not to be a “team player” after she had previously given evidence in support of a Hindu co-worker who had brought a claim against the employer for religious discrimination. Has the employer made the right decision? www. emlawshare. co. uk 41

Scenario 9 A police trainer who believed in spiritualism and the ability of mediums to communicate with the dead was dismissed after for distributing spiritualist posters and CD ROMS at work. Has the employer committed an act of direct discrimination? What about a situation where a Christian registrar is dismissed after she refuses to carry out civil partnership duties on the basis that same-sex relationships were against her religious beliefs? www. emlawshare. co. uk 42

Scenario 10 A manager finds out that someone on his team is a member of the British National Party (BNP) following complaints from his co-workers that he has been leaving BNP leaflets in the canteen; has been getting into arguments during shifts about his politics; and has been posting pro-BNP messages on his personal Facebook page. When questioned, the employee accepts all of these allegations and the manager wants to dismiss. How should the employer respond to these allegations? www. emlawshare. co. uk 43

Religion or belief Any questions? www. emlawshare. co. uk 44

Weightmans LLP - Speaker profiles • Faye Reynolds is an experienced solicitor in the Birmingham office employment team. Faye has extensive experience of advising public sector organisations on all aspects of employment law and has a particular specialism in disability discrimination. She spent several years working in-house at a local authority. Faye’s experience enables her to provide quick and practical advice that balance legal and client requirements efficiently. Faye appears as an advocate before Employment Tribunals nationwide. She has run many training sessions for clients and had various articles published. faye. reynolds@weightmans. com 0121 200 5754 www. emlawshare. co. uk 45