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Law for Business

Knowhow - guidance - precedents

11 SEP 2012

Discrimination on the grounds of sex, race, religion and sexual orientation

 Arbitrators are not employees

The Supreme Court has concluded that arbitrators are not employees for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (now repealed and replaced by the Equality Act 2010). Although decided under the old law, the definition of ‘employment' is the same in the Equality Act so this decision will continue to be relevant.

The case of Jivraj v Haswani concerned the lawfulness of a clause in a joint venture agreement, which required the parties to appoint an arbitrator from within the Ismaili community (a branch of Shia Islam). The Supreme Court decided that arbitrators are not employed under a contract personally to do work - while they provide personal services and receive fees, their services are not done under direction of the parties and they are independent. The Supreme Court unanimously held that arbitrators were therefore independent providers of services and were not protected by the Regulations.

The Supreme Court went on to note that, even if arbitrators had been employees, the circumstances of the case were likely to fall within the exception that allows employers to discriminate when it is a genuine occupational requirement to be of a particular religion or belief.

EHRC's submissions on religious discrimination

The Equality and Human Rights Commission (EHRC) has published the submissions it is making to the European Court of Human Rights on cases of discrimination on the grounds of religion, after consultation with stakeholders. Eweida v UK and Chaplin v Royal Devon and Exeter NHS Trust Hospital, which concern applicants who were not allowed to wear a cross at work, both failed in the UK courts because the applicants were not able to establish a pool of other employees with the same beliefs who also suffered a disadvantage. The cases of Ladele v London Borough of Islington and McFarlane v Relate Avon Limited concerned applicants who had refused, respectively, to perform civil ceremonies and relationship counselling services for same-sex couples.

The EHRC submits that in Eweida and Chaplin, the UK courts have not properly considered Art 9 of the European Convention on Human Rights, the right to freedom of thought, conscience and religion, which includes the right to manifest a belief of that religion. Whereas in Ladele and McFarlane, the EHRC submits that the Art 14 prohibition on discrimination had not been engaged.

The EHRC argues that the requirement in domestic, indirect discrimination law that claimants must establish others of the same religion or belief who are also put at a disadvantage by the employer's actions, imperfectly enacts the EU Equal Treatment Directive and imposes a higher threshold. The EHRC also submits that Art 9 does not require the manifestation of a belief to be a requirement of the religion in question, as the UK courts had suggested.

Regarding, Ladele and McFarlane, the EHRC submits that an employer will usually be able to justify refusing to accommodate a discriminatory religious belief as an objective means of achieving the legitimate aim of eliminating discrimination and advancing equality.

Disability discrimination

Reasonable adjustments

In the case of Leeds Teaching Hospital NHS Trust v Foster, the EAT considered whether a suggested adjustment had to have a real prospect of successfully removing disadvantage to a disabled employee in order to be considered reasonable.

Mr Foster claimed that the trust had failed to make reasonable adjustments when it required him to return from stress-related sick leave to a role within his previous department. He claimed that he should have been placed on the redeployment register and that the trust's failure to do so rendered his subsequent dismissal unfair, even though there was no good chance of a redeployment opportunity elsewhere becoming available.

The EAT agreed and held that a real prospect of an adjustment removing a disadvantage was enough to make that adjustment reasonable but that did not mean that anything less than a real prospect would mean an adjustment was not reasonable. It was sufficient in this case for there to have been simply some prospect of Mr Foster being redeployed to make it a reasonable adjustment that the trust should have made.

Jordans Employment Law, Division E2 and E3

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