Thursday 05 October 2017

A one-day conference
Unite the Union, Liverpool
9.30am - 3.30pm

Organised by the Institute of Employment Rights

About the Conference

Report by Andrew Moretta, The University of Liverpool

The chair of the event, IER National Co-ordinator, James Harrison, gave a brief introduction, citing the uncertainty engendered by ‘Brexit,’ the end of the effective entrenchment of many employment rights, and – of course – the UNISON triumph over tribunal fees.

Matthew Creagh, TUC Employment Rights Officer – "TUC equality work 2017"

Matthew Creagh addressed the conference on parental leave, flexible working, and the gender pay gap regulations. His team has recently published an important report called Better jobs for mums and dads, following a survey of the experiences of young parents with combined incomes of no more than £28,000, which found that the ‘family friendly’ individual rights conferred in the last decade had done little for these workers. Despite the theoretical availability of shared parental leave, and the extension of maternity leave and unpaid parental leave, the majority of the remarkably small proportion who knew these rights existed felt that their employer would disadvantage them in some way should they insist on exercising them. Moreover, with such leave paid at only £140 each week (when it is not entirely unpaid), few could in any case afford to take it.

The right to request ‘flexible’ working, on which all employees whatever their domestic situation can now rely, was similarly found to be empty of substance for low-paid workers, amounting only to a right to make a tribunal claim should the employer fail to deal with the request 'in a reasonable manner'. Meanwhile, employers were often found to be changing shift patterns as they pleased, frequently at very short notice, throwing child care arrangements into disarray, flexibility evidently being considered a quality expected in workers rather than employers.

After detailing TUC proposals for giving these rights real substance, and for reining in the worst employer abuses of one-sided flexible working arrangements, Matthew went on to give a brief overview of the 2017 Gender Pay Gap Regulations. He explained that these essentially require employers with 250 or more employees to publish annual statistics on the difference between the earnings of male and female employees. We were taken through some of the detail of the reporting requirements, and directed to the TUC guidance – and of the use of such reporting by Prospect at the Met Office and UNITE at Barclays Bank – as well as the material that has been put out by the CIPD. Matthew emphasised that the regulations are very weak on enforcement – the reports are not checked and there are no sanctions for failing to submit. Useful as they are likely to prove as a motor of change and a crude monitor of progress, they are not an equal pay audit and they fail to flag up cases where pay is inadequate.

Dr. Anastasia Tataryn, The University of Liverpool – "Who Deserves to be Equal at Work? Exploring the gaps between employment and immigration law"

Dr Anastasia Tataryn drew our attention to the gaps in equality protections, focusing principally on the predicament of workers of uncertain immigration status obliged to eke out a living in marginalised occupations with an almost complete absence of effective employment rights. Citing the recent domestic servitude cases Hounga and Taiwo, she pointed out that employment law, and even the Equality Act, are often seen to be inappropriate by the courts when the law is invoked by this latter group of workers. This separate treatment, as well as assisting exploitative employers by discouraging vulnerable individuals from exercising what rights they do have, serves to undermine solidarity with workers with full citizenship who consider that their own terms and conditions of employment are likely to be undercut by such workers.

Dissension and suspicion are stoked by initiatives like the ill-judged Home Office ‘Go Home’ campaign of 2015, while the individualisation of employment protection and low levels of union membership fosters ignorance and permits abuse by employers in the formal economy to go unchallenged. As a consequence, even immigrants from the EU, with full citizens' rights, are believed by many to be as vulnerable as illegal immigrants; and native citizens engaged in part-time or agency work are often unaware that they have rights to equal treatment.

These divisions are compounded as ‘outsiders’ – whether immigrants or agency workers – are lauded by the government and by employers as ‘hard working’ for being obliged to accept inferior remuneration, while disgruntled 'insiders' – like trade unionists – are condemned as trouble makers and enemies of business efficiency for fighting to preserve their own living standards.

Should these challenges be addressed with more law? In the subsequent lively discussion on both papers, all appeared to share Dr. Tataryn’s view that trade union freedom, collective negotiation and education were more suitable vehicles to progress employment protection. While we must certainly build upon the individual legal rights we have, the matters raised from the floor, from the right frequently reserved by employers to unilaterally change terms and conditions of employment, to workers falsely accused of working in the UK illegally by their employer being dismissed and denied access to justice all clearly called out for collective remedies.

Jo Seery the IER’s Professional Support Lawyer, and a specialist employment solicitor at Thompsons – "Current race, religion and belief caselaw"

Jo Seery presented a comprehensive overview of race, religion or belief case law, embracing both the origins of the relevant regulations, and the differences between direct and indirect discrimination. She emphasised the difference between the Council of Europe’s European Court and Convention of Human Rights, and the EU’s Charter of Fundamental Rights and Court of Justice of the European Union, and considered the interaction of the ECHR and EU law by reference to the recent CJEU Belgian and French muslim ‘head scarf’ cases Achbita v G4S Secure Solutions and Bougnaouj v Micropole, and the ECtHR decisions on the UK Edweida group of cases.

She cited two recent domestic cases of manifestations of belief at work: Gareddu v London Underground [2017] and Trayhorn v The Secretary of State for Justice [2016]. In the former, the religious festivals Mr.Gareddu insisted he was obliged to attend for five weeks each year in Sardinia were found to vary from year to year according to the inclinations of his family, and to be incidental to more secular holiday making activities. Therefore the action of his employer in restricting him to the contractual leave arrangements did not amount to indirect discrimination. In Trayhorn the EAT held that preaching and proselytising one’s beliefs in an inappropriate manner at work cannot be considered a legitimate manifestation of belief, and that the subsequent threat of disciplinary action was not discriminatory.

Jo then moved on to a brief consideration of racial discrimination. She explained that the reach of the definition of the protected characteristic ‘race’ in the Equality Act is non-exhaustive but explicitly includes colour, nationality and ethnic or national origins, and reminded us that immigration status has occasionally intervened to prevent a worker making a successful claim for racial discrimination - as Dr, Tatryana had mentioned had occurred in the Hounga and Taiwo cases.

A more commonly encountered barrier to justice is the problem of providing sufficient evidence to support a claim for discrimination, and procedure in discrimination cases has long required only that a claimant present to a tribunal facts from which it may be presumed that there has been discrimination on the part of the employer. Then it is for the employer to show the tribunal, on a balance of probability, that there was no discriminatory treatment. This so-called ‘reversed burden of proof’ was recently clarified in Efobi v Royal Mail Group in which the EAT held that it was not necessary for the claimant to prove the facts, before the employer was invited to rebut the claim – the relevant EU Directive requires only that the claimant ‘establish’ the facts. Another evidential clarification was provided by the Supreme Court in Essop v Home Office (UK Border Agency)/ Naeem v Secretary of State for Justice, where it was held that the claimant need only show that the policy, criterion or practice put individuals sharing his or her particular protected characteristic at a particular disadvantage to establish indirect discrimination. It was not necessary to show why it put them at that disadvantage. Of course, it is then open for the employer to show that the policy was objectively justified.

David Sorensen, Morrish Solicitors – "Equality caselaw, an overview"

David Sorensen complemented Jo’s presentation with an overview of recent equality cases. The Government Legal Service v Brookes concerned a failure to make a reasonable adjustment to an examination used to screen applicants for employment to accommodate a candidate with Asperger’s Syndrome, which the tribunal and EAT found amounted to indirect discrimination. Ali v Capita Customer Management and Hextall v Chief constable of Leicestershire Police are two contradictory sex discrimination cases relating to shared parental leave. Both cases are pending appeal to the EAT. A related case, Interserve FM v Tuleikyte, highlighted the difficulties raised by virtue of indirect discrimination claims not being possible under the maternity regulations.

David then considered recent clarifications on questions raised in multiple equal pay claims. In Asda v Brierly and others, the question of whether the work of women in a supermarket was comparable with that undertaken by men in a distribution depot, was disputed by the employer on the grounds that pay in the two workplaces was determined by separate management teams, not a 'Single Source'. This argument was rejected by the EAT. All working at Asda are subject to the supervision of the one board of directors, who in turn are answerable to the shareholder – Walmart.

Another aspect of the Asda case was considered in Farmah and others v Birmingham City Council, where the EAT held that multiple claims submitted on one ET1 form have to be based on the same set of facts. Where they vary, a separate claim should be made, although a tribunal may use its discretion to accept such claims. Even with fees no longer an issue, the ruling presents employers with considerably increased opportunity to persuade ETs to strike out equal pay claims on procedural grounds. Appeals are pending in both of these cases.

David concluded with an appraisal of the Efobi case discussed by Jo, arguing that it will radically change the procedure in discrimination cases. The respondent will now be motivated to present evidence from the start, and he believes that tribunals will now be obliged to take a 'much more forensic approach'.

Laith Dilaimi, Barrister at Old Square Chambers – "Equality law through Brexit"

Laith Dilaimi, then gave his views on 'equality law through Brexit'. He confessed that all that can be said with reasonable certainty is that we will leave the EU and the Single Market at some point in the next few years, but nevertheless went on to provide a very valuable overview of the situation at Westminster, and of the nature of the threat to equality and anti-discrimination protections presented by withdrawal.

After a brief run down on the component parts of the EU 'acquis', he reminded us of the very many equality and anti-discrimination rights that are of EU origin, and of how, after 45 years, domestic and community law are inextricably interwoven.

Leith emphasised the difficulty of the task faced by the government in practical and political terms: The dissension of just seven Tories will, in theory, be sufficient to force amendments as the whole House sits as a committee – and hundreds of amendments have been tabled. After the third reading, it will go to the Lords where it will have a rougher passage still. The basis of the Bill is the repeal of the 1972 European Communities Act and the replacement of regulations based upon the Act with new laws safeguarding the rights conferred by those regulations, and by directly applicable EU law. Leith argued essentially that the weakness of the government position, and the strength of feeling of the opposition – and elements in the Conservative Party – on the necessity to preserve employment protections and equality rights will likely serve to ensure that those rights survive intact, and will probably not subsequently be tinkered with by ministers exercising 'Henry XIII powers'. So much, however, will depend upon the result, or the progress, of the negotiations at Brussels, and it seems likely that any trade deal will require at least parity of employment rights. It seems likely too that decisions of the CJEU will continue to at least heavily influence domestic law whatever the outcome of those negotiations.

Anything, however, is possible, and events may yet intervene to change the picture completely.

Dr. Wanda Wyporska, Executive Director of The Equality Trust – "Can we really gain equality in the workplace?"

Finally, Dr. Wanda Wyporska asked us 'Can we really gain equality in the workplace?' In a fast-paced presentation she ran through a series of arguments for demanding that equality. Commending the Sunday Times' 'Rich List' to us, she pointed out that the money held by those listed is wealth which largely escapes the country – no 'trickle down' excuses can be made about money placed in offshore trusts. She told us that the "Richest 1,000 people own more wealth than 40% of households", and that the combined wealth of those people "increased by £82.5 billion to £658 billion" last year. The CEOs of companies in the top 100 of the FTSE index earn on average £5.3 million each year – 185 times more than a nurse, and 312 times more than the average care worker. Meanwhile the CBI and the IMF acknowledge that inequality is a threat to economic growth, and the UN recognises that inequality affects public health: reductions in inequality, and the achievement of gender equality are two of the UN’s 17 'sustainable development goals'.

We know what can relieve inequality – education, decent work, and better political representation – but what I, and I suspect most of Dr Wyporska’s audience, did not know, is that the poverty that drives it is sustained by the aggressive 'dominance strategies' adopted by those affected by 'status insecurity'. The 'gig economy' can of course be readily identified as a driver of these sociological phenomena.

Greater equality, on the other hand, fosters conciliatory 'affiliative strategies', and we were reminded that in the workplace the great antidote to inequality is trade union membership. As well as the obvious advantages of collective negotiation, dissemination of information on individual rights, assistance in exercising those rights, and union reps identifying instances of inequality and health and safety breaches, they have traditionally provided workers with a path to political power.

Dr. Wyporska concluded by reminding us of the Public Sector Equality Duty, and of the yet to be implemented section 1 of the Equalities Act 2010, which would require public authorities to take 'due account' of socio economic inequality in the application of their policies, and of the campaigns to persuade councils, and the devolved governments to adopt their own version of section one.

She urged us to write to our MPs to draw their attention to section 1, and to demand they press for its implementation.

Download papers

Matthew Creagh, TUC
TUC equality work 2017
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Dr Anastasia Tataryn, University of Liverpool
Who Deserves to be Equal at Work? Exploring the gaps between employment and immigration law
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Jo Seery, Thompsons Solicitors
Current race, religion and belief caselaw
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David Sorensen, Morrish Solicitors
Equality caselaw, an overview
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Laith Dilaimi, Old Square Chambers
Equality law through Brexit
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Dr Wanda Wyporska, The Equality Trust
Can we really gain equality in the workplace?
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