Section 149 of the Equality Act 2010, which received Royal Assent in April, states that public authorities subject to the general equality duty must have regard to the need to (1) eliminate unlawful discrimination, harassment and victimisation; (2) advance equality of opportunity between different groups; and (3) foster good relations between different groups. Section 153 gives ministers the power to impose specific duties through regulations.

The consultation paper proposes the following:

1. Regulations on the specific duties designed to help public bodies meet the requirements of the general equality duty; and

2. The public bodies that will be subject to the general and specific duties.

The specific duties

The Government proposes the following specific equality duties:

1. Transparency. Public bodies will be required to publish equality data relating to their workforces and the services that they provide;

2. Workforce transparency. Public bodies with 150 or more employees will be required to publish, at least annually, data on equality in their workforces (e.g. the gender pay gap; the proportion of staff from ethnic minorities; and the proportion of disabled employees in the organisation);

3. Transparency in public service provision. Public bodies will be required to publish, at least annually, data setting out how they are promoting equality. This will enable citizens to compare public bodies’ equality performance and, where possible, choose between providers; and

4. Transparency about impact on equality. Public bodies will be required to set equality outcome objectives which are specific, relevant and measurable. These objectives will also enable the public to see whether a public body is meeting its own standards and achieving all that it sets out to. Public bodies should review their approach at least every four years.

Which public bodies will be subject to the equality duties?

The consultation paper states two ways that a public body can become subject to the equality duties:

• By being listed in Schedule 19 to the Equality Act 2010; and
• By carrying out public functions.

NB: Annex 5 of the consultation paper proposes adding further public bodies to those listed in Schedule 19. However, some of these bodies will only be subject to the general duty in relation to their public functions.

What happens next?

Responses to the consultation must be made by 10 November 2010, with the Government aiming to publish the results approximately three months later. The Government then proposes to bring the general and specific equality duties into force through regulations in April 2011; however, public bodies will be given a further year before they have to publish their equality objectives and state whether they are being met. Guidance explaining the general and specific duties, and what public bodies will need to do, will be published by the Equality and Human Rights Commission before the regulations come into force.

Our employment team will be closely monitoring the situation, and we will summarise the Government’s response in due course. In the meantime, if you have any concerns or questions about this or anything employment-related, please contact Adam Fuge at adam.fuge@mablaw.com, or Michael Delaney at michael.delaney@mablaw.com.

In the case of The City of Edinburgh Council v Dickson, the disciplinary allegation against Mr Dickson, a community working and development worker at a High School in Edinburgh, was that he had been seen by a number of adults and children viewing “seriously pornographic” material on a computer at the school.  His defence to the allegation was that he had no memory of any such incident and could only assume that his conduct and the lack of memory of it were both caused by a hypoglycaemic episode relating to his type-1 diabetic condition. Both the manager making the initial decision and the councillor who dealt with the appeal did not believe Mr Dickson’s explanation and he was dismissed for gross misconduct.

Mr Dickson issued claims for unfair dismissal and disability discrimination. Both claims were successful at the tribunal. When the Council appealed, the EAT overturned the disability discrimination decision, holding that the fact that Mr Dickson was a diabetic did not influence the way that the Council reached its decision to dismiss at all.

However, the unfair dismissal finding was upheld. The main reason for this is that the Council “failed to engage” in the explanation offered by Mr Dickson at all. In other words, the Council decided that Mr Dickson was lying without taking proper steps to understand the evidence that was available about his medical condition. Both the tribunal and the EAT were less than impressed that the the manager conducting the disciplinary meeting seemed to have relied on (incorrect) advice provided by the Council’s HR adviser, second-hand from the adviser’s wife (who happened to be a pharmacist) that a hypoglycaemic episode could not result in out of character behaviour or memory loss.

The striking thing for me about this case is that with a little more care the employer could have reached exactly the same conclusion and not been liable for unfair dismissal. The reason why is explained in the EAT’s judgment, “[I]t was in principle plainly open to [the Council] to disbelieve [Mr Dickson's] explanation… Thus, if it were shown that [the Council] had engaged with the Claimant’s defence but had reached a considered view that it should be rejected, it is hard to see how that conclusion could be said not to have been open to it… [The Council] had simply not taken the defence seriously”.

The background to the claim is that Ms Eweida was a devout practicing Christian, who had worked part-time on BA’s check-in desk since 1999. In 2004 BA changed its uniform from a high-necked blouse to a uniform that incorporated an open collar, but forbade the wearing of any jewellery around the neck. In 2006 Ms Eweida twice wore a small cross on a chain around her neck and, when challenged, removed it. The third time she wore the cross, she refused to remove it and was sent home. She remained at home on unpaid leave from 20 September 2006 until 3 February 2007 after BA changed its policy to allow the wearing of a faith or charity symbol. She is still employed by BA.

Ms Eweida issued various claims against BA alleging harassment and both direct and indirect discrimination on the grounds of her religion. These included a claim that not allowing her to wear the cross around her neck was indirectly discriminatory of her as a Christian because it was a “provision, criterion or practice” (”PCP”) which although it was applied equally to all BA staff, put persons of Ms Eweida’s religion or belief at a particular disadvantage. None of those claims were upheld either at the initial Employment Tribunal or at the Employment Appeal Tribunal.

The only ground of appeal pursued by Ms Eweida in the Court of Appeal was that the Employment Appeal Tribunal had been wrong to find that in order for her indirect discrimination claim to succeed, Ms Eweida was required to show that she was part of a group of people within the BA workforce who were disadvantaged because their religion or belief made it harder to comply with the PCP applied by BA. Ms Eweida’s argument was that it should be enough to show that she alone suffered that disadvantage on the grounds of her religion.

In refusing to uphold her appeal, the Court put significant weight on the tribunal’s findings that the detriment which Ms Eweida complained of was suffered by her alone and her complaint arose from a personal objection neither arising from any doctrine of faith, nor interfering with her observance of it and never raised by any other BA employee. The Court also held that there must be some element of disadvantage to a group (even a potentially small one) in order for there to be indirect discrimination.

The case provides useful guidance to employers on an issue which has been the subject of numerous cases in the tribunals since religious discrimination laws were introduced in 2003,  though there will no doubt be further litigation in relation to dresscodes and appearance in the context of employment.  Lord Justice Sedley was at pains to point out that this case was not about whether BA had adopted an anti-Christian dress code, treated other religions more favourably or harassed Ms Eweida because of her beliefs. It will be interesting to see if that is how the case is presented in the wider news media.

For those who want a little more detail, the Court of Appeal’s judgment is available at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2010/80.html&query=eweida&method=boolean.

The Equality Bill, which will harmonise and strengthen discrimination law, is expected to receive Royal Assent in April 2010, with the majority of its provisions coming into force in October 2010. The Bill includes proposals to make gender pay discrimination more transparent; widen the definitions of direct discrimination and harassment to cover claims based on “association” and “perception”; and allow employers to choose between two “equally-qualified” candidates by selecting one from an under-represented minority.

 “Fit” notes

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010 are expected to introduce new “fit notes” in April 2010, which will replace “sick notes”. The new notes will give employers more information on an employee’s medical condition, as they allow GPs to state if the patient is fit for work, for some work or for no work at all.

The Apprenticeships, Skills, Children and Learning Act 2009

The Apprenticeships, Skills, Children and Learning Act 2009, which introduces a new apprenticeship structure and a new right for employees to request time off work to undertake study or training, will come into force on 6 April 2010 for employers with 250 or more employees.

Additional paternity leave and pay

The Government intends to introduce additional paternity leave, some of which will be transferable from the mother to the father, for parents of babies born on or after 3 April 2011. Businesses must ensure that their policies are updated by mid-2010 to take account of this change. Even if there is a change of government at the next election, the Conservative party has said that it is committed to extending paternity provisions.

Default retirement age consultation

The Government has brought forward its review of the default retirement age from 2011 to 2010. It has launched a consultation on the issue and has asked businesses and individuals for evidence on the default retirement age by 1 February 2010.

Blacklisting of trade union members

The Government plans to bring revised regulations into effect “in early 2010”, which, subject to parliamentary approval, will prevent workers from being “blacklisted” as a result of their union membership or activities.