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Equal Opportunities Review Issue 192 - September 2009

In September's issue (EOR 192) :

Despite the recession, organisations of all sizes continue to take training on equality and diversity very seriously,
reveals our comprehensive survey on the subject. …(more)

Diary: Turmoil at the Commission


Topic(s): Equality & diversity: Equality and Human Rights Commission
Author: Michael Rubenstein

I had hoped to go for a while without writing about leadership problems at the Equality and Human Rights
Commission, but events over the past month make that impossible.

Diary: Strictly young


Author: Michael Rubenstein

Another Phillips who has been in the news recently is Arlene. Much to the dismay of fans of Strictly Come Dancing,
she is to be replaced as a judge by 30-year-old former winner, singer Alesha Dixon.

Equality and diversity training - an EOR survey


Topic(s): Equality & diversity: policies/best practice
Author: Sue Johnstone

Most employers responding to our survey provide training on equality and diversity, and the majority make it
mandatory for all employees. More than half say that the amount of equality and diversity training will increase in the
future. Sue Johnstone examines the findings of the latest EOR survey. …(more)

PricewaterhouseCoopers: increasing the number of female partners


Topic(s): Sex: policies/best practice
Author: Carol Foster

PricewaterhouseCoopers' Women's Leadership Programme was designed to address the lower promotion rates of
women at the more senior levels in the organisation. Carol Foster examines how the programme led to the proportion
of women becoming partners more than doubling. …(more)

Delivering equal protection for all


Topic(s): Equality & diversity
Author: Mary Stacey

Albie Sachs helped draft South Africa's post-apartheid constitution and has sat in the country's Constitutional Court
since 1994. Here, Mary Stacey looks at Sachs' latest autobiographical book to see how he has dealt with the multiple
discrimination rights guaranteed under South African law. …(more)

Equality Bill Committee Stage


Topic(s): Equality & diversity: Equality Bill
Author: Michael Rubenstein

The Committee Stage of the Equality Bill in the House of Commons was completed on 7 July 2009 after 20 sittings. …
(more)

Indirect discrimination: Guidance on pool for comparison


Topic(s): Age: indirect discrimination; Race: Indirect discrimination; Religion or belief: indirect
discrimination; Sex: indirect discrimination; Sexual orientation: indirect discrimination
Author: Michael Rubenstein
In determining whether a provision, criterion or practice has a disparate impact, the appropriate pool comprises only
those to whom the rule is applied, rather than all those who are affected, the Court of Appeal has confirmed. Somerset
County Council v Pike (28 Jul 2009, CA)

Disability discrimination: Adjustment claim does not require like-for-like comparison


Topic(s): Disability: duty to make reasonable adjustments, comparator
Author: Michael Rubenstein

The EAT has confirmed that a comparator is not required in order to bring a claim of failure to make a reasonable
adjustment under the Disability Discrimination Act. Fareham College Corporation v Walters (14 May 2009, EAT)

Compensation: Ogden tables are only starting point


Topic(s): Compensation: financial loss
Author: Michael Rubenstein

An employment tribunal erred by calculating future loss of earnings over the rest of a discrimination claimant's career
by applying the Ogden tables without considering other contingencies not reflected in the tables. Rudd v Eagle Place
Services Ltd (2 July 2009, EAT)

Equal pay: Time limit after TUPE transfer


Topic(s): Equal pay: procedures
Author: Michael Rubenstein

The Court of Appeal has confirmed that backdated equal pay claims against a transferor employer can be brought
against a transferee employer but must be brought within six months of the date of transfer. Gutridge v Sodexo (14 Jul
2009, CA)

Short report: Time limits


Topic(s): Tribunal procedures: time limits
Author: Michael Rubenstein

The EAT has emphasised that the three-month time limit for bringing a discrimination claim should only be extended in
exceptional circumstances.

Short report: Equal pay


Topic(s): Equal pay: procedures
Author: Michael Rubenstein

In Suffolk Mental Health Partnership NHS Trust v Hurst (7 April 2009), the Court of Appeal has ruled that it is sufficient
for the first step of an equal pay grievance under the now-repealed statutory disputes procedure "to inform the
employer that the claim was brought under the 1970 Act".

Short report: Proof


Topic(s): Age: burden of proof; Disability: burden of proof; Race: burden of proof; Religion or belief:
burden of proof; Sex: burden of proof; Sexual orientation: burden of proof
Author: Michael Rubenstein

The EAT has reminded employment tribunals to take care in drawing inferences of unlawful discrimination from a
failure to comply with a statutory discrimination Code of Practice. Teva (UK) Ltd v Goubatchev (27 Apr 2009, EAT)

Short report: Racial grounds


Topic(s): Race: racial grounds
Author: Michael Rubenstein

The Court of Appeal has overruled the High Court and held in R (on the application of E) v Governing Body of JFS (25
Jun 2009, CA) that a Jewish school's requirement that if a pupil is to qualify for admission his mother must be Jewish,
whether by descent or by conversion, as recognised by Orthodox Jews, is a test of ethnicity which amounts to direct
discrimination contravening the Race Relations Act.
Extent of protection for employee undergoing IVF treatment
Topic(s): Sex: pregnancy/maternity
Author: Sue Johnstone

An employment tribunal holds that s.3A of the Sex Discrimination Act protects an employee undergoing IVF treatment
until two weeks after an implantation fails. It concludes in this case, however, that the respondents' actions were not
on grounds of the employee's pregnancy, nor were they sex discrimination under the normal SDA provisions. Sahota
v (1) The Home Office (2) Pipkin (26 May 2009, ET/1101513/08)

Length of service criterion held to be indirect discrimination


Topic(s): Sex: direct discrimination, indirect discrimination
Author: Sue Johnstone

In a case relating to the provisions of the SDA that prohibit discrimination by an authority or body which can confer
authorisation required to engage in a particular trade or profession, an employment tribunal finds both direct and
indirect sex discrimination in the way in which a licensing authority issued hackney cab licence plates (HCLP).
Brookes v Manchester City Council (9 Mar 2009, ET/240942/07)

Constructive dismissal was not sex discrimination


Topic(s): Sex: direct discrimination
Author: Sue Johnstone

A constructive dismissal arising from discovery of a female employee's clandestine affair, when her husband worked
for the same employer, was found not to be sex discrimination. Her treatment, which led to her resignation, was
because she was seen as the villain and her husband the victim and not due to her gender. It was found that the same
would have happened to her husband if it was the other way and he had been the perpetrator. Grime v Early Action
Group Ltd (22 Jan 2009, ET/2405485/08)

Change of part-time hours not sex discrimination


Topic(s): Sex: indirect discrimination
Author: Sue Johnstone

This case illustrates the importance of identifying the correct provision, criterion or practice (PCP) when claiming
indirect discrimination. It involved a requirement for a single mother to change her part-time hours. McMullen v PS
Photay & Associates (17 Jun 2009, ET/2329283/08)

Requirement to work full time not proportionate


Topic(s): Sex: indirect discrimination, pregnancy/maternity
Author: Sue Johnstone

An employer who insisted that a woman returning from maternity leave should work full time did not convince the
employment tribunal of the need for the claimant to be available five days a week. Thomas v The Arts Council of
Wales (17 Jun 2009, ET/1604301/08)

Government action needed over pay gap


Topic(s): Equal pay: government policy/action

The Government needs to do more to promote quality part-time work and job-sharing, concludes a new report from
the Women and Work Commission.

One-third of employment tribunal claims concern equal pay


Topic(s): Equal pay

For the second year running, equal pay cases make up the largest category of claims to employment tribunals
(33.8%), according to Acas's latest annual report.
Police make slow progress on diversity
Topic(s): Equality & diversity

Women comprised a quarter (25.1%) of the total number of police officers in March 2009, according to the latest
police service figures for England and Wales, while ethnic minorities made up 4.4%. The figures for the previous year
were 24.2% and 4.1% respectively.

Racist banter persists in construction industry


Topic(s): Race: harassment

Overt racism, such as racist "banter", is still present in some parts of the construction industry, along with indirectly
discriminatory working practices such as word-of-mouth recruitment, finds an inquiry by the Equality and Human
Rights Commission.

‘Right to request’ knowledge is low


Topic(s): Flexible working: right to request flexible working

Four-fifths of all respondents did not know which employees had a legal "right to request" flexible working or had an
incorrect understanding of the right, reveals a new survey from the Department for Work and Pensions.

BT is world’s most gay-friendly corporation


Topic(s): Sexual orientation: policies/best practice

BT Group is the most gay-friendly multinational in the world, according to the first International Business Equality
Index.

M&S signs up to Face Equality


Topic(s): Disability: policies/best practice

Marks & Spencer has become the first retailer to sign up to the Face Equality at Work campaign and to commit to
treating employees and customers with disfigurements both fairly and equally.

Sharp rise in over-50s made redundant


Topic(s): Age: statistics & reports

Almost half of respondents (47%) to an online survey of over-50s were made redundant in the period October 2008-
May 2009, according to the Age and Employment Network.

Equality monitoring tool launched


Topic(s): Equality & diversity: policies/best practice

The Equality and Human Rights Commission has developed an Equality Measurement Framework for monitoring
progress on social outcomes from an equality and human rights perspective.

Women face same career barriers across national borders


Topic(s): Sex: statistics and reports

The barriers to reaching board-level positions faced by women internationally are remarkably similar, finds a study
from the Institute for Employment Studies.