Reinventing indirect discriminationAdd To My Clippings Alt Text

By James Davies, Tom Heys

The Eweida and Chaplin cases, much in the news lately, both concern devout Christians who claimed indirect religious discrimination because their employers’ uniform policies did not let them wear a cross at work. The claims were rejected by the UK courts, but the cases have now been heard by the European Court of Human Rights and its ruling is due later this year.

Mrs Eweida and Mrs Chaplin argued that they were part of a group – Christians – which had been disadvantaged by their employers’ policies. Although wearing a cross is motivated by faith, it is a personal decision rather than a mandatory requirement of the religion. Mrs Eweida’s and Mrs Chaplin’s claims therefore failed because neither could show membership of a particular group that suffered a disadvantage. Christians generally would not be affected.

The merits of these particular cases aside, they highlight flaws in the definition of indirect discrimination. The exercise of trying to find a disadvantaged “group” should be unnecessary if what law is really seeking to do is fulfil a basic principle that those with religious beliefs should be able to manifest them reasonably in the workplace.

If indirect discrimination is not “fit for purpose” in such cases, a new approach is needed. Employers already have a positive duty to make reasonable adjustments to help those with a disability. Could this be extended to impose an obligation to accommodate religion too? Similar duties have been shown to work effectively in the USA and Canada.

A positive “duty to accommodate” might not only assist in religion cases. If extended to those with caring responsibilities, it could dramatically improve the utility of the law concerning flexible working. The current “right to request” flexible working confers no meaningful right on an employee merely creates bureaucracy for employers. In reality, employees can ask anyone for anything and don’t need a law just to ask!

Moreover, because there is no significant remedy for breach of this “right” – £3,200 maximum compensation – employees often try to bring an indirect sex discrimination claim instead. Similar legal issues to those in the Eweida and Chaplin cases, around the identifying the appropriate “group” which it is claimed have been affected by the refusal to accommodate the flexible working request, can arise with these claims. Is it employees with the same job as the claimant or those in the same business unit? Or maybe it should be the whole workforce? The law is unclear here. If it is narrower than the whole workforce, a claimant’s rights depend arbitrarily and unsatisfactorily on the gender balance of her colleagues. It also normally denies a man any legal claim as men as a group will generally not be disadvantaged by any bar on flexible working.

The current formulation of indirect discrimination causes problems for employers too. In claims arising from flexible working requests, the reason why an employer cannot accommodate the requested arrangement may be solely the cost to the business from lost sales or productivity. The same might apply to refusing a request from someone to avoid working on religious days. But the courts have established that a defence of justification in indirect discrimination cases cannot be based on cost alone. The employer must either search for some other legitimate reason or face losing the claim. A simple test of “reasonableness”, allowing consideration of cost, would be far clearer and fairer.

Enacting a new duty as described above would not require a drastic change in the law. It could be implemented by relatively small amendments to the Equality Act 2010. And such a duty would hardly be an alien concept for employers to get their heads round: they have been subject to duty of reasonable adjustment in disability cases for almost 20 years.

Innovative change along these lines could deliver considerable benefits, but would most likely encounter hostility from a Government that appears instinctively opposed to any form of new employment regulation. A reform like this could be seen as “gold plating” – i.e. going beyond the minimum required by EU law – providing ministers with further grounds for objection, notwithstanding that the increased clarity would assist employers. The only losers might be lawyers who would no longer need to navigate these complexities for their clients.

While the Eweida and Chaplin cases highlight problems with the law, these are not insurmountable. But legislators need to understand that solutions don’t always lie in less regulation, but sometimes in better regulation.

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October 2016