Jeremy Gordon
[contact details removed]

Assistant Secretary

International Human Rights and Anti-Discrimination Branch

Attorney-General’s Department

Robert Garran Offices

3-5 National Circuit, BARTON ACT 260014 January 2012

Dear Sir/Madam

Consultation on the Consolidation of Commonwealth Anti-Discrimination Laws

Here is my submission in respect of the above.

My interest in this matter arises from sitting on a sessional basis as an Employment Judge in London Central Employment Tribunal, in England. In this role, from 2001 and continuing to the present day, I have heard numerous discrimination claims (that is to say I have chaired and conducted the proceedings and given the tribunal’s decision, as part of a panel of three). These discrimination claims have all arisen in an employment context.

Although I continue to sit in England, I have now moved to Australia. I am a barrister in Queensland and in England and Wales.

I note that the discussion paper refers to the practice and law in the UK in many places, so I thought it might be helpful to give my comments on the discussion paper in the context of how I see the English law and procedure working in practice from a judicial point of view.

In this submission I wish to concentrate on these following questions in the discussion paperwhich I regard as of particular importance:-

Question 1The definition of discrimination

(a) comparators;

(b) unified definition;

(c) justification defence.

Question 2The burden of proof.

Question 4Duty to make reasonable adjustments.

On 1 October 2010 the main provisions of the Equality Act 2010 came into effect in England. This statute was a consolidating and amending statute and represents the latest thinking in England in this field.

Question 1

The definition of discrimination: (a) comparators

Paragraph 27 of the discussion paper describes significant difficulties in applying the comparator test. English law went through a series of such difficulties. There were numerous appeals challenging the choice of actual or hypothetical comparator.

This culminated in Webb v EMO Air Cargo Ltd[1994] IRLR 482 (European Court of Justice) and Shamoon v Chief Constable of the Royal Ulster Constabulary[2003] IRLR 285 (House of Lords), the net effect of these cases being that the most important question for the court to decide is the perpetrator’s motive. Whilst a comparison of real comparators may be helpful evidentially, sometimes it makes more sense to go straight to the "reason why" without agonising over comparators. If that question can be answered then the comparator will sort itself out. If someone was treated a certain way because of a protected characteristic, then it follows that a comparator would have been treated differently. And vice versa.

This clarification of the law considerably simplified decision making in such cases. However in the Equality Act 2010, instead of dropping the concept of “less favourable treatment” and concentrating on “unfavourable treatment” the central discrimination definition has been re-written in section 13 as follows:-

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

This is supplemented by this provision:-

23 Comparison by reference to circumstances

(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

(2) The circumstances relating to a case include a person's abilities if—

(a) on a comparison for the purposes of section 13, the protected characteristic is disability;

(b) on a comparison for the purposes of section 14, one of the protected characteristics in the combination is disability.

(3) If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is a civil partner while another is married is not a material difference between the circumstances relating to each case.

It might be worthy of note that in pregnancy and maternity cases, where it is notoriously difficult to identify the correct comparator, the Equality Act 2010 defines discrimination as treating someone “unfavourably” because of the protected characteristic instead of treating someone “less favourably” because of the protected characteristic (sections 17 and 18)[1].

Such an amendment was not considered necessary for the central discrimination definition (which therefore remains “less favourable treatment”) however this decision should be regarded as unique to England since it was made in the light of English and European case law.

For my part I would favour a simplification of the test to “unfavourable treatment”, or perhaps even clearer “detrimental treatment”. I believe this is attractive, since it simplifies the test enormously.

But it has the disadvantage that it does not cause the parties to focus on the importance of a comparison of the treatment of the complainant with the treatment of others, something which if left unexplained will be crucial to show motive for the treatment. This focus is important to ensure that the case is properly pleaded and so that all parties to the claim are aware that such comparisons will be made at the hearing.

In my experience most complainants are acutely aware that such comparisons are important. It is natural to compare the treatment one has received with the treatment thatone believes other people have received.

I would therefore suggest that if the wording is simplified in this way, it is accompanied by a requirement in the rules of court that if a complainant wishes to rely on any comparison of their treatment with treatment of other people, they should specifythe persons concerned, and the dates and circumstances in the claim form. This could be encouraged by a section in a standardised claim form asking this question. This will ensure that respondents will not be caught by surprise at the trial. It will avoid late requests for adjournments to obtain evidence in rebuttal.

Recommendation
If the definition of discrimination is changed from “less favourable treatment” to “unfavourable treatment”, the claim form and rules of court should encourage complainants at an early stage to identify any comparators (and the circumstances) on which they rely.

Question 1

The definition of discrimination: (b) unified definition

I have some comments on the proposed definition of discrimination in the Discrimination Law Experts’ Group Submissions published on 13 December 2011 (and endorsed by the Equality Rights Alliance).

The proposed definition of the Discrimination Law Experts’ Group is:-

1. Unlawful discrimination

Discrimination is unlawful in public life unless it is justified within the scope and objects of this Act.

2. Definition of discrimination

Discrimination includes:

(a) treating a person unfavourably on the basis of a protected attribute;

(b) imposing a condition, requirement or practice that has the effect of disadvantaging persons of the same protected attribute as the aggrieved person; or

(c) failing to make reasonable adjustments if the effect is that the aggrieved person experiences unfavourable treatment under (a) or is disadvantaged under (b).

The conduct described in 2(a) and (b) is not mutually exclusive.

3. Public life and protected areas

For the purposes of this Act ‘public life’ includes work, education, the supply of goods and services, accommodation, clubs, the delivery of government programs, the disposition of land and superannuation.

My comments are:-

(1)I am unhappy with the expression “public life” in section 1 and 3, since many private situations are also protected, for example in the employer-employee relationship.

(2)I am unhappy to use the word “includes” in sections 2 and 3 because that suggests that the definition is not comprehensive, creating uncertainty.

(3)Personally, in section 2(a) I would change the words “on the basis of” to “because of” because it cannot be argued that “because of” has any other meaning.

(4)In section 2(b) the word “imposing” raises the question “imposing upon whom?” The courts may regard this as limited to an imposition upon the complainant, which would be unduly restrictive in some cases. For example, where a female felt unable to apply for a directorship because only full-time positions were available. The requirement would not be imposed upon her in a case where she never applied for the job. Could I suggest instead of “imposing”, the words “introducing or maintaining” be used?

(5)The wording of section 2(b) suggests that there have to be others with the same protected attribute who are similarly adversely affected. This will work when there are indeed other persons of the same protected attribute to compare. However in some work situations this might not be the case. For example if the employee concerned was the only Muslim who needed to pray at certain times of the day. I would suggest the addition of words showing that a hypothetical situation is also covered.

(6)In section 2(c), I am afraid it is not clear to me at all what “under (a)” and “under (b)” means. It is not clear which part of (a) or (b) needs also to be satisfied for this test (or if any part does). I do not think this form of words or the reference back is helpful. In any case, I believe it is better to have the duty to make reasonable adjustments in a stand-alone provision (see below – Question 4).

(7)I do not think the definition catches certain obviously discriminatory behaviour that is “reason related” or which is because of “something arising” from the protected attribute (for examples, see Henry’s case and Janet’s case below).

Henry’s case

Henry works full-time but needs to leave work early every Tuesday and Thursday for dialysis and also takes longer breaks than other members of staff. This is because he suffers from diabetes and kidney failure. His employers permit him to take this time off, thereby fulfilling a duty to make reasonable adjustments in his case. Indeed, the employer’s “Diversity and Inclusion” policy refers to time off being available to all staff if required for medical reasons.

Henry applies for a management position in the company. He is informed by his own manager as follows:-

“Whereas if you became manager you would still be permitted to take the time off for your medical treatment in accordance with the Diversity and Inclusion policy, I am not even going to consider you for this role because the time you take off would be a bad example to the staff you would manage”.

Janet’s case

Janet is in a similar situation toHenry, except that the time she needs to take off arises because of her child care arrangements.

Neither Henry nor Janet is treated unfavourably because of a protected attribute. Instead, the reason for their treatment is the fact that they need to take time off [support for this argument comes fromPurvis v New South Wales(2003)217 CLR 92]. And their cases do not easily fit into the “indirect” type of discrimination.

Recommendation
I would suggest that the definition is written as follows:-
1. Unlawful discrimination
Discrimination is unlawful in protected situations unless it is justified within the scope and objects of this Act.
2. Definition of discrimination
Discrimination in this Act means one or more of the following:
(a)treating a person unfavourably because of a protected attribute or because of something arising from a protected attribute;
(b)introducing or maintaining a condition, requirement or practice that has (or would have) the effect of disadvantaging persons of the same protected attribute as the aggrieved person; or
(c)failing in a duty to make reasonable adjustments.
3. Protected situations
In this Act a “protected situation” is work, education, the supply of goods and services, accommodation, clubs, the delivery of government programs, the disposition of land and superannuation.
4. Justification
Please see below.
5. Duty to make reasonable adjustments
Please see below (question 4)

Question 1

The definition of discrimination: (c) justification defence

In practice the “proportionate means of achieving a legitimate aim” test of justification has worked well. It is a test which is capable of being applied to the most borderline cases, and requires the court or tribunal to decide on the legitimate aim and then to consider whether the requirement is a proportionate means of achieving that.

An recent example was in the difficult case of Azmi v Kirklees Metropolitan Council [2007] IRLR 484. It was held that a female Muslim teaching assistant had not suffered indirect discrimination by a requirement of her school that she remove her full face veil when teaching. Her job was to teach English as a second language to young children from ethnic minority backgrounds. It was accepted that there was a legitimate aim of raising the students’ educational achievements, and the complainant being able to communicate fully with the children was of the utmost importance to achieve that; and the means of achieving it were proportionate, as the complainant was required not to wear her veil only while teaching and there was no reasonable alternative way of accommodating her wishes.

As can be seen from this case, the “proportionate means of achieving a legitimate aim” test is less likely to be affected by subjective views than a plain test of “reasonableness” because it requires a logical analysis to be undertaken and explained.

Recommendation
The “proportionate means of achieving a legitimate aim” test be adopted for the defence of justification test.

Question 2

The burden of proof

Since in Australia the burden of proof is not universally applied, and is a matter for debate, I thought it would be helpful to give my experience of how it has applied in England and Wales.

The burden of proof provision for English discrimination cases is now contained in section 136 of the Equality Act 2010:-

136 Burden of proof

(1)This section applies to any proceedings relating to a contravention of this Act.

(2)If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3)But subsection (2) does not apply if A shows that A did not contravene the provision.

This is a restatement and an attempt to simplify the previous statutory provisions in various statutes covering different protected characteristics. Here is a typical example of the previous wording from the Sex Discrimination Act 1975 as amended:-

63A Burden of proof: employment tribunals

(1)This section applies to any complaint presented under section 63 to an employment tribunal.

(2)Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent—

(a)has committed an act of discriminationor harassmentagainst the complainant which is unlawful by virtue of Part 2or section 35A or 35B, or

(b)is by virtue of section 41 or 42 to be treated as having committed such an act of discriminationor harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act.

In section 63A above, the reference to section 41 or 42 is respectively to employer’s vicarious liability for the acts of employees and the aiding of unlawful acts.

In effect both provisions say that where the complainant proves a prima facie case, the burden to disprove discrimination should be regarded as shifted to the respondent. Proof of a prima facie case is sometimes referred to as “stage 1” of the process. Case law makes it clear that a court or tribunal can use its power of inference to complete the evidence at stage 1.

As explained below, I do not believe that a shifting burden of proof is unfair to respondents. And to my mind it is an essential component in the legislation to enable complainants to succeed where there has been discrimination. This is because most cases of “direct” discrimination depend on the reason why the complainant was treated in a certain way. It is extremely difficult for complainants to prove this. And we know that there can be non-conscious discrimination (where the perpetrator does not even realise that their decision making is based upon some hidden prejudice). This can only really be exposed by the use of the burden of proof provisions.

In order to show that a shifting burden of proof is not unfair to respondents, I offer an analysis of the discrimination cases which I heard (between 2001 and 2011). There are 50 such cases. The complainant was successful in 14 of them. Of these 14 successful cases, in 8 of them, my tribunal found the claim to have been proved by the complainant without the need to consider whether the burden of proof shifted to the respondent. These cases were typically those which did not depend on the respondent’s motive for treating the complainant in a particular way. They were cases of overt acts of harassment or victimisation, or of indirect discrimination or where there was a breach of the duty to make reasonable adjustments (in disability claims).

In the 6 remaining successful cases my tribunal found that the burden did shift to the respondent, but that the respondent failed to prove that there was no discrimination. In respect of these 6 cases:-

(a)In 1 case the respondent failed to call the alleged perpetrator as a witness (nor was there any evidence from anyone else to provide an explanation of the treatment concerned). I do not know whether this was because the witness was not available or whether this was an error by the lawyer conducting the case.

(b)In 1 case the alleged perpetrator was called to give evidence but was unable to offer any explanation why the complainant had been treated in the way he was.

(c)In 4 cases the alleged perpetrators were called to give evidence but my tribunal did not accept the evidence which they gave.

Of these 6 cases, in case (a) and case (b), the complainant would have been unable to prove the case without the burden of proof provision. Of the 4 cases in (c), in 2 of them the complainant would have been able to prove the case without the burden of proof provisions (these were two cases of overt harassment). In the other 2 cases, the complainant would not have been able to do this. It was the obfuscation of the respondents’ witnesses which effectively proved the case for the complainant. If there had been no burden of proof provision these witnesses might not have been called to give evidence at all.

It follows that of the 14 successful claims out of 50, in only 4 of them the burden of proof provisions made a difference. In those cases the complainant succeeded in the claim whereas otherwise the complainant would not have succeeded. In the remainder of the cases, the burden of proof provisions made no difference to the outcome.

In the one case (a) above, it is possible that the result was unfair on the respondent. But if so, this was because of a lawyer’s mistake. The tribunal made it clear to the lawyer that it might have to apply the burden of proof provisions and that if so, evidence in rebuttal was missing. However the lawyer did not seek to call the witness or ask for an adjournment to enable this to be done.