Fri 23 Apr 2021

What's new in Equality Law - April 2021

Commission on Race and Ethnic Disparities publishes first report

In the wake of Black Lives Matter protests following the killing of George Floyd in 2020, the Prime Minister set up the Commission on Race and Ethnic Disparities to investigate racial and ethnic inequality in the UK and ways to address it. The Commission on Race and Ethnic Disparities: The Report was published on 31 March 2021 and covers health, education, criminal justice and employment. The report concludes that the term BAME is "unhelpful" and that disparities and outcomes of specific ethnic groups should be addressed, rather than looking at issues using homogenous labels.

In terms of addressing inequalities in employment, recommendations include: challenging racist and discriminatory actions through the use of the Equality and Human Rights Commission's (EHRC) powers (Recommendation 1); improving the transparency and use of artificial intelligence in applying the Equality Act to algorithmic decision-making concerning individuals in the workplace (Recommendation 3); advancing fairness in the workplace through developing resources and evidence-based approaches readily available to employers (Recommendation 8); investigating what causes existing ethnic pay disparities through data of ethnicity pay figures published by organisations (which as part of the recommendation isn't compulsory) (Recommendation 9); opening up access to apprenticeships in a full range of career paths (Recommendation 16); and encouraging innovation targeting aspiring entrepreneurs from underrepresented and low-income backgrounds across the UK (Recommendation 17).

The report has received widespread criticism for finding that there was no evidence of "institutional racism" in the UK despite recent evidence from the TUC report that workers from minority ethnic backgrounds have been disproportionately affected by redundancies during the pandemic. Furthermore, concern over the pace of change has been voiced given that over half of the 24 recommendations in this report have been made before in 14 previous reviews into race discrimination in the last 20 years.

65% of trans people hide their identity at work

According to a recent survey by YouGov, 65% of trans employees feel the need to hide their trans status at work. This compares with just over half (52%) who responded to the same question in a survey 5 years ago. Also of concern was a finding that 43% of trans employees said that they had left their jobs as a result of an unwelcoming work environment, which was a 7% rise since 2016. On a more positive note, the survey found a slight decrease in trans workers reporting discrimination from their colleagues, which was down to 25% from 38% in 2016. The findings recognise that whilst there were some signs of improvement, discrimination remains at unacceptably high levels and the report offers employers some important advice on workplace best practice from Sparkle - The National Transgender Charity.

TUC calls for legal restrictions on workplace decision-making through the use of Artificial Intelligence (AI)

The Trades Union Congress' (TUC) has recently published a report "Technology Managing People - The Legal Implications" analysing the legal implications of the increasing use of AI in the workplace. The report warns that the current use of AI in the workplace could result in "widespread discrimination and unfair treatment" of workers, particularly in the gig economy. The report highlights the increasing use of AI in decision-making in the workplace including interview candidate selection, performance management, shift allocation and even decisions on who is disciplined and who is made redundant. It also reports that there are AI video-interviewing systems which examine speech patterns, tone of voice, facial movements, and other indicators to assess candidates' suitability for a follow-up interview or selection. Barristers Robin Allen QC and Dee Masters, who carried out the study, state that there are "huge gaps" in UK law in relation to the regulation of AI in the workplace. As such, the TUC is calling on the Government to update UK law to keep pace with current technological developments. Some of the legal rights the TUC is calling for include: a legal duty on employers to consult trade unions on the use of “high risk” and intrusive forms of AI in the workplace; a legal right for all workers to have a human review of decisions made by AI systems so they can challenge decisions that are unfair and discriminatory; and amendments to the UK General Data Protection Regulation (UK GDPR) and Equality Act to guard against discriminatory algorithms.

Advocate General: employers can lawfully prohibit employees from wearing large-scale religious signs even where smaller-scale ones are allowed

On 25 February 2021, Advocate General (AG) Rantos delivered his Opinion on a preliminary ruling request in the joined German cases IX v WABE e.V (C-804/18) and MH Müller Handels GmbH v MJI (C-341/19) to the European Court of Justice (ECJ). In both cases, the employees wore an Islamic headscarf in their workplace. They were in client-facing roles and were asked by their employers to attend their workplace without them as the employers prohibited employees from wearing any visible signs of their political, philosophical or religious beliefs in the workplace. AG Rantos concluded that the employer's rule did not amount to direct discrimination based on religion or belief but that it may constitute indirect discrimination. It was therefore open to the employer to justify the rule on the basis of a policy of political, philosophical and religious neutrality in the workplace to take account of the wishes of its customers.

The potential to justify an indirectly discriminatory rule is not limited to a prohibition on wearing any sign of political, philosophical or religious beliefs in the workplace. An employer's rule limited to the prohibition of conspicuous, large-scale signs of political, philosophical or religious beliefs can be justified if implemented in a consistent and systematic manner. As such, it may be appropriate for an employer to permit the wearing of small-scale signs of political, philosophical or religious beliefs in the workplace.  It would be for the national court to decide on the evidence whether such a policy was in fact justified.   

AG Rantos' Opinion is not binding on the ECJ and it will be interesting to see what the ECJ decides following its deliberations in this case - it is not obliged to follow the AG's opinion but it usually does. Although the judgment will be handed down after the end of the "transition period" following the UK's exit from the EU, courts and tribunals may still "have regard" to post-Brexit ECJ case law and it could therefore be taken into account by tribunals applying the Equality Act 2010.

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