2016/24 Claimant required to show the ‘reason why’ the underlying reason behind a practice was indirectly discriminatory (UK)

The Court of Appeal (‘CoA’) has held that there was no indirect discrimination where the underlying reason behind a ‘provision, criterion or practice’ (‘PCP’) operated by an employer was not discriminatory. The claim of indirect discrimination was brought by Mr Naeem, who is employed by the Prison Service as a full-time imam at HMP Bullingdon. Until 2002, the Prison Service employed only Christian chaplains full-time due to a lack of demand for chaplains of other faiths (who were employed on a sessional basis only). From 2002, it started to hire full-time Muslim as well as Christian chaplains due to an increase in the number of Muslim prisoners.The prison system’s pay scale rewards length of service and pay rises are linked to both performance and length of full-time service. Mr Naeem argued that this had a disproportionate negative effect on Muslims, as they could not have been employed for as long as Christians. The CoA rejected this claim, based on the fact that the underlying reason for the difference was the lack of demand for Muslim chaplains before 2002, and that this was not discriminatory.This case follows the 2015 CoA case of Essop v Home Office [2015] EWCA Civ 609, which was the first case to add in this extra layer to the indirect discrimination test. According to these cases, a claimant must now show not only that a particular practice particularly disadvantaged them, but also why this is the case. In both cases, appeals have been made to the Supreme Court and these are expected to be heard together later this year.

2016/25 Prohibition against displaying religious symbols breaches anti-discrimination legislation for lack of proportionality (BE)

A general prohibition against displaying religious, political and philosophical symbols constitutes indirect discrimination which fails to meet the proportionality requirement. In this case the court took account of the fact that it was possible for the employer to distinguish between back-office and front-office work (the claimant worked in a back office position) and also because of the absence of complaints by colleagues or clients and the absence of any attempt by the claimant to encourage other women to wear a headscarf.

ECJ (Grand Chamber) 19 April 2016, case C-441/14 (Ajos), age discrimination

A court applying national law that is at odds with the principle of non-discrimination on grounds of age must disapply that law, even if it is unequivocal and even where the dispute is between private parties.

2016/21 The attitude/behaviour of an employer towards an employee who partially resumes work after long-term incapacity can constitute harassment and discrimination (BE)

The Belgian Labour Court decided in this case that the attitude/behaviour of an employer towards an employee constitutes harassment and discrimination, as the behaviour was such that the employee could have had the impression that he could lose his job because of his state of health. The employee resumed work after long-term incapacity owing to heart disease, but only on a part-time basis.The Court considered that the successive actions of the employer towards his employee were aimed at ending his employment rather than actively promoting reintegration. Such behaviour, on the facts, could be considered as harassment and discrimination.Moreover, the Court specified that the health of the employee, who had partially resumed work after being off sick for heart disease, could be regarded as a disability in accordance with EU Directive 2000/78. The Court explicitly referred to the ECJ HK Danmark case.

Case C-548/15. Age discrimination

Must Article 3 of Council Directive 2000/78/EC establishing a general framework for equal...

Case C-548/15. Age discrimination

Must Article 3 of Council Directive 2000/78/EC establishing a general framework for equal...

2016/21 The attitude/behaviour of an employer towards an employee who partially resumes work after long-term incapacity can constitute harassment and discrimination (BE)

The Belgian Labour Court decided in this case that the attitude/behaviour of an employer towards an employee constitutes harassment and discrimination, as the behaviour was such that the employee could have had the impression that he could lose his job because of his state of health. The employee resumed work after long-term incapacity owing to heart disease, but only on a part-time basis.The Court considered that the successive actions of the employer towards his employee were aimed at ending his employment rather than actively promoting reintegration. Such behaviour, on the facts, could be considered as harassment and discrimination.Moreover, the Court specified that the health of the employee, who had partially resumed work after being off sick for heart disease, could be regarded as a disability in accordance with EU Directive 2000/78. The Court explicitly referred to the ECJ HK Danmark case.

2016/26 Dismissal of an employee with a disabled child was not discriminatory by association (DK)

It was neither direct nor indirect discrimination when a municipality dismissed a childminder with a disabled child, since the decision to dismiss was based on the interests of safeguarding children in the municipality’s childminding services, by not taking them out of their usual environment and placing them with a childminder they did not know.

2016/19 Reference in a termination letter to ‘retirement’ can cost the employer dearly (GE)

In businesses employing fewer than ten employees, the rules on unfair dismissal do not apply. However, those on discrimination do. This fact made it possible for the 63 year-old employee in this case to claim damages, effectively for unfair dismissal. She had been dismissed following a reduction in the available work. She was selected for redundancy because she was less qualified than her colleagues. However, her termination letter mentioned that she had become “eligible for retirement”. This remark created a presumption of age discrimination, which the employer was not able to rebut.

Case C-668/15. Racial discrimination

Must the prohibition on direct discrimination on grounds of ethnic origin in Article 2(2)(a) of...