#Equality Act (EA) 2010

[coochiequeens]

Woman: Adult Human Female.

https://archive.ph/2023.11.01-142554/https://www.thenational.scot/news/23894878.women-scotland-lose-court-session-appeal-woman-definition/

FOR Women Scotland (FWS) has lost an appeal in the Court of Session over the legal definition of a woman.

The group had challenged a ruling that transgender women with a Gender Recognition Certificate (GRC) can legally be defined as women.

In a written ruling, Lady Dorrian, the Lord Justice Clerk, set out that a person “with a GRC in the female gender” is defined as a woman under the Equality Act (EA) 2010.

The appeal was brought after the Gender Critical group lost an initial case on the definition of a woman in legislation that aims to ensure gender balance on public boards.

Lady Haldane has previously ruled, after FWS requested a second judicial review of the Gender Representation on Public Boards (Scotland), that the meaning of sex is “not limited to biological or birth sex” but includes those in possession of a GRC.

In a further written judgment, released on Wednesday, Dorrian ruled that guidance under the UK legislation the Gender Recognition Act 2004, “does not conflate” two separate protected characteristics.

“A person with a GRC in their acquired gender possesses the protected characteristic of gender reassignment for the purposes of section 7 EA,” Dorrian (below) wrote in her conclusion.

"Separately, for the purposes of section 11 they also possess the protected characteristic of sex according to the terms of their GRC.

“For the purposes of section 11, individuals without a GRC, whether they have the protected characteristic of gender reassignment or not, retain the sex in which they were born.”

Dorrian added that “no conflation” of protected characteristics is involved.

“A person with a GRC in the female gender comes within the definition of “woman” for the purposes of section 11 of the EA, and the guidance issued in respect of the 2018 Act is lawful,” she added.

“The reclaiming motion is refused.”

FWS said in a statement they were “hugely disappointed” in the ruling.

“We are obviously still analysing the decision and will be speaking to our legal team in due course to consider the possibility of a further challenge,” they added.

We previously told how the gender representation legislation intends to ensure that non-executive members on public boards are made up of at least 50% women.

Scottish ministers had argued that those who were living as a woman or had gone through the GRC process could be defined as a woman within the legislation.

FWS argued that this did not accord with the separate definitions of women and transgender women under the Equality Act 2010 and voiced concerns about implications for single-sex spaces.

The group lost the initial judicial review in 2021, but were successful on appeal. The Scottish Government then revised the legislation, which now states that the definition of “woman” is defined by the Equality Act 2010 and the Gender Recognition Act 2004.

This meant that transgender women with a GRC would be considered women under the bill.

This led to FWS calling for a second judicial review, where Haldane ruled in favour of the Scottish Government.

This led to another appeal, which Dorrian ruled against on Wednesday.

#For Women Scotland (FWS) #Gender Recognition Certificate (GRC) #Equality Act (EA) 2010 #Governments didn't need to argue over the definition woman 100 years ago

[ukrfeminism]

Police switch to gender-neutral warrant cards

November 29 2021, The Times

Sussex police is to switch to gender-neutral warrant cards, after complaints from the force’s LGBT network.

The network said that having male and female warrant cards was outdated. Male officers in Sussex were previously known by either A or C at the start of their IDs while women were known as B or D.

Now, the warrant numbers of all new recruits will begin with EA, so as not to distinguish between genders. The warrant cards of the next tranche of officers will begin with EB.

Kevin Moore, a retired Sussex police detective chief superintendent, called the change a “nonsense”. Speaking to The Sun, he added: “One reason to differentiate was because of gender-specific policing tasks.

“If a female prisoner needed searching, you would need a female officer to do that.”

Adrian Rutherford, director of the force’s people services, said: “Apart from searching duties, there is no requirement to know an officer’s gender.”

Some fear the move could lead to delays during searches when warrant cards are being checked.

In August it was revealed that gender-neutral uniforms could be introduced across the UK’s biggest police force.

The Metropolitan Police is consulting 30,000 officers on the matter, a new report claims.

The review was launched amid suggestions that the force could be in breach of the 2010 Equality Act by not having separate uniforms for non-binary and gender-fluid officers.

A statement from the Met said: “The Met’s contract with its current uniform provider is due to expire in 2023.

“Before agreeing a new contract with a supplier, the Met is considering what it requires of its uniforms in the future to ensure officers are best able to carry out their job, while continuing to adhere to equality law.”

[timmybothwell-blog]

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[alexanderpippin-blog]

FIFA 18: Release Date And Key Features Revealed

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[aamodt]

O’Brien v Bolton St. Catherine’s Academy [2017] WLR (D) 196 ([2017] EWCA Civ 145)

A difficult decision that an employer can often face is having an employee who goes off sick with an illness for a long period and the employee shows little or no prospect of ever returning because of the illness’s prognosis. The usual route for the employer in such circumstances is to contemplate a capability hearing on the basis that the employee is medically incapacitated. Quite apart from the usual considerations of fairness, there will – in the right circumstances (i.e. if the illness is a “disability”) – also be considerations of possible disability discrimination under the Equality Act 2010. It is therefore important that the employer makes sure that it considers matters carefully.

The extent of the care that needs to be taken has been recently revisited in the case of O’Brien v Bolton St. Catherine’s Academy, a Court of Appeal decision handed down on 15th March this year.

The facts of the case are fairly straightforward: the Claimant, Georgina O’Brien, was Director of Learning for the Respondent. In March 2011 the Claimant was attacked by a pupil. The physical consequences were not very serious. However, it left the Claimant with psychological issues and she was eventually diagnosed with anxiety, depression, and post-traumatic stress disorder. She went off sick on 9th December 2011. After the claimant had been off work for over a year, she was dismissed for medical incapacity. That dismissal was upheld on internal appeal.

The Claimant brought a claim in the Employment Tribunal. She claimed –

(1) “ordinary” unfair dismissal under s.98 of the Employment Rights Act 1996 (the “ERA”); (2) “automatic” unfair dismissal under 100, 103A and/or 104 of the ERA (3) that her illness was a disability and that either (a) her dismissal was direct discrimination under s.13 of the Equality Act 2010 (the “EA”); or (b) her dismissal constituted unfavourable treatment under s.15 of the EA (4) wrongful discrimination (summary dismissal and payment in lieu of notice were not justified by contract); (5) arrears of holiday pay

Claims (2), (3) (a), and (5) were dismissed. Claims (1) (“ordinary” dismissal), (3) (b) (s.15 unfavourable treatment (i.e. the dismissal) and (4) (wrongful dismissal) were upheld, primarily for the reason that the Respondent had not properly considered new medical evidence during the internal appeal, albeit submitted at the last minute and not wholly satisfactory.

The Respondent appealed to the Employment Appeals Tribunal on the unfair dismissal and s.13 points only and by means of eight separate grounds:

The Employment Tribunal was wrong to find the dismissal was not a proportionate means of achieving a legitimate aim;

The finding of the Employment Tribunal that the Respondent unlawfully discriminated against the Claimant by failing to conduct "a balancing exercise required of it under section 15 Equality Act" was wrong in principle and an error of law;

The Employment Tribunal is said to have erred in law by concluding that dismissal was disproportionate in the circumstances where the Respondent could reasonably have been expected to "wait a little longer";

The Employment Tribunal erred in applying the test of justification to circumstances prevailing at the date of the appeal rather than the date of the dismissal;

The Employment Tribunal erroneously conflated unfair dismissal and section 15 Equality Act jurisdictions;

The Employment Tribunal concluded there was an unfair dismissal without considering the authorities on dismissals on the grounds of capability and health;

In finding that the Claimant was unfairly dismissed the Tribunal fell into error by substituting its view for that of the dismissing employer;

In relation to the findings of unfair dismissal and discrimination under section 15 Equality Act the Judgment was not compliant with Meek v City of Birmingham District Council [1987] EWCA Civ 9; [1987] IRLR 250 (CA) nor compliant with the Employment Tribunal Rules of Procedure Rule 62(5) by providing adequate reasons in support of the same.

The Claimant did not cross appeal. The EAT allowed the Respondent’s appeal (but dismissed the small and technical ground of appeal at ground eight) and the case was remitted to a differently constituted Tribunal regarding the unfair dismissal and s.15 claims only. The Claimant appealed to the Court of Appeal.

The Court of Appeal (David LJ dissenting) allowed the appeal. three interesting points emerge form Underhill LJ’s judgement (with which Sir Terence Etherton MR agreed):

(1) “Proportionality” (s.15 “justification”) vs. “reasonableness” (s.98 unfairness) – the Claimant’s claim involved looking at her dismissal through two lenses : the “proportionate means of achieving a legitimate aim” lens  (the so-called “justification” defence found at s.15(1) (b) of the Equality Act 2010, and the “reasonableness” lens found at s.98 of the Employment Rights Act 1996. Underhill LJ held that although the language in the two acts was different “… it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act. The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law.” (¶53). Further, both tests are, in the opinion of Underhill LJ, objective.

This surely must be right. To argue that the two tests are different (as the EAT did), is to introduce a level of unnecessary casuistry that employment lawyers can well do without.

(2) The band/range of reasonable responses – The EAT held that the Tribunal had substituted its own view – contra Iceland Frozen Foods -  with that of the employer. Underhill LJ disagreed and was not prepared to say that the conclusion that the Tribunal reached was one that was not open to it on the facts, i.e. the Tribunal was entitled to decide that the employer’s decision to dismiss was not within the range of reasonable responses.

The notion that Tribunals must not substitute their own views for those of the employer has been and continues to be much criticised. Smith and Wood put it extremely well: “It [the range of reasonable responses test] is an ingenious sleight-of-hand that appears to allow tribunals to impose an objective standard while not substituting their own judgement for that of the employer, but in doing so it seeks to do the impossible. If applied as it reads on the tin, it calls for a tribunal to imagine a universe of employers, then imagine a subset of reasonable employers, and then decide if the decision before it was one that even the least reasonable of the latter subset might take …. Because this assessment is entirely hypothetical the Tribunal can as a matter of practice impose its own ‘objective’ judgement of what would be reasonable.” (Ian Smith and Aaron Baker, Employment Law (OUP (12th ed.) 2015, pp 537-538). In essence, the argument is that Tribunals can make the band whatever they want it to be, so how can the test be objective? In Haddon v Van den Bergh Foods Ltd [1999] IRLR 672 the EAT attempted to dispense with the “range of reasonable responses” test altogether on the basis that it was an unhelpful mantra (the decision was swiftly overturned on appeal).

Davis LJ in his dissenting judgement accused the Tribunal of having been “unacceptably purist” and it had therefore substituted its own view for that of the appeal panel “…without, in my opinion, sufficient cause” [my italics] (¶64). This is – with reference to the specifics of the case – an implicit criticism of the objective test. That much is made clear when he later asks the (partially rhetorical) question: “How much longer was the school to wait? [for the employee to return]” (¶65). One can assume that the arguments about the logic, utility and application of the “band of reasonable responses” test will continue.

(3) The obligation to consider new evidence at the internal appeal – the Court of Appeal’s judgement in this case will not be of huge comfort to employers. Despite having been off sick for some seventeen months, the Respondent’s dismissal of the Claimant was held by the Tribunal to have been unfair on the basis that it (a) should have considered a vague Statement of Fitness For Work signed by the Claimant’s GP (presented at the start of the hearing), and (b) it should have considered a letter from a psychologist (also presented at the start of the hearing) that recommended courses of treatment. Neither document was equivocal about the Claimant being able to return to work or when that return might occur. The Tribunal’s judgement was that the Respondent should have obtained its own evidence to confirm whatever it was that the Claimant was saying. The Court of Appeal held that the Tribunal was entitled to reach this view. The lesson for employers is that they should think very carefully about proceeding to dismiss if the employee in question has presented evidence – however vague – about his or her fitness to work.

#employment