In This Edition:
- A Message from Employment Law specialist Seamus Sweeney.
- Brexit: is it simply a case of "keep calm and carry on?"- Adrian Maitra
- Discrimination on grounds of migrant status not unlawful discrimination: absence of protection?- Andrew Sugarman and Sophie Firth
- Causation in Claims Under s15 equality act 2010- Nicola Twine
‘In consequence of’, ‘because of’, ‘related to’ – phrases which when spoken in everyday conversation cause us no difficulties whatsoever. However, when they are used in legislation (often in close proximity of each other within the same statutory provision) they are prone to cause much judicial head-scratching – as evidenced by the difference in approach taken at EAT level in respect of s15 EA claims. Andrew Sugarman and Sophie Firth’s lucid article makes life easier for all of us by dissecting and clarifying the respective arguments.
Nicola Twine’s article also examines issues of causation in the case of s13 direct discrimination in the context of the well known case of Taiwo, in which the SC confirmed that ‘nationality’ cannot be equated with ‘immigration status’. Nicola interestingly points out that there has been growing pressure to get Parliament to strengthen the legal protections available to migrant workers. However, given recent events it will undoubtedly be a question of ‘watch this space’.
The issue of migrant workers leads nicely on to our third article in this summer newsletter: ‘Brexit’, in which Adrian Maitra summarises the process under Article 50 and gazes into the employment lawyers’ crystal ball to find that it is clouded in mist.
And as we all need some light relief in a time of immense change I leave you with my favourite Brexit joke: ‘An Englishman, a Scotsman and an Irishman walk into a bar. The Englishman wanted to go so they all had to leave’
Enjoy the summer or what there is of it.
Parklane Plowden Chambers
We are starting to come to terms with the fall out from recent seismic events (Iceland, really?). Of course, I am actually referring to the other – less imminent – exit from europe; the small matter of the European Union (EU) referendum and the UK’s decision to exit - or should I say “Brexit” - the EU. As recent political and financial events have shown, the UK faces signifcant challenges over the next few weeks, months and years. To adopt a TUPE-ism, the potential legal, economic, social and ecomomic implications of Brexit are considerable, yet largely uncertain.
What does the referendum result mean?
For all the claims from certain leave circles that the vote to leave on 23rd June 2016 would signify the UK’s “Independence Day” (i.e. we are no longer subject to EU rules and laws), we are some way off that reality, if at all. The result is advisory, nothing more. It has no legal effect. Nothing will happen before the – now infamous – Article 50 is triggered, which (as I comment on below) is not necessarily straightforward, or happening any time soon.
What is the political position?
Before we can assess the impact on domestic law and in particular, the employment law implications of Brexit, we need to consider the future political landscape. We need to understand what the UK government is likely to achieve in its Brexit negotiations with the EU, which will form the platform for our future trading relationship with the EU and the impact of EU law.
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Parklane Plowden Chambers
In Taiwo v Olaigbe & Anr, Onu v Akwiwu & Anr  UKSC 31 the Supreme Court recently dismissed the appeals of two Nigerian Nationals who claimed they had been unlawfully discriminated against because of their status. The protection afforded to the vulnerable migrant workers is limited and does not permit redress from incidents of abuse that might result due to status in the employment tribunal. Given the high number of domestic migrant workers in the UK, with around 17,000 domestic visas being issued each year, according to the Home Office, this is a real issue.
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Parklane Plowden Chambers
Under s15(1) of the Equality Act 2010 (“EA 2010”), an act of discrimination occurs if A treats B unfavourably because of something arising in consequence of B’s disability (assuming no objective justification under s15(2)).
It is sometimes suggested that s15 restores the law to the position that existed under s3A(1) of the Disability Discrimination Act 1995 (“DDA”), before that section was robbed of its potency by the House of Lords in London Borough of Lewisham v Malcolm  UKHL 4. Section 3A(1) of the DDA prohibited less favourable treatment for a reason which relates to the disabled person’s disability.
That analysis is a little too crude and underestimates the change brought about by the different wording of the EA 2010. Whilst it is true to say that in most cases s15 “does much the same job” as the old s3A(1) (per Underhill P in IPC Media Limited v Millar IRLR 70), it is not the same test and arguably can lead to different results.