Vol 57 Mar2016 - Rights of Persons with Disabilities / 2016 & crystal balls / TUC General Secretary's inspiring address @DLA AGM

Date published: 
1 March 2016

Briefings vol 57 - March 2016 - contents and editorial










Using the potential of the United Nations Convention on the

Rights of Persons with Disabilities

Catherine Casserley



2016 and crystal balls: a querulous look to the year ahead!

Robin Allen and Sian McKinley



TUC General Secretary’s inspiring address at DLA’s AGM

Catherine Rayner



Ebrahimian v France

Catherine Rayner



ECtHR finds no violation of A9 ECHR when contract with Muslim social worker who refused to remove her religious dress was not renewed.




Cameron Mathieson (by his father Craig Mathieson) v Secretary of State for Work and Pensions

Michael Potter



Applying the HRA, SC holds that the application of an ‘overlapping benefits’ provision to remove DLvA in respect of a severely disabled child in hospital for more than 84 days in circumstances where his parents continued to act as his primary care givers was discriminatory, contrary to A14 ECHR in conjunction with A1 of Protocol 1




Griffiths v Secretary of State for Work and Pensions

Naomi Cunningham



CA overturns EAT and ET decisions that the reasonable adjustment duty was not engaged where an absence management process was applied to a disabled employee, because the process would have been applied in the same way to a non-disabled employee with a similar level of absence. The correct comparator was an employee who, not being disabled, had a lower risk of sickness absence sufficient to incur attendance management and dismissal.




Naeem v Secretary of State for Justice

Peter Nicholson



CA dismisses appeal in indirect discrimination claim finding that it was necessary to establish the underlying reason for apparent disparate impact.




Pnaiser v (1) NHS England & (2) Coventry City Council

Peter Kumar



EAT overturns ET decision on evidence required to shift the burden of proof; it sets out the steps to take in a s15 EA disability related claim.




Kelly v Covance Laboratories Limited

Michael Reed



EAT upholds ET decision that instructions not to speak Russian in the workplace was not unlawful direct race discrimination or harassment.




Hak v St Christopher’s Fellowship

David Stephenson



EAT held that it was not an error of law for an ET to proceed with a preliminary hearing to consider striking out a claim where an interpreter had previously been requested but did not attend.




Bethnal Green and Shoreditch Educational Trust v Dippenear

Michael Newman



Indirect age discrimination claim fails on appeal due to lack of findings by ET about the employer’s practice, said to be replacing more experienced teachers with less experienced teachers.




EAD Solicitors & Ors v Abrams

Catherine Rayner



EAT upholds ET decision that an incorporated body is entitled to bring EA claim of direct discrimination where it suffers detrimental treatment because of the protected characteristic of someone with whom the company is associated.




R (application of Mrs Janice Hawke & Mr Jeremy Hawke) v Secretary of State for Justice

Gay Moon & Michael Newman



High Court rules that PSED is breached, but no declaration given due to s31(2A) CJCA; notes that repeated breaches, or claim supported by EHRC, may result in declaration.



Book review - Stop and search: the anatomy of a police power

Razia Karim


edited by Rebekah Delsol and Michael Shiner, Palgrave Macmillan, 2015




Editorial: Alert to the potential Editorial impact of Brexit

2016 is set to be another challenging year for discrimination lawyers and trade unions alike. With the starting pistol fired in the European referendum campaign this issue of Briefings takes a critical look at the serious challenges the June 23rd referendum, planned legislation and case law developments pose to UK’s equality rights and protections.

We report the hard-hitting message given by TUC General Secretary Frances O’Grady at the DLA’s AGM of the threats to equalities, workers’ rights and social justice in the UK. She gave concrete examples of how, instead of addressing the inequalities in our society, government policies are contributing to these widening gaps. A clear example of the negative impact of austerity measures is the SC judgment in Mathieson v DWP which concerned the withdrawal of Disability Living Allowance from parents of a severely disabled child who needed their 24/7 care even while in hospital. The SC ruled that the withdrawal of the allowance was in breach of both the child’s Article 14 ECHR rights and, because of the requirement to read the ECHR in harmony with the principles of international law, his rights under Article 3 of the UN Convention on the Rights of the Child and Article 7(2) of the UN Convention on the Rights of Persons with Disabilities.

It is timely then, that in her article considering how the main provisions of the UNCRPD can be used by practitioners to strengthen legal arguments in domestic discrimination cases, Catherine Casserley refers to the on-going UN inquiry into the UK. This inquiry is being conducted under the Optional Protocol to the UNCRPD, which allows the UNCRPD Committee to investigate a state party if it has received reliable evidence of ‘grave and systematic violations of the Convention’. The UK is the first country to be investigated by the UN in relation to this Convention. Investigations by the UN Committee are confidential but it is believed the inquiry will consider policies introduced by the Coalition Government since 2010 in relation to welfare and social security benefits, and in particular their compatibility with Articles 19 and 28: the rights of persons with disabilities to live independently and to enjoy an adequate standard of living.

On the major political issue of the UK’s continued EU membership and the forthcoming referendum, the TUC general secretary highlighted the impact of the EU on UK workers’ rights, including direct benefits such as limits on working time and the right to paid holidays for millions of workers. She underlined the fear that a future Conservative Government unfettered by European policy and the CJEU’s robust defence of workers’ rights, could sacrifice and further erode hard won workers’ rights.

In their article considering possible legal developments and challenges for discrimination lawyers in 2016, Robin Allen QC and Sian McKinley echo this theme arguing that Brexit would surely embolden equality’s enemies further. The overview of discrimination cases currently awaiting judgment underlines how far positive developments in discrimination are shaped by European jurisprudence.

With a poll of 4,000 UK voters commissioned by the TUC showing that 55% of the public would be more supportive of Britain's membership of the EU if it did more to help working people get decent pay and conditions at work, while only 23% would be more supportive if it did more to cut red tape on businesses, Frances O’Grady urged those of us who are pro-Europe to get involved in the debate: ‘despite its flaws, the EU model is by far the most workable and worker friendly economic system on offer in the world today. The social model of a Europe fit for the 21st century is worth holding onto and is preferable to the privatisation and libertarianism of the rest of the world’.

The message from our contributors is that we must make the pro-Europe case loud and clear. We don’t want to wake up one morning and find that the rights we have achieved, as members of the EU, have disappeared and we have allowed ourselves to sleep walk out of Europe.

Geraldine Scullion, Editor


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