#13676 - Discrimination - BPC Employment Law

Discrimination

General Principles

• Equality Act 2010

  • Before, lots of legislation in 1970s and Regulations since

  • EA brought in to consolidate. Repeals most previous discrimination law

  • Sets out 9 protected characteristics

    • Age

    • Disability

    • Gender Reassignment

    • Marriage and CP

    • Pregnancy and maternity

    • Race

    • Religion or belief

    • Sex

    • Sexual Orientation

    • (NEW: Kaltoft case has suggested weight may be a disability)

  • Some discrimination does not apply to all of the characteristics, e.g. pregnancy

• Common elements to all claims under EA

  • No qualifying service period and no need to be an employee (e.g. applicant for job can claim)

  • Uncapped compensation

  • Injury to feelings can be claimed

  • Vicarious liability

    • Employer can be liable for actions of employees or third party behaviour

  • Motive is irrelevant

  • Time limit is 3 months

    • From act complained of

    • Can be extended if just and equitable to extend

Direct discrimination – s.13

• Definition:

  • Person treats another less favourably than they would treat others because of a protected characteristic

• Application:

  • Applies to all protected characteristics

• Test:

  • Whether C would have received the same treatment but for their protected characteristic

  • Must have a comparator, real or hypothetical

  • Burden of proof on employee

• Discrimination by perception

  • Incorrectly thought to have a protected characteristic and discriminated against on that basis

• Discrimination by association

  • Discriminated against because of association with someone who has a protected characteristic

Indirect discrimination – s.19

• Definition

  • A discriminates against B if A applies to B a provision, criterion or practice which is discriminatory in relation to B’s protected characteristic

    • Provision = contractual/non-contractual policy

    • Criterion = self-explanatory

    • Practice – interpreted widely, look behind policies

  • Appears to treat everybody the same, where people are not the same

• Application

  • Applies to all except pregnancy and maternity

• Test:

  • A applies test to persons with whom B does not share the characteristic; OR

  • It puts or would put persons with whom B shares the characteristic, or B, at a particular disadvantage; OR

  • A cannot show it to be a proportionate means of achieving a certain aim

Victimisation – s.27

• Definition

  • A victimises B if he subjects B to detriment because he does a protected act OR A believes B has done a protected act

  • Can be post-employment

• Protected Act:

  • Bringing a claim under the Act

  • Giving evidence under the Act

  • Doing anything in connection with the Act

  • Making an allegation that someone has contravened the Act

Harassment – s.26

• Definition

  • Engaging in unwanted conduct relating to a relevant protected characteristic AND

  • The conduct has the purpose OR effect of violating V’s dignity or creating an intimidating, humiliating or offensive environment for B

• Application

  • Does not need to be ‘because of' a PC, just related to it

  • Employer must take reasonably practicable steps to prevent harassment from occurring

Evidential points

• Comparators

  • Used in discrimination but not harassment and victimisation

• Burden of proof – s.136

  • If facts that the court could decide that A contravened the provision concerned, they must hold that the contravention occurred

  • C must show that contravention occurred, D must show that he did not contravene the provision

Types of discrimination

• Race discrimination – s.9

  • Includes:

    • Colour

    • Nationality

    • Ethnic or national origins

    • Can include caste discrimination

  • Non-exhaustive list

• Religion and belief – s.9

  • Incudes:

    • Any religion OR lack of religion

    • Belief – any religious or philosophical belief OR lack of belief

  • Ladele and MacFarlane v UK

    • Refused because of religion to deal with homosexual couples (registrar and marriage counsellor)

    • Dismissals for refusal were not discriminatory

• Sexual orientation

  • Covers:

    • Homosexual and bisexual

    • Manifestations of sexual orientation, e.g. appearance, places visited, associations with people

      • English v Thomas Sanderson

        • Heterosexual man subject to homosexual banter because he had gone to a private school and lived in Brighton

        • CA found discrimination, even though heterosexual

• Age discrimination – s.5

  • Definition:

    • Can be any age group – widely defined

  • Defence:

    • Direct discrimination can be justified if necessary to achieve legitimate aim and proportionate

    • Take in to account health, safety of employees, facilitation of planning, training requirements, loyalty, etc.

  • Retirement

    • Default retirement age (65) scrapped

    • Can still ask someone to retire at 65 but must show it on above defence

    • Seldon v Clarkson and Jakes [2012]

      • SC found that it can be legitimate and proportionate to ask somebody to retire BUT was not proved here that 65 was correct age

  • Exceptions

    • Redundancy payments

    • National minimum wage

    • Provision of childcare facilities

• Disability discrimination – s.6

  • Definition:

    • Physical or mental impairment

    • Impairment has substantial and long term adverse effect on ability to carry out normal day to day activities

    • Long term:

      • Lasted/expected to last more than 12 months

  • Excluded:

    • Hayfever

    • Alcoholism

  • Discrimination arising from disability – s.15

    • Where A discriminates against B because of something arising in consequence of their disability

    • Employer can show justification as a proportionate means of achieving a legitimate aim

    • E.g. Not direct discrimination if fired for taking 6 months off because of disability (would have fired anyone) but can show that there was discrimination as a result of disability, so s.15 applies

  • Duty to make reasonable adjustments – s.20

    • Where B at a substantial disadvantage in relation to a relevant matter in comparison with someone who is not disabled, A must take reasonable steps to avoid the disadvantage

    • Can be:

      • Provision/practice

      • Physical...