#15481 - Discrimination - Employment Law

Discrimination

Equality Act 2010

• Job applicants, employees and workers are protected - ss.39 – 40 EA10.

• Protected characteristics: s.4

  • Age - s.5 (by reference to an age/range of ages)

• Disability - defined in s.6

  1. Physical/mental impairment (affects normal day to day activities)

     • Goodwin v Patent Office: focus on what claimant cannot do/cannot do without difficulty.

     • Pyromania, alcohol and drug abuse are specifically excluded under the 2010 Regs.

     • Power v Panasonic: need not consider cause of impairment.

  2. has a long term, substantial adverse effect.

     • s.212(1): substantial = more than minor/trivial (consider effect of impairment rather than severity)

     • Schedule 1, paragraph 2(1): long-term = lasted/likely to last at least 12 months or the rest of the person's life (whichever shorter)

       • Determined at date of hearing

       • Recurring/fluctuating conditions can count - likely recurrence (Sch.1 para 2(2))

         • SCA Packaging v Boyle: likely = 'could well happen'.

• People suffering from HIV, cancer and multiple sclerosis are to be considered disabled from the point of diagnosis (Schedule 1, paragraph 6), and sufferers do not have to prove all of the elements set out above (Schedule 1, paragraph 9)

• Claims: Includes discrimination for association with a disabled person (carers)

  • Direct discrimination - s.13(1) (comparator = someone without claimant's disability but whose circumstances are not otherwise materially different - s.23(1) and (2))

• Indirect discrimination

• Discrimination arising from disability - s.15 (no comparator needed)

  1. Unfavourable treatment due to disability

  2. Not a proportionate means of achieving a legitimate aim

  3. Causal link (can be very loose)

  4. Defence = employer did not know/could not reasonably be expected to know that the claimant was disabled

• Failure to comply with duty to make reasonable adjustments in s.20

  • Applies at all stages of employment process:

    • s.20(3): changing the way things are done

    • s.20(4): changing the build environment

    • s.20(5): providing aids and services

  • s.21: failure to comply = discrimination

    • Cannot pass on cost to employee

    • Positive obligation to consider reasonable adjustments

    • No justification for failing to make reasonable adjustments (Schedule 8, paragraph 20: unless employer does not know of disability)

    • Poor practice & employer's own policies are useful

• Harassment

• Victimisation

• Race - s.9 (includes: colour, (legal) nationality, ethnic or national origin)

  • BBC Scotland v Souster: England and Scotland = different national origins.

  • Mandla v Lee: ethnic group =

    1. Long shared history, distinguishing it from other groups

    2. Cultural tradition of its own including family/social customs

  • Chandhok & Anor v Tirkey: ethic origins = wide enough to encompass caste.

• Religion or belief - s.10

  • Religious/philosophical belief or lack thereof

  • Philosophical belief = genuinely held, not opinion/view, as to weighty and substantial aspect of human life, certain level of cogency/seriousness, be worthy of respect in a democratic society.

    • Nicholson v Grainger PLC: belief in climate change upheld.

• Sex - s.11

  • NB. Contractual protections for equal pay

  • NB. Equality Act (Gender Pay Gap Information) Regulations 2016 - April 2017

• Sexual orientation - s.12(1)

• Gender reassignment

• Marriage/civil partnership

• Pregnancy/maternity

• Prohibited conduct:

  1. Direct discrimination - s.13(1) - treated less favourably

     1. Protected characteristic (whether actual, perceived or associated with another who has a protected characteristic)

     2. Treated less favourably: compared to treatment of others even if hypothetical (comparator whose circumstances cannot be materially different from the claimant's - s.23)

     3. Causal link

Defences: Schedule 9, paragraph 1

• Protected characteristic is an occupational requirement (genuinely crucial to the post); &

• Application of requirement is a proportionate means of achieving a legitimate aim; &

• Person to whom it is applied does not meet it (to the reasonable satisfaction of the person who applies it - except sex)

Schedule 9, paragraph 2

• Applies specifically to ministers of religion

Age discrimination defence: s.13(2)

• Proportionate means of achieving a legitimate aim

• Schedule 9: other specific exceptions relating to age (pay, minimum wage, enhanced redundancy payments, life assurances, job applicant at/nearing retirement age)

• Seldon v Clarkson, Wright and Jakes: compulsory retirement age was directly discriminatory but that that retirement age was capable of being a proportionate means of achieving a legitimate aim - i.e. staff retention and workplace planning.

2. Indirect discrimination - s.19

   • Provision appears neutral but causes a disadvantage to one group

1. Provision, criterion or practice applied/would be applied (PCP imposed)

2. Put claimant's group at a particular disadvantage (comparison between 'pools' of people - statistics are useful as proof)

3. Put claimant at a disadvantage (personal disadvantage)

4. Can employer show PCP was a proportionate means of achieving a legitimate aim (objectively balance effect on claimant with reasonable needs of employer)

   • CHEZ Razpredelenie Bulgaria: potentially widens scope - need not show protected characteristic yourself, enough to be part of a disadvantaged group.

3. Harassment - s.26

   1. Unwanted conduct (consider what perpetrator should have known)

      • E.g. Moonsar v Fiveways: downloading porn in same room as female claimant.

   2. Purpose or effect (intention of harasser is irrelevant)

   3. Violating dignity/creating intimidating, hostile, degrading, humiliating or offensive environment

      • Combination of objective test of reasonableness with employee's subjective perception (s.26(4))

      • Harassment of a sexual nature = s.26(2)

      • Submission to / rejection of harassment = unlawful to treat a person less favourably for this reason (s.26(3))

Defences:

• No vicarious liability if employer can show it took such steps as were reasonable to prevent unlawful discrimination (s.109(4)).

  • Only applicable to action taken before the perpetrator carried out the harassment.

Victims can claim under the Protection from Harassment Act s.3

• Against employee OR employer.

4. Victimisation - s.27

   1. Protected act (s.27(2): claim under EA10, giving evidence/information in connection with EA10 proceedings, doing anything in connection with EA10, making an allegation of contravention of EA10)

   2. Subjected to detriment (no need for comparator)

   3. Causal link (irrelevant if subjected to detriment consciously or subconsciously)

Defence

• No protection if allegation made was false/in bad faith (s.27(3))

NB. Dual discrimination - s.14 (not yet in force)

Procedure

• Complaints to the Employment Tribunal

  1. No qualifying length of service

  2. Available to workers

  3. 3-month time limit to claim from ACAS early mandatory conciliation (s.123(1)(a))

     • ET can extend time limit under the 'just and equitable' rule (s.123(1)(b))

     • Encouraged to use grievance procedure or ACAS principles first.

       • Can increase award by 25% if employer fails to follow ACAS

       • Can decrease award by 25% if employee fails to follow ACAS

  4. No need to be in employment (job applications must be genuine)

  5. No statutory cap on compensation

  6. Employers are vicariously liable for the discriminatory acts of employees in the course of their employment (s.109(1))

     • Consider whether to claim against individual or employer. Usually employer.

       • Direct discrimination and victimisation: may be appropriate to sue individual - employee acting on a 'frolic' of their own.

       • Harassment: respondents normally employer and individual employees responsible.

  7. Burden of proof: s.136(2) and (3)

     • Claimant to prove on the balance of probabilities that the respondent committed an act of unlawful discrimination.

       • Can use evidence of discrimination from outside the 3 month time limit to prove present claim.

       • Can also use previous internal complaints as evidence.

       • Witness statements

       • Medical evidence/reports in disability discrimination cases.

     • Respondent must demonstrate an adequate explanation for the discrimination (may include raising a statutory defence)

       • Claimant's counsel will seek to discredit this explanation.

  8. Equality and Human Rights Commission = statutory body

  9. Code of Practice from the EHRC - admissible as evidence

  10. Key guides from ACAS

Asking questions of the employers - ACAS best practice guide

• Can be raised informally in writing by claimant

• No obligation for respondent to respond

• No time limit for submitting questions or responses

• ET may not draw adverse inferences from failure to respond/evasive responses but can consider this as a contributory factor

Remedies: s.124(2)

1. Declaration

2. Recommendation for specified steps to obviate/reduce adverse effect on claimant

3. Award of compensation that is just and equitable

   • Loss of earnings/benefits past and future

   • Injury to feelings

     • Chief Constable of West Yorkshire v. Vento:

       1. Most serious cases = 18,000 - 30,000 (e.g. where lengthy campaign)

       2. Serious cases not meriting highest award = 6,000 - 18,000

       3. Less serious cases (isolated/one off act) = 600 - 6,000

       4. Minimum 500 should be avoided altogether as may not be proper compensation

       • Da’Bell v NSPCC: account for inflation.

       • Simmons v Castle & Pereira de Souza: presently no 10% increase.

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