#9730 - Equality In Employment Part 2 I Tutorial - Employment Law

Occurs where the respondent imposes a practice or requirement on everyone, but the requirement has an adverse effect on persons possessing a particular protected characteristic

4 conditions to be satisfied:

RESPONDENT APPLIES A PCP TO ALL PERSONS

May be a condition of the employment, a recruitment policy, a non-contractual works policy or another factor which the respondent considers to be desirable rather than essential

PUTS PERSONS WITH THE CLAIMANT’S PROTECTED CHARACTERISTIC AT A PARTICULAR DISADVANTAGE

Claimant has to give evidence:

Number of those who can comply with the new provision from group 1 and group 2 – difference of more than 5% = finding of ID

Each side will want to choose a pool which favours their case; respondent will want a pool in which the proportion of the group which suffer a disadvantage is small; however the claimant will want to choose a pool in which the group is large; ultimately for the tribunal to decide

Tribunal moving away from stats based so to decide this may use general sociological evidence; for example more women than men have childcare responsibilities so imposition of a shift pattern would put women at a particular disadvantage (London Underground v Edwards):

Although difference less than 5%, tribunal decided that the provision did put claimant’s sex at disadvantage due to bottom statistic; upheld by CA

THE PCP IS TO THE CLAIMANT’s DISADVANTAGE

Proved by the Claimant demonstrating that they cannot comply with the PCP

If the first 3 stages are established there will be a finding of IA unless… respondent shows that it was proportionate means of achieving a legitimate aim

PROPORTIONATE MEANS OF ACHIEVING LEGITIMATE AIM

Respondent can avoid liability if it can objectively justify it, usually on the grounds of business efficacy

Must demonstrate:

E.g. employer introduces new working hours whereby everyone has to work late on a Friday; one employee says this amounts to religious discrimination; she’s Jewish and has to be home early on a Friday; boss may be able to objectively justify this change in hours by showing that the staff are needed to sort out the weeks’ accounts

Either:

Did not occur in course of employment; or

Took all reasonable steps to ensure that the discrimination did not take place