#14965 - Equality In Employment - Employment Law

Equality in employment

Protected characteristics

Section 4 Equality Act 2010

• Age (s5)

• Disability (s6)

• Gender reassignment (s7) – proposing to undergo, has undergone or is undergoing a reassignment process

• Marriage/civil partnership (s8) – engaged is not sufficient, divorced/dissolved not protected

• Race (s9) – colour, nationality ethic or national origins, racial groups (Jews race and religion)

• Religion/belief (s10) – religious group, lack of religious belief, or having beliefs – must be genuinely held

• Sex (s11)

• Sexual orientation (s12)

• Pregnancy/maternity (s18)

Types of discrimination claims

• Direct discrimination

• Indirect discrimination

• Harassment

• Victimisation

• Instructing, causing, inducing or helping discrimination

Unlawful acts

• Discrimination in:

  • Recruitment

  • Promotion

  • Dismissal

  • Harassment

  • Post-employment matters

  • Subjecting person to a detriment

Direct Discrimination (“DD”)

• Eligibility

Time limit = 3 months from act of discrimination – just needs to give written notice to employer of intent to bring claim no need to commence

• Unlawful act

Discrimination in:

• Recruitment

• Promotion

• Dismissal

• Harassment

• Post-employment matters

• Subjecting person to a detriment

• Protected characteristic?

  • Identify the Protected characteristic (“PC”) (e.g. sex, disability, age, pregnancy)

  • Have they been treated differently/less favourably?

    • Covers any disadvantage – does not require a tangible loss

    • Deprivation of choice is sufficient

    • Assumptions based on stereotype can be DD

    • Objective test: whether the complainant would have been treated differently and more favourably had it not been for the PC (i.e. the reason for the treatment must have been the PC)

      • If PC was at least one of the reasons for treatment = DD

  • Actual/hypothetical comparator – a person who does not share the same PC as the complainant, but who is (or assumed to be) not materially different from them – if the comparator has (or would have been) treated differently to the complainant, they have been treated less favourably.

    • Where a suitable comparator is not available, the court will use the hypothetical comparator

  • Reason why question – why was the complainant treated as he was? Was the treatment because of the PC? – important but only on the facts (not the motive itself)

• Burden of proof?

  • Shifting burden of proof

    • Burden on claimant to show the facts that point to a breach of the Equality Act (balance of probabilities)

    • Burden on the respondent to show there was not a breach and offer an explanation (remember: no defence to DD)- subjective non-discriminatory reason for why they acted as they did

• Occupational requirement exception?

  • Having regard to the nature/context of the work, it will not be DD if it can be shown that there is an occupational requirement for the act.

  • Requirement must be crucial to the post

  • Must not be a sham or pretext

  • Must be a proportionate means of achieving a legitimate aim

  • Must be necessary for proper performance of the post

    • i.e. authenticity (black actors for black role),privacy/decency (same sex), public safety (culture or conflict)

• NO DEFENCE

• Vicarious liability?

Employer will be liable for the acts of its employee unless it took all reasonably practicable steps to stop or avoid the discrimination – DEFENCE to vicarious liability only (not to the DD itself) (Jones v Tower Boot Co / CC of Lincolnshire Police v Stubbs) (s109(4))

• Remedies

• Declaration of employee rights (like a judgment)

• Recommendations (only in relation to that employee – cant give power to promote)

• Compensation (no max)

  • Pecuniary losses – loss arising from the DD itself (put the C in position he would have been had it not been for the DD)

  • Aggravated damages – only where employer acted in high handed, malicious or insulting or oppressive manner

  • Injury to feeling – almost inevitable – compensatory in nature

    • Vento bands

      • lower band (min 500 max 6,600) – isolate incidents, less serious

      • middle band (min 6,600 max 19,800) – serious cases not meriting top

      • upper band (min 19,800 max 33,020) – only to most serious cases

    • example: Lokhova v Sherbank – awarded 4.5m and 3.2m in DD and harassment claim

  • Psychiatric/physical injury – compensation for any physical or mental injury caused by the DD – need medical evidence – risk of double recovery for injury to feeling/psychiatric

  • Exemplary damages – rare – arbitrary and outrageous use of executive power – most serious only

  • Deductions for: accelerated receipt, contributory act (also deduction for any overlapping claims)

  • Tribunal may award interest at ET rate = 8%

  • ACAS 25% increase/decrease

Indirect Discrimination

1. Eligibility

Time limit = 3 months from act of discrimination – just needs to give written notice to employer of intent to bring claim no need to commence

2. Unlawful act

Discrimination in:

• Recruitment

• Promotion

• Dismissal

• Harassment

• Post-employment matters

• Subjecting person to a detriment

3. Protected characteristic

• PCP (provision, criterion or practice)

  • Covers formal and informal working practices

  • Allows for examination of policies and working practices that do not operate as absolute requirements for the role (e.g. working hours, recruitment selection, promotion)

  • PCP must apply equally to all

• Employee at particular disadvantage compared to others?

  • Complainant must show that the PCP is a disadvantage to his group

  • Pool of comparison? – pool must be people with the same characteristics as the C (wrong pool = error in law)

• Has C suffered a disadvantage?

  • Must suffer a disadvantage and show that the PCP caused that disadvantage

  • Disadvantage must arise in the employment field

  • Examples – not getting promoted or being dismissed

4. Defence

• Can Employer show the PCP was a proportionate means of achieving a legitimate aim? = DEFENCE

• Balancing exercise between degree of discrimination and object/aim to be achieved taking into consideration all the circumstances

• ‘proportionate’ = appropriate and necessary (Homer v CC West Yorkshire Police)

• Is there another way around the issue rather than the action taken? Yes = No defence

• Burden of proof – on the employer to show that there is cogent evidence that the justification defence is made out

5. Remedies

• Declaration of employee rights (like a judgment)

• Recommendations (only in relation to that employee – cant give power to promote)

• Compensation (no max)

  • Pecuniary losses – loss arising from the DD itself (put the C in position he would have been had it not been for the DD)

  • Aggravated damages – only where employer acted in high handed, malicious or insulting or oppressive manner

  • Injury to feeling – almost inevitable – compensatory in nature

    • Vento bands

      • lower band (min 500 max 6,600) – isolate incidents, less serious

      • middle band (min 6,600 max 19,800) – serious cases not meriting top

      • upper band (min 19,800 max 33,020) – only to most serious cases

    • example: Lokhova v Sherbank – awarded 4.5m and 3.2m in DD and harassment claim

  • Psychiatric/physical injury – compensation for any physical or mental injury caused by the DD – need medical evidence – risk of double recovery for injury to feeling/psychiatric

  • Exemplary damages – rare – arbitrary and outrageous use of executive power – most serious only

  • Deductions for: accelerated receipt, contributory act (also deduction for any overlapping claims)

  • Tribunal may award interest at ET rate = 8%

  • ACAS 25% increase/decrease

Disability Discrimination

Failure to make reasonable adjustments (s20, 21, 22)

1. Eligibility

Time limit = 3 months from act of discrimination – just needs to give written notice to employer of intent to bring claim no need to commence

2. Disability

• Physical/mental impairment

  • No definition in the Act – given ordinary meaning

  • Not necessary to consider how the impairment was caused

  • Doesn’t include addictions or hay fever

  • Example: asthma, progressive diseases, depressions, OCD, eating disorders, cancer, dyslexia

• Long term

  • Has lasted, or is likely to last, at least 12 months

  • To be answered as at the date of the DD allegations

  • ‘Likely’ = could well happen (not just more likely than not) (i.e. 51%)

  • If they are likely to recur beyond 12 months after the first occurrence the condition is to be treated as being long term, even if gaps occur between flare ups

• Substantial

  • no need to show substantial effect for progressive conditions (e.g. arthritis)– but need to show there is an effect

  • More than minor or trivial (s212(1))

  • Time to carry out activity, cumulative effects of the impairment, effect of behaviour, effect of environment – could be compared to a person without condition as comparator

• Adverse effect on normal day to day activities

  • ‘day to day activities’ given literal meaning, i.e. shopping, eating, getting dressed

  • Paterson v Commissioner of Police of the Metropolis – includes activities relevant to participation in professional life including exams, and assessments

  • Making adjustments to enable the person to be able to do activities will not prevent finding that their overall ability has had an adverse effect

  • Focus on what they can’t do, or can only do with difficulty

• NB. cancer, HIV/Aids, multiple sclerosis = do not need to satisfy disability definition, automatically classified as disabled on diagnosis

3. Unlawful act

• Discrimination in:

  • Recruitment

  • Promotion

  • Dismissal

  • Harassment

  • Post-employment matters

  • Subjecting person to a detriment

4. Reasonable adjustments

• Was employer under duty to make reasonable adjustments?

  • Employer can be liable for failing to take positive steps to overcome issues

  • Duty applies in recruitment, during all stages of...