#9736 - Ws5 Equality In Employment Part 1 I Tutorial

INTRO
THE DISCRIMINATION CLAIM	HAS THERE BEEN AN UNLAWFUL ACT BASED ON ONE OR MORE OF THE PROTECTED CHARACTERISTICS? May be the refusal to hire a particular applicant; subjecting an employee to detriment such as refusing him a pay rise or selecting him for dismissal Treatment will only be unlawful if it is due to one of the protected characteristics… So if the reason for an employee’s dismissal was his racial origin or sexual orientation, that selection will be unlawful – the protected characteristics are linked and operate together to establish discrimination WHICH OF THE EQUALITY ACT 2010 CLAIMS IS APPROPRIATE? Possible for one unlawful act to form more than one claim DOES THE ACT PROVIDE AN EXCEPTION OR SPECIFIC DEFENCE TO THE CLAIM? For some claims there are specific exceptions and defences; example – in claims of direct discrimination the employer may be able to prove that the alledged discrimination is covered by the genuine occupational requirement exception… and for claims of indirect discrimination, defence of justification Claims for harassment and victimisation – no specific defences available to the employer IS THE EMPLOYER VICARIOUSLY LIABLE FOR THE ACT OF DISCRIMINATION WHICH LED TO THE CLAIM? Most acts are not committed by an employer but by a colleague; e.g. bullied on grounds of race or denied a promotion on grounds of sex Employer is liable if the act are carried out in the course of employment Employer can defend all discrimination claims on the basis that they aren’t vicariously liable for the discrimination, they can argue that it was outside the course of employment (‘frolic of his own’) or that he has taken all reasonable steps to ensure that the discrimination didn’t occur and shouldn’t be held liable IF THE CLAIM IS SUCCESSFUL… WHAT ARE THE APPROPRIATE REMEDIES FOR THE CLAIM BEING MADE? EA2010 – tribunal can make a declaration as to the rights of the parties, make an order for compensation, and make a recommendation of steps to be taken to reduce the effect of the discrimination
EQUALITY ACT 2010 – UNLAWFUL ACTS & PROTECTED CHARACTERISTICS	ELIGIBILITY EA2010 applies to: IDENTIFY THE UNLAWFUL ACT In recruitment – how the job is advertised; how the interviews are carried out; the terms on which the job is offered; refusing certain people During employment – Unlawful to victimise an employee for enforcing their rights under the EA 2010 Harassment of an employee is also an unlawful act IS THE REASON FOR THE TREATMENT ONE OF THE PROTECTED CHARACTERISTICS?
ACTIVITY 1 – PROTECTED CHARACTERISTICS - AGE	Very far reaching… important exceptions:
EA 2010 – PROTECTED CHARACTERISTICS	GENDER REASSIGNMENT Explanatory notes: “a person born physically female decides to spend the rest of her life as a man. He defies not to seek medical advice and successfully passes as a man without any medical intervention. He would be undergoing gender reassignment for purposes of the Act.” MARRIAGE AND CIVIL PARTNERSHIP The latter could potentially be indirect discrimination but the employer could objectively justify it RACE Needed a thorough review in EA2010… Can be problems in determining whether a person is of a particular ethnic origin: RELIGION OR BELIEF It will be up to the tribunal whether to determine something is a valid belief or not Take into account factors such as collective worship, clear belief system, profound belief affecting way of life… climate change belief was cogent, serious, coherent and worthy of respect in a democratic society… therefore it is a belief that should be protected. Exceptions in 9.1 SEXUAL ORIENTATION
ACTIVITY 2 – PROTECTED CHARACTERISTICS - RACE	Charles is FALSE because Rastafarianism is a belief, so he would not bring the claim under RACE but instead RELIGION OR BELIEF
EQUALITY ACT 2010 – THE BURDEN OF PROOF	S.136
EQUALITY ACT 2010 – DISCRIMINATION CLAIMS	Having identified an unlawful act based on a protected characteristic… the next step is to decide which of the equality Act claims will be the appropriate ones to make Information regarding each claim:
VICARIOUS LIABILITY	Respondent has two options in regards to defending the claim: Use any specific defence available in relation to particular claim made (e.g. proportionate means of achieving legitimate aim in indirect discrimination cases (objective justification)) (e.g.2 in direct discrimination, employer can argue that their treatment came within the occupational requirement exception in Sch.9 Act) Argue that they are not vicariously liable for the treatment VICARIOUS LIABILITY Acts of discrimination will sometimes be committed by employer (e.g. ‘successful applicant must be male’; shift pattern with discriminatory effect) The majority of acts of discrimination however will be committed by an one’s fellow employee or manager; e.g. the claimant’s manager fails to promote the claimant on racial grounds; although the discriminatory act has been committed by somebody else, the employer may be liable vicariously S.109 states that employers are vicariously liable for their employee’s acts of discrimination as long as they are committed within the course of employment; possible for employer to avoid liability by showing that the discrimination did not occur in the course of employment They can also show that they took all reasonable steps COURSE OF EMPLOYMENT Number of cases (under previous legislation) where the phrase was considered Clear that the employer will be liable for acts by the employee carried out while actually at work. This will be the case whether or not the employer authorised the discriminatory act Also been established that employers will be liable for acts carried out at organised social outings such as Christmas parties Stubbs – sexual harassment at social gatherings There is a limit on this – Aerospace – family day out at the weekend where the majority of those attending were family and friends of employees ALL REASONABLE STEPS TO PREVENT DISCRIMINATION If the discrimination did take place in course of employment, employer may still avoid liability under this point To argue this employer will have to produce evidence of employment policies and training to ensure that employees know how to operate policies… Discrimination should be covered in disciplinary rules and allegations should be properly investigated CLAIMS AGAINST DISCRIMINATOR Claimant can take action against the individual concerned as well the employer Even possible where employer isn’t liable
REMEDIES	Tribunal decide which are most appropriate Three options:

#9736 - Ws5 Equality In Employment Part 1 I Tutorial - Employment Law

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