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E law > 1. DD > Flashcards

1. DD Flashcards

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1
Q

WHAT RELIGIONS ARE DEEMED ETHNIC GROUPS (thus falling within s.9?)

A

SIKHS (Mandla v Dowell-Lee)

JEWS (JFS)

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2
Q

Pel Ltd v Modgill

A

If the protected characteristic is race = less favourable treatment includes segregation but not congregation, if this is the wishes of those concerned

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3
Q

Coleman v Attridge Law [2010]

A

DISCRIMINATION BY ASSOCIATION IS DIRECT DISCRIMINATION

  • disabled son, mother had to take time off worth
  • s.13 says “a protected characteristic” not “B’s protected characteristic”
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4
Q

CHEZ v Nikolova [2015]

A

GROCER SHOP in district mainly inhabited by Roma persons

  • DD must apply in
  • DD if LFT affects:
    ONE = those of a certain ethnic origin OR
    TWO = those who, without possessing that origin, suffer together with ONE
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5
Q

TYPES OF DD

A

discrimination by association
perceptive discrimination
deterred discrimination

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6
Q

Centrum v Firma Feryn [2008]

A

s.13 said “would” too

  • if advert makes clear you WOULD treat people less favourably that is sufficient
  • e.g. won’t hire Morrocans
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7
Q

Saunders v Richmond BC

Brennan v Dewhurst Ltd

A

DD = questions/statements in interviews

e.g. “are you planning on having children?” (this Q sets up inference, unless rebutted, that they are planning less favourable treatment, pregnancy discrimination is linked to sex discrimination)

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8
Q

Batisha v Say

A

Jobs not offered because they are ‘a man’s/woman’s job’ = DD

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9
Q

Zarczynska v Levy

A

DD = Dismissal

incl. dismissal in this case for refusing to obey order not to serve coloured persons in a bar (discrimination by association)

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10
Q

Abbey National v Formoso

A

WIDE DEFINITION OF DETRIMENT

woman couldn’t attend disciplinary hearing because of pregnancy related illness and was dismissed = detriment

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11
Q

Day v T Pickles Farms

A

WIDE DEFINITION OF DETRIMENT

failure to carry out risk assessment when employing women of a child-bearing age as required by reg.16 Management of H&S at work = detriment

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12
Q

Coyne v HO

A

WIDE DEFINITION OF DETRIMENT

• failure to investigate allegation of sexual harassment = detriment

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13
Q

Jeremiah v MOD

A

Detriment can exist even if employee compensated for it

employer didn’t require women to do certain dirty work because they didn’t want to shower after

MEN were required to do it (detriment) even if they are paid for it still detriment

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14
Q

James v Eastleigh Borough Council [1990]

A

BUT FOR TEST
- benign motive can be discriminatory

but for the sex/race of complainant, would s/he have been treated differently (that is, more favourably)? If yes, there has been DD

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15
Q

Skyrail Oceanic Ltd v Coleman

A

A person can discriminate directly even if he is unaware he is doing so

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16
Q

advantages of but for test

A
  • avoids Q of motive
  • modern discrimination is covert and unintentional (Stereotypes are engrained)
  • but for means no need to show racial motive (very hard to prove exists)
  • fairer for victim (who only needs to show differential treatment on basis of protected characteristic)
17
Q

R v Birmingham CC ex parte EOC

A

Female candidates had to satisfy a higher requirement to get into the school (less places for girls in the area)

= DD
- but for test

18
Q

Chief Constable v Khan [2001]

A

HL suggested but for is ‘too low a threshold on the complainant’

  • introduced a more subjective test looking at whether R acted “honestly and reasonably”
  • consider subjective intent!
19
Q

Shamoon v Chief Constable

A

NOT INTENTION BASED TEST

2 stage test:

  1. less favourable treatment
  2. reasons why can be analysed

ET can consider subjective intent but that isn’t decisive

ULTIMATLY: OBJECTIVE CAUSATION BASED TEST

20
Q

R v JFS

A

Benign motive defence was rejected by SC – confirmed but for test

EXCEPTION: can look at subjective intention in less obvious cases
- but only to determine motivation/ground of mistreatment to see if it is on a PC ground

  • A TEST for matrilineal dissent = DD requirement on basis of race (but for not being ethnically Jewish, she would have been treated more favourably)
21
Q

Amnesty International v Ahmed

A

SC rejected benign motive defence

  • no objective justification for DD
  • benign motive is not a defence
  • strict causation analysis
  • controversial because this case conclusion seemed unjsut
22
Q

Bull v Hall [2013]

A

UK SC

  • discrimination against person in civil partnership = DD on grounds of sexual orientation
  • but for causation analysis

can’t justify on basis of religion

23
Q

Wakeman v Quick Corporation

A

Japanese managers paid more

  • not appropriate comparator
  • comparator cannot be in materially different circumstances
  • here they were, had to emigrate
24
Q

Shamoon v Chief Constable (comparator)

A

Where no actual comparator exists and employment tribunal is obliged to create a hypothetical one

BUT this is qualified as hypothetical comparator must be in materially similar circumstnaces

25
Q

Turley v. Allders

A

PREGNANCY CASES

at first no comparator
- no DD

26
Q

Dekker v. VJV-Centrum

A

Pregnancy = special situation where no comparator is needed

only women can become pregnant
discrimination because of pregnancy is discrimination because of sex

27
Q

Webb v. EMO Air Cargo (UK) Ltd [1995]

A

E employed as maternity leave cover but E was herself pregnant

  • DD
28
Q

Tele Danmark A/S

A

DD

  • no need for comparator
  • ECJ held there was less favourable treatment and you cannot justify DD
  • tough on R because E hired her as maternity leave cover but she was herself pregnant
29
Q

DeGraffenreid v General Motors (1976)

A

can’t bring a claim on behalf of “black women”
- must pick either DD as woman or DD as black person

USA case
bad decision because it meant no DD

30
Q

Igen Ltd. and Others v Wong [2005]

A

BOP shifts to some degree

  1. C must prove inference of discrimination (showing sufficient grounds for ET to infer that C was subjected to DD)
  2. if complainant has done this, BOP shifts to R to prove he did not commit

C DOESN’T NEED TO SHOW ON BALANCE OF PROBS THAT DD HAPPENED
-makes Discrim law more effective

E law (6 decks)

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