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Employment law Principles > Chapter 5 Discrimination > Flashcards

Chapter 5 Discrimination Flashcards

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1
Q

Name the 9 protected characteristics and accompanying section of Equality Act 2010

A

Age s5
Disibility s6
Gender reassignment s7
Marriage and civil partnership s8
pregnancy and maternity
Race s9
Religion or relief s10
sex s11
sexual orientation s12

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2
Q

Name the 6 prohibited conducts and accompanying section from Equality Act 2010

A
  1. Direct discrimination s13
  2. Indirect discrimination s19
  3. Harassment s26
  4. victimisation s27
  5. Discrimination arising from disability s15
  6. Pregnancy and maternity discrimination at work
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3
Q

What are the 4 exceptions for discrimination?

A
  1. OR - authenticity/realism
  2. Religious requirement
  3. Ethos based on religion/belief
  4. Retirement
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4
Q

What are the socially accepted exclusions under EA (Disability) Regulations 2010

A
  1. pyromania
  2. kleptomania
  3. Voyeurism
  4. drug addiction
  5. alcoholism or addiction to smoking
  6. hay fever
  7. needing glasses
  8. tattoos
  9. body piercing
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5
Q

What are the specifically included disabilities under EA (Disability) Regulations 2010

A

HIV
Cancer
multiple sclerosis

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6
Q

What guidance did the EAT set down in Nicholson v Grainger Plc and Others (2010)

A
  1. the belief must be genuine
  2. the belief is not an opinion or viewpoint
  3. must be weighty and substantial aspect of life and behvaiour
  4. belief must be serious and important
  5. the belief must not be incompatible with human dignity or conflict with the fundamental rights of life.
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7
Q

What is the definition of direct discrimination?

A

A treats B less favourably than others because of the prohibited characteristic.

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8
Q

What is the definition of indirect discrimination?

A

A discriminates against B if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

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9
Q

List when a provision, criterion or practice will be discriminatory.

A

a) A applies or would apply it to persons with whom B does not share the characteristic, (compare against non protected characteristic)
b) it puts, or would put persons with whom B shares the characteristics at a particular disadvantage when compared with persons with whom B does not share it (puts at disadvantage compared with non protected people)
c) it puts or would put B at that disadvantage, and
d) A cannot show it to be a proportionate means of achieving a legitimate aim.

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10
Q

What is the justification for direct discrimination

A

The only justification will be for age, otherwise there is no justification for direct discrimination.

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11
Q

What justification can be used for indirect discrimination and who has to show it?

A

a proportionate means of achieving a legitimate aim. It is up to the employer to show justification.

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12
Q

What is associative indirect discrimination?

A

is when a person is subjected to less favourable treatment because somebody they know or are associated with possesses a protected characteristic.

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13
Q

What are the three ways somebody can harass?

A
  1. unwanted conduct relevant to protected characteristic
  2. unwanted conduct of a sexual nature
  3. unwanted conduct of a sexual nature or that is related to gender reassignment or sex

all which violates B’s dignity or creates an intimidating hostile, degrading, humiliating or offensive environment

and for the third one, A treats B less favourably because B has rejected or submitted to the conduct.

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14
Q

What is the section where the employer is vicariously liable for acts of employees?

A

s109

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15
Q

What defence can an employer use for harassment?

A

That they have taken significant steps to stop the conduct (written warning is not enough).

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16
Q

Give examples of unwanted conduct?

A
  1. suggestive remarks and behaviour
  2. interference with clothing
  3. questioning about partners and sex with partners
  4. offensive remarks or written material
17
Q

What is the definition for victimisation?

A

S27 offers protection for people who have been detrimentally treated because of a protected act.

18
Q

What are protected acts?

A
  1. bringing proceedings under EA 2010
  2. giving evidence or information in connection with proceedings under EA 2010
  3. doing any other thing for the purposes of or in connection with EA 2010.
  4. making an allegation (whether express or not) that the employer or another person has contravened EA 2010.

Refusal to pay compensation under EA 2010 is a form of victimisation.

19
Q

What are the other two forms of protection disabled people have?

A
  1. s15 protects disabled people from discrimination arising from disability.
    a) A treats B less favourably because or something arising in consequence to B’s disability; and
    b) A cannot show that the detriment was a proportionate means of achieving a legitimate aim.
  2. s20 requires employers to make reasonable adjustments.
20
Q

What is the two part test for a tribunal finding a link between something arising (disability) and the dismissal?

A

s15(1)(a) EA 2010

  1. Did A treat B unfavourably because of something?
  2. Did that “something” arising from a disability?
21
Q

What are the three requirements under s20 for reasonable adjustments?

A
  1. if a provision puts a disabled person at a disadvantage compared with non-disabled person then the employer must take reasonable steps to avoid this disadvantage.
  2. if a physical feature puts a disabled person at a disadvantage then the employer must take reasonable steps to avoid that disadvantage.
  3. if a disabled person is at a disadvantage unless it had an auxiliary aid then the employer must take reasonable steps to provide an auxiliary aid.
22
Q

Who has the burden of proof?

A

Employees provide facts only. The burden of proof is on the employer to provide a defence.

23
Q

What is the supreme court’s guidance on direct age discrimination legitimate aims?

A

Intergenerational fairness:
- access for young people,
- enabling older people to stay in workforce
- sharing limited opportunities to work a particular profession fairly between the generations
- promoting diversity

Retirement with dignity
- avoiding dismissing on grounds of incapacity or underperformance;
- avoiding the need for disputes about capacity or underperformance.

24
Q

What must an employee do to complain about discrimination and what must they follow?

A

All complaints must be made to employment tribunal within 3 months of the incident or longer if the tribunal finds it just and equitable s123(1).

Both employee and employer must follow ACAS guide.

Employment law Principles (1 decks)

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