Direct Discrimination

Question 1

s 5 Equality Act 2010

Answer 1

Age is a protected characteristic.

Question 2

s 6 Equality Act 2010

Answer 2

Disability is a protected characteristic.

Question 3

s 9 Equality Act 2010

Answer 3

Race is a protected characteristic.

Question 4

Manda v Dowell-Lee

Answer 4

Sikhs were held to be an ethnic group. Conditions for religion to constitute an ethnic group:

1) long shared history
2) cultural tradition of its own outside of religion
3) common geographical origin
4) common language peculiar to that group
5) common literature peculiar to that group

Question 5

s 10 Equality Act 2010

Answer 5

Religion or belief is a protected characteristic.

Question 6

s 11 Equality Act 2010

Answer 6

Sex is a protected characteristic.

Question 7

s 12 Equality Act 2010

Answer 7

Sexual orientation is a protected characteristic.

Question 8

s 13 Equality Act 2010

Answer 8

Direct discrimination on grounds of a protected characteristic is prohibited. s 13(1) provides that A directly discriminates against B if he treats him less favourably on the basis of a protected characteristic than A treats or would treat others.

Question 9

s 13(5) Equality Act 2010

Answer 9

If the protected characteristic is race, segregation on this ground constitutes DD.

Question 10

Coleman v Attridge Law

Answer 10

CJEU held that discrimination by association also constitutes direct discrimination. Therefore, if A treats B less favourably than others due to B’s association with another individual who has a protected characteristic, this constitutes DD.

Employer dismissed employee because she had to take large time off work to care for her disabled son.

Question 11

Centrum v Firma Feryn

Answer 11

Deterred discrimination also constitutes DD. CJEU held that if an employer explicitly states that they will not hire X protected characteristic, this constitutes DD even if less favourable treatment is not shown because nobody with that protected characteristic applied for the job.

Question 12

s 39 Equality Act 2010

Answer 12

An employer must discriminate against an employee in relation to employment. Per s 39(1), this includes:

(a) in the arrangements A makes in deciding to whom to offer employment;
(b) as to the terms on which A offers B employment;
(c) by not offering B employment.

Question 13

Saunders v Richmond LBC

Answer 13

Questions asked at an interview fall within the scope of s 39 EqA 2010. Thus, if employer asks employee a question which indicates less favourable treatment on basis of protected characteristic, this is DD under s 13.

Question 14

Brennan v JH Dewhurst

Answer 14

Arrangements made for interviewing applicants treated women less favourably = DD under s 13.

Question 15

James v Eastleigh BC

Answer 15

Man and woman both aged 63 went to swimming pool. Pool offered free entry to pensioners - since pension age for men was higher at 65, J did not qualify.

Court held that there is a but for causation test for DD - but for the individuals’ protected characteristic, would they have been treated differently? If yes = DD.

Motives for discrimination are IRRELEVANT.

Question 16

Shamoon v Chief Constable of the Royal Ulster Constabulary

Answer 16

Lord Nicholls firmly rebuked the idea that there might be a subjective causation test for DD. Both the less favourable treatment issue and reason why issue must be analysed - sometimes it may be more appropriate to analyse the reason why first, in order to determine why C was treated the way they were.

Question 17

R (E) v Governing Body of JFS

Answer 17

SC said that the causation issue is to be contrasted with the motive for discrimination issue. Motive of discrimination can never justify DD. However, the motive for discrimination may be relevant in less obvious cases. Lord Phillips used the example of a shopkeeper telling a fat black man that “we do not serve people like you.”

Motive may be relevant to determine ground of discrimination, but cannot justify the DD.

School in this case had DD on grounds of race since the admissions criteria was based on genetic descent by maternal line of a Jewish woman.

Question 18

Bull v Hall

Answer 18

Gay couple refused room at B&B due to religious views of owners. SC 3-2 majority held that this constituted DD on grounds of sexual orientation, even though unmarried opposite sex couples were also not allowed a double room.

Lady Hale reasoning - legally, civil partners are treated as equal to a married couple. Therefore, to offer married couples a double room but not civil partnership couples constituted less favourable treatment on grounds of sexual orientation.

Question 19

Comparator Issue

Answer 19

Note that the concept of ‘less favourable treatment’ requires comparison to the treatment of another individual.

Question 20

s 23 Equality Act 2010

Answer 20

For a comparison of cases under s 13, s 14 (combined discrimination) or s 19 (indirect discrimination), there must be no material difference between circumstances relating to each case.

I.e. the hypothetical comparator must be an individual in materially similar circumstances - only difference is the protected characteristic in order to assess whether there was less favourable treatment DUE TO that protected characteristic.

Question 21

Wakeman v Quick Corporation

Answer 21

Court held that there was not DD on grounds of race because the Japanese employees were working in materially different circumstances because they were working on very different pay packages and levels of responsibility.

Therefore, it was not comparing like with like, so less favourable treatment due to protected characteristic could not be found.

Question 22

Webb v EMO Air Cargo

Answer 22

Comparator for pregnancy cases was initially a sick male of work for a sustained period of time.

Problem = sick men off work for a sustained period of time have very little rights, e.g. they can be dismissed. Therefore, since the standard is so low it is difficult to show less favourable treatment.

Question 23

Dekker v VJV-Centrum

Answer 23

CJEU held that if a woman is treated DIFFERENTLY because she is pregnant, then this automatically constitutes DD. Comparator not needed for pregnancy cases since only women can get pregnant - no appropriate male comaparator can be made, so court said a comparator was not needed to show less favourable treatment towards women.

Question 24

s 18 Equality Act 2010

Answer 24

Pregnancy is now a protected status as such in relation to work cases. If A treats B unfavourably on grounds of her pregnancy, or any illness suffered as a result of it, then A discriminates against B.

Question 25

Occupational Requirements

Answer 25

These are effectively exceptions to DD set out under Schedule 9 of the Equality Act 2010. Note that they are not defences as such since DD can never be justified, but the occupational requirements put GOR on a statutory footing and carve out a narrow exception to DD.

OR apply where the particular job requires that the individual has a certain characteristic - Explanatory Notes state that it must be a requirement of the job itself. The OR must be crucial to the post, and must not be a sham or pretext. It must also be a proportionate means of achieving a legitimate aim.

Question 26

s 26 Equality Act 2010

Answer 26

s 26 provides a separate claim for harassment. Three types of harassment under s 26:

1) Unwanted conduct in relation to protected characteristic that creates an intimidating, hostile, degrading, humiliating or offensive environment.
2) Sexual harassment.
3) Treating someone less favourably because they have been subject to sexual harassment.

Question 27

s 27 Equality Act 2010

Answer 27

Victimisation is also prohibited as a separate claim under s 27. Victimisation entails one person treating another person badly because they have performed a ‘protected act’, e.g. brought a claim under the EqA.

Question 28

Reed and Bull v Stedman

Answer 28

Duty on employer to be proactive in investigating claims of harassment.

Question 29

Richmond Pharma v Dhaliwal

Answer 29

Important not to create culture of hypersensitivity in respect of every unfortunate phrase. Distinction between unfortunate remarks and harassment.

Question 30

Wileman v Minilec Engineering

Answer 30

Evidence of female provocation is relevant for whether they suffered any detriment - contributory fault.