Discrimination Law

Question 1

Discrimination Law

When does it apply?
Who does it apply to?
What is it regulated by?

Equality and Human Rights Commission: (duties and powers)

What do cases brought by individuals lead to?

Example?

Answer 1

• Applies at the time of advertising for jobs, interviewing, during a job for terms and conditions, training, promotion, and termination.
• Employees, workers, and contract workers
• Regulated by the Employment Equality Act 2010

Equality and Human Rights Commission:

• Duties - encourage equality and diversity, eliminate unlawful discrimination, protect and promote human rights.
• Powers – conduct inquiries and formal investigation

Cases brought by individuals – Employment tribunal
Compensation is unlimited and dependent on the severity of the case

For example unfair discrimination happened to a person working at the nhs and received a compensation of £1 million

Question 2

Protected Characteristics (9)

Answer 2

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Question 3

Age

Case law

Answer 3

O’reilly v BBC - won her age discrimination claim after being dropped from the show when it moved to a prime-time slot. The tribunal upheld her claims for age discrimination and victimisation

Question 4

Disability

What factors make it count for disability (7)

Reasonable adjustments (3)

Case Law

Answer 4

• Acceptable to treat them favourably
• Mental or physical impairment
• the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
• Expected to last at least 12 months
• Sight and hearing loss, HIV, clinical depression
• Covers reoccurring impairment
• Prohibited to ask questions about their health if unrelated to their role.

Reasonable adjustments

• Changing the way things are done
• Modifications to the premises to accommodate disabled people
• Providing auxiliary aids

Environmental Agency v Donnelly (2013) – parking place

The Employment Tribunal found the Environmental Agency guilty of discrimination for not providing a parking space, harassment via email, and unfair dismissal.

Question 5

Gender Reassignment

Factors (3)

Answer 5

• If the person has proposed, started, or completed a process to change their sex.
• Women- men
• Medical intervention is not a prerequisite, intention is sufficient

Question 6

Marriage and Civil Partnership

Factors (2)

Answer 6

• Does not apply to engaged, divorced, or dissolved civil partnership
• Prohibiting married couples to work at the same place - discriminatory

Question 7

Pregnancy and Maternity

2 factors

Case law

What could count as direct discrimination

Answer 7

• Positive discrimination i.e. ‘unfavourably’ not ‘less favourably’ thereby doing away with the comparator
• It covers pregnancy-related illnesses

South West Yorkshire Partnership NHS Foundation Trust v Jackson (email about potential redundancy not accessible by the person on mat leave)

• Direct discrimination –e.g. failure to renew fixed term contract due to pregnancy
• S. 18 does not explicitly prohibit indirect discrimination or harassment on grounds of mat leave or pregnancy

Question 8

Race

3 factors

Answer 8

• First characteristic to be recognized as a factor deserving of protection
• Includes colour, nationality and ethnic or national origins
• A racial group – 2 or more racial groups

Question 9

Religion or belief

4 factors

Case law

Answer 9

Section 10 Religion or belief
(1)Religion means any religion and a reference to religion includes a reference to a lack of religion.
(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

More than one characteristic e.g. Jewish

Not cults involved in illegal activities

R v Registrar General of Births, Deaths and Marriages (2013)

wished to marry in a Church of Scientology chapel. The court ruled that the chapel could be recorded as a “place of meeting for religious worship”

Question 10

Sex

3 factors

Answer 10

• Both women and men
• Sexual orientation means – persons of the same sex, persons of the opposite sex, persons of either sex
• it is not necessary for the employee to be actually gay, lesbian, or bisexual, i.e. discrimination on the basis of a perception that the employee is gay, bisexual, or a lesbian is also prohibited.

English v Thomas Sanderson Blinds Ltd (stereotypes – homophobic comments – harassment)

Question 11

Prohibited conduct (4)

2 case ;aw

Answer 11

Direct discrimination

• This is when you face unfair treatment based on a protected characteristic.
• Comparator – real or hypothetical, someone who does not belong to the same group

Amnesty International v Ahmed (2009) – Sudanese woman denied a position due to her ethnic origin (researcher for Sudan – conflict of interest)

• Occupational requirements (modelling, rape victim counsellor, deaf person employed for sign language counsellor)
• Associative (e.g. wife is of a particular religion to which the employer has an objection)and prescriptive (perceive or believe, e.g. thinks an employee is gay) discrimination

Indirect discrimination

• This is when you face unfair treatment because of a practice, policy, or rule that breaches a protected characteristic.
• Provision-criterion-practice that applies equally to all employees but makes compliance difficult on one group in comparison to others.

London Underground Ltd v Edwards

Edwards, a single parent and train driver, claimed indirect sex discrimination when London Underground changed its rostering system

Objective justification for a legitimate aim
Under three circumstances:
(1) It has a legitimate objective, such as a genuine business objective
(2) It is necessary to achieve that objective; and
(3) It is an appropriate way of achieving that objective.

e.g. health & safety (banning jewellery(including religious ones) to prevent accidents), business requirements (female social workers in female refugee centers), business efficiency (physically fit people for laborious tasks)

Harassment:

• This is when you face unwanted conduct from others based on a protected characteristic.

Unwanted conduct based on protected characteristics that leads to an intimidating, hostile, degrading, humiliating or offensive workplace environment. E.g. racist jokes, physical abuse, verbal abuse etc.
Unwanted conduct of a sexual nature e.g. sexual comments about female colleagues
Treating someone less favourable because they submitted to or rejected sexual harassment. E.g. turning down sexual advances and losing promotion
Online harassment – e.g. colleagues making offensive jokes on online chatrooms
Employer vicariously liable if reasonable steps are not taken

Victimisation:

• This is when you’re treated unfairly because you’ve raised a complaint relating to a protected characteristic.

Making complaint about discrimination or supporting someone in their complaint
Such an act is done in ‘good faith’
Complaint must involve discrimination against a protected characteristic
E.g. IVF treatment – the line manager makes comments about the potential dismissal of pregnant employees, and the employee makes a complaint to senior manager owing to their fear of losing the job.
Discrimination and victimisation doesn’t only count if it happens during work hours. It counts if it happens outside of the workplace or at work-related events. The claim simply needs to relate to the workplace.