Emploment Law lec 4- Prohibited Conduct: Direct Discrimination

Question 1

in lec 3 what di we consider? but what did we focus on?

Answer 1

Review of lecture 3:

In lecture 3, we began our consideration of the 6 types of prohibited conduct (Pco) in the EA 2010, the 4 main types being:
S 13: Direct discrimination;
S 19: Indirect discrimination;
S 26: Harassment; and
S 27: Victimisation
but we focussed on, and learned how to apply to a fictitious scenario, the 2 of the 6 types of PCo which relate specifically to disability, namely:
S 15: Discrimination arising from disability; and
S 20: Duty to make (reasonable) adjustments

Question 2

what we looked at in other words?

Answer 2

Lec 3- 1st lec look at 6 types of prohib conduct
In order to bring discrim1 or more of 9 grounfd phc
Conduct carried out by d needs to be 1 of atleast 6 types of prohib conduct- so what we started to lok at last time s.15 and s.20 of pc
This week look at 4/6
Mainly s.13 dd
s.19 hd
Next week 26 27

Question 3

preview for lec 4?

Answer 3

Preview of lecture 4:

Our aims in lecture 4 are to acquire the ability to:
(i) explain in detail the 1st of the 4 main types of prohibited conduct (PCo), namely:
S 13: Direct discrimination;
the other 3 main types being:
S 19: Indirect discrimination;
S 26: Harassment; and
S 27: Victimisation
and to apply our knowledge of s 13 to a fictitious scenario

Question 4

before we consider dd in more detail what must we do?

Answer 4

Welcome to lecture 4 of our Employment Law 2 module, our 4th of 6 lectures on discrimination law

Before we consider DD in more detail, we 1st need to ensure we are clear on the distinction between s 13 DD and s 19 indirect discrimination (ID), which we’ll consider in lecture 5

Activity 1 on the next slide will help us appreciate the difference between DD and ID

Question 5

so what do we deffo need to ensure here?

Answer 5

THERES A DIFFERNCE

Question 6

ACT 1?

Answer 6

Lecture 4 Activity 1:

The following are 2 examples of lines from job advertisements:

(i) ‘Only females need apply’
(ii) ‘Only people under 5‘ 4‘’ need apply’

We have to decide which line might give rise to a direct discrimination claim and which line might give rise to an indirect discrimination claim

Question 7

answer in other words to act 1?

Answer 7

The imaginary wording is either only females need apply or only people under 5’4 need apply
Which 1 of those 2 job ad is d discrim and which indirect
1st dd
2nd id
The 1st one is blatent – discrim against sex (males) male not having u
Hard part explaining why second 1 discrim- is height 1 of charc = no – so therefore how is it discrim – sex is affected –why bc statsicaly there are way more women under 54 than men and vice versa – people over 64 = men discrim
1st dd- look at this week- really employers gotta be stupid if do it but it still happens –whereas next week easier to gert done for id

Question 8

answer to act 1?

Answer 8

Answer: (i) ‘Only females need apply’:

This line might give rise to a direct discrimination claim because sex is 1 of the 9 PChs and it’s directly discriminating against males

(ii) ‘Only people under 5‘ 4‘’ need apply’:

This line might give rise to an indirect discrimination claim because, although, on the face of it, it doesn’t appear to be discriminating against anyone, height not being 1 of the 9 PChs, it’s indirectly discriminating against males because, statistically, far fewer males are under 5‘ 4‘’ than females

Question 9

what are we now begining?

Answer 9

Let’s now begin our consideration of the 1st of the 4 main types of PCo, namely:

S 13: Direct discrimination

and let’s do so by, as usual, going to the primary source, the statute

Question 10

so what msut wee do firsT?

Answer 10

Look at stat first
So basically
r.a.w – LESS FAVOBORULE TREATMENT – male could use s.13 we been treated lf cos we don’t have option applying – 1 of pch cos of sex- if we wer women we could appl

Question 11

what is s.13 ea?

Answer 11

S 13 EA 2010: Direct discrimination:

Question 12

what does s.13 1 ea say?

Answer 12

(1): A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others

Question 13

therefore about c?

Answer 13

Therefore, a claimant relying on s 13 needs to prove less favourable treatment (LFT) because of at least 1 of the 9 PChs listed in s 4 EA

Question 14

what about comparator?

Answer 14

Comparator

We agreed in lecture 3 that, whilst the PCos at sections 15 and 20 EA carry less of a requirement for a comparator, those at sections 13 and 19 EA do require a comparator

This can be seen if we contrast the wording of:

s 13(1): ‘.. less favourably than ..‘ (ie requires a comparator); with

s 15(1)(a): ‘.. Unfavourably ..’ (ie does not require a comparator)

Question 15

comparator in short?

Answer 15

Comparayot – s.15 and 20 carry less req for requirememnt as opposed to s.13
13-have to find comp cos says LESS FAV THAN – if want to think in term of exam answer structure so elig req beyond elig- so elig requirements u have to be 1 of 9 pch charactersitvs has to be 1 of 6 types of prohib conduct- further req especially if dd – HAVE TO FIND COMP ** THAT CAN BE DIFF
Whereas if compare with wording of s.15 – to be treated unfavourably still el of comparison but don’t have to find COMPAROTRO
C IMPORTANT WITH S.13

Question 16

how to explore comparator in more detail?

Answer 16

Let’s now explore the need for a comparator in more detail

As we’ll see in lecture 5, a claimant relying on s 19 needs to prove they were placed at a particular disadvantage (PD) because of at least 1 of the 9 PChs listed in s 4 EA

To establish either the LFT required under s 13(1) or the PD required under s 19(2)(b), a claimant must use a comparator

Question 17

what does s.23 clarfiy?

Answer 17

S 23 clarifies the position re comparators

Question 18

more on comparotr in my words?

Answer 18

So loking more det
When we look at id next wek – wording is u can bring claim if u can establish that u are placed at PD – A PARTICULAR DISADVANTAGE bc of atleast 1 – pd req comparison but dd most baltently requires compar
So s.13 1 and s.19 2 b are 2 respective sections direct and indirect that require comparion
And abit more detail on comparison we can turn to s.23 of EA

Question 19

what did s.23 say?

Answer 19

S 23 EA 2010: Comparison by reference to circumstances

Question 20

s.23 1 say?

Answer 20

(1): On a comparison of cases for the purposes of section 13 or 19, there must be no material difference between the circumstances relating to each case

Question 21

s.23 2 a say?

Answer 21

S 23(2)(a) provides further clarity re the PCh of disability

Question 22

s.23 2 b say?

Answer 22

S 23(3) provides further clarity re the PCh of sexual orientation

Question 23

so in other words s.23?

Answer 23

r.a.w
So in other words the only diff that there should be is pch
Comaprotr u choose should have all the same personal cirucmstanws as u , except they are of diff sex, rlegion, race
In relation to s.32 a
S23 3
Both provide more clarirty

Question 24

thereofre what does s.23 requires the only diff?

Answer 24

Therefore, s 23 requires that the only difference between the claimant and the comparator they choose to use should be the PCh in question and any other differences between them (for example, qualifications or experience) should be less than material

s.23 only diff = protech ch

Question 25

ideally what will a compartor be ?

Answer 25

Ideally, the comparator will be a real person (eg the real person who did get a job, promotion etc)

-Law is quite curious on this bc tribunals forever saying – ideally REAL PERSON AS COMPART- e.g promotion or job u could maybe have person who got job od diff race religion gender as C . So on 1 hand tribunal encourages c to go fro real – BUT IF STILL IN PRACTICE WOULD THINK CAREFUL ABOUT GOING FOR REAL C- bc if tribunal feel gone for wrong 1 ur case can get thrown out.- so if theres a danger to choose real why go there?

Question 26

however a claimant should use what if real doesnt exist?

Answer 26

However, a claimant should use a hypothetical comparator (a fictitious person with identical personal circumstances to the claimant save for the PCh) where no appropriate real comparator exists, or, as we’ll see in the next case, they risk having their discrimination claim thrown out by an ET

Question 27

more in regard to hypothetical?

Answer 27

So hypothetical c is someone with identical circum but for the protected charac. Suppose only danger tot his is tribunal feel if could be REAL C (ideal) then that person should be used- so there is a risk- that’s why consider further req in our answer structure for a problem style question that as well as trying to find a protected cha and convice tribunal that there is 1 of type of prohib conduct applies.. Which I think equiv of elig require think further req especially with DD – being able to choose right c.

Question 28

what case should be consdiered next?

Answer 28

Shamoon v Chief Constable (CC) of the Royal Ulster Constabulary (RUC) 2003:

Question 29

what happened in shamoon?

Answer 29

Shamoon v Chief Constable (CC) of the Royal Ulster Constabulary (RUC) 2003:

Ms Shamoon was a chief inspector in the RUC
Certain police constables complained about the way Ms Shamoom conducted their appraisals
The RUC relieved Ms Shamoon of her appraisal duties
Not long afterwards, the RUC dismissed Ms Shamoon
Ms Shamoon made a direct discrimination claim under the then SDA 1975
The ET: accepted Ms Shamoon’s use as comparators of 2 real male chief inspectors who worked in the same branch and had the same duties as her, and found for Ms Shamoon

Question 30

more on shamoon case?

Answer 30

The chief constable of the RUC appealed to the CA on the grounds the comparators Ms Shamoon chose to use were inappropriate:

The CA: accepted the RUC’s argument because the 2 real comparators Ms Shamoon used had had no complaints made against them

Ms Shamoon appealed to the HL:

The HL: upheld the CA’s ruling and reasoning that Ms Shamoon’s comparators were inappropriate because no complaints had been made about them, and ruled that Ms Shamoon should’ve used a hypothetical comparator

Question 31

extra notes on previous in to apppeals?

Answer 31

Even ca
Be caredul with comparator choice- less risk with hypothetical even if encoruge to use real If ideal. And avail
That’s why consider 3rd req and a bit more balnce to arg that employers discrim law too much in favour of c

Question 32

Is there any defence to s 13?

Answer 32

Is there any defence to s 13?

We saw in lecture 3 that a defendant employer has 2 potential defences to a s 15 claim, at s 15(1)(b) and s15(2), but no ‘official’ defence (only 2 counter-arguments) to a s 21 claim re s 20

In today’s lecture, we need to decide whether there is any defence to s 13

Question 33

what did we agree with s.15?

Answer 33

Agreed s.15 – 2 official defences wither that apparent discrim wasa propritioante emans of ahcieveing legit aim or that the employer genuially didn’t knlow that person was disabled. rMeebr agreed if come in wheelchair it will be slightly odd diff sya u didn’t realise a problem but if someone depressed less obv- so that was two defences for s.15 but when came to s.20 and rbinging calim under s.21 in respect of breach of duty under s.20- agreed kind of call them defences but realsiticall more counter arg than official defences. So what sit with s.13

Question 34

answer to is there defence s,13?

Answer 34

The answer is that it depends on the PCh

Question 35

example of this answer?

Answer 35

For example, re the PCh of age, s 13(2) provides a defence of ‘a proportionate means of achieving a legitimate aim

Question 36

what did we look at in lec 2?

Answer 36

We looked in lecture 2 at the case of Seldon 2012 and agreed that having a retirement policy can be a proportionate means of pursuing a legitimate aim, in that case the aim of giving younger associates an opportunity of partnership

Question 37

answer in other words?

Answer 37

Answer is it depends on which 9 protected char talking about differs dependant on the protected char- so fro e.g in repsect og age, that same defence , that applie sto s.15 , applies to s.13 inr epsect of age, that the discrim act can be justified provided the d employer can be justified provided the d employer can convice tribunal that the discrim act, was a proportiante means of achieving leg aim
So aim has to be elgitmate and way of achieving had to be properitonate
e.G lec 2 case of seldom- retirement policy can be a prop means of pruisng legit aim, so that case aim was giving younger assoc an opportunity of partnership nd if u allow older employess or worker to work to 65 not unreasonmable= proportionate.

Question 38

what is the defence?

Answer 38

Re disability, s 13(3) provides a defence where ‘B is not a disabled person’

Question 39

what does re marriage and civil part do?

Answer 39

Re marriage and civil partnership, s 13(4) provides a defence of ‘only if the treatment is because it is B who is married or a civil partner’

Question 40

what must i do?

Answer 40

touch up breifly on re marriage and civil part

Question 41

otherwise what can the only defence an employer can argue?

Answer 41

Otherwise, the only defence an employer defendant can argue is genuine occupational requirement (GOR)

Question 42

in other words to defence?

Answer 42

In relation to the proteched ch of disba- s.13.3 provides defence where b not disabled person- sim to other s.15 defence- that not same bc s.15 the defences didn’t realise disabled. The defence for s.30 is proving that actually didn’t satisfy the s.6 def of disab

So in temrs of marriage and civil parti- s.13 4 – otherwise only tjing call defence dd = genuine occ req

Question 43

what about genuine occupational req?

Answer 43

Under the SDA 1975, a GOR was referred to as a GOQ (genuine occupational qualification) and the SDA provided a list of GOQs

Question 44

what is the defence?

Answer 44

The ‘defence’ was that the nature of the job required a person of a certain gender (eg an audition for an actor to play Batman or for a body searcher to search men entering a football stadium) so that the defendant’s choice of 1 person over another was legitimate

Question 45

defence in other words?

Answer 45

-But what used to be called QUALIF
Its same defence just diff term
How does it work- nature of job r/aa/w – e.g where g.or defence would apply eque e.g fotabl mach might seache couldbe got 9 male employees seach but not 1 femaels female que and very reasonable to employee female researcher where gro defence would apply- only real defence have to DIRECT DISCRIM other than the protected cha specific ones that mentioned earlier.

Question 46

where has gor defence been expanded under?

Answer 46

The gor defence has been expanded - Under the EA 2010, a GOQ is now a GOR and the list has been done away with, but the GOR ‘defence’ has been expanded from solely sex to include all 9 PChs

-obvs cos act related only to sex each cha own specif stat so clear only applied to sex so in equality act make sense repsect all 9 char

Question 47

so under ea gor defence in respect of?

Answer 47

So undr ea gor dfence In respect of s.13 follows same -Under the EA, the GOR ‘defence’ re section 13 follows the proportionality approach used in sections 15 and 19- s.15 discrim arising from disability 19 is indirect dscrim

Question 48

in other words what in respect to this?

Answer 48

In other words, a defendant employer must convince the ET that the any discrimination was a ‘proportionate means of achieving a legitimate aim’

Last point r.a.w its all bc europena convention hr and strasbourg euc of human rights obsses with proprot and bc echr made part of uk law under hr act whe thagt came into force 2nd octo 2000, the uk court uk stat sincethen ea 2010 contained many ref to proprotianoltiy rather than reasonableness.

Question 49

once again what can we debate?

Answer 49

Once agin debate r.a.w

As with s 20, there is debate as to whether sections 13(2), 13(3) and 13(4) and GOR are recognised as ‘official’ defences or merely counter-arguments

However, either way, an ET will be reluctant to accept this GOR defence, as was seen in the cases of:

(i) Etam plc v Rowan 1989; and
(ii) Glasgow City Council v McNab 2007

Wont lose any sleep over that just raise if answer dd q in exam

Just more case law to show employment tribunal not easily pursaded to accept a d employers arg that a gor defence applies

Question 50

what happened in etam?

Answer 50

(i) Etam plc v Rowan 1989:

Mr Rowan (R) applied for a job at an Etam lingerie shop to sell women’s clothing 
However, his application was turned down and the reason Etam gave him was because he wouldn’t be able to go into the ladies’ fitting rooms 
R brought a DD claim against Etam re the PCh of sex under s 13 
Etam tried to rely on the GOR defence
The ET: found for R as R didn’t necessarily have to go into the ladies’ fitting rooms because he could have asked a female worker at Etam to do that

Question 51

ultimately with etam?

Answer 51

U can bring discri claim even if ahvent even wred for day if e.g apply job and turn down like happened

Question 52

what happened in glasgow?

Answer 52

(ii) Glasgow City Council v McNab 2007:

Mr McNab (M),an atheist teacher at a Roman Catholic (RC) school run by Glasgow City Council (GCC), applied for the post of Acting Principal Teacher of Pastoral Care
GCC did not even consider M for an interview, giving as its reason when M enquired the facts that he was not of the RC faith
GCC tried to argue the GOR defence, insisting that the RC Church would have seen being RC as a pre-requisite for the post
M claimed DD against GCC re the PCh of religious belief under s13
The ET: found for M and awarded him £2000 because it disagreed with the GCC that being RC was a GOR for the post

Question 53

extra glasgow?

Answer 53

Broguht dd in relation protec ch religious belief in favour

Question 54

what did eat confirm in glassgow?

Answer 54

The EAT: upheld the ET’s decision, ruling that a local authority has no religious ethos and therefore cannot take advantage of the GOR defence, even re a religious school
EAT CONFIRMED

Question 55

what is meant by burdern of proof?

Answer 55

Burden of proof

Let’s not forget that we agreed in lectures 1 and 3 that the standard of proof required for all EA discrimination claims favours the claimant

S 136(2) states that, in the 1st stage of the proof process, the claimant needs only to convince an ET that there are facts from which the ET could decide that discrimination occurred

By contrast, in the 2nd stage of the proof process, the defendant must then leave the ET in no doubt at all that discrimination did not in fact occur

Question 56

in other words to burdern of proof?

Answer 56

We know that 1 primary reasons feel discirm to much in favour of worker BC B.OP
1st stage all c ned to do PURSADE TRIBUUNAL FACTS WICH COULD TRIBUANL COULD DECIDE= DISCRIM= low threshold
Hw bar 2nd proof porces= way higher

Question 57

case for burden of proof?

Answer 57

In Barton v Investec Securities Ltd 2003, the EAT confirmed this high standard proof for the defendant, requiring the defendant to prove that ‘in no sense whatsoever’ did it discriminate against the claimant

NO SENSE WHATSPVER DISCRIM FOR EMPLOYERS- WHY E FEEL HARDER
Perhaps reason for that so didff to prood bc word spoken word

Question 58

established that diff for c to satisfy prrof?

Answer 58

However, we’ve also agreed that it can be incredibly difficult for a claimant to satisfy the 1st stage of the proof process, despite the low bar, because finding evidence can prove so hard, as it’s often oral and therefore a case of 1 person’s word against another

Question 59

what does claimant need to establish?

Answer 59

The claimant needs to establish a causal link between the LFT and the PCh, whereas a defendant employer can argue the candidate looked great on paper but performed awfully in the interview, and it would be difficult for a claimant to disprove this

Question 60

ca accepted this diff and what?

Answer 60

The CA accepted this difficulty, and found favourably for the claimant, in our next case

Question 61

extra to previous slide

Answer 61

Might eb low bar bc perhaps diff to rpove u might need witness or a cctv cam unless its written.

Best case scanerio for c d employer be stupid enough to discrim in writing
But more often than not dicirm acts not in writing- hope cctv court behaviour or spoken or theres awitness- but even if is ppl aren’t in great rush to turna gainst employer e.g may turn jobless
So c nees toe estbalsihed CAUSAL LINK BTE LFT AND PCH R.A.W
Lets say utterly conviced by far ebst cand and spomeon ur opinion nothing as god e.g u ddint do well in int hard to disprove that as u didn’t see how othe epformed so scope for discirm quite ahrd to tackles
So lets look at case where c.o.a had sumptha for c hard to rpove DIRECT DISC

Question 62

what is the case called?

Answer 62

Noone v NW Thames Reg. Auth 1988:

Question 63

what happned in noone?

Answer 63

Ms Noone, a Sri Lankan national, was 1 of 3 applicants for a vacancy as a microbiologist with the NW Thames Reg. Auth.
She believed she’d published more articles and had more experience and qualifications than the other 2 applicants
When her application was rejected, Ms Noone brought a DD claim against the NW Thames Reg. Auth.
To establish her prima facie case, Ms Noone argued she had been the best qualified candidate
The CA: accepted Ms Noone’s arguments to establish her prima facie case of race discrimination

Question 64

noone 2?

Answer 64

CA: May LJ:

‘It is not often that there is direct evidence of racial 	discrimination, and these complaints more often than not have 	to be dealt with on the basis of what are the proper inferences 	to be drawn from the primary facts. For myself I would have 	thought that it was almost common sense that, if there is a 	finding of discrimination and of difference of race and then 	an adequate or unsatisfactory explanation by the employer for 	the discrimination, usually the legitimate inference will be that 	the discrimination was on racial grounds,’

We can therefore use Noone 1988 as our authority for the fact an ET will apply common sense as much as law at the 1st proof stage

Question 65

noone 2 in other words?

Answer 65

Well jnown quot from lord justice may
Considered quite dog at time in favour of c – couldn’t really put together hard evidence but just bc there was suspicion and commens sense arg came up with they found in favour
They can use no one found in faour of discrim c- all thing sbeing equal- presump of fiscirm unless proving otherswide- b.op in favour of c

Question 66

what must we now consider?

Answer 66

Let’s now consider how, once at an ET, a claimant might gather the evidence needed to convince the ET they have more than a prima facie case that they could have been discriminated against

Question 67

-the procedure for gathering evidence is set out?

Answer 67

The procedure for gathering evidence used to be set out at s 138 EA, but s 138 was repealed on 6 April 2014

Question 68

in essence what is s.138 used for?

Answer 68

In essence, s 138 used to allow a claimant to ask their employer questions on a prescribed form to try to establish discrimination

Question 69

–what was the et entitled to draw?

Answer 69

The ET was entitled to draw an adverse inference from an employer’s failure to respond to any of the questions, or from an evasive or equivocal answer

Question 70

• in other regards to what just mentioned?

Answer 70

Agreed hard part is to prove it
Is there way which c can gather info evidence inf aocvurof arg?
There used to eb questionnaire precudre under s.138 – but also agred prev that as general rule politically elft wing gov tends to ebf avourable to employees and right wing fav toward semployers. Peraps weren’t hige surprise that the david cam conservative gov was 1 that repealed this questionare procedure

So wha used to hapend under s.138 was that u could literally send q as c to defendant employer with a list of q like, what ecneatge staff female , amgers female? Was evry cand ask same quesitone tc, way works if d employer either didn’t answer or v ague thrhn et were entitled to draw an adverse ifnernece e.g that’s a bit doge= idnic of guilt

Question 71

• how many days does c have to bring et1 form?

Answer 71

The claimant had 28 days after serving their ET1 form on both the defendant employer and ET to send the employer the questionnaire

Question 72

– upon reciept of q what employer have?

Answer 72

Upon receipt of the questionnaire, the employer then had 8 weeks to respond so as to avoid the ET drawing adverse inferences

Question 73

• what about david cam cons gov repeal?

Answer 73

David Cameron’s Conservative Government repealed s 138 EA with s 66 of the Enterprise and Regulatory Reform Act 2013, which came into force on 6 April 2014, to ‘reduce the burden on business’

Question 74

– what did gov say?

Answer 74

The Government claimed to have ‘consulted with the public’ before abolishing the questionnaire procedure, which seemed a strange claim given that 83% of respondents to the Government’s consultation document in 2012 opposed the abolition

Question 75

• overall about what just made?

Answer 75

So what would happen – c
We know claim form for discirm et1 form under s.3 of et act 1996- from c uses- once they served that form on both d employer and the et under s.137 they then had 28 days to serve q and then upon recipt of q the d employer would have 8 weks to reply
But dav cam repealed
So fro almost 4 years questionnaire procedurr egone
Response public 83% but did it anyway

Question 76

• what has the old q procedure now be replaced with?

Answer 76

The old questionnaire procedure has now been replaced with ACAS’ non-statutory guidance

Question 77

• under this guidance what is a worker able to do?

Answer 77

Under this guidance, a worker is still able to ask questions of his employer, but he no longer enjoys the structure and the time limits provided by the standard form, with no direct penalty for failure to comply

Question 78

-why is it not all bad news for worker?

Answer 78

However, it’s not all bad news for a worker because:

(i) the ET is still entitled to draw an adverse inference from an employer’s failure to respond to any of the questions, or from an evasive or equivocal answer; and
(ii) a worker can now ask questions in any format at any time

Question 79

– hw in other words for worker?

Answer 79

Hw guidance acas that tribunal shhuld still 1 r.a.w
Or a vauge reply to question
Almost as godo as s.138 and in some ways releases worker to ask queston anytime when suits them
So its no.1 in which c tackles tis incre diff aspect of discrim claim which is prividng tht discrim took place.

Question 80

• what does s.24 confirm?

Answer 80

S 24 confirms discrimination can still occur even where the person doing the discriminating shares the same PCh as the person being discriminated against (all that matters is that the victim’s PCh is affected)

Question 81

• therefore what can woman do?

Answer 81

Therefore, a woman can sexually discriminate against another woman and a muslim can religiously discriminate against another muslim

Question 82

– what is s.24 in line with?

Answer 82

S 24 is in line with what we saw in lecture 1, namely that motive, or whether discrimination was intentional, is irrelevant and, instead, all that matters is whether the discrimination occurred

Question 83

-so s.24 in other words?

Answer 83

So s.24 confirms discrim can still occur r.a.w in toher words woman can seuxla discirma nother woman muslim discim against another m usl
So in kine agrred I lec 1 that motive or whether discirm intentionally = irrfelavant

Question 84

– what is the emphasis therefore?

Answer 84

The emphasis is therefore on how the victim actually felt rather than how 3rd parties might have expected the victim to feel

For example, if others present felt a discriminatory comment had clearly been meant as a joke, an ET would ignore their views

So soemting else agreed
r.a.w – partic rel to lec 6 harassment but it rpvains all discrim law thate mpahsis that tribunal palces is how recipient felt not on how other should ah e thugh claimant felt but how c felt.

Question 85

act 2?

Answer 85

Lecture 4 Activity 2: Let’s consider the following scenario:

Grzegorz was a 61-year-old married man in the year 1985, when the state pension age was 60 for women and 65 for men
Grzegorz went swimming with his 61-year-old wife and was required to pay to use the pool while his wife got in free
When he enquired why this was so, the local council which owned the pool told Grzegorz it was because only his wife had reached the state pension age

Do we think Grzegorz would have succeeded if he had brought a sex discrimination claim against the local council?

At that time in relation to the last q

Question 86

answer and case for act 2?

Answer 86

Answer: The facts in this activity mirror a real case, namely:

James v Eastleigh Borough Council (EBC) 1990:

Mr and Mrs James, both 61, went swimming
EBC charged 75 pence per swim but offered free swimming to persons who had reached the state pension age
Mr James therefore had to pay while Mrs James didn’t
Mr James made a SDA 1975 claim, with the Equal Opportunity Commission (EOC)’s backing, against EBC
The Southampton County Court: found against Mr James because EBC treated equally both men and women not yet of pensionable age

Facts in actual case
Brought clai m under then sex discrim act
The ebc r.a.w

Question 87

what did the coa found in this case?

Answer 87

The Court of Appeal: also found against Mr James
However, the House of Lords: overturned the earlier decisions and found for Mr James, ruling that the correct question the CC and CA should have considered was the objective 1 of whether Mr James would have received the same treatment as his wife from EBC but for his sex, and the answer had to be yes

-Took even further to hol where he won
2 issues- whether law itsle is discrim ?(random)

Question 88

what is meant by perception?

Answer 88

Perception:

Many successful DD claims result from perception

stereo-typing and assumptions based on, for example, how people talk, walk or look, or the friends they hang out with

For example, an employer might perceive that a worker is of a particular sexual orientation, such as gay, or race

Question 89

act 3?

Answer 89

Lecture 4 Activity 3: Let’s consider the following scenario:

X and Y are married but work for rival firms
Their firms liaised over their concerns about leaks, so they met for talks about what to do
They saw the man, X, as the breadwinner
Therefore, it was agreed that his firm would keep him on but the woman, Y, ’s firm would dismiss her

Do we think Y might successfully bring a sex discrimination claim?

2 companies held meeting what could we do about this we reckon x amount bread winner r.aw
Do we tink success?

Question 90

answer for act 3?

Answer 90

Answer:

Once again, the facts of this activity mirror those of a real case, here the famous perception case of:

Skyrail Oceanic Ltd v Coleman 1981:

A couple employed by rival firms got engaged, leading to concern about leaks
The firms liaised and decided the man was seen as the breadwinner, so the woman should be the 1 to be dismissed
2 days after their marriage, she was fired!
The ET: found for woman under the SDA 1975

Real case facts were identical 2 days r.a.w

Question 91

• what did the ca upheld in regard to skyrail?

Answer 91

The CA upheld the ET’s decision, ruling that a presumption that men are more likely than women to be the primary supporters of their spouses and children is a perception based on sex
Therefore, the dismissal of a woman based on a presumption that husbands are breadwinners and wives are not can, of itself, amount to discrimination under the SDA

We can therefore use Skyrail 1981 as our authority for the fact that UK discrimination law provides protection through s 13 DD against ‘preceptive discrimination’

So skyrail is auth r.a.w perceptive notp recpetive

Question 92

• what is meant by assosciation?

Answer 92

Association:

Other successful DD claims result from association

For example, if A has lots of lesbian friends, the defendant may presume, by association, that A is also a lesbian

Question 93

• ACT 4?

Answer 93

Lecture 4 Activity 4: Let’s consider the following scenario:

X’s disabled son, Y, has breathing disorders
X asked her employer, Z, for time off to care for Y
Z dismissed X, accusing her of using her son to manipulate requests for extra time off

Could X bring a disability claim even though s6 says LFT must be re a disabled person?

-Agai hers facts
So even though herself not disab could she bring claim?- ocne again it’s a case

Question 94

answer for act 4?

Answer 94

Answer:

Yet again, the facts of this activity mirror those of a real case, here the association case of:

Coleman v Attridge Law 2008:

Ms Coleman, a secretary working for Attridge Law, had a son who was disabled as he had congenital laryngomalacia (where the larynx can collapse, causing breathing difficulty)
She requested and was granted so much time off work that Attridge Law dismissed her, accusing her of using her son to manipulate the firm into granting requests for time off work

Question 95

more on Coleman v Attridge Law 2008:?

Answer 95

S 4 DDA 1975 required LFT to be against a disabled person
Since Ms Coleman was not herself disabled, the question was whether the DDA properly incorporated EU Directive 2000/78
Attridge Law argued the DDA could not be interpreted in line with the EU Directive
The EAT: found for Ms Coleman but referred the case to the ECJ
The ECJ: also found for Ms Coleman, ruling that it did not follow from the relevant provisions of EU Directive 2000/78 that the principle of equal treatment is limited to people who themselves have a disability within the meaning of the Directive
On the contrary, the purpose of the EU Directive, as regards employment and occupation, was to combat all forms of discrimination on grounds of disability

Question 96

-we can therefore what with coleman?

Answer 96

We can therefore use Coleman 2008 as our authority for the fact that UK discrimination law provides protection through s 13 DD against ‘associative discrimination’ (ie discrimination of a person because of that person’s association with a disabled person) and the principle of equal treatment is not limited to people who themselves have a disability

So how can we use coleman r.aw.
U can bring claim on ground of dis on behalf someone else who has disbaility

Question 97

act 5?

Answer 97

Lecture 4 Activity 5:

Let’s finish today’s lecture by reinforcing all the law that we’ve learned today re s 13 DD by applying it to an imaginary scenario

Susan, who currently works as an engineer with Fraser Limited, has been turned down for an internal promotion for the role of Lead Engineer, despite believing she was the best candidate

The only other application was from Scott, who has fewer qualifications and less experience than Susan, having worked for Fraser Limited for only 5 years to Susan’s 10.

Question 98

-what about exam q?

Answer 98

Exam q
Best way to grasp anything is to apply it
We know in exam 3 PROB STYLE Q – ALL 3 LIKELY TO BE ON DISCRIM LAW VARIOUS DIFF RPOHIB COND IF HAVE ONE ON DD IT WOULD BE SIMIALR TO THIS- IT WILL BE MORE DETAIL BUT Q STRUCTUIRNG OF Q RUBIC REMARKBLY SIMILAR

So r.a.w

Question 99

-example of exam q?

Answer 99

Susan overheard a member of the interview panel in the kitchen referring to engineering as ‘a man’s world’, which has served only to convince her further that was not offered the promotion because she’s a woman.

Please advise Susan as to:

(a) whether she might be able to bring a direct discrimination claim against Fraser Limited;
(b) if so, the prospects of success for Susan, including an assessment of whether Fraser Limited might be able to defend her claim; and
(c) providing figures where possible, the various elements of any remedies an employment tribunal is likely to award to Susan should her claim be successful.

Question 100

-whats the 1st thing we must do?

Answer 100

Facts will be more detail in exam but heres structure In exam- included c even tho haven’t done remedies
Lets focus on a and b and lets fo it focusing on our exam structure
So what did we agree on our recommed answr structure

START – FIRST OF ALL BACKGROUND, DEF, LEGAL POS, OPTIONS ETC – SENSIBLE WY TO ANSWE ANY Q = CONTEXT na dthen up and running- so this is discrim law and in partic direct discrim
Seminar- urge us enough to have a go against the clock – 5 mins to read q in exam
Only sit here 2 hours in MAY –

Question 101

-what we gonna do?

Answer 101

another go at this for e.g if we find were quick writers could say we could write out mofre info like stat claim etc or could do it short, so def agre discrim when u treat someone less or unfavourably due to in repstc 1 9 char- LEGAL POS- much easier for claimant , dotn even need to be employer – OPTIONS- always ostrich option find rather avoid dsicrim and just live with it, or might be so appaled and bring discrim claim from affar or stay and bring claim from within – especially 1st 8 element in our agrred answer structure- clock determine how much deltail 50% law 50% appl

Question 102

-what is the 2nd thing to do?

Answer 102

2nd venue – employement tribunal applicationacting for susan, s.3 et act et1 form, time limit s.1231 says 3 months from date of alleged discrim act then apply it
So time scale – when – say in exam so pick up exact time reference, say within time but encourage to bring claim aspa and use et1 from.

Question 103

• what is the 3rd ?

Answer 103

Then next = ELIG- with dscrim law elig not needing to employee etc instead focjusing on protecc ch and prohib conduct – 1st pro ch – MUST BE ATLEAST 2 OF FINTE LIST TO BE DONF S 4 OF EQUALITY ACT – 1 cha – man got job woman not= sex – can take stat book in exam so quicker to find and then in terms of prohib cond probs most diff, in answer discrim but theres only 6 , so basically just run down the 6 so any evidence that susans disabled knows immedialty s.15 rule out s.20 reaosnabel adj

Question 104

-nex thing after 3rd?

Answer 104

Any evi of harra- no harassment /vicitmisation is where employer makes worker suffer bc worker has complained, nto either of those, doesn’t even seem indirect just seems to be BLATENT DIRECT DISCIM ON FACTS WE HAVE- so only 1 of 6 is s.13 direct discrim – that’s what wed next talk abojut and might want to aply AND MIGHT want to provide def of 13 1 less fav treat o grounds of any of 9 but ehre its sex.

Question 105

-next one?

Answer 105

So fro direct dscrim nee to find comp- as further req- s23 privdies bit of detail – also agreed shamone case dangerous for c- bu here maybe she could fo real- bugt need to tell dangers so hypoth might be better cudl sgegst
b.op. so in terms of law we would say s.1362 of ea seems to favour worker-

Question 106

-what only estab dacts?

Answer 106

onlhy estab facts with et COULD DECDIED DISCIRM- BARTON 2003 et what d employer needs to estgab no sense whatsoever dscirm -That’s what lae says
Int eerms of applying-

Question 107

• what are 3 grounds that she can argue?

Answer 107

arg she has 2 grounds- 1 is that shes better can dof 2 she has more qual more experience shes been there twice as long she just better cand also whats he overheard in ikicthen – better cand easier cos will be written down soemwhee pr brin g in contract whe she started easier to rprorof better cand than over heard – if witness would they eve speak out for her- but on subject of proof what did we agree is the means she will use to try estab her evidence.

Question 108

• what i it used to be under?

Answer 108

It used to be under s.138 quesionare procedure but now itsACAS – good news acas still recommend that if susan were to – if fraiser doesn’t answer tribunal conclude up 2 no good.

Question 109

-so what would useful at this stay?

Answer 109

So what would be useful at this stage would be answer to include some questions could include some specific q such as confirmation q asre we right in thinkin more qualified, she been there twiceas long, were scot asked same q- why wa it felt scott performed better than susan, is there cctv, and so , wed use acas non stat guidance, as way of putting clients use forward, but in interest of balance still need to also to analyse the likely response of the d, in this case fraiser limited, nee to prove wnon whatsoever was there anu discrim.

Question 110

• what would say in relation to word comment?

Answer 110

What woul they say in relation to amn world comment= deny also what say to scott getting job to susan- say we turned up surely susan but scott was amzing and hse dint and that’s what they try rely. And lathogh weighted on c can be diff to prove disrim.

Question 111

– what agreed in lec 1?

Answer 111

Nex thing likely awrds- have agred lec 1 – crucially no cap on amount receive discrim law. The only 1 element c will recive any kind of cap is injury to feelings, and well cover that either rnext week or week after. But 1 thing very improtnant 2 main poss.

1 is that they don’t get job that they apply. Other is once in a job they don’t get a promotion that they aoply for. This is apromotion matters bc sometimes when an examq been aboutpromotion I mena c will claim entire salry obvs wont do, if without job and miss they claim salry would receive if got job. But if just missed on promotion all she missed out is additional amount if got promoto she still got her sal so have to be careful in amount she would have applied for.

Question 112

• last 1 of 8 what?

Answer 112

Last 1 of 8 was to assess the prospects of success for susan, parti cin this scenario ive given us next to no inf, wed be entitled for no infoentitled to say no info but tis kind of we cant really say.. And its dif when u act for disrim claim to advise them cos cant say cos they might turn up at ur law firma nd say I have employer weighted that mean im gonan win, true but problem is diff for c to prove discirm.

Question 113

-so what is the best hope?

Answer 113

So best hope is acas non stat guidance q and answers they rpivde and if we can estab for e.g fraiser lmd only ahs males tope nd that strongly suggest sex discrim but in terms of her overhearing mans world- that gonna be extremely diff- so have to say yes evry chance ud success but on basis bette ruqlifed and ur eprfomanc eintervew wasn’t that bad but cant gauarntee youll succed- that’s how u scued.

Question 114

review of this lecture?

Answer 114

Review:

Having completed lecture 4, we should now be able to:

(i) explain in detail the 1st of the 4 main types of prohibited conduct (PCo), namely:
S 13: Direct discrimination;
the other 3 main types being:
S 19: Indirect discrimination;
S 26: Harassment; and
S 27: Victimisation
and to apply our knowledge of s 13 to a fictitious scenario

Question 115

preview of lec 5?

Answer 115

Preview:

Lecture 5:

In lecture 5, we’ll acquire the ability to explain in detail the 2nd of the 4 main types of prohibited conduct (PCo), namely:
S 19: Indirect discrimination;
and to apply our knowledge of s 19 to a fictitious scenario

Question 116

what about seminar 2?

Answer 116

Seminar 2:

We have an activity to prepare in advance of seminar 2, in which we’ll reinforce our understanding of the 2 of the 6 types of PCo which relate specifically to disability, namely:
S 15: Discrimination arising from disability; and
S 20: Duty to make (reasonable) adjustments
by applying our knowledge of the relevant law to a problem-style question on these 2 types of PCo