Employment Law 5- Discrimination Law: Prohibited Conduct: Indirect Discrimination

Question 1

what about this lec?

Answer 1

Half way through the 4 key lecs of 435 and 6 where concentraing on dl claims – we know that in exam 3 of 4 q’s gonna be problem style and also know focus of teaching period is discrim law= likely topic- worth really focusin on rhese lec

Question 2

review of lec 4?

Answer 2

Review of lecture 4:

In lecture 4, we continued our consideration of the 6 types of prohibited conduct (Pco) in the EA 2010 and acquired 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
(ii) to apply our knowledge of s 13 to a fictitious scenario

Question 3

review of lec 4 in other words?

Answer 3

Lec 3- 2 6 types of prohib cond
Lec 2- bring claim abse on one of 9 s.4 ea and are there are future section of that act that relate to each not all ut lot of specific charactetrisc
Cos in terms of eligib req for discirm law claimant weve agreed that no continuous emplyemnt req –don’t even need to be employee its sufficient if youre a worker. So if we were to say elig req its needing toha ng claim 1 of 9 prote areas.
Then lec 3 4 5 6 – looking and 6 types of prohib conduc 2nd req
Lec 3- 2 types of 6 prohib con which relates to spec of disability- s.15 dicscirm arising form dis nad s.20dut to make reasonable adjustment

Last week lec 4 – started looking at 4 main types of prohib of 6 = DIRECT ETC – looked direct last week were doing indirect this week

Question 4

preview of lec 5?

Answer 4

Preview of lecture 5:

Our aims in lecture 5 are to acquire the ability to:
(i) explain in detail a 2nd of the 4 main types of prohibited conduct (PCo), namely:
S 19: Indirect discrimination;
the other 3 main types being:
S 13: Direct discrimination;
S 26: Harassment; and
S 27: Victimisation; and
(ii) to apply our knowledge of s 19 to a fictitious scenario

Question 5

what is lec 5 introducing?

Answer 5

Welcome to lecture 5 of our Employment Law 2 module, our 5th of 6 lectures on discrimination law

Let’s, as always begin our consideration of a 2nd of the 4 main types of PCo, namely:

S 19: Indirect discrimination

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

Question 6

introducing in other wrds?

Answer 6

Staright to primary ource = statute which shoukd be starting point – all textbooks cover this are talking about orig statute so makes snes to start there

Question 7

what is s.19|?

Answer 7

S 19 EA 2010: Indirect discrimination:

Question 8

s.119 1?

Answer 8

(1): A person (A) discriminates against another (B) B if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s

Question 9

s.19 2?

Answer 9

(2): For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if:

Question 10

s.19 2 a?

Answer 10

(a) A applies, or would apply, it to persons with whom B does not share the RPCh,

Question 11

s.19 in other words?

Answer 11

We can take stat book in exam
s. 19 r.a.w

A so in other words on dace it doesn’t seem to be discriminatory but when explore further at b

Question 12

back to stat of s.19 2 b?

Answer 12

(b) it puts, or would put, persons with whom B shares the RPCh at a particular disadvantage when compared with persons with whom B does not share it,

where statsitics come in

Question 13

s.19 2 c?

Answer 13

(c) it puts, or would put, B at that disadvantage, and

Question 14

s.19 2 d?

Answer 14

(d) A cannot show it to be a proportionate means of achieving a legitimate aim
= theres the defence, d not a defence if a cannot show it be prop means of achiebe leg aim- is defence if a can show that

Question 15

sub sec 3 and why rel?

Answer 15

(3) the relevant protected characteristics are -
all of the 9 PChs listed at s4 except 1, namely pregnancy and maternity (to which s18 applies)

Why word relevabt- that’s explained at sub sec 3 bc only 8 of 9 protect ch lisred at s 4 are considered rel- preganany and maternity is not included although it is covered at s.18 so thtas why suddenly have relevant appear infront of term protected ch cos only 8 of 9 listed at s.4 are rel

Question 16

act 1?

Answer 16

Lecture 5 Activity 1:

S 19(1) refers to ‘a provision, criterion or practice’ (PCP)

We came across this expression in lecture 3 in s 20(3)

Can we recall what we agreed a PCP is?

Question 17

what did we agree s.19?

Answer 17

So we just agreed s.9 r.aw – that’s expression come across befe when looked at s.20 sub sec 3 duty to make reasonable adjust

Privson etc mean e.g policy a set of rules e.g employer may say evry gotta be in by 9 and cant leaveby 9/people cant work at home/ people ant use itnenrant at work. Don’t use work comp for google etc , so always use own phoen and laptop

Question 18

what is the answer to act 1?

Answer 18

Answer:

We agreed that a PCP is essentially a set of rules or a policy:

Eg 1: working from home is not permitted; or

Eg 2: strict office hours are 8am - 5pm

Question 19

what about comparator?

Answer 19

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 19(2)(b): ‘.. puts .. B .. at a particular disadvantage ..‘ (ie requires a comparator); with

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

Question 20

comaprator in other words?

Answer 20

Compator-if we have agreed protech and prhob elig we could say further req is having to find comp- and agreed previously finding a c not really issue in relation to s.15 and 20 but much more of issue in direct discirm also now s.19 indirect discrim – to be put at a particular disadvantage= compared wit toher people, whereas to be treated unfavobaborly, hyes theres element of comp but not so clear the comparative yard stick

Question 21

full wording if s.19 2 b which causes req of comap?

Answer 21

The full wording of s 19(2)(b), which causes the requirement of a comparator, is:

it puts, or would put, persons with whom B shares the RPCh at a particular disadvantage when compared with persons with whom B does not share it

Therefore, 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

As we noted in lecture 4, s 23 clarifies the position re comparators

Question 22

what is s.23 ea?

Answer 22

S 23 EA 2010: Comparison by reference to circumstances

Question 23

s.23 1 provides?

Answer 23

(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 -
Sub sec 1 u should choose either real or hypothetical person whos personal circum are identical to u claim but for protetch char – and certain sub sec of s.23 relate to specific protect char like disability like sexual orientation

Question 24

s.23 2 a provide?

Answer 24

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

Question 25

s.23 3 provide?

Answer 25

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

Question 26

thereofre s,23 requires? - but in essensce what do we need to rememebr?

Answer 26

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

But in essence need tor ememebr in choosing com for either s.13 direct discrim claim or s.19 indirect discrim were going for either real or hypoth – as said on last side, so person could be of diff sex race religion and so on

Question 27

ideally the comparator will be?

Answer 27

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

Question 28

hw a claimant shoudl what?

Answer 28

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 saw in lecture 4 in the case of Shamoon 2003, they risk having their discrimination claim thrown out by an ET

Saw in case shmoon that paritc important to get that right- got that thrown out cos 2 real c – 2 real people chose as c didn’t really work cos weren’t in same boat as she was

Question 29

et deals with need for comparator diff for s.19 than?

Answer 29

An ET deals with the need for a comparator differently for a s 19 ID claimant than for a s 13 DD claimant

Question 30

whether real or hypothteical?

Answer 30

Rather than require the claimant to identify an individual (whether real or hypothetical) comparator, an ET requires the claimant to identify a pool of comparison and use statistics to support their case

Question 31

initially et will expect claimant to?

Answer 31

Initially, the ET will expect the claimant to identify that pool of comparison from within the workplace but, if statistics within the workplace don’t support the claimant’s argument, the ET will allow the claimant to widen the pool of comparison to national statistics

Question 32

what case did this happen in?

Answer 32

This is what happened in London Underground v Edwards 1998

Question 33

s.19 in other words?

Answer 33

s.19 slightly diff because instead of using 1 person as c- the claimant tends to choose pool of comparison and relies heavility on STATSITICS – all about stats proving indirect discirm and as well see it can be incred unfair indirect discirm bc if stat on ur side u can bring claim, if not you cant.

Question 34

if u happene to be rong with comapr then what?

Answer 34

If u happen to be in wrong half of prtect char then u cant claim whereas someone in toher half can.

Question 35

way et will deal will look for what?

Answer 35

Way et deal with it they will lookf for c first to estab that within the employer – within workforce of employer stats show that c is member of the half of the protect ch that’s at partic disadavantage and if c is unable to prove that from within stats within work force- the tribunal will then allow them to go onto national statts.
So u get 2 bites of cherry as c to try prove stats show that uve been palced at partic dis
And to see how et works it look enxt case on slide

Question 36

what is the most famous discrim case?

Answer 36

London Underground v Edwards 1998:

Question 37

what happeend in lodnon udnerground?

Answer 37

Miss Susan Edwards began work for London Underground in 1983 and qualified as a train driver in 1987
She had a child in 1987, for whom she had sole care
Until the end of 1992, the rostering arrangements enabled her to swap shifts to ensure she only worked during the day on weekdays and alternate Sundays
However, London Underground then brought in a company re-organisation plan to cut costs and increase efficiency
As a single parent, Susan Edwards could not keep up her child care responsibilities after the new plan was introduced

Question 38

london udnergroun 2?

Answer 38

She therefore refused to sign her new contract and resigned, arguing constructive dismissal, and claimed ID on grounds of sex against the London Underground
The ET: found for Susan Edwards, Morrison J ruling that London Underground could have … ‘easily, without losing the objectives of their plan and reorganisation, have accommodated the applicant who was a long-serving employee… They did no address themselves to these issues’
‘The more clear it is that the employers unreasonably failed to show flexibility in their employment practices, the more willing the tribunal should be to make a finding of unlawful discrimination’

Question 39

londond und 3?

Answer 39

She claimed indirect discrim London undergrand sex protect cha
London un could have asily accom applicant long employeye they did not address themselves to these issues
The more clesr it is r.a.w
So she won London underground just being diff
Wouldn’t cost anymore ethye didn’t need store lfit or build anything - not disability anyway but it was a re orgnaisaito that they were applying in blanket waya nd were lisitneing to individ who ahd good reason to be granted except from general rostering arrnagemt so in essence they had behaved disproprtioantely

Question 40

sometimes et will accept what?

Answer 40

Some ETs will simply accept the view that care for children (and the elderly) impacts on women more than men and will not even require statistical evidence

-With care for chil- there is bit of inconsitiency som et wont even require stat evidence they’ll just say right well find for c without asking her to prove it but most ets do stillr eqauite stat evidence in support of claim

Question 41

however what do most ets still require?

Answer 41

However, most ETs still do require statistical evidence as sociological trends may change

Question 42

so what would susan have to do in other words?

Answer 42

So what susan would have had to do would have ben right if we take all ppl who work for London un are there more single mothers than single fathers and if that’s the case then apparentl equal rostering arrangement that doesn ton face discrim as indirect effect of putting single mothers at a partic disad so could use London un as fscy r.a.w

Question 43

what can we use london und as?

Answer 43

We can use London Underground 1998 as our authority for the fact an ET will allow a s 19 ID claimant to turn to national statistics if workplace statistics don’t prove their point

Question 44

cos very usually turned out what?

Answer 44

Cos very unsually turned out from satts actually were many single fathra nd mothers but she looked antonally way more single mothers than dathers

Question 45

Is there any defence to s 19?

Answer 45

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

We then saw in lecture 4 that the answer to the question of whether a defendant employer has a defence to a s 13 claim depends on the PCh in question

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

Question 46

defences to other types of prohib con

Answer 46

Defences to other types of prohiv conduct e.g s.15 – 2 clear justification defences to dsicirm arsing from dis 1 the proprtionae attempt to achie legit aim and other employer not have realised worker disabled.. Hard to sya had rralsie etc s.20 we said no official jsutgificaiton ones bu there are counter arg e.g unreaosnble expect employer to spend am ount of money given their size nd rsouces, to say install lift for e.g
And then sa last week s.13 it depends on protect ch to see whether there sia defence
So fo e.g in rel to age u have proportionality defence speci mentioning age , then with dis arguing in silar lines to s.15, that not quite same, theres diff s.15 btw saying I haven’t relsied that claimant disabiled and s.13 saying im disputing that this person is disabled next slide

Question 47

defence redisab?

Answer 47

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

Question 48

defence for remarraige?

Answer 48

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’

Similarly there s a speciif sub section in relation to marriage and civil par

Question 49

otherwise the only defence an employer def can argue is?

Answer 49

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

But nly genuine defence to direct dsicirm = gor – e.g thatre company auditing someone to play cat woman e.g if said no to man e.g and search thin g

Question 50

for an aexample et can accpet in g.o.r?

Answer 50

For example, an ET may accept that the requirement to discriminate was a ‘proportionate means of achieving a legitimate aim’ if satisfied that it was a GOR for a theatre to hire a woman to play Catwoman

Question 51

as with s.20 there is what?

Answer 51

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

Question 52

however whta can an et be reluctant to?

Answer 52

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

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

Question 53

what doesnt it matter to u and me?

Answer 53

And it doesn’t matter to u and me whether call this a official justification defence or counter arg – they are as far aswere concener potential ways of a defe employer, fending off a claim,and we saw in tribunal is quite strict in its application acceptance of defence of genuine occoupational req its got to be very clear, we looked at cases of etam and Glasgow

Question 54

in todays lec what do we need to decide?

Answer 54

In today’s lecture, we need to decide whether there is any defence to s 19

Question 55

deciding what?

Answer 55

So now tis time to decide is there a defence s.19-yes there is its same as first defence tos .15

Question 56

what have we seen with s.19 2?

Answer 56

We have seen that s 19(2)(d) provides the following wording for the defence:

A cannot show it to be a proportionate means of achieving a legitimate aim

prove emasure was infact prop means of ..

Question 57

the inclusion is what ?

Answer 57

The inclusion in the s 19(2)(d) defence of the word ‘proportionate’, a word which, as we saw in lecture 3, is also present in the s 15(1)(b) defence, provides us with further evidence that UK statute passed since the incorporation into UK law of the ECHR through the HRA 1998 when it came into force on 2 October 2000, such as the EA 2010, typically includes many references to the concept of proportionality which is so cherished by the ECtHR in Strasbourg

Question 58

ecthr in other words?

Answer 58

Mentoned it before that eve since the europen convention on hr became part of human rights becme pary of uk law when the hr came into force 2nd oct 200, we found elg written since then many ref – ROPRTIONALITY0 strasb org- so we find that word proprtiante I both s.15 defence and 19 defence and we find it not just in et in uks atts across the board propr increasingly becoming more present

Question 59

unlike s.15 what did we see?

Answer 59

Unlike s 15, which, as we saw in lecture 3, contains 2 defences, s 19 contains only 1 defence

So unlike s.15 which contains 2 defences s.19 cotnians only 1 defence

Question 60

the s.19 2 d defence like s.15 cotnaisn waht?

Answer 60

The s 19(2)(d) defence, like the s 15(1)(b) defence, contains 2 elements:

(i) the alleged ID can only de justified where the defendant pursued a legitimate aim; and
(ii) the defendant must have pursued that legitimate aim in a proportionate manner

Question 61

what about 1st defence?

Answer 61

But just like 1st defence in s.15 the only defence in s.19 contains 2 elements, the proprtioanltely elements and the pursuant of a legit aim element so both of thse have to be satsifed.

Question 62

prop element in other words?

Answer 62

In terms of the prop element, the leg it aim element, the t tends to be quit easily satisfied that any business, any employer exist to make money, and so tribunal tends to accept quite readily the need for bsuienss ethicsy and sometimes make ahrsh decision to prevent comp go under. So tends tob e quite easy for employer to statsify tribunal that actually it was a legit aim to impos or implement measure which c feels put at partic disa

Question 63

what will d argye?

Answer 63

(i) invariably, the defendant will argue business efficacy (the need to thrive or at least survive) as its legitimate aim

Question 64

what will be key question of et in repsonse to this?

Answer 64

(ii) the key question for the ET to ask itself re the question of proportionality is whether the defendant could have achieved its stated legitimate aim in a more proportionate manner

Question 65

what if answer is yes?

Answer 65

However, if the answer is yes, the ET will rule that the defendant employer acted disproportionately

Question 66

diff side of thigns in other words?

Answer 66

The much more diff side of things or aspet of 2 pronged defence, is to convince tribunal that the pusance of that legit aim was proption- so tribunal will ask itself, could the d or employer, achieve that legit aimin a more prop manner that would not have involved putting c at a paritc disad, and if tribunal feels answer = n o choce no way d employer could have achieved that claim without putting c at diagsaneg- say that is proportionate
If could have not put c at dis and violiating right os employee that shouldhave ogn down alternative and route chose go down et wpuld say disprop

Question 67

what happened in act 2?

Answer 67

Lecture 5 Activity 2:

In each of the following scenarios, analyse whether:

(i) the employer’s actions are sufficient to meet the definition of indirect discrimination; and
(ii) the employer might be able to defend the claim under s19(2)(d) Equality Act 2010 (EA)

Question 68

what about scenarios?

Answer 68

Heres some scenarios application ofprop disav
In each scenarios have to chose e. g above
1- so an apparnetl equal treatment of all having indirect effet placing c at partic d isad due to 1 of 8 infact for indirect discrim bc 1 of them not includen d
A nd 2nd that employer may be able to defend claim using proprtioanly defnence pursuant of a legit aim.

Question 69

scenario 1?

Answer 69

Scenario 1:

A small finance company, Stock Pile Ltd (SPL), advertised that it was looking to employ a stock analyst.

SPL made it clear in its advertisement that a requirement of the job would be that the successful applicant would need to work late on a Friday afternoon to analyse stock prices in the Californian finance market as these figures arrived late on a Friday because of the time difference between Birmingham and Los Angeles.

Question 70

scenario 1 part 2?

Answer 70

When applying for the advertised job, Sarah explained that, during the winter months, she would like to be released early on Friday afternoons as she observes the Jewish Sabbath, and it was a requirement of her religion that she made it home before nightfall on a Friday.

She said she would make up any time lost elsewhere in the week.

SPL did not offer Sarah the job.

Question 71

what could sarah do with scenario 1?

Answer 71

So could sarah first of all bring discrim claim- rtot religion/belief = idnriect discrim so can she say that that polcy needing peole to wake places pratcial jews and disad= yes we can – but chance are she could estab

Question 72

what is the enxt q?

Answer 72

Next q could employer defence arg- so neds to to establish had legit aim?- so is need to ssk workers stay late o fridya cosgiven that stock analyst need to no happen in ameirca before cloe for busnienss yeah legit im easy but prop part = problem –

Question 73

so what is the first ele?

Answer 73

so first ele of s.19 2 d = satifief but is it prop to turn down application bc relgion require them to leav eearly on Friday during winter months

Question 74

lets not forget what?

Answer 74

elts not forget that 1 arg will com up with is interview sotkc plie – but saw last week cts will rpesume unless v good reaos that give el doubt to c- so what dowe think, well we don’t know how many stock ana they’ve got.

Question 75

if theyve only got 1 what?

Answer 75

If they’ve only got 1 if she is only 1 it might be prop but lets say shes the 5thmaybe find away around it, why she should she be penalised cos of her religion, they could say for 3 winte motnhs she needs t leave early on Friday she promsies to make ip time another tiem could u be okay witht that, they should VERY SURELY HAVE DISCUSION WITH OTHER 4

Question 76

so what does the answer depend on?

Answer 76

So the answer very ,much dends on hwo many stock analysts there are. But if shes not gonnabe only 1 there looks like away round it

Question 77

make up time by?

Answer 77

So probs 9 mothsyear not a problem but 3 motnhs ill make up time else where but ahe to elave early on witner motnhs
So these scenariosway of reinforcing oru undertsnading howlaw I applied

Question 78

scenario 2?

Answer 78

Scenario 2:

Narinder’s line manager explained that she would have to work a monthly night shift pattern, along with everyone else in her department.

This would make Narinder’s daily routine difficult because she is a single mother with childcare responsibilities.

Once the new pattern was in place, Narinder refused to work the night shift and was sacked.

Question 79

could she bring indirect discrim claim?

Answer 79

Could she bring indirect discrim claim- is this a pcp or emasure set of rules or policy whatever u want to apply it implemented that when u first lookt hink that’s fair appies to evey1, but whe think ABOUT IT MORE, that actually might place females at partic disad bc more single mothers than there are single fathrs, so can u see ethat she ptonially has a claim?

Question 80

what do we thin here?

Answer 80

Yes, do we think that the mployer would be able to rely on s.19 2 d defence legit aim I prop manner

Question 81

legit aim part?

Answer 81

Legit aim- having to work a monthly night shit, 1 a month ngiht shift andapplies toe veyrboda dn that’s good to make company work, as agreed anyway legit ai is quite easy for d to esytablsih an tribunal quite ready to accept legit aim part its prop part =

Question 82

so is it prop to sac in scenario 2?

Answer 82

So is it prop to sack someone who says cnat work night shift due to childcare or could they have explored other avenues- surely they could have anyof u single mothers u can do same, maj whoa reent hopefully ull udnertsnsd whilst u have to do wrok shift Narinder doesn’t, are you ahppy witht hat?a nd anr make it up by working anothet im and just talk and say , are u ahppy with that or is that gonan demotivate you.

Question 83

and if employer open about what?

Answer 83

And if employer open about ti, 1 imagines everyone gonna eb okay. Disprop to sack hr and more prop means by calling evry1 togrther and explain, can u accpe or wil u resent us, and iek to think that workforce would understand so think say once again that Narinder has REASONABLE PROPSECT OF SUCCESS

Question 84

scenario 3?

Answer 84

Scenario 3:

Gareth’s line manager explained that he would have to work a monthly night shift pattern, along with everyone else in his department.

This would make Gareth’s daily routine difficult because he is a single father with childcare responsibilities.

Once the new pattern was in place, Gareth refused to work the night shift and was sacked.

Question 85

what is the unfairness of drscrim law?

Answer 85

THIS IS THE UNFAIRNESS OF DISCRIM LAE AND IMPOTANTCE OF STAT
Can garteht no bc stats not on his side… same as Narinder but men notat partic dis cos stats show more single mothers than father . S tha shows how unfair lae can be and how within indirect discrim stats are be alla nd end all

Gareths only hope – ifllok at stta within his company could be mre fathers but nationally stats hell crash and burn

Question 86

what about scenario 4?

Answer 86

Scenario 4:

James, 45, applied for the position of hot air balloon pilot with Panorama Limited.

He had 10 years’ experience of piloting hot air balloons and was successful at his interview.

However, James failed an eye examination the passing of which was a condition of employment with PL, and the position was therefore offered to a younger candidate.

Question 87

so can bring claim?

Answer 87

r.a.w

So can he bring indirect- do we have pcp applies eually to all e.g pas eye tets to fly comp hot air ballon

Question 88

what on face of claim?

Answer 88

Does on face discirm against any protec char no – does it place a partic char at partic disd- age so james will claim that either specific age 45 or bracket 40’s people of that age place paritc dis by this pcp of agains tpeople of more yolunger who more likely to have 20/20 vision.

Question 89

on face of claim what does he have?

Answer 89

So on face of it he potenally has claim, he get further than gareth but ufnor for james theres every chabece that tribunal will aceppt s.19 2 d defence of a prop pusant of a legit aim- bc whats legit aim of eye examine, rptoecting tourist I hot air balloon. So therfor elegit aim, was there any way round e.g contact lenses or glases but anyway, would appear to be that would be consider prop pursuant of legit aim. Glasss fro research done that would not be prop and accpetnale and seens as prop pusant of legit aim

Question 90

so use how to recog indirect discrim?

Answer 90

So use how to recog indirect discirm
Emloyer has to be dumb for direct whereas indirect more subtle and more caught up by it as don’t realsue when they implemt pcp what the ptotenial consuences are.

Question 91

what abotu b.o.op?

Answer 91

Burden of proof

Let’s remind ourselves yet again that we agreed in lectures 1, 3 and 4 that the there is an imbalance in the standard of proof required for all EA discrimination claims in favour of 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, so all a claimant needs to do is establish a prima facie case that it’s possible they’ve been discriminated against

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

Question 92

b.op in other words?

Answer 92

Dow her for c and only have to rpevnt facts [SSONLE COULD HAVE BEEN
Whereas 2nd barton

Question 93

case for b.o.p?

Answer 93

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

Question 94

however what have we also agreed?

Answer 94

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 95

what does thec need to estab?

Answer 95

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 96

no doubt whatsoeever?

Answer 96

NO DOYBT WHATSOVER – agred pehaps tese apparent ufnairnes sthere bc so damn dif to prove dsicrim that’s not in writing.

So agreed if comment in corr cctv to prove if college over have to prusade them to stad up for u which they wont.

Question 97

act 3?

Answer 97

Applying what learnt to scenario.
r.aw.

Lecture 5 Activity 3:

Let’s finish by, as usual, reinforcing all the law that we’ve learned today re s 19 ID by applying it to this imaginary scenario:

You have been contacted by Kiran, the Human Resources Manager of Great British Retail Industries (GBRI).

Every year, GBRI closes its offices from 24 December to 1 January inclusive, as many of its clients’ businesses are also closed over Christmas.

As a consequence, GBRI requires all employees to take 1 week’s annual leave during the Christmas closure.

Question 98

what happened in act 3?

Answer 98

Omar, a retail consultant, and practising muslim, requested some time off to celebrate the Muslim festival of Eid, even if it was unpaid.

Other than the Christmas period, Omar had no other annual leave remaining.

He had planned to set some holiday aside, but an unexpected family bereavement meant that he had to use up his remaining entitlement.

Kiran refused Omar’s request for time off for Eid, telling him it came at a busy time of the year when GBRI was already suffering from staff shortages.

Question 99

omar threatedned to what?

Answer 99

Omar has threatened to bring a s 19 ID claim against GBRI re both:

(i) Kiran’s refusal to allow him time off for Eid; and
(ii) GBRI’s policy of requiring its employees to use a certain amount of holiday entitlement at Christmas (when he does not want time away from work).

Question 100

exam q example?

Answer 100

Refletc any wording In exam q
Mantra 50% law 50% applying law ac In detail facts 1st = wider reading – read some jounals and current ongoing cases in news etc

Please advise Kiran as to:

(a) whether Omar might be able to bring an indirect discrimination claim against Great British Retail Industries;
(b) if so, his prospects of success, including an assessment of whether Great British Retail Industries might be able to defend his claim; and
(c) providing figures where possible, the various elements of any remedies an employment tribunal is likely to award to Omar should his claim be successful.

Question 101

sugessted answer??

Answer 101

Suggested answer:

Let’s remind ourselves that, to achieve a high mark in a problem-style question, we must:

(i) identify and briefly explain any relevant law; and then
(ii) apply that law, accurately and in detail, to the facts we are given in the question, spelling out the obvious

Let’s also remind ourselves that, to achieve a 1st, we should strive to demonstrate evidence of wider reading

Question 102

answer layout?

Answer 102

Finally, let’s also remind ourselves of our recommended answer structure for each potentially relevant claim in a problem-style question:

Background / definition / legal position /options: Law: background & definition, Application: legal position & options
Venue: Law: Application:
Claim form and time limit : Law: Application:
Eligibility requirements: Law: Application:
Further requirements: Law: Application:
Burden of proof: Law: Application:
Likely awards if success possible: Law: Application:
Claimant’s prospect of success: Law: Application:

Question 103

layout 1?

Answer 103

Also ave answer structure but might not mrirow wording of q but kind merge 2
Brill way fo revsing is to have a go at q’s after exam in exam conditons, so both q seminar 2 and this q good in exam cond, bc If know then great e.g know jow much write back groun detc that’s why need to practice

Question 104

layout 2?

Answer 104

LAW- APPLCIATION- TIS APPL WHERE PPL FALL, so exicited peole kow law forget ao apply and when apply la don’t say clearly this case but haven’t given any indication WHY IT’S THE CAE, so need to spell out thje obvs

Question 105

layout 3?

Answer 105

Legal pos yes- elig req protech cha needs to be at stake and 1 of 6 typr of prhov
Omar protech – relgion/belief and that s.10 more detail religion belief and which type of protech cha s.19 indirect dsicim 6 types which 1 or more apply
s.4 and 10 govern protech cha
s.19 indirect

Question 106

layout 4?

Answer 106

Int emrs of options 4 omar tends tobe atleast 3 -1 of which oru friend ostrich approach- soemc lcients hate confrontation lvie with it, anothjer otpon is to coudld eicd thi si junaaccpetblt this is essneitally consutrcutive dismissal and bring s.19 claim after walking out or he could brign s.19 claim whilst still in palce as worker and gbri

Question 107

layout 5?

Answer 107

Venue s.120 (1) says all dsicrim claims like all sat claim all have to be in et – only claim also ct of law = wd. We know that claum form to fill is et1 form governed s.3 employment tribunals act. And that aprtic s.8 tht omafr will complete cos contains details of claim. S.9 the remedies theyre seeking, again if have go not able to finsish s.8 and 9 soething u can omit. Helps slightly but not crucial

Question 108

layout 6?

Answer 108

Here acting for kiran she might repson in et3 form- could change that could also workf or d. time limi remember s.123-1 and says got 3 months omar hs 3 months to subit et1 1 to tribunal 1 to kiran from the last episode of drsim. And well know agan if find can complete answer in 55 mins. But if uve got time to play with. U could say that tribunal geneurous to discirm c cos humiliation than say ud claima or rp c dso might have taken more thn3 months tog et courage.

Question 109

layout 7?

Answer 109

Elig req= discrim no contious emplyemnt don’t even need to be employee could be adver tetc don’t even need to do yas work so only req 1 of 9 charcters rel and that atleats 1 of 6 protrch con

Question 110

layout 8?

Answer 110

1 religou beliefprotec ch and idnrect discrim is hghis potential claim. Not diabled so havet got 15 or 20. its not direct dscirm onfac of it, it’s a policy hta applies equally to everyone so not s.13 its s.19 and thers no ev of ahrrasmsne tand victimisation.

Question 111

layout 9?

Answer 111

So looking at s,19 indirect dscrim/ firther req= compartor here so s.13 and 19 require c. we agreed that’s.19 more about pool of com and in partic stras.

Question 112

layout 10?

Answer 112

Do stats within firm reflect fact or are they infaour of omar. Cos hes gonna be arguing this apparently non discrim req for everyone to take week off over Christmas week, doesn’t appear first instance to dscirm against anybody but after actual does idnriectly place prstcising muslims as partic disav-

Question 113

layout 11?

Answer 113

so almost certainlyoamr would not need to go beyond stats within gbri to national sats eveb within gbri the chances are hed be able to etab that eople practice other elgi are not placed at disad chrsmtas week fof. He would then try add weight to arg acas to ask questins-

Question 114

layout 12?

Answer 114

what ur policy on religion? Do u offer taining or eigon, any other e.g othe rworker finding diff week off chrismas week. Joy of b.op discirm law applies ewually to all 6 types of prophib conduct know that’s its imbalanced more for c – and rpodcue facts possible that cbri could ahev dsicirm against omar, whilst gbri must asaifyd NON SENSE WHATSOVER id they dscrim.

Question 115

layout 13?

Answer 115

So what are ag can omar agur s.19 indirect well onf CE DOES SEEM GBRI AND KIRAN have case to answer cos ionf acde of it does apper that pcp of requiring everyone tot take weke fof at xmas has indirectly put oar at paritc dis cos hed reather take it off at eid. He had saved time eid btu have to sav efmaily beareave,ent. And he would argue strict take of at xmas = disagvemt.

Question 116

layout 14?

Answer 116

B.op then move to kiranand gbri to establish non snese pcp to take off wekk that not discrim at all. And ifnatc turn to defence s.192 b – legi t aim ad applied pro. Legit easy to etsabs- aim = whats the reason for it? – bc the other business closed down. Not gonna achieve anything by stayijg open that week. So save more by closing down building this uni closes to save elec etc.

Question 117

layout 15?

Answer 117

so kinda ialr standard practice tribual likely to accpe tleigt iam. Ahrd part is estab that refusing o let omar take time off for eid is proportionate. Rather than aply polcuy ans rigid what might they do. What might krian do. Not still palcin omar at partic dis?- allow him to takr itm off for eid. Discused TALK TO OMARS COLELEGUES.

Question 118

layout 16?

Answer 118

Should ahev took holiday entitle but reason wa unfortunate to death. Hed been savin g that week tot ake off at eid. Do u might him tot ake off time for eid etc. hopefully understand. He kep that wee back and only had to use wek allocated eid cos one family meeber died

Question 119

layout 17?

Answer 119

. This could be either r way interesting case. * cos think tribunal go either eya. In temrs of prop tribuna want to see that krina discussed with omars collegues and alternaitves and if felt just simply applied blanet policy have to tak week off etc.. What matters I know how to apply law and how to apply pattic s.1952 aim easy prop hard.

Question 120

layout 18?

Answer 120

If as in seminar lookignat 1 of 2 disability probit conduct s.20 sub sec 4 either firm with no money or frim operating a grade 2 lfieter bulding vos cant instal lfit. But tif likehis don’t need expenditure but just approaval of omars colegues . Doesn’t mnbotht them too much whe he takes his hol then perhaps dispop rigig appkciiton of pcp.

Question 121

layout 19?

Answer 121

Remedies next wek- bc 1 part of rem capped relates to harassment but in essence n overall cp to a discirm clai to succcesfull dsicirm claimant payout. Only element that any way capped is part of ti relates to injury/feeligns ct has provided guildeleines there. Next week harrasmen tvictimisation and remedies.

Question 122

review of lec 5?

Answer 122

Review:

Having completed lecture 5, we should now be able to:

(i) explain in detail a 2nd of the 4 main types of prohibited conduct (PCo), namely:
S 19: Indirect discrimination;
the other 3 main types being:
S 13: Direct discrimination;
S 26: Harassment; and
S 27: Victimisation; and
(ii) to apply our knowledge of s 19 to a fictitious scenario

Question 123

review of lec 6?

Answer 123

Preview:

Lecture 6:

In lecture 6, we’ll acquire the ability to explain in detail the 3rd and 4th of the 4 main types of prohibited conduct (PCo), namely:

S26: harassment; and
S27: victimisation

and to apply our knowledge of s 26 and s 27 to a fictitious scenario

Question 124

seminar 3 ?

Answer 124

Seminar 3:

We have an activity to prepare in advance of seminar 3, in which we’ll reinforce our understanding of 1 of the 6 types of PCo, namely:

S 13: Direct discrimination

by applying our knowledge of the relevant law to a problem-style question on these 2 types of PCo