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Employment Law > Employment Law - lec 2 -protected characertistics > Flashcards

Employment Law - lec 2 -protected characertistics Flashcards

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0
Q

Intro - how we get high marks?

A
  • read scenario
  • evidence of wider reading
  • critical analysis : offering own opinion
  • each legal issue - critical add our own opinion and support that opinion with reason
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1
Q

Overview of lec 1:

A

-

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2
Q

Intro - what focusing on in this lecture

A

Prohibited conduct - can only bring discrim claim in relation to this

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3
Q

How many characteristics are there?

A

9 - but gonna focus on 6

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4
Q

What are the 6 were focusing on

A 
Age 
Disability 
Race 
Religion or belief 
Sex and 
Sexual orientation
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5
Q

What should we always start of with when bringing claim discrim law

A

Protect c - can’t just say guy hates me have to hand it on something- 9 character

6 prohib conduct look at next time

Needs to be both prohib condo and protect chara in relation to a pc

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6
Q

What section are pchs under?

A

S.4 ea

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7
Q

What did each character have before?

A

It’s own act before had sex discrim act etc but this act united all the various pchs

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8
Q

List all 9 pchs ?

A 
Age 
Disability 
Gender reassignment 
Marriage and civil partnership 
Preganancy  and maternity 
Race 
Religion or belief 
Sex 
Sexual orientation
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9
Q

What is the 1st one

A

Age - defined at s5 EA

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10
Q

📖What should we know about act in relation to 9 characteristics?

A

S 4-12 lIST 9 characteristics with which the act is concerned -

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11
Q

📖- extra marks in relation to previous

A

Equality act is quite new so many cases or articles that you will read will refer to previous legislation, there is stil a need to be familiar with sex discrimination act, race relations etc

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12
Q

📖 what about age?

A

A person belonging to a particular age group is protected

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13
Q

So what do we need to think about when we think about age?

A

We agreed the concept of less favorable treatment

In order to bring a discrim claim u must prove less fav treatment = that’s where a comparotr comes in

Less fav treatment than other person

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14
Q

What should we always relate back to

A

Primary source - on statue bc discrim is another star claim like unfair dismally etc

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15
Q

Less favorable treatment can be due either to?

A

S 5 1 a - a partic age

S 5 1 b - an age range (eg over 50)s or 21 year olds

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16
Q

📖- what about the statute in this respect though?

A

Stat not solely about protecting the young or the old

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17
Q

📖 why not solely about that?

A

The equal treatment in employment and occupation directive (directive 2000/78 ec is intended to lay down a general framework for combating discrim in relation to a no of grounds, influx that of age

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18
Q

📖- more about this directive

A

-

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19
Q

📖- what about this directive approach?

A

-

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20
Q

📖- as a result what did the U.K. adopt?

A

-

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21
Q

📖- revision tip?

A

Ea 2010 replaced all of the age regulations except for part which referred to the default retirement age

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22
Q

📖- what was the default retirement age

A

Was abolished in 2011 - so employers can now impose a retirement age only if they are able to objectively justifit it

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23
Q

📖- how can employers objectively justify it?

A

Objective justification in English and Eu law requires the employers to demonstrate to the civil law standard of proof that they have A PROPORTIONATE MEANS OF ACHIEVING A LEGIT AIM

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24
Q

What is it worth looking at also ?

A

Looking at the equality and human rights commission code - but recent case law is also informative

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25
Q

Act 1 - what to do?

A

Look at each case see whether tribunal or court decided in factor of c.

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26
Q

What is the 1st case

A

Miriam o Reilly v bbc

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27
Q

What happened in 1st case I

A

Miriam 1 of 4 female presenters in 40s /50s of protramme A she said only sacked bc age and she brought discrim claim

AGE RANGE - s 5 1 b

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28
Q

Did Miriam succeed?

A

Et found - mo re pch of age but NOT SEX

Said perfectly fine for tv to appeal to younger was a LEGIT AIM within the employment equality age regulations 2006 - it was not convinced that this required employing younger presenters

FAVOURED C

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29
Q

What was 2nd case?

A

Seldon v cwj

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30
Q

What happen in seldon?

A

Seldon partner in law firm - h didn’t retired - they said 65 u had a food run - retirement policy st she of 6
- s brought discrim claim against cwj re the pch of age range s 5 1 b

  • saying force to retire = discrim
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31
Q

Did seldon succeed?

A

Et- eat - ca and sc all found against S -failed at all stages

Cr said cwjs retirement policy was PROPRRIOANTE means of pursing a legit aim within EEAR , giving younger assoc opportunities of partnership

The facilitation of inter generational fairness and dignity is in the public interest

He tried specific age and failed again

Ct said he signed partnserhsip deed - said retir at 65 he should ahem accepted that

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32
Q

So in depth of a’ partic age

A

Under a 5 1 a - 65 was cwjs retirement age
Et found against
65 was proportionate as was the default retirement age ( this has now been phased out )
All Parker’s signed partnershipndeed which 65 - clearly identities as retirement age

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33
Q

📖- more about retirement in U.K.

A

In U.K. implementing the framework directive - it first adopted a default retirement age of 65 yrs old- abolished in 2022 - but still remains possibility of an employer justified retirement age

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34
Q

📖- what if employer wishes to have default retirement age?

A

If employer wishes to have compulsory retirement age, then the employer must show that it is for a legit aim and that retirement is properioante - appropriate and necc- means of achieving that aim

Seldon c clarkson weight and jakes

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35
Q

📖- how to get extra marks in regard to regiment

A

MAKE POINT THAT DEFAULT RETIRMENT AGE WAS INTRODUCED SAME TIME AS REGULATIONS WHICH MADE AGE DISCRIM IN EMPLOYMENT UNLAWFUL- as a cumpuslory retirement age in itself age discriminatory

It seemed a strange policy to adopt - the default retirement age was abolished in 2011

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36
Q

📖 the introduction of the default retirement age was the subject of a challenge by?

A

The charity age U.K.

R(on the application of age U.K. v Secretary of State for business 2009

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37
Q

📖-what happened in

R(on the application of age U.K. v Secretary of State for business 2009

A

Important q in case which went to ecj- whether default retirement age was proportionate means if achieving a legit aim, the high ft held that it was so in facts, but if fog had not been carrying out a review or had tried to introduce in 2009 rather 2006 then court would she. Arrived at diff decision

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38
Q

📖- revision tip 2

A

The issue of an employer justified retirement age was discussed in seldon held that it was possibly to justify cumpolsory retirement if this was prior means of achieving a legit aim

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39
Q

What is our 3 rd case?

A

Lockwood v department of work and pensions

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40
Q

What happens in Lockwood?

A

26 ms Lockwood was in younger age group chosen by deep as POOL FOR REDUNDANCY before an older group

Claimed against cwj re pch of age range s5 1b for being too young

Discrim ahaisnt young?

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41
Q

What was answer of re Lockwood v dwp?

A

Eat found against l

Dwp policy legit - widely accept policy for redundancy

A policy to make younger group of employees redundant ahead of an older fril bc younger people more emplohabke falls within EEAR

Also a last in 1st policy is standard practice in redundant situations

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42
Q

What’s our 4th case ? What

A

John mccrick v channel 4 tevelebsopn coropration and img media

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43
Q

What happened in 4th case?

A

Sacked and channel 4 came up with new younger presenter, said he kmt getting rid is age range - s 5 1 b - did he succeed

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44
Q

Did John succeed? What d

A

Et found against

2 reasons

  • c 4 had legit aim within EEAR of attracting a wider audience to
  • jm dismissal was due it to his age but his persona, et ruling that he held self described bigots etc - unparablw for wider audience

Compare against Miriam but Miriam don’t need younger presents but his dismays weren’t due to age it was due to him being bigoted and shovanisirc

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45
Q

What is interesting to note with age?

A

Et eat ca Hl

Found no age discrim in 3 our 4 cAses

Proves not way to succee with discrim claim re the pch of age

—MIGHT WANT TO ADD IN EXAM ESSAY STYLE IR SEM Q- Suggests U.K. discrim law Favour of workers- Cavour of worker? But only 1 succeed?

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46
Q

📖- so what about direct and indirect discrim?

A

As with other state and regulation protection is offered against direct and indirect discrim, harassment and victimization - the definition of direct and indirect discrim is same for all other unlawful grounds of discrim

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47
Q

📖- what is unlike other forms of discrim overall for age

A

It is permissive to directly discriminate on the grounds of age in some circumstances - there is a req to show that the less favorable treatment is a ‘proportionate means of achieving a legit aim’ the defendant employers must prove that the difference is OBJECTIVELY JUSTIFTED

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48
Q

📖- case for this?

A

Hampton v lord chancellor - come back

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49
Q

📖- exceptions with regard to age?

A

-

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50
Q

📖- exception case

A

-

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51
Q

📖- other exceptions?

A

-

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52
Q

📖- revision tip 3

A

Compare the treatment of age discrim with other unlawful grounds and point out that there are more exceptions to age discrim in the equality act than in relation to any other protected characterizes

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53
Q

📖What case is an example of disability?

A

Lord registry v houghton- come back to

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54
Q

📖 revision tip for disability

A

The directive permits in certain forum - positive discrim in favor of the disabled employee or alllicant by imposing this duty of reasonable accommodation

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55
Q

Where is disability defined?

A

S 6 EA

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56
Q

What does s.6 1 a suggest?

A

A person is disabled if :

S.6 1 a - he or she has a physical impairment

S.6 1 b - the impairment has a substainsk and long term adverse effect in his ability to carry it normal day to day activities

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57
Q

What are the therefore 3 elements to disability

A

1- physical or mental impairment
2 substantial and long term adverse effect
3- and ability to carry out normal day to day activities

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58
Q

What should we remember when answering a w re disability

A

Remember to apply each of 3 element of legal definition or the facts above

So in essence know only a and b but there’s 3 elements contained within

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59
Q

📖 revision tip for disbialirt 2

A

Certain condition are not treated as impairments for purposes of the act- these include addiction to alcohol nicotine or Ang other substance unless the addiction was originally the result of medically prescribed drugs or treatment ??

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60
Q

Application of physical or mental impairment - what should we first identify?

A

Identify whether the impairment is physical or mental

Need to know for prob Q

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61
Q

Application of physical or mental impairment - what about impairment

A

How impariement was caused is irrelevant as confirmed by eat in case of power v panosonjc

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62
Q

What happened in power v Panasonic?

A

Annette power was sales manager but reduced sale Managers
She said unaccapetae ended up spending some time of sick with depressed

Remained of work until summarily dismisses

Brought a discrim claim against pul under disability discrimination act 1975 arguing that depression was a mental impairment

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63
Q

What was not dispute during her period off work?

A

She confessed she theened to drink - drunk heavily and came depressed

Experts for both sides tried to identify which dame 1st - depression or alch abuse

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64
Q

What did et rule in this case?

A

She was not disabled -despite fact she psychiatric evidence that she was depressed

Et applies reg a 3 q meaning of disbabilty regulations 1996 which stated ‘addiction to alchol nicotine or any other substance is to be treated as not amounting to impairment - relates back to that revision tip

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65
Q

What did eat do in this case?

A

Overruled et and found ap was disabled

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66
Q

How did eat come to this conclusion?

A

Et has not properly considered whether ap depressed. Had had a substantial long term adverse effect on her ability to carry ot normal day to day activities

Wrong guessing which came first depression or alch bc how impairment caused is irrelevant

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67
Q

What about addictions in itself?

A

Addictions such as alchol addiction are not themselves accepted as impairments as they need to have caused an impairment but in apps case it had

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68
Q

So overall what about ap ?

A

Her alcohol addiction was therefore irrelevant to her mental impairment of depression

Use power v pan- show that how impairment comes is irrelevant

69
Q

What is the 2nd app?

A

Substantial Nd long term adverse effect

70
Q

What do we deal with first

A

Substantial - substantial is interpreted at s212 ea as

MORE THAN MINOR OR TRIVIAL

71
Q

Case connected to substainal?

A

Goodwin v patent office

72
Q

What did eat clarify in good win ?

A

That the focus of its attention is on the things that the applicant can either CANNOT do or can only do with difficulty, rather than in the things that the person can do

73
Q

What happened in Goodwin

A

Paranoid schiz - worker at patent office though others could hear him access his hiughrs etc - but was able to care for himself at home deal with shooing cooking etc -collegUes complained too hard to wrk with him and Goodwin was dismisssd

74
Q

What did industrial tribunal say ?

A

Foreerunner of employment tribunal held he was not disabled

The adverse effect of his mental impairment on his normal day to day activists was not substantial since Hess able to perform his domestic activists without assistance and to carry out his work to a satisfactory standard

75
Q

What did eat do in Goodwin

A

Overturned the it decision finding was disabled

Eat gave guidance generally in proper approach for determine in whether disable
Focus on what can’t do opposed to can do

76
Q

S 2 1 of sched 1 ea says?

A

The effect of impairment is long term if

S 2 1 a - it has lasted for atleast 12 months

S2 q b- it’s likely to last for atleast 12 months

S 2 1 c - it’s likely to last for the rest of the life of the person

77
Q

Why do we need to look at word likely

A

Likely should be interpreted generously as might well as was confirmed in HL in case of sca packaging Ltd v Boyle 2009

And even if might be case last 12 months should be enough

78
Q

What happened in sca packaging?

A

Chronic problem with hoarseness was due to nodules in her vocal cords- operation to remove but they came back

Eb brought 3 dda 1975 claims against sca

Belfast it : eb was disabled person by reason of problem with her voice

Scapl ap Wales

79
Q

What did ca consider?

A

Considered how it should apply word likely in s 2 1 of schedule 1 at b and c to the words has a subsrainal adverse effect in s6 1 b

80
Q

What did ca decide?

A

It decided that it would suffice if such an effect MIGHT WELL last for such periods bc a high test requiring to proof of on a balance of probabilities would be both undersiae and unnessccary

81
Q

In other words what did they say?

A

An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen

82
Q

However what must it be?

A

Must be more than a mere possibility that the impairment would have such an effect for such a period of time

83
Q

Sca pl again appealed ?

A

Arguing that a tribunal surely had to be satisfied on the balance of probabilities, that the substantial adverse effect would rather than MIGHT WELL happen

84
Q

The HL Agreed?

A

Agreed with ca and found that the word likely, should be used in the sense of might well

So in other words interpreted likely might well last 12 months rather than will probably last 12 months - tribunal will consider long term generously in favour for worker

85
Q

book-contrast case in regard to goodwin?

A

hewett v motorola

86
Q

b-there is also an important issue regarding what?

A

associative discrimination

87
Q

b-what is associative dsicrim?

A

i.e whether a person who is not disabled himself can claim to be protected by assoc with a person with a disability?

88
Q

b-case for associ discrim?

A

attridge v coleman?

89
Q

b-what has happened as a result of this case?

A

EA 2010 has defined direct dsicrim in such a way as to include others who may suffer discrim bc of their assoc with someone who has protected ch such as disability

90
Q

what is 3rd appl?

A

Application of (iii) ability to carry out normal day-to-day activities:

91
Q

what does s.51 tell us?

A

S 5(1) of Schedule 1 EA tells us that:

An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if

92
Q

if what?

A

(a) measures are being taken to treat or correct it; and

(b) but for that, it would be likely to have that effect

93
Q

what does s.5 (2) say?

A

S 5(2): ‘Measures’ includes, in particular, medical treatment and the use of prosthesis or other aid

94
Q

what should be disregarded in assessing a persons ability? & case

A

The beneficial effects of treatment should be disregarded in assessing a person’s ability to carry out normal day-to-day activities, as was confirmed by the EAT in the case of

Kapadia v London Borough of Lambeth 2000 (see next slide)

95
Q

so in other words what is previous saying?

A

So I other words means if say u r receiving phiso therpay or on drugs to counter an imparimetn and tnhats the only reason u can do thjings then phiso therp treatment and medication disragred. Ur abilikty to do things is assessed when didn’t gfet any help. If didn’t have physi or drugs wuld u be able to do thjos things, confirmed by appeals tribunal in case of Kapadia.

96
Q

what happened in Kapadia v London Borough of Lambeth 2000?

A
  • Mr Kapadia (K), a qualified accountant, worked for the London Borough of Lambeth (LBL)
  • In April 1995, K consulted his GP re his anxiety, stress, tension and depression
  • K’s GP diagnosed reactive depression and referred K to a consultant clinical psychologist, who saw K about 20 times over the next 2 years

-In early 1996, K successfully applied for promotion to the post of Senior Accountant for the LBL
However, K complained that his duties in the new post were different from those in the job description

97
Q

further on Kapadia v London Borough of Lambeth 2000:?

A
  • K started to take more time off work for illness and medical visits
  • On 9 April 1997, LBL referred K to its medical adviser, who advised that K was permanently unfit to undertake his duties and should be considered for ill health retirement
  • On 30 June 1997, K was retired on medical grounds with an immediate pension
98
Q

what did k claim?

A
  • K claimed under the DDA 1975 against the LBL
  • The ET: K was not disabled

-Although K’s reactive depression was a mental impairment with an adverse long term effect, there was no evidence that the impairment had anything more than a trivial effect upon his ability to carry out normal day-to-day activities

he claimed under diability discrim act . The employment tribunal said not disabled

99
Q

what did eat say in k?

A
  • The EAT: overruled the ET and found that K was disabled
  • The EAT ruled that, in reaching its conclusion, the ET had disregarded the uncontested evidence of the applicant’s doctors and had not taken into account the effects that the applicant’s depression would have had were it not for the treatment he was receiving for it by way of counselling
  • They sia dhe was disabled. R,a.w said that the therpay he was receiving should have been ignored by employment tribunal and should be asses had he not had help
100
Q

what did they also say?

A

Every person with a disability is unique and there’s a high evidential burden to prove disability exists

Medical evidence is just one element

It’s harder to establish a mental impairment - stress or anxiety - than a physical impairment

101
Q

what are we doing in act 2?

A

reinforce our understanding of the definition of disability by applying it to the following 3 scenarios

In each case, we should evaluate whether the s 6 disability definition is satisfied

102
Q

what happened in scenario 1?

A

Scenario (i):

2 months ago, Josh (J), who is employed at a marketing company, had a horse riding accident and suffered a back injury.

He is currently being treated at a specialist hospital and, whilst he is undergoing treatment and physiotherapy, he is restricted to using a wheelchair.

J is currently unable to stand, although the doctors have said he may be able to walk in the future with a frame.

103
Q

answer to scenario 1?

A

Is josh disbialed- physical or mental – physical, likely to last moer than year , is it going to susbtainally impair –YES IMPARIMENT SUSBTANTIAL TREATMENT ETC AND DAY TO DAY ACTIVITES DO WITH MORE INFO CAN HE WAS HIMSELF ETC BUT HES LIEKLY TO BE DISABLED.

104
Q

slide answer scenario 1?

A

Suggested answer:

Impairment:? physical: back injury

Substantial?: treatment and wheelchair

Long term?: 2 months ago and still in wheelchair

Day to day?: need add. info: washing? dressing?

Conclusion?: likely to be disabled

105
Q

scenario 2?

A

Scenario (ii):

Boris (B), who works as a caretaker in a primary school, has been feeling ill for several weeks with flu-like symptoms.

He is waiting for the results of an HIV test.

B has been a drug user in the past and he believes that he could have contracted HIV from sharing needles.

106
Q

answer scenario 2?

A

Is he disabled?- impariment

107
Q

slide answer scenario 2?

A

Suggested answer:

Impairment?: physical: flu-like symptoms

Substantial?: not yet unless HIV confirmed

Long term?: if HIV, upon diagnosis as is a progressive illness

Day to day?: if HIV, will do

Conclusion?: if HIV, disabled as progressive

108
Q

what happened in scenario 3?

A

Scenario (iii):

Keira (K), who works in the call centre of a bank, has been diagnosed as suffering from seasonal affective disorder (SAD).

This means that her mood is affected by the seasons, and she gets depressed during the winter months.

There is medication available for SAD, but K does not like the side effects of the medication.

109
Q

answer to scenario 3?

A

Ye sshe diabkled. We tend ot think disabled as only phycal but ehre is mentally disabled.

110
Q

slide answer scenario 3?

A

Suggested answer:

Impairment?: mental: depression from SAD

Substantial?: SAD is progressive, so yes

Long term?: upon diagnosis, as SAD is a progressive illness

Day to day?: SAD is progressive, so yes

Conclusion?: SAD is progressive, so disabled

111
Q

what about duty to make reasonable adjustments?

A

this is just overview of prohib char - so go in depth next time

112
Q

where is race defined?

A
  1. Race:

Race is defined at s9 EA

113
Q

what could lft be due to ?

A

LFT can be due to:

s 9(1)(a): colour;

s 9(1)(b): nationality (eg British, Indian, Swiss); or

s 9(1)(c): ethnic or national origins (eg Romany)

114
Q

b- what about the european council directive 200/43/fec in relation to race?

A

implementing pricipl of equal treatment btw persons irrespective of racial or ethnic orgin is important european initative in tckling race discrim in europe

115
Q

b- what is the purpose of previous directive?

A

purpose of directive, contained in art 1 - lay down a framework for combatting discrim on the grounds of racial or ethnic orgin, with a view to putting into effect in the ms, the principle of equal treatment

116
Q

b- article 2 in relation to this?

A

concerned with meaning of direct and indirect discrim.

117
Q

b-what is meant by it is a scope?

A

it is a scope of course is wider than just employment, but those areas that are related to employment are also similar to equal trement in employment directive - which as previously stated is concerned with discrim on grounds of age, disab, religion orbelief , or sexual oritentaiton

118
Q

b-case in relation to this directive?

A

centrum voor gelikeid van kansen v firma feryn case c 54/07 2008 irlr 732

119
Q

b-back to what was defined s,9 what is moer to say?

A

those who have any of these charac can be described as a racial group

120
Q

b-examples of these categories?

A

race- being black or white

nationality - being british or say australian

ethinci or national orgin- include being froma roman background or chinese heritage

racial group- black britons

121
Q

activity 4?

A

Lecture 2 Activity 4:

Let’s reinforce our understanding of race by applying s 9 to the following 2 groups

(i) Sikhs
(ii) black Britons

In each case, we should state whether the group is protected under s 9(1)(a) colour, s 9(1)(b) nationality, s 9(1)(c) ethnic or national origins, or a combination of the above

122
Q

answer in relation to act 4?

A

Suggested Answer:

(i) Sikhs are a protected racial group under s 9(1)(c) ethnic or national origins, as they have a distinct community, culture and language
(ii) black Britons encompass 2 racial groups so are protected under both s 9(1)(a) colour and s 9(1)(b) nationality

123
Q

b- what happened in case of mandla v dowell lee?

A

type from phone

124
Q

b-what did this def from previous case not extend to?

A

rasatafarians

125
Q

b-case for rastafarians?

A

dawkins v department for the environment

126
Q

b- what happened in dawkins v department for the environment ?

A

phonep

127
Q

b what did they not fulfill in dawkins v department for the environment ?

A

phone

128
Q

b-another case connected to mandala?

A

r - e v governing body of jfs

129
Q

b-what happened in r - e v governing body of jfs?

A

phone

130
Q

b- revision tip race?

A

-

131
Q

b-what is it possible for in relation to race?

A

it is possible for a person to be unfavoiurable treated on racial grounds even if ..

132
Q

b- what happened in weathersfield v sargent in relation to this?

A

-

133
Q

b what did ca held in weathersfield v sargent in relation to this?

A

-

134
Q

b- during the currency of the book what?

A

-

135
Q

what about religion or belief?

A
  1. religion or belief:

Religion or belief is defined at s10 EA

136
Q

lft can be due to in regard to relgiion and belief?

A

LFT can be due to:

s 9(1): any religion or lack of religion; or

s 9(2): any religious or philosophical belief or lack of belief

NB: S 9 also covers lack of belief (so eg atheists are protected)!!

137
Q

b- what does guidance from echr state- intro?

A

-

138
Q

b- example for this?

A

-

139
Q

who arent protected under this def?

A

Muslims, for example, are not protected under the PCh of race as they can come from many different countries, so they are protected as a religion under Islam

140
Q

what is the very broad def in line with?

A

The very broad definition for religion is in line with freedom of thought, as guaranteed by Article 9 of the European Convention on Human Rights (ECHR)

141
Q

what does art 9 echr only do?

A

Article 9 ECHR only affords protection where there is a clear structure and belief system (eg Islam, Judaism)

142
Q

what about philioshopical beleif?

A

Philosophical belief must be genuinely held, be more than an opinion and must not conflict with basic rights (eg Humanism, Darwinism)

Supporting a football team doesn’t qualify!

143
Q

what has there been in regard to this?

A

There have been a lot of interesting cases, often reaching the European Court of Human Rights (ECtHR) in Strasbourg, re the PCh of religion or belief

144
Q

b-what happened in case of azmi v kirklees metropolitan boroguh council?

A

-

145
Q

how to get extra marks here?

A

think about and research potential conflict btw the desire to protect those that wisjh to proactise their religion and desire to protect people on the basis of sexual orientation, if a person is barred from working fro a reliious org bc theya re gar, they are being discrim against bc of their sexual orientation, but at ame time, there is a req to respect the beliefs of the relgiious body.

146
Q

what about act 5?

A

Lecture 2 Activity 5

The facts of 1 such interesting case are set out on the next slide

For this activity, we have to read the facts and then take an educated guess whether we think the claimant won

We should provide reasoning for our educated guess

147
Q

case for religion or belief?

A

Eweida v British Airways 2010:

148
Q

what happened in Eweida v British Airways 2010:?

A

Eweida v British Airways 2010:

Nadia Eweida (NE) was a BA employee
BA had a policy of not allowing employees openly to display religious symbols
NE insisted on wearing a Christian cross around her neck
BA sent her home
NE argued it breached both sections 4 and 10 of the EA and Article 9 of the ECHR

Do we think the ET decided in favour of NE? And why?

whch lists 9 protechted charact and 10 covers religion belief of lack of belief of equality act an article 9 of echr

149
Q

answer to case eweida?

A

Answer:

In the UK, the ET: found for BA

Although the wearing of garments is a requirement of some faiths, wearing a cross is not necessary in Christianity
NE did not suffer less favourable treatment (LFT) than an employee of a different religion who refused to remove an unnecessary garment would have suffered
However, NE then took her case to the ECtHR

150
Q

what happened in Eweida v UK 2013:?

A

Eweida v UK 2013:

NE’s case at the ECtHR in Strasbourg was against the UK Government for failing to provide domestic law to protect her rights

Do we think the ET decided in favour of NE? And why?

-Case aginst uk and said the uk shuld lose case cos fail to provde domestic law to rptoect her rights. Yes they found for her her article 9

151
Q

answer to what happened in Eweida v UK 2013:?

A

Answer:

In January 2013, the ECtHR: found for NE
NE’s Article 9 ECHR rights had been violated because BA had not reached a fair balance between NE’s religious beliefs and BA’s desire to have a particular corporate image
The ECtHR awarded NE damages of €2,000 plus costs of €30,000

152
Q

in other words answer to eweida?

A

they said no grey area in the middle – cross would ahv changed the ia,ge
She was awarded damages and costs o f30,000

Strasoborug is famous for 2 things, 1 is protecting indivd righrs and very often founding for c- and other is paying them next to notjing, 2,000 eurs…:/ - can found but bad in financial terms.

153
Q

what will we come back to in the end for extra?

A

relgioous requirements relating to sex, marriage, etc, and sexual orientation

154
Q

what about sex protect cha?

A
  1. Sex:

Sex is defined at s 11 EA

155
Q

S 11 covers both:?

A

S 11 covers both:

(a) : a man or a woman; and
(b) : persons of the same sex

156
Q

b-what does the equal opportunites and equal treatment directive 2006/54/ec provide?

A

provides in art 1 that its purpose to ‘ensure the implentation of the principle of equal opp and equal treatment of men and women in matters of employment and occ-

157
Q

b-what does art 2 state in relation to sex?

A

states that for purpose of the directive, discrimination includes

  • harrass- type on phone
158
Q

what was 1 issue in relation to this?

A

phone

159
Q

what about sex?

A

sex quite short so might not be impor for exam but still revise

160
Q

b-what happened i marschall v land nordrhein - westfalen?

A

-

161
Q

b-although leg has?

A

primary purpose , the removing of dsicrim btw mena nd women, it does not necc require the same treatment as btw mena nd women. aim is to ensure that 1 gender is not treated less fav than the poother

162
Q

b- revision tip for sex?

A

although [primar purpose of ea 10 in relation to sex is to protect women for discrim, it also has effect of protecting men from discrim on grounfs of sex.

163
Q

b-what is 1 are of contetnion in employ field ?

A

has been the impossition of dress codes that might be different for men and women

smith v safeway plc

164
Q

what about sexual orientation?

A
  1. Sexual orientation:

Sexual orientation is defined at s 12 EA

165
Q

what does s.12 1 cover?

A

S 12(1) covers:

(a) : persons of the same sex;- applying to gay mena nd lesbains
(b) : persons of the opposite sex; or- hetreosexuals
(c) : persons of either sex - bisexuals

166
Q

b-example of sexual orietnation?

A

thus a man and woman being attracted to people of opposite sex share a sexual orientation as do men only attracred to men and women only attracted to women

167
Q

b- as mentioned under religion or belief ?

A

there is potential for conflict with the provisions of ea 2010 in relation to the protection of religion or belief. 1 example of this found in ladele

168
Q

what happened in ladele v london borough of islington?

A
  • book
169
Q

what did we summarise in this lec?

A

Review:

Having completed lecture 2, we should now be able to summarise more detail re the protected characteristics (PChs) of:
age;
disability;
race;
religion or belief;
sex; and
sexual orientation
170
Q

what are we doing next time?

A

Just gentle intro to protected charastics. Tp1 nitty critty starts at lec 3 look at prohib conuct and that’s the claim part.

171
Q

what we doing in lec 3 and seminar 1?

A

Preview:

Lecture 3:

In lecture 3, we’ll consider the 2 of the 6 types of prohibited conduct (Pco) which relate specifically to disability

Seminar 1:

Those of us still to attend seminar 1 have 2 activities to prepare in advance of seminar 1, in which we’ll reinforce our recommendations for improving our exam technique and tackle an essay-style question on the general principles of UK discrimination law

Employment Law (9 decks)

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