Employment Law lec 3- Prohibited conduct: discrimination arising from disability Flashcards
what did we do in lec 2?
Review of lecture 2:
In lecture 2, we considered in more detail the protected characteristics (PChs) of:
age; disability; race; religion or belief; sex; and sexual orientation
when couldnt we bring a clam?
Discussed protective characteristics – wouldn’t be able to bring discrim claim UNLESS ACT was in relation to 1 of 9 grounds charactersics contained in s4 of equality act-
could say limitation on the ability c’s to claim– we could call it our eligbi requirement- only allowd to bring claim if 1 of 9 have been breached
Today look at 6 areas of claim- the 6 actions which employer might carry out which are [rohibited-
aims in lec 3?
Preview of lecture 3:
begin our consideration of the 6 types of prohibited conduct (Pco) in the EA 2010,
4 main types of prohib conduct?
4 main types being: S 13: Direct discrimination; S 19: Indirect discrimination; S 26: Harassment; and S 27: Victimisation
but to focus on, and learn to apply to a fictitious scenario,
what are 2 of the 6 types that refer to disability?
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
what do a lot of text books refer to?
A lot of books refer to ehir being 4 main type of prohib confuct so though show all 6 from very outset know whatwere covering – and also included sections. In this one its EQUALITY ACT 2010- next lec look at direct discrim enxt indirect next harassment and vic
what are we doing today?
Both 15 and 20 are partic relev to 1 of 9 charactersitcs mainly disability
S15 abd 20 today
But all 6 are types of prohib conduct
what about protected char and prohib conduct together?
PROTECTED CHARAC and PROHIB CONDUCT= DISCRIM LAW
Regardless of which 6 types prophib conduct in repsect to which were brignign a claim and which 9 protected charactsitcs-
what about certain procedural req relate?
there are certain procedural requirements that relate to any discrim claim- and aswell see theyre re,arbkly similar to 2 stat claims looked at 1 ud and rp.
before we consider s.15 what must do?
Before we begin our consideration of the 1st of the 2 of the 6 types of PCo which relate specifically to disability, namely:
S 15: Discrimination arising from disability
-let’s remind ourselves of the procedural requirements for all types of discrimination claims
background and def of discrim law 1 law wise what did we agree
Background and definition of discrimination law:
Law:
-We agreed in our quiz in EL1 lecture 1 activity 3 that discrimination was the 2nd of the 3 statutory claim created within 6 years of each other in the late 1960s and early 1970s, namely:
(i) redundancy payments (Redundancy Payments Act 1965);
(ii) discrimination (Equal Pay Act 1970); and
(iii) unfair dismissal (Industrial Relations Act 1971)
so in prob q what must we first consider?
In our recommended structure for problem style question= agree 1st thing look at = background and def- keep habit of identifying law and apply law
Need to know this bc – 50% explaining law and 50% applying law
in addition to this what was there?
6 yr period where life of employee got extremely better – things much better trade pressure of unions and 3 stat claims cme in
how to relay and put it all in exam q?
1st stat rp
2nd – RELATION TO DISCRIM LAW= 1970 FIRST TIME allow people to argue discrim – equl pay ACT- so its been around since 1970 – almost 50 yrs able to argue discirm- another agre- all diff types of stat relating to dscrim law the small acts all became unified under 1 umbrella stat = equality act 2010- 2 aims of equality act to simplify and rptecte better the protecte c covered
what did we also agree?
We also agreed, in our quiz in EL2 lecture 1 activity 3 that the consolidating Act which unified the separate Acts for claims re each different aspect of discrimination is the Equality Act 2010 (EA)
what is definition of discrim?
Definition:
We also agreed in our quiz in lecture 1 activity 3 that the definition of discrimination is to treat someone less favourably (prohibited conduct, covered in chapter 2 of the EA) in respect of 1 or more of a list of 9 grounds (PChs) covered in chapter 1 of the EA
so in terms of appl what must we do?
In terms of appl- answer to p style q- may start of saying this concerns discirm law- c in imaginary scenario and their options are.. REMEMBER DO TJHIFNS AS OPTION
example of apppl?
Application:
We might begin by identifying the legal element of our EL2 module that the question concerns, namely discrimination law and, specifically, the protected characteristic of disability and 2 types of prohibited conduct, namely s 15 discrimination arising from disability and the s 20 duty to make (reasonable) adjustments
We might then go on to assess the claimant’s legal position and list their options, not forgetting that doing nothing is an option
in relation to law venue to bring a discrim claim?
Venue in which to bring a discrimination claim:
Law:
As with an UD claim, a worker has no such choice where to bring a discrimination claim as s 120(1) EA 2010 obliges them to bring their claim in an ET:
An employment tribunal has .. jurisdiction to determine a complaint relating to - [discrimination]
law;venue in short?
VENUE = being stats claim= employment tribunal as with ud and rp- once again employment tribunal = s.120 ea
application for venue example?
We should remember that we can only achieve half of the marks available in a problem-style question even if we explain all relevant law perfectly, and that we can only receive any of the other half of the available marks if we then apply that law to the question facts
So as not to lose easy marks, we should not write ‘It’s clear on the facts that X will be just fine’ but, instead, ‘In line with s 120(1) EA, X should bring her claim(s) in an ET’
appl; venue in short?
In app – S.120 C in q must bring claim in EA
what about claim form and time limit?
Claim Form and Time Limit:
Law:
Claim form:
The claim form a discrimination claimant must complete is called an ET1 form, as governed by s 3 Employment Tribunals Act 1996
what should discrim claim do about et1 form?
A discrimination claimant should:
(i) complete the whole ET1 form, but the key sections are:
8: Type and details of claim; and
9: What do you want if your claim is successful?; and
claim form in other words?
And last procedural req = claimant form and time limt- same for ud and rp = et1 form- and two key section in et1 form = s.8 where have to fill in type and details – is it ud if so why and s.9 if u succeed how much do u want?- do u want reinstatement /reganement etc- so et1 form governed by s.3 employment tribunal ct- know procedures a bit dull, but increasing emphasies on employability-nee to know precudeure and praffical if work in law firm
what else with a claim form?
(ii) serve the ET1 form on both the defendant employer and the ET
Upon receiving an ET1 form, the defendant employer should then:
(i) complete the whole of an ET3 form, but the key section is:
6: Response; and
(ii) serve the ET3 form on both the worker and the ET
what else with claim form in other words?
Et1 firm if bring claim- 1 copy on employer defendant and 1 copy on employment tribunal
Then the defendants on recieveing et1 form complies et3 folrm – s.6 where employer gets write their side of story- serve 2 people, serbe on the need to correct employee cos its WORKER
what about time limit?
Time limit:
S 123(1) EA 2010: [discrimination] proceedings … may not be brought after the end of -
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable
therefore time limit for a discrim claim to bring a claim?
Therefore, the time limit for a discrimination claimant to bring a claim (by serving an ET1 form on both thace employer and the ET) is 3 months beginning with the date of the discriminatory act
why is it extended for discrim?
so its 3 months but agreed s.11 employes believe to easy for discim claimants is that courts generous innextening 3 mo th time limit to discrim c’s. and reason is , If youre discrimated against, its upsetting, its stressful. And tribunal ccepts tht people might not therfor be rushing to tell publcia bout humiliating experience. So if c plucks up coruage 4 months time limit even after expiry of 3 mon th time limit.so in terms of our application, keep bancig
application of ud claim form and time limit?
Application:
UD claim form and time limit:
We should again remember that we can only achieve half the marks available in a problem-style question even if we explain all relevant law perfectly, and that we can only receive any of the other half of the available marks if we then apply that law to the question facts
We are not usually told which form any claimant has used, in which case all we can really write is that they must use an ET1 form
RELEVANT POINT TO MENTION USING ET1 FORM
so not to lose marks in regard to this what should we mention?
So as not to lose easy marks, we should not say nothing but should write eg ‘no information is provided on claim forms but X should be advised to use an ET1 form’
We are usually given specific dates in the question scenario, so we can usually apply the time limit by giving precise dates
example of claim form and time limit in exam q?
So as not to lose easy marks, we should not write eg ‘X still has time to claim discrimination’ but ‘X was dismissed on 26 July and we’re told it is now 9 August so X has a further 2.5 months, until 25 October, to bring her discrimination claim, but we would encourage X to serve an ET1 form on both the defendant employer and the ET as soon as possible’
tip for exam qs?
Try and fit as much lae and app as u can.
THROW IN THOSE PROECUDRAL SLIDES FOR PROB STYLE Q
what are now going to begin to look at?
Let’s now begin our consideration of the 1st of the 2 of the 6 types of PCo which relate specifically to disability, namely:
S 15: Discrimination arising from disability
and let’s do so by, as usual, going to the primary source, the statute
so again what is the starting point?
As usual need to get used to fact starting point LOOKING AT STATUTE AND CASE LAW
what does s.15 ea 2010 say?
S 15 EA 2010: Discrimination arising from disability:
Let’s tackle an activity which emphasises the importance of the specific wording of s 15(1)(a)
s.15 in depth say?
(1): A person (A) discriminates against a disabled person
(B) if:
(a) A treats B unfavourably because of something arising in consequence of B’s disability and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim
(2) : Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability
what are s. 1B AND 2 HERE?
possible defences
what is a thing to note here?
Proprotianility
what is meant by proportionality?
Proprotianility – know whilst uk courtd talk reasonableness, Strasbourg and eu of justice have for many years been referring as to propritonality.
what is this because of?
Because echr and eu law were incorp eu law, the uk court and uk stat includes references now to propritonality as much as if not more than reaosnablesnes, and legitimate aims , will be familiar that any restriction any of our righs eu rights has to be in accordance with law has to follo leg aim and has to be proportiane, so that’s where that’s come from. That’s come from infleucen partic Strasbourg
what about potential 2nd defence?
2nd one would u say 2nd defence more likely to apply to disable person who has physical impairment, or disabled person who has a mental impairment. Has to be mental isn’t – mental more chance d able to rely on 15 2-.
what does act 1 say?
Lecture 3 Activity 1:
Let’s consider the following scenario:
Worker B has multiple sclerosis (MS) and has been off sick for 3 months.
Employer A dismisses B.
If B were to claim against A under s 15 EA, what reason do we think B should give in their claim form for their dismissal by A?
answer for act 1?
Answer:
The point is that it is important that B avoids saying they were dismissed because they have MS
Instead, B should argue they were dismissed because they were off sick for 3 months and that the sickness arose in consequence of their MS
what it is important to say?
Its important to say that or not to say that they were dismissed bc have ms – important get wording right
LOOK BACK AT WORKING -
arising in consequence of rather than bc of disability- have to be really careful what reason given in et1 form
what about comparator?
Comparator
Unlike the PCos at sections 13 (direct discrimination) and 19 (indirect discrimination), which require a comparator, the requirement for a comparator is not so great for the PCos at sections 15 and 20
when can this be seen?
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)
1 few difficulties for worker is
‘
1 few difficulties for worker= c has to choose COMPARATOR-
when is comparator more rel?
and you can see in wording that comparot much more relevant to direct discrim in s.13 than to 2 prohibited conducts that were looking at today.
what if look at wording of direct discrim?
So if u look at wording of direct discrim it says that u need to prove treared less favourably than someone else!- so that clear comparison
look next week youll see?
so in direct discrim claim see next week , up 2 c to decide should I use real person as compaort or hypothetical compartor some1 who doesn’t exist an imaginary person, who I will presume is faced with all the circumstances I am, except for point im complaining about ,
sometimwes what will happen when it comes to comparator?
– and sometimes see next week in case, tribunal will throw out tribunal claim if wrong comparotor- can be important but its less impprtant for 2 types of prhib conduct look at today- so instead of saying les favoruabyl than, see unfavourably still element of comparison but not as blatent, req for comp not so huge.
what about burdern of proof?
Burden of proof
Let’s not forget that we agreed in lecture 1 that the standard of proof required for all EA discrimination claims favours the claimant
what does s.136 2 state in relation to b.o.p?
S 136(2) states that the claimant needs only to convince an ET that there are facts from which the ET could decide that discrimination occurred
what is by contrast b.o.p?
By contrast, the defendant employer must then leave the ET in no doubt at all that discrimination did not in fact occur
re confirming b.o.p?
Doesn’t matter which type of prohib conduct ur claim relates to, your budern of proof in balance, remains the same, remember saying how imbalanced it is,
so when we looked at b.op with ud rp it was kind of 50/50 both d and c had same kinda threshold , not so with discri law,
which evr type of prohib claimant youre claimin gin relation to, it’s a much lower threshold for claimant rather than defendant,
so in other words what is s.136 2 saying?
so s 136 2 of ea – says c r.a.w in other words c only need to prove COULD BE that they were discriminated against its POSSIBLE not even that its probably but that its possible, its not the same for the d. NOT POSSIBLE OR PROBABLE BUT THAT THERE IS NO DOUBT AT ALL THAT THEY DISCRIM AGAINST C- so c bop low , d employers bop is hjigh as confirmed in case next slide
case for b.o.p?
In Barton v Investec Securities Ltd 2003,
In Barton v Investec Securities Ltd 2003 what did EAT confirm?
the EAT confirmed this high standard proof for the defendant, requiring the defendant employer to prove that ‘in no sense whatsoever’ did it discriminate against the claimant
what do both c and d have to prove then?
NO SENS WHATSOEVER
C = POSSIBLE
E = NO SNESE WHATSOVER
is there any defence to s.15?
Is there any defence to s 15?
A defendant employer has 2 potential defences to a s 15 claim from a worker, which are contained within the wording of:
(i) s 15(1)(b); and
(ii) s 15(2)
So yes there is 2 defence under these sections
how does s.15 1 b give potential defence?
(i) We have seen that s 15(1)(b) gives as the 1st potential defence:
A cannot show that the treatment is a proportionate means of achieving a legitimate aim
In our Employment Law 1 module, we saw that an ET applies the Iceland 1981 band of reasonable responses test to an employer’s conduct in claims such as UD or RP
However, an ET does not apply this reasonableness test in discrimination cases
Instead, an ET applies the PROPORTIONALITY TEST
s.15 1 b gives defence in other words?
s.15 1 b says that if defenct – ca show treatement is porop etc= justification- so member ud case of Iceland resoanble resposnse = cos ea recent act- tribunal applies proportionality rather than reasonableness.
what about proportionality?
Proportionality is a concept which has long been applied by judges in continental Europe and which was brought to UK law through the incorporation of both EU law through the European Communities Act 1972 and, especially, the ECHR through the Human Rights Act 1998
what about since the ea was passed in relation to this?
Since the EA was passed as recently as 2010, the concept of proportionality features heavily in its wording, s 15(1)(b) being a good example
what will an et 1st ask itself in relation to this?
An ET will 1st ask itself whether a defendant employer was pursuing a legitimate aim when it allegedly breached s 15 (ie did the defendant have a good reason for breaching s 15, and can it argue a causal link between its breach and its legitimate aim?)
et ask itself in other words?
So et will first ask self whether D employer was pusing a leg aim- such as needing to thive as business, needing to avoid insolvency.. Or did the df have good reason andcould argue a causal link btw its breach and legit aim.
and if et satsifed what would happen?
If the ET is satisfied the defendant employer was pursuing a legitimate aim, it will then ask itself whether the defendant employer could have achieved that legitimate aim in a more proportionate manner (ie in a way that would have avoided treating the claimant worker unfavourably)
that wouldn’t have caused detrimate to the c e.g c dismissed. Could the employer achieve its orbitley elgitmate aim without having dismiss employee or worker
what would give a 2nd potential defence?
(ii) We have seen that s 15(2) gives as the 2nd potential defence:
Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability
