Equality 2 Flashcards
Hawkins v Atex Group [2012]
Marriage and civil partnerships s8
chief executive of the company was told by the owner not to employ any family members due to concerns about conflicts of interests. Nevertheless he employed his wife, she was told she was dismissed because she was married to chief executive. Held: it was not her marriage per say but because she was married to chief executive. It was necessary to avoid potential conflicts.
Really Easy Car Credit v Thompson [2017]
Pregnancy
pregnant employee dismissal during probationary period – employer unhappy with the employee’s performance. Found out later, before the dismissal took effect, that the employee was pregnant – employer should have re-examined their decision after they learned of the pregnancy. Key question is whether the decision was made because of pregnancy. Argument here was employer should have re examined position after they learnt. Found: key test for dismissal was whether dismissed WAS DUE TO pregnancy, when looking at context should they have reviewed the decision>
Lyons v DWP
This protected characteristic does not apply as a ground for a claim after the protected period even if the claimant has a pregnancy-related illness such as post-natal depression. Must claim ‘sex’ discrimination - requires male comparator:
Eversheds v De Belin [2011]
A man cannot bring a claim for sex discrimination based on special treatment afforded to a woman in connection with pregnancy or childbirth – EA s13(6)(b) – but the employer must apply the rule proportionately to the need to compensate the woman for the disadvantages occasioned by her pregnancy or maternity leave:
man compared to woman on maternity leave when talking about redundancy. Man not on leave, other woman on maternity leave. They used a performance test, in order to avoid discrimination, they awarded woman perfect mark. He thought system was discriminatory against her. S13(6) example of where a man cannot bring a claim in this situation. Reading s13(6) literally appears to prevent the man from bring claim but court said the court must apply rule proportionality to compensation woman. Notwithstanding fact woman would not be discriminated again would need to be proportionate. He suffered sex discrimination, relying on this to show he was subject to less favourable treatment.
JFS
SC
Race
Discrimination based on a lack of ethnic origin also would fall in this.
Amnesty International v Ahmed
Race
nationality is within race
Chandhok v Tirkey
Broad approach to definition of ‘race’:
Even class discrimination can be excluded. The situation: C and T, Ms T was a migrant worker from India employed as a nanny alleging that she was being mistreated as she was from a lower cast. Employers argued that this claim should be struck out because class is not under the employment act. The EAT disagreed and said that class is not a free standing protected characteristic but elements of class identify might form part of an individuals ethnic origin, especially by descent. Class discrimination may be protected on facts of the case as a form of race discrimination, for ET to describe. Parliament did not make this a PC because it would be hard to define.
Mandla
Mandla established that discrimination on grounds of ethnic origin or racial origin is based on a group disadvantage test (what is the group and is there a disadvantage) Sikhs found there to be a disadvantage. – reference point is membership of an ethnic group. Sikhs could be regarded as an ethnic group although they were not biologically distinguishable from other peoples’ living in the Punjab: ‘an ethnic group … must … regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics [that] distinguish the group from the surrounding community’, per Lord Fraser.
Mandla and JFS case
Any rule of racial segration automatically forms within this.
The Supreme Court in JFS held that discrimination on grounds of ethnic origin also applies where a person is treated less favourably because s/he lacks certain prescribed ethnic origins. Orthodox Jewish school’s application of an entry test for Judaism based solely on descent in the matrilineal line was a test based on ethnic origins. Denial of admission to a Jewish boy (M) whose father (E) was Jewish and whose mother was a converted Jew (under the auspices of a non-Orthodox synagogue), was held to be discrimination on the ground of his ethnic origin. The mother had, by conversion, become an ethnic Jew under the Mandla test. JFS should have treated M as having a matrilineal link with an ethnic Jew. Less favourable treatment because of lack of ethnic origin. A child was found by the school not to be jewish. Discrimination based on a lack of ethnic origin also would fall in this.
Taiwo and Onu
UKSC
Discrimination against ‘migrant workers’ as a group is not direct racial discrimination – does not fall within the scope of ‘nationality and ethnic or national origins’:
– two migrant domestic workers (both Nigerian) mistreated by their employers. SC held: discrimination because of immigration status was not discrimination because of, or on grounds of, nationality. Not within the scope of the EA even though the conduct of the employer would have amounted to unlawful discrimination if it had been on racial grounds. Parliament did not choose to include immigration status in the definition or as a PC, so even though immigrations tatus is a function of nationality, it is not the same as nationality. Although immigration status is a function of nationality it is not the same as nationality. The case was either direct discrimination or outside the scope of the EA. Fine line.
R v Registrar
SC
‘religious belief’
‘spiritual or non-secular belief system, held by a group of adherents’, per Lord Toulson.
MBA v LB Merton
CA
What matters is that the religious belief is sincere even if not all of those who have the religious belief practice it in the same way:
RELIGIOUS BELIEF
Christian employee refused to work on a Sunday – was subject to a detriment – could bring a claim, was a sincere belief even if only a minority of Christians would regard working on a Sunday as central to their religious belief. A good example of this structure. Christian employee refused to work on a Sunday, and was subject to a detriment. Found possible to bring a claim based on discrimination because it was a sincere belief, even though only a few Christians would find it essential to not work on a Sunday.
X v UK
RELIGIOUS BELIEF
Art 9 ECHR – freedom of thought, conscience and religion:
such religions must have a clear structure and belief system
McClintock v DCA
- ‘philosophical belief’
‘there must be a religious or philosophical viewpoint in which one actually believes’ (Elias J)
Gray v Mulberry
philosophical belief’
does not apply if the claimant is the only person known to hold such a belief. G working for M and she refused to sign a standard contract clause, she feared it would give them ownership of a novel and screenplay she was written, she was dismissed. She claimed, she had a belief in the sanctity of copyright, this was a PC so should be protected. But tribunal concluded that the belief lacked sufficient cogency under the act, doubtful whether there was a belief. Noted: even if could be argued there was sincere belief, she might be the only person to hold that belief and there would not have been a group.
Grainger v Nicholson
‘philosophical belief’ = GLOAR THIS MIGHT NOT BE APPLICABLE NOW SINCE THE 2012 REDFEARN V UK case whereby the Human rights court held that a political belief should be classified as a political belief. But this would not pass Burton’s number 2 criteria as it is an opinion. Therefore, Burton’s criteria should be changed to repflect this!!
Burton J set out five criteria which must be satisfied if a belief is to be protected under section 10:
‘(i) The belief must be genuinely held.
(ii) It must be a belief and not . . an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance. (CCSI)
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others
includes strong belief in man-made climate change – applied Art 9 ECHR - pacifism and vegetarianism recognised as philosophical beliefs by ECtHR – but a philosophical belief does not have to be an ‘ism’. Political beliefs not excluded. Can be a genuinely held belief based on science such as Darwinism. It does not necessarily entail that an absence of such a belief would be a philosophical belief. Two elements of the legal test (1) Does it fall within the scope of [EA s10]? (2) Must adduce evidence to establish the genuineness of his belief (if this is in doubt), and that what was done was done on grounds of his belief. Nicholson was employed as an executive with Grainger PLC, his job was to advise them at a senior level on environmental practises. He found that the company had good policies on paper but was critical in practise. Critical of Chief executive. In the end, he was dismissed. Question: could his own green beliefs, effecting how he lived his lim amounted to philosophical belief. Found: this was a genuinely held sincere philosophical belief. If he had been discriminated against due to this belief, he could bring a claim.
Redfearn v UK
onsider the implications of Art 11 ECHR – freedom of expression – in this context of PHILOSOPHICAL belief
The message in Redfearn is clear: claims for unfair dismissal in such cases should be afforded special protection regardless of the nature of the belief.
Arises in relation to political belief. This involved a bus driver who was employed to transport disabled people of mainly ethnic origin. He was dismissed by employer when he was elected by a party which had a racist policy. Issue: arose before religion or race was PC. Was he dismissed because political belief and to stop him expressing it. Court of human rights said, reasonable and appropriate measures should be taken to protect employees from dismissal on grounds of political opinion or affiliation. Although not decided based on religious or philosophical belief. Due to guidance of the court of human rights, it would probably come under philosophical belief.
Azmi v Kirklees
- manifestation of religion or belief
veil No need for there to be a position that a “manifestation” of a religious belief always has to be dealt with as indirect discrimination. Could be direct discrimination. A veil was found to be a manifestation of a religious belief. This has now been brought to light by recent cases before CJEU.
Eweida v British Airways
- manifestation of religion or belief
CA - silver cross, rule in question as a no jewellery question. Wearing a cross comes within religion but not essential to it, so fall under religious belief but it is indirect discrimination. Can be found as objectively justified under indirect discrimination case.
but see ECtHR in:
Eweida v United Kingdom [2013] IRLR 231
Achbita
- manifestation of religion or belief
Belgian case - Muslim woman told that she could not wear an Islamic headscarf. Company applied a general rule prohibiting visible political, philosophical and religious symbols in the workplace.
Held: not direct discrimination. It was a neutral rule - not based on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. Was indirect discrimination but could be objectively justified. Judgment criticised for giving insufficient weight to freedom of religion in Art 10 of the EU FR Charter. A Muslim woman was told she could not wear an Islamic headscarf, this was unlike in Bouganoui, a general rule, which prevented philosophical, religious status being displaced in the employment space. Held: this could not be direct discrimination because the company applied this general neutral rule (not cover discrimination), not based on stereotypes or prejudice. Having found it was indirect discrimination, they found that it was a business policy/need and they determined that they wanted to appear neutral to their customers. Achbita’s role was that she came into contact with customers. Criticised to give weight to freedom of religion art 10.
Bouganoui
- manifestation of religion or belief
There was not a general rule here, but once a customer complained about Bouganoui wearing a headscarf, she was told not to wear it. So a particular instruction was given to her. Court found: it fitted in with Achbita, because employer would have applied this rule to anyone. Explanation: displaying a symbol of religion is not the same as belief. A-G if symbol is so essential to the belief, it should be classed as the belief itself. They went to say if it was direct discrimination could it be an occupational requirement, they found no.
