Equality 2 COPY Flashcards
Grant v South-West Train
Distinction between ‘sex’ and ‘sexual orientation’:
sexual orientation discrimination not sex discrimination because woman and men would have been equally discriminated against so could not fall within sex.
- 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
Eweida v British Airways
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.
Taiwo and Onu
UKSC
Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:
– detailed guidance to ETs. CA set out guidance for tribunals for evidence which would be relevant in equality claim. The employee bringing claim needs sufficient evidence for discrimination/harassment on balance of probabilities from which an inference can be drawn, then burden of proof shifts to employer and then they must give cogent evidence.
Igen
Igen v Wong
Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:
– detailed guidance to ETs. CA set out guidance for tribunals for evidence which would be relevant in equality claim. The employee bringing claim needs sufficient evidence for discrimination/harassment on balance of probabilities from which an inference can be drawn, then burden of proof shifts to employer and then they must give cogent evidence.
Employee must show facts from which inferences can be drawn by the ET before the burden shifts to the employer:
pre-Equality Act case law still applicable
what evidence is relevant? All evidence from all source -e.g. witnesses can be adduced by the tribunals. There has to be sufficient evidence which in context of lack of adequate explanation is enough for tribunal to be satisfied that on balance of probabilities that discrimination led to dismissal.
overturning Efobi v Royal Mail Group
Ayodele
Jessemey v Rowstock [2014] EWCA
Post-employment discrimination s108
can bring a post employment victimisation claim. You can even in post employment situation bring ea claim so long as alleged discriminatory act is connected to your employment s108. n
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.
De Souza v Vinci
The tribunal can award a 10% uplift in compensation if there is also personal injury:
mental health impact would also fall within this.The Court of Appeal held that the 10% Simmons v Castle applied to awards for both psychiatric injury and injury to feelings.
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.
Eversheds v De Belin [2011]
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.
Gray v Mulberry
Compensation is payable based on the principles in a civil claim in tort, s119, and may include compensation for injury to feelings. Guidelines on compensation for injury to feelings from the Court of Appeal introduced.
– where an award was reduced from £50,000 to £18,000 – three broad bands of compensation were introduced. Some formula for calculating injury to feelings. Award was reduced in this case because the CA was satisfied that you needed somehow to have figure in mind depending on seriousness of claims. Vento banks have been revised over the years.
This guidance is not binding but tribunals must have regard to it.
The “Vento Guidelines
Vento
Catholic Child Welfare Society v Various Claimants [2012]
SUPREME COURT
, Lord Phillip’s test - BRACC
‘The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
iii) The employee’s activity is likely to be part of the business activity of the employer;
iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
v) The employee will, to a greater or lesser degree, have been under the control of the employer.’
Lord Reed in Cox, paras 21-22, explained that the first and fifth criteria are not as significant as the second, third and fourth
Subjecting to a ‘detriment’?
HL – does not have to be physical or economic consequences but the worker must be disadvantaged in their subsequent work circumstances by reason of the act complained about – in the view of the reasonable worker. Shamoon gave general approach to the word detriment. Are you disadvantaged by actions of employer in the view of the reasonable worker? Threat of dismissal but not actually dismissed will fall within detriment.
Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?
Shamoon
M refused to provide counselling to same-sex couples contrary to Relate’s policy of non- discrimination on the grounds of sexual orientation. Held: religious belief did not place M above equality law.
McFarlane v Relate Avon
Shamoon
Subjecting to a ‘detriment’?
HL – does not have to be physical or economic consequences but the worker must be disadvantaged in their subsequent work circumstances by reason of the act complained about – in the view of the reasonable worker. Shamoon gave general approach to the word detriment. Are you disadvantaged by actions of employer in the view of the reasonable worker? Threat of dismissal but not actually dismissed will fall within detriment.
Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?
RELIGIOUS BELIEF
Art 9 ECHR – freedom of thought, conscience and religion:
such religions must have a clear structure and belief system
X v UK
MOD v Jeremiah
Subjecting to a ‘detriment’?
deprivation of choice. Men required to undertake dirty work to be eligible to work overtime, women were not required. This imposition upon men was a detriment. Men as a group had been deprived of a choice. Irrelevant that they received financial reward, it was a detriment.
- Sex
woman who worked part time was required to do a job full time. She was a child raiser and this rule was found to be discrimination.
Home Office v Holmes
s136 Proving discrimination
employer failed to give an adequate explanation on a statutory questionnaire – this ‘could’ lead to discrimination – ET must draw any inferences that are just and equitable from an evasive or equivocal reply by employer.
King v Great Britain
St Helens MBC v Derbyshire [2007] UKHL
Victimisation s27
focus should be on detriment to the claimant – threat of cutbacks and redundancies in response to a group action – amounted to intimidation. Threat of cut backs from LA, it was shown in response to action being brought by group of employees under EA, this was argued to be intimidatory and fell within scope of victimization.
Victimisation s27
employee did not show cause and effect – why did the alleged discriminator act as he did? May be a reasonable response by employer to protect his interests as a litigant. If failure to show Cause and effect, victimization will be unsuccessful. Police had refused to give him reference when he applied for a job in another police force. Was this a detriment by refusing to give a detriment, was it because of a protected act? Held: no because reason they refused was because they were worried it might prejudice their case against EA. As it was not due to Protected act, it was not victimisation. They acted honestly and reasonable but here employment issue was ongoing. Would be different if employment issue was not ongoing. Argument about nature of proceedings.
Khan [2001] UKHL
The tribunal can award a 10% uplift in compensation if there is also personal injury:
mental health impact would also fall within this.The Court of Appeal held that the 10% Simmons v Castle applied to awards for both psychiatric injury and injury to feelings.
De Souza v Vinci
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
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.
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.
Victimisation s27
focus should be on detriment to the claimant – threat of cutbacks and redundancies in response to a group action – amounted to intimidation. Threat of cut backs from LA, it was shown in response to action being brought by group of employees under EA, this was argued to be intimidatory and fell within scope of victimization.
St Helens MBC v Derbyshire [2007] UKHL
Ladele
Relationship between religion and conscience – actions of workers as a manifestation of their religion or belief:
registrar refused to conduct civil partnerships due to religious belief – duty of local authority to protect its citizens against sexual orientation discrimination. Found: manifestation of belief and LA could take action to address this because duty to citizens to protect against sexual orientation discrimination.
Rank Nemo
Like harassment, victimisation is a freestanding claim of ‘prohibited conduct’
employer failed to pay a judgment debt following an employee’s successful claim for race discrimination and unfair dismissal. Entitled to bring a separate claim for victimisation – claimed that other creditors who had not done a ‘protected act’ were paid. Employer failed to pay compensation after successful EA claim, in these circumstances, a separate claim could be brought within 3 months of detriment. And could be brought post employment context.
Injury to feelings caused by one off remarks would normally be in the lower band:
one off remarks in lower bank is harassment case in injury to feelings award.
Kemeh v MOD
In cases where there is an uplift, compensation for injury to feelings is assessed separately rather than as part of a composite award:
non-national and disabled, discriminated against on PC on race and disability. Tribunal said even though two different PC where discrimination found they found one composite award. EAT said this was wrong application, injury to feelings should be assessed separately where there has been a violation separate wrongs where damages should be provided.
Al-Jumard v Clwyd
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>
Really Easy Car Credit v Thompson [2017]
Race
Discrimination based on a lack of ethnic origin also would fall in this.
JFS
SC
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.
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>
Distinction between ‘sex’ and ‘sexual orientation’:
sexual orientation discrimination not sex discrimination because woman and men would have been equally discriminated against so could not fall within sex.
Grant v South-West Train
R v Registrar
SC
‘religious belief’
‘spiritual or non-secular belief system, held by a group of adherents’, per Lord Toulson.
Home Office v Holmes
- Sex
woman who worked part time was required to do a job full time. She was a child raiser and this rule was found to be discrimination.
There must be evidence of the objectively verifiable existence of a direct link between the occupational requirement and the activity concerned – promotion of the organisation’s ethos - and, if so, the test is whether the occupational requirement imposed, by reason of the nature of the activities concerned or in the context in which they are carried out, is ‘genuine, legitimate and justified’ (three criteria), having regard to that ethos:
Finally, the requirement must comply with the principle of proportionality (as a general principle of EU law).
genuine
legitimate
justified
proportionate
German church published an offer of employment – task was to write a parallel report on the UN Convention on the elimination of all racial discrimination – requirement: must be a member of a Protestant or other listed churches in Germany. E, who had no church denomination, was shortlisted but not appointed. Involved someone who worked in a church and not given a job to write a report on behalf of the church talking about UN Convention. Egenberger was protestant, but she did not have a particular denomination and was not appointed. CJEU – direct link between occupational requirement and activity concerned (was writing this report protecting ethos of organisation). Applied a genuine, legitimate and justified criteria. And if it fits in this, then it must be in accordance with proportionality principle (was it proportionate not to employ Egenberger?)
ECJ: courts must conduct a balancing exercise between competing rights – i) the autonomy of churches and other organisations whose ethos is based on religion or belief and ii) the rights of workers not to be discriminated against on grounds of religion or belief.
There must be evidence of the objectively verifiable existence of a direct link between the occupational requirement and the activity concerned – promotion of the organisation’s ethos - and, if so, the test is whether the occupational requirement imposed, by reason of the nature of the activities concerned or in the context in which they are carried out, is ‘genuine, legitimate and justified’ (three criteria), having regard to that ethos:
- ‘genuine’ – ‘professing the religion or belief on which the ethos of the church or organisation is founded must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy’, para 65;
- ‘legitimate’ - ‘to ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy’, para 66;
- ‘justified’ – ‘the church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary’, para 67.
Finally, the requirement must comply with the principle of proportionality (as a general principle of EU law). Therefore, there must be an objective assessment by a court rather than reliance on the self-perception of the religious organisation.
Egenberger
, Lord Phillip’s test - BRACC
‘The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
iii) The employee’s activity is likely to be part of the business activity of the employer;
iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
v) The employee will, to a greater or lesser degree, have been under the control of the employer.’
Lord Reed in Cox, paras 21-22, explained that the first and fifth criteria are not as significant as the second, third and fourth
Catholic Child Welfare Society v Various Claimants [2012]
SUPREME COURT
Al-Jumard v Clwyd
In cases where there is an uplift, compensation for injury to feelings is assessed separately rather than as part of a composite award:
non-national and disabled, discriminated against on PC on race and disability. Tribunal said even though two different PC where discrimination found they found one composite award. EAT said this was wrong application, injury to feelings should be assessed separately where there has been a violation separate wrongs where damages should be provided.
- 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.
Achbita
