Equality Act 2010

Question 1

List some acts the Equality Act 2010 replaced what key pieces of legislation

Answer 1

Race Relations Act 1976
Sex Discrimination Act 1986
Disability Discrimination Act 1995
Equality Act 2006

Question 2

What are the key concepts of the Equality Act?

Answer 2

Protected Characteristics and the Prohibited Conduct in relation to those characteristics

Question 3

What are the prohibited characteristics?

Answer 3

ss4-12 Equality Act :

Sex, race, disability, marriage & civil partnership, religion or belief etc.

Question 4

What are the prohibited conducts?

Answer 4

ss13-37 Equality Act:
Direct Discrimination
Indirect Discrimination
Harassment
Victimisation
Discrimination arising from disability
Duty to make adjustments

Question 5

What is direct discrimination?

Answer 5

Where someone treats someone less favourable because of a protected characteristic

Question 6

Give an example case where direct discrimination happened

Answer 6

Coleman v Skyrail Oceanic (t/a Goodmans Tours) [1981] - Husband and wife worked for rival companies.
The employer had to decide which one to fire to prevent sensitive info being disclosed between the two of them. The employer chose the woman as they believed the man would be the bread winner.
Held : This was direct discrimination of the protected characteristic of sex and was unlawful

Question 7

Associative discrimination is considered a form on direct discrimination

Answer 7

Coleman v Attridge Law [2010] - Woman believed she had been discriminated against due to her having to take care of her disabled son.
Held: Although there was nothing in the DDA at the time, associative discrimination is within the meaning of s 13 of the act

Question 8

Perceptive discrimination is a type of direct discrimination

Answer 8

English v Sanderson Blinds [2009]
An employee suffered homophobic abuse as his co workers thought he was gay even though he wasn’t
Held: It is the objective nature of the harassment that is important.

Question 9

Why is a comparator needed for direct discrimination?

Answer 9

Because under s 13 of the direct discrimination act the treatment needs to be less favourable not just unfavourable

Question 10

The motive for the direct discrimination is irrelevant, however well-intentioned the reason is

Answer 10

James v Eastleigh Borough Council [
Amnesty International v Ahmed [2009] -Sudanese woman rejected a promotion because it was feared her ethnicity would compromise the employer’s impartiality
Held: employer’s motive irrelevant the only matter to be determined is whether there has been direct discrimination

Question 11

Does different treatment = less favourable treatment?

Answer 11

No.

Question 12

What is indirect discrimination

Answer 12

s 19:
Indirect discrimination is where employer applies a practice, criterion or provision which is discriminatory in relation to a protected characteristics …. and puts people who share that protected characteristic at a disadvantage and cannot be shown that is it is a proportionate means of achieving a legitimate aim

Question 13

Give an example of indirect discrimination

Answer 13

Copple v Littlewoods plc [2010] - the employer excluded part time workers from being added to pension scheme.
Held: This was indirectly discriminatory to women who were more likely to be part time workers.

Question 14

What is the main difference between direct and indirect discrimination?

Answer 14

There can be no justification for direct discrimination, whereas indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim

Question 15

In considering if the PCP is discriminatory what do the ET have to take into consideration

Answer 15

The ET have to strike a balance between the discriminatory effect of the PCP and the reasonable needs of the business

Question 16

There must be a ‘real need’ for the PCP and..

Answer 16

it must be ‘appropriate’ and ‘reasonably necessary’ - Network Rail Infrastructures Ltd v Gammie [2009]

Question 17

For the purposes of s 13, 19 and 20, what must a comparator be?
How m

Answer 17

A comparator must be an actual or hypothetical person who’s circumstances are not materially different from that of the claimant’s and who does not share the same protected characteristic as the claimant

Question 18

What case set out what a comparator should be?

Answer 18

Lockwood v Department for Work and Pensions

Question 19

If there is no comparator what must the ET do?

Answer 19

Create a hypothetical one, drawing a careful inference from all available evidence

Question 20

What are the three types of harassment?

Answer 20

s 23 - see statute book

‘unwanted conduct’

Question 21

If an employer suspects harassment, what should be done? What will happen if he does not do this?

Answer 21

Investigate the matter and take some action. Failure to do this could result in a breach of the implied term of mutual trust and confidence

Question 22

Give an example case of when there was harassment

Answer 22

Richmond Pharmacology v Dhaliwal [2009] - a co worker said see you soon unless you’re “married off in India”
Held: This was discriminatory.
However, an environment of hyper-sensitivity should not be encouraged in harassment cases and every racially slanted comment doesn’t necessarily mean a violation of a person’s dignity etc.

Question 23

What is victimisation?

Answer 23

s 27:

A treats B less favourably because of a protected act

Question 24

Does the protected act need to be done by the claimant himself?

Answer 24

No, an employer can treat someone less favourably because of the protected acts of others

Question 25

The perception of the employee needs to be reasonable regarding the victimisation

Answer 25

Chief Constable of Yorkshire v Khan [2000]
Police officer went for promotion and made an allegation that he was the victim of race discrimination because his application was not supported.
Before the claim was heard a reference was requested and the employer refused to give a reference
Held: this was not victimisation as the employer was protecting his legal position regarding the race allegations made against him.

Question 26

Explain what an employer must not do regarding discrimination in employment

Answer 26

s 39 - discrimination in employment - arrangements/terms/not offering employment
or
promotion/access to opportunities etc 4

Question 27

Why can job advertisements be discriminatory?

Answer 27

Because job advertisements are considered part of the arrangements for deciding whom to offer employment

Question 28

To refuse to offer a woman job because it’s a man’s job is discriminatory
To offer not offer a man a job because women would not work with him is also discriminatory

Answer 28

• Batisha v Say [1977]

- Munro v Allied Suppliers [1977]

Question 29

Employer must not harass anyone who…

Answer 29

s 40:

is an employee or applied for employment

Question 30

If employees discriminate/harass/etc during employment then..

Answer 30

s 109:
The employee will be vicariously liable and anything done by a person in the course of A’s employment must be treated as also done by the employer.

Question 31

Give an example case where the employer was liable for the acts of the employees

Answer 31

Jones v Tower Boot [1997] employer argued racial comments were not in the course of employment because it was no part of their work to do the things they did.
Held: Employer liable for racial harassment of an employee by other employees

Question 32

What is the employer’s defence to vicariously liability ?

What must they show to be successful in this defence?

Answer 32

The employer can claim that he took reasonable steps to prevent the discriminatory actions from happening. The employer must show:
Equal opportunities training of employees
Implementing and equal opportunities policy
They were unaware of the acts

Question 33

Individual employees are capable of being liable for their discriminatory actions - why?

Answer 33

Individual employees can be liable on a ‘joint and several’ basis with compensation being paid by those liable - London Borough of Hackney v Sivanandan [2011]

Question 34

What gives ET power to hear discrimination claims

Answer 34

s 120, Equality Act 2010

Question 35

How long does an employee have to bring a claim?

Answer 35

s 136 3 months to bring a claim, but the ET may extend this time if it is just and equitable to do so, however a claim cannot be made after 12 months

Question 36

What was the burden of proof regarding discrimination claims?
What is the position now ?

Answer 36

The claimant had to prove on the balance of probabilities that he had been subjected to discrimination - Barton v Investec Henderson Crosswaith Securities Ltd [2003]
Now s 136 provides that if there are facts from which the court could decide, in the absence of any other explanation… the court must hold that a contravention has occurred as seen Igen v Wong [2005]

Question 37

What are the potential remedies for discrimination?

Answer 37

s124:
Declaration
Recommendation
Compensation

Question 38

What is the difference between UD and Discrimination claims regarding damages?

Answer 38

Damages are awarded for injury to feelings in discrimination claims