Equality Law Flashcards
Definition of direct discrimination
s.13(1) EA 2010
Test to apply for cases of direct discrimination
objective test - “but for” test
Case of direct discrimination
Amnesty International v Ahmed [2009] - shows that even if an employer’s motive is benign it can still be direct discrimination
Is stereotyping direct discrimination?
Yes - per Baroness Hale in European Roma Rights Centre v Immigration Officer [2005] - “treat each person as an individual and not assumed to be like other members of the group”
What does s.13(1) EA “treats or would treat others” mean?
The ET can use an actual or hypothetical comparator –> governed by s.23 EA “no material difference” test
Leading case for direct discrimination of the protected characteristic - race
Zafar v Glasgow CC [1988] - question is whether he was treated less favourably than another similarly situated employee of a different racial group? not just whether he was treated less favourably
Two cases which used hypothetical comparators in direct discrimination claims
- Balamoody [2001]
2. Shamoon v Chief Constable of the RUC [2003]
Academic which argues the courts approach to direct discrimination cases is flawed
John Finnis - it doesn’t consider the intention and the reasoning of the employer efficiently
Recent government guidance which states it is unlawful to have gender-specific requirements e.g. wearing heels, manicured nails, make-up etc.
Government guidance on Dress Codes and Sex Discrimination in May 2018
Dress codes can have different rules so long as the treatment is not less favourable for different genders.
Smith v Safeway [1995] - butcher with ponytail
Example of associative direct discrimination
Coleman v Attridge Law [2008] - discriminated against because she was a carer for her disabled son
per Advocate General Maduro
Example of perceptive direct discrimination based on sexual orientation
English v Thomas Sanderson Blinds [2009]
Example of perceptive direct discrimination based on disability
Chief Constable of Norfolk v Coffey [2017]
Exceptions to the rule that direct discrimination by an employer cannot be justified
- Age discrimination
2. Occupational requirements - schedule 9 para.1(1) on a case by case basis
Example of strict application of the test for occupational requirements as an exception for direct discrimination under Schedule 9, para.1(1) EA
Etam v Rowan [1989] - male shop assistant at female clothing shop
The justification defence for indirect discrimination
s.19(2)(d) - proportionate means for achieving a legitimate aim
Statutory definition of indirect discrimination
s.19 EA
Example of indirect discrimination on the grounds of religion or belief - broader definition of “practice” within s.19
Pendleton v Derbyshire County Council [2016] - school policy to dismiss someone who refused to leave their husband who was a convicted sex offender. doesn’t matter if they haven’t applied the practice before.
s.19 EA Indirect discrimination - when considering group disadvantage, those with no interest in the advantage in question shouldn’t be included in the pool of comparison.
Somerset CC v Pike [2009] – only retired teachers should be considered in the pool of comparison on an issue only affecting retired teachers.
s.19(2)(c) EA indirect discrimination requirement of individual disadvantage - even though they’re the only individual to suffer, if they’re extremely in the minority the fact of disadvantage is sufficient. DO NOT have to show why they suffered the disadvantage
London Underground v Edwards [1999] - single mother struggles with child care as a result of changes to a flexible shift pattern, it is enough even if she is the only one
Compare the interpretation of requirement for individual and group advantage in indirect discrimination in London Underground v Edwards [1999] and Eweida v UK [2013] with the approach in s.19 EA 2010
Edwards allowed the appeal of indirect sex discrimination as 92.5% of women could comply with train shifts compared to 100% of men, even if only 1 woman couldn’t comply.
Eweida in ECtHR held that the policy was indirectly discriminatory, even without this ‘group’ disadvantage element
s.19 EA has the more strict interpretation that individual and group disadvantage needs to be proven –> contradicts with ECtHR decisions
Example of less weight being given to freedom of religion by the ECJ when considering the discriminatory impact of a PCP (s.19 EA)
Bouganoui v Micropole [2017] - complaint about head scarf
Developed the justification for indirect discrimination (now in s.19(2)d) EA) as a burden on the employer to show objectively justifiable factors for the PCP unrelated to any discrimination.
Bilka-Kaufaus [1986]
2 Examples of strict application of the proportionality test as a justification for indirect discrimination under s.19 EA
- Azmi v Kirklees MC [2007]
2. Achbita [2017] - indirect discrimination justified as trying to appear neutral to clients
If measures with a less discriminatory impact were available to the employer and they didn’t take this action then the PCP cannot be justified for it’s indirect discrimination
Allonby v Accrington and Rossendale College [2001]
Length of service selection criteria for redundancy was justified under the proportionality test for indirect discrimination
Rolls-Royce v Unite the Union [2009] - rewards loyalty and desirability for a stable workforce.
Example of the courts tending to take a less rigorous approach where the case involves a challenge to the compatibility of national legislation and EU directives or treaty provisions on equality
Seymour-Smith [1999] - claim that increasing the qualifying period for UD to 2yrs was indirectly discriminatory - justified
Key test for harassment
s. 26 EA
1. no need for an individual or group comparator
2. harassment of a sexual nature doesn’t need to be linked to a protected characteristic (s.26(2))
3. taking into account the effect-based test in s.26(4) with subjective and objective elements to show it was ‘unwanted’
Guidance given to the court on how to interpret the Equality Act 2010 - in terms of discrimination and harassment
“The EHRC Employment Statutory Code of Practice” (The EHRC Code)
Perceptive harassment still comes within s.26 EA
English v Thomas Sanderson Blinds [2009]
Limited allowance of positive discrimination in statute
s.158 and s.159 EA
Example of the courts approach when considering direct age discrimination against younger people (s.5 EA)
Kucukdeveci [2010] - (redundancy for length of services after 25yrs old) comparison is with people of a different age group
statutory justification for discrimination of the protected characteristic of age (s.5 EA)
s.13(2) EA - and the aims were originally identified in EU Directive 2000/78 Art.6
Leading case for application of employment conditions for direct discrimination for age
Seldon v Clarkson Wright and Jakes [2012] per Baroness Hale
3 things to consider in cases of direct discrimination of age, per Baroness Hale
Seldon v Clarkson Wright and Jakes [2012]
- the employer’s objectives are of a public interest nature;
- the rule must be consistent with social policy of the state;
- must be proportionate means used and for an appropriate aim.
What protected characteristic can be justified for direct discrimination by the employer?
Age
Exception for direct discrimination against age if the claimant’s period of service is more than 5yrs and relying on it ‘fulfils a business need’
Schedule 9, part 2, s.10(2) EA - very narrow
strict interpretation of justification for length of service rules i.e. discrimination on grounds of the protected characteristic of age
Kucukdeveci [2010] - legislation must be appropriate for achieving the aim
Can you have a default retirement age?
No - the default retirement age of 65 was repealed with effect in October 2011.
–> but can still be justified under the proportionality test s.13(2)
Statutory definition of disability
s.6(1) EA - no restriction on employers favouring disabled employees
Case which brought the EU definition of disability in line with the CRPD (Convention on the Rights of Persons with Disabilities) - combining medical and social elements
Ring and Werge [2013] - consequences of whiplash were for an uncertain period of time, still capable of doing her job so should have been offered part-time work
Are persons who no longer have the disability they had in the past within the definition of s.6 EA?
YES - therefore they are protected from discrimination even if they’re no longer disabled
More detailed provisions for determining whether an individual comes within the EA definition of disabled
- Schedule 1 EA
2. The Equality Act 2010 (Disability) Regulations 2010
Statutory provision which prevents employers from enquiring about the prospective employee’s health or disability before offering them work or even before including them in a pool of applicants
s.60(1) EA
BUT… this has to go through the EHRC not an ET
Specific provision for establishing whether the individual’s disability has ‘long term effects’
Schedule 1, para.2 EA
Case on the definition of ‘normal day-to-day activities’ within s.6(1)(b) EA
Chief Constable of Dumfries; Galloway v Adams [2009] -
Police officer with ME, working night shifts was ‘normal day-to-day activities’ so it did have long term effects
Case on definition of ‘substantial…adverse effect’ within s.6(1)(b) EA
Goodwin [1999] - ‘more than merely trivial’
Does obesity come within the s.6(1) EA definition of a disability?
Case law isn’t entirely sure - Kaltoft [2015] and Walker [2013] argued that it might be possible to be a PC if it has a substantial adverse effect on their normal day-to-day activities
- the focus is on medical evidence on a case by case basis
Example case that an employer has to have been reasonably expected to know of the claimant’s disability - s.15(2) EA
Toy [2017] - found out the police officer has dyslexia after dismissing them for performance reasons.
Two special concepts applying only to the protected characteristic of ‘disability’
- s.15 EA
2. s.20 EA
Concepts only applying to the PC of disability
- S.15 EA - discrimination arising from disability but s.15(2) defence for the employer
- S.20 - duty to make reasonable adjustments
Failure to comply with the duty to make reasonable adjustments constitutes unlawful discrimination
S.21 EA - no objective justification
Sets out detailed rules for ‘reasonable adjustments’ which employer’s are under a duty (s.20 EA) to make
Schedule 8 EA and EHRC Disability Guidance
Leading case for making reasonable adjustments for people with a disability - including more favourable treatment if necessary
Archibald v Fife Council [2004] - employer should have let the claimant skip the interview process to provide a suitable alternative job
Case on employer’s duty to make reasonable adjustments under s.20 EA - offer of a replacement position must be at the same salary
G4S cash solutions v Powell [2016]
Failed application for unfair dismissal on grounds of their disability so applied for discriminatory dismissal under s.15 EA
City of York v Grosset [2018] - teacher with cystic fibrosis showing over 18 film
Difference between test for unfair dismissal under the ERA and test for discriminatory dismissal for disability under s.15 EA?
unfair dismissal requires unreasonable reasoning for the dismissal
discriminatory dismissal for disabled persons only requires unfavourable treatment
s.15(2) - it is enough to satisfy the test for discrimination by just having a causal connection between the treatment complained of and the claimant’s disability
Clark v TDG (Novacold) [2017]
Example of dispute about protected characteristic - marriage or civil partnership s.8 EA
Hawtins v Atex Group [2012] - wife of Chief executive was dismissed, was allowed to prevent conflicts of interest
Cannot discriminate against a woman on maternity leave BUT… it must be proportionate
Eversheds [2011] - can’t give a woman on maternity leave perfect scores
If the dismissal was decided before they knew the claimant was pregnant then it is unlikely to be regarded as discrimination.
Really Easy Car Credit v Thompson [2017]
Developed the broad definition of race under s.9 EA through the ‘distinct community’ test/’group disadvantage’ test
Mandla v Dowell Lee [1983]
any rule which amounts to racial segregation is automatic racial discrimination
s.13(5) EA
discrimination on the grounds of ethnic origin also applies where a person is treated less favourably because he/she lacks certain prescribed ethnic origins
JFS - denied admission to a boy whose mother converted to judaism rather than was born jewish - discrimination
Example of the fine line being drawn in the definition of race under s.9
Taiwo and Onu [2016] - were discriminated against because they were immigrants not because of their race
Example of approach taken to define a ‘religious belief’ under s.10(2) EA
MBA v London Borough of Merton [2013] - ‘sincerely held’ even if the whole of the group don’t hold that particular view - Christian man who suffered a detriment for refusing to work on a sunday
Developed definition of ‘philosophical belief’ under s.10(2)
Gray v Mulberry - can’t be something trivial, must be a sincere belief and can’t be the only one with that belief
Belief in the protecting the environment can be a ‘philosophical belief’ within s.10(2) EA
Grainger v Nicholson - clear set of values which effected the way he lived his life
Three cases on manifestation of religion or belief
- Eweida
- Achbita
- Bouganoui
Statutory exceptions relating to religion or belief
Schedule 9 s.3 EA
- occupational requirement allowed base on ethos
- religious requirement e.g. priest being catholic
Leading case for the exception of an occupational requirement relating to religion or belief -
Egenberger (2018) - “genuine, legitimate and justified’ ethos for the occupational requirement (direct link between it and the activity) AND must be proportionate
An employer can’t have a discriminatory requirement on the basis of ethos under Schedule 9 s.3 if it isn’t necessary to the job
IR v JQ (2018) - can be divorced and work for a catholic charity
Can have discriminatory occupational requirement if it for the purposes of organised religion and it is to prevent a conflict with the beliefs of that religion
Schedule 9 s.2 EA
example case - Reverend Canon Pemberton [2016]
Statutory provision which states employer’s are vicariously liable for the actions of their employees
s.109 EA
Example case of employer’s being vicariously liable
English v Thomas Sanderson Blinds [2009]
BUT… remember it can be justified if the employer took all reasonable steps to prevent it
Developed the two-stage test for whether an employer can be vicariously liable under s.109 EA for the actions of employees
Barclays Bank [2017] -
- are they in employment or ‘akin’?
- is the tort sufficiently closely connected to the employment?
Statutory provision which provides protection for employees from discrimination before AND after employment
s. 39(1) and s.39(3) EA are during the hiring process
s. 39(2) and s.39(4) EA are during employment
It is unlawful to instruct another to discriminate
s.111 EA
Examples of being ‘subjected to a detriment’ during employment within s.39(2) and (4) EA
- Jeremiah [1980]
- Shamoon v Chief Constable of the RUC [2003]
and lots of others previously spoken about
Statutory provisions regarding dismissal within equality law
s.39(7) and s.39(8) EA
3 Advantages of bringing a dismissal claim under the Equality Act
- No qualifying period
- Tribunal will award what it considers appropriate compensation but can ALSO make an award for injury to feelings
- No upper limit to the compensation
Case which concluded that there needs to be sufficient causation between the dismissal and the discrimination to come within s.39(7) and (8) EA
Clements v Lloyds Banking [2014]
What is the time limit for bringing a claim for unfair dismissal, harassment or victimisation under the Equality Act?
s.123 EA - 3 months from when the discriminatory act ,linked to a protected characteristic, happened
The burden of proof is on the claimant to prove contravention with the EA linked to a PC but then it switches to the employer
s.136 EA - this facilitates claims
If the employee/applicant proves a contravention of the EA because of one of the PCs, what does the employer have to prove?
The employer has to show cogent evidence on the balance of probabilities that there was no contravention
Examples of evidence needed for employee/applicant to prove contravention of the EA because of a PC
- West Midlands Passenger Transport v Singh [1988] - statistical proof
- Igen v Wong [2005] - sufficient evidence on the balance of probabilities
Example of the tribunal finding a lack of sufficient evidence to prove there was a contravention of the EA related to the employee/applicant’s PC
Chief Constable of Kent Constabulary v Bowler [2017]
Statutory provision for victimisation
s.27 EA - to protect people who are bringing a claim
Leading case for victimisation, protected in s.27 EA
Nagarajan v London Regional Transport [2001] - motive is irrelevant, it is a cause and effect test
Victimisation under s.27 EA is a separate protected act so can bring a separate claim to indirect or direct discrimination
Azmi v Kirkless MC [2007] (veil case)
BUT an employee can suffer detriment without it being victimisation under s.27 EA if the employer’s action is to protect itself from ongoing legal proceedings
Chief Constable of West Yorkshire Police v Khan [2001] - needs to be sufficient cause and effect
Threat of cutbacks and/or redundancies as a result of proceedings being brought under the EA can count as victimisation within s.27 EA
St Helens MBC v Derbyshire - intimidation
Post- employment discrimination is protected under the Equality Act
s.108 EA - linked to victimisation, as long as it’s ‘closely connected’ to their previous relationship
Established that there needs to be a formula for calculating injury to feelings as part of compensation within s.124 EA
Vento [2003] - aka the ‘vento bands’
Law Com suggestion for reform of compensation as a remedy for EA claims
Having exemplary or punitive damages available as a deterrent for the most serious cases e.g. major abuses of power by employers
If there is contravention of the EA on grounds of more than one PC then compensation for each should be considered separately
Alj-Jumard [2008] - discriminated against on grounds of race and disability, compensation for both
Government repealed part of s.124(3) to prevent tribunals making recommendations that affect the wider workforce - now can only affect the complainant
Deregulation Bill 2015 - limited the scope further
alternative way of bringing a claim under the Equality Act 2010
Through the Equality and Human Rights Commission
Example of passing the occupational requirement test set out in Schedule 9, part 1, s.1 EA – in relation to dress code
Bouganoui v Micropole [2017]
Example of proportionality test being applied in a indirect discrimination case - requirement for a law degree
Homer [2012] reaffirmed Bilka-Kaufhaus
