Key cases on direct discrimination

Question 1

James v Eastleigh BC (1990)

Answer 1

The council tried to act positively but unintentionally discriminated against one sex. The motive is not required, there must simply be causation between the action carried out and the effect on the victim.

Lord Bridge: the purity of the discriminators subjective motive, intention or reason for discriminating cannot save the criterion applied from the objective taint of discrimination on the grounds of sex. It is not to punish bad conduct, but to acknowledge the effect of discrimination.

Question 2

Moyhing v Barts and London NHS Trust (2006)

Answer 2

Male nurse had to be chaperoned carrying out procedures on female patients, but no rule on female nurses carrying out the same on males. He brought a claim for sex discrimination.

Defended on grounds of intention: to protect male nurses from falling victim to complaints of sexual assault at the hands of female patients. This was not justification for a discriminatory policy because it was direct and not indirect discrimination.

Question 3

Khan v Chief Constable of West Yorkshire Police (2000)

Answer 3

Lord Woolf: to regard a person as acting unlawfully when he had not been motivated either consciously or unconsciously by any discriminatory motive is hardly likely to assist the objective of promoting harmonious racial relations”

Because it is a protected characteristic we are dealing with, we have a test of causation and not of motivation. If we have challenges to discrimination, ti will win peoples hearts and minds and hopefully provide as a deterrent to not discriminate against others.

Question 4

Shamoon v Royal Ulster Constabulary (2003)

Answer 4

There is a detriment if a reasonable person would take the view that the treatment had been to their detriment. There does not need to be a loss in the way that this should be understood.

Question 5

Grieg v Community Association (1979)

Answer 5

Female applied for job on decorating team. All others were men, which concerned her and the employer denied giving her the job, however, she was offered another job at the same rate of pay.

Held: was sex discrimination regardless of offering her another job because it was not the job she applied for originally or wanted in the first instance. The employer does not need to prove any kind of material detriment.

Question 6

Schmidt v Austicks Bookshops (1978)

Answer 6

Woman refused to comply with the dress policy that said she should wear skirts and not trousers. She was dismissed and this was based on the claim that she was treated less favourably than other employees who could wear trousers.

EAT: upheld her dismissal.

The conditions were different to that of the men but were not less favourable in any way. If the policy applies equally to both men and women in uniform and is enforced equally, then there is no discrimination.

Question 7

Smith v Safeway plc (1996)

Answer 7

Male employee worked on the delicatessen counter. there was a rule on hair length for male employees.

Phillips LJ: it is discrimination towards one of the sexes that is unlawful, not discrimination between the sexes. it is the former that is unlawful.

Question 8

Is there a qualifying period for bringing about a discrimination claim?

Answer 8

No.

Question 9

Is there a limit on the amount of compensation that can be awarded?

Answer 9

No

Question 10

Balamoody v UK Central Council for Nursing (2001)

Answer 10

Man struck off and alleged discrimination because no one was in the position he was.

Held: no real comparator because no one was in the same circumstance as him.

Question 11

Issue in Balamoody

Answer 11

How can we construct a hypothetical comparator?

Question 12

How to construct a HC

Answer 12

Find someone who is the same as the claimant in terms of their protected characteristic.

Question 13

Balamoody per Ward LJ

Answer 13

“broadly compare with like, if the applicant can point to an actual person who’s circumstances are the same or not materially different from his own, then so much the better”

Question 14

Coleman v Attridge Law (2008)

Answer 14

Associative discrimination is where someone is discriminated against because of someone that they are associated with who is in possession of one of the protected characteristics.

CJEU: requires associative discrimination to be included within the definitions of direct discrimination.

Question 15

Hainsworth v Ministry of Defence (2014)

Answer 15

Does the duty to make reasonable adjustments in the workplace extend to an employee associated with a disabled person? They held that it does not.

Question 16

English v Thomas Sanderson Blinds (2008)

Answer 16

This indicates how wide perceptual discrimination can go. Mr English claimed to be subject to homophobic taunts but this was viewed as a joke. Everyone knew and understood that he was not gay. It was amusing because he went to a public school and lived in Brighton.

Question 17

S.13 (2) EQA 2010

Answer 17

Age can be a defence to direct discrimination if it is required for the job.

Question 18

S.13 (3) EQA 2010

Answer 18

Does permit some exceptions for those who are disabled to receive some positive discrimination because of their condition.

Question 19

English case per Sedley J

Answer 19

The mans sexuality in this case is imaginary, and this is the ground of the harassment towards him”

Question 20

English case per Laws LJ

Answer 20

Harassment is perpetrated on the grounds of sexual orientation only when a persons actual, perceived or assumed sexual orientation gives rise to it.. or substantial cause of it. In these circumstances, it was not”

Question 21

Eastwood

Answer 21

If taunts take a homophobic format, even if the person is not gay, then it amounts to discrimination.

Question 22

Is there a defence to direct discrimination?

Answer 22

Generally no defence. There are two main exceptions.

Question 23

Marshall v Southampton and South West Hampshire Area Health Authority (no 2) (1993)

Answer 23

The Sex Discrimination Act 1975 and Race Relations Act 1976 were subsequently amended to remove the cap on discrimination awards. Under the Equality Act 2010, discrimination compensation is currently uncapped.

Question 24

Webb v EMO Air Cargo (UK) Ltd (1994)

Answer 24

Woman learns she is pregnant and is dismissed by her employer.

The ECJ held categorically that an employer cannot defend a pregnancy discrimination claim on the basis that a sick man absent for the same amount of time would have been treated in the same way (the “sick man defence”).

In essence, it is not a fair comparison to make.

Question 25

The “but for” test from James v Eastleigh BC

Answer 25

“Would the complainant have received the same treatment from the defendant but for his or her sex?”

Question 26

Enderby v Frenchay Health Authority and Secretary of State for Health (1993)

Answer 26

Female speech therapists said they were paid less than their male counterparts for doing the same tasks.

Onus is on the employer to explain any unequal pay between males and females.

The ECJ established that, where the statistics are sufficiently compelling to show a disparate impact between the two groups made up largely of different genders, the burden of proof switches to the employer to show that there was a genuine material factor other than sex to explain the difference.

Question 27

Chief Constable of Norfolk v Coffey

Answer 27

Employers can be liable for “perceptive discrimination” because of the way that the EQA 2010 is drafted.

They can bring a claim even if they do not possess the PC in question.

If someone has a condition that is viewed as ‘progressive’, then it should be perceived that this could become a disability in the future.

This case highlights that an employer should not make assumptions about an employee’s medical condition and the effect it may have on their ability to undertake certain duties, either now or in the future. If an employer believes an employee may have a disability, it should obtain medical evidence, discuss the issue with the employee and consider whether or not there are any reasonable adjustments that could be made.

Question 28

D’Silva v NATFHE

Answer 28

Failure to provide legal representation for employee and failure of correspondence.

ET: the union had declined to provide legal representation because the claimant had explicitly expressed a lack of trust and confidence in the legal team and that the problems with correspondence had been due to a genuine oversight by the solicitor in question.

(On appeal):

Question 29

Edinburgh City Council v Dickson

Answer 29

A community development worker was dismissed after it came to light he was watching pornography at work. He said he had no recollection of it because he had diabetes.

Held: It then went on to find that this hypothetical non-disabled comparator would not have been treated in the same way as the claimant so the claim of direct disability discrimination succeeded.

EAT: employer appealed,
Underhill P overturned it and found no evidence that his disability was not a relevant factor here.