Week 8 - Employment Law continued & Alternative Dispute Resolution Flashcards
Discrimination Law
- covered in the Equality Act (EA 2010)
- act saw the Creation of the Equality and Human Rights Commission (EHRC)
- EHRC can Investigate Discrimination and Take Legal Action, though most cases are brought by individuals against Employees on a Case-by-Case Basis
How does Discrimination Law Apply in Employment
- Advertising for Jobs
- Interviewing
- Terms & Conditions, Traning and Promotion in a Job
Protected Characteristics - what are 8 Area of Possible Discrimination that’s Protected by Equality Act
- Age
- Disability
- Marriage / Civil Partnership
- Pregnancy / Maternity
- Race
- Religion or Belief (includes lack of religion)
- Sex / Gender
- Sexual Orientation
Explain Prohibited Conduct in relation to the Equality Act (EA)
- EA 2010 Prohibits Certain Kinds of Conduct that’s Seen as Discriminatory by the Law
- this could be conduct by the Employer Themselves or could be Vicarious i.e. through the conduct of their other employees such as a manager
State the 4 Main Types of Prohibited Conduct
- Direct Discrimination
- Associative Discrimination
- Perceptive Discrimination
- Indirect Discrimination
Explain the Type of Prohibited Conduct - DIRECT DISCRIMINATION
- where a Person (A) Treats somebody (B) Less Well than Someone Else (C) because B comes under one of the Protected Characteristics
- C is called the Comparator
- there Has to Be a Comparator (either real of hypothetical) in order To Assess Whether Discrimination has Occured
- it’s Not a Defence for the Alleged Discriminator to Have the Same Characteristic
- However, there May Be an Occupational Requirement for a Particular Characteristic(s) in Certain Jobs –> Discrimination can Be Justified (but only if crucial to role)
Explain the Type of Prohibited Conduct - ASSOCIATIVE DISCRIMINATION
- where Somebody has been Discriminated Because of Someone they Are Associated With
- Coleman v Attridge Law (2009)
- Mrs Coleman had a Disabled Child and was Subject to Criticims and Insults because of this
- was Ruled to be Discrimination by Association
Explain the Type of Prohibited Conduct - PERCEPTIVE DISCRIMINATION
- where a Person is Discriminated Against because People Perceive (or believe) They Have the Protected Characteristic
- e.g. if Someone is Dismissed Because their Employer Thinks They’re Gay
Explain the Type of Prohibited Conduct - INDIRECT DISCRIMINATION
- Employer May Not Realise that They are Discrimination, but is Doing Something that Makes it More Difficult for Someone to Undertake their Role than Somebody else
- e.g. instilling a rota of unsociable hours for parents with childcare commitments
or a Dress Code that Indireclty Discrimated those with religious Belief - Noah vs Desrosiers -> Muslim woman turned down as she wore headscarf but policy was for stylists to display their hair
State the 3 Types of Harrassment per the Equality Act 2010
(1) Applies to All of the Protected Characteristics ( bar Pregnancy/Maternity)
(2) Sexual Harassment
(3) Treating Somebody Less Favourably than Someone Else because they Submitted to or Rejected Sexual Harrasment
Explain the Type of Harassment per the Equality Act - (1) Applies to All of the Protected Characteristics (bar pregnancy/maternity)
- Unwanted Conduct that Has the Intention or Makes the Person feel Intimidated, Offended or Degraded
- could include Physical Abuse, Offensive Language, Jokes
Explain the Type of Harassment per the Equality Act - (2) - Sexual Harassment
- Conduct of a Sexual Nature that Has the Same Effect as the First Type of Harassment
- could Include Somebody Direcly Receiving Harassment or Those who Feel Harassed due to General Action e.g. If the Manager Displays a Topless Calendar
Explain the Type of Harassment per the Equality Act - (3) Treating Somebody Less Favorably than Someone Else Because they Submitted to Or Rejected Sexual Harassment
- e.g. if an Employee was Turned Down for Promotion Because they Rejected their Manager’s Advances
Explain what VICTIMISATION as per the Equality Act
- occurs When a Person Makes a Complaint About Discrimination (or Supports Somebody Else in their complaint ‘in good faith’) and is Subsequently Not Treated as Well as they Would Have Otherwise Been
- ‘in good faith’ means a Complaint / Support Given is Genuine and Not Falsified for Malicious Reasons
Explain what is POSITIVE ACTION
- Not the same as Positive Discrimination
- Positive Action is Measures Taken by Employers to Alleviate any Disadvantages that Those with Protected Characteristics may Experience
- e.g. promoting a company’s work in inner city schools, offering training courses for women wishing wishing to become managers
Explain Health and Safety in Relation to Criminal
- mainly Covered by the Health and Safety at Work Act 1974
- is a Criminal Offence to an Employer to Not Provide a Safe and Healthy Working Enviornment
- the Statute Indicates that Employers Must Act Reasaonbly when it Comes to Looking After the Health and Safety to Avoid Prosectuion
What are Obligations of an Employer in Regards to Health and Safety in relation to Criminal Law
- Provide Safe Systems of Working
- Maintain Plant and Equipment
- Ensure Safe Arrangement of Handling, Use and Storage of Hazardous Materials
- Provide all Necessary Information, Traning and Supervision
- Ensure that entrances and exists to buildings are safe
Explain Health and Safety in Relation to Civil Law
- Civil Side of H&S Law Consits of People who have Become ill/injured, Bringing Court Action in Order to Seek Compensation
- they can be Compensated If the Courts see Evidence of Lax Health & Safety at Work
- Employers Owe All Emloyees a General Duty of Care in Respect of H&S
What are Key Health and Safety Issues in an Office
- Posture, Pain and Discomfort
- Working with Display Screen Equipment (DSE) for Long Periods
- Carrying Bulky Items/Storing High Shelves
- Ensuring & Keeping All Electronical Equipment Safe
Mental Health Concerns
Explain Alternative Dispute Resolution (ADR)
Possible Reasons Why Parties may Not Want to Use the Court System in a Dispute
- Litigation is Expensive (in both time & money)
- Parties may Want to Discuss Disputes in a More Informal Manner, see litigation as a ‘last resort’
- Parties may Want to Continue Relationship in Other Aspects while Dispute is Ongoing
State the 5 Types of ADR (Alternative Dispute Resolution)
- Arbitration
- Mediation
- Conciliation
- Administrative Tribunals
- Ombudsman Sytem
Explain the Type of ADR - ARBITRATION
- Parties Take their Dispute to a 3rd Party
- they Agree to be Bound by the Decision of the Arbitrator
- Parties should Agree the Arbitration Process and Who should be Appointed as Arbitrator
- Arbitrator may be Legally Qualified or an Expect in the Field of Dispute
- Has the General Duty to Act Fairly and Impartially
State 3 Advantages of ARBITRATION
- Usually Lower Costs than Court Proceedings (though Artbirtrations can Command High Fees)
- Proceedings Held in Private
- Usually Quicker than Going through Courts
State the 4 Possible Downsides of ARBITRATION
- could Still be Expensive Due to High Costs of Arbitrator
- No Chance to Appeal - Both Parties have Agreed to be Legally Bound by the Decision
- Not as Thorough a Process as a Formal Court
- Independence of Arbitrator may Be Compromised If They’re Regularly Used By a Party
4Explain the Type of ADR - MEDIATION
- in Private as with Arbitraition
- Parties Appoint as Mediator (may or may not be legally qualified but will be trained as mediator
- their Role is to Help the Parties Arrive at a Mutual Agreement
- If Parties Agree, the Agreement can be Written Down and Legally Binding
- Parties May Not Necessarily Meet, but May Communicate Through Mediator
- Communications & Discussion will be On a ‘Without Prejudice’ Basis
- this Means that Should Mediation Fail, the Discussions that Took Place Cannot be Used in Later Court Proceedings
