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Commercial Law > Week 8 - Employment Law continued & Alternative Dispute Resolution > Flashcards

Week 8 - Employment Law continued & Alternative Dispute Resolution Flashcards

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1
Q

Discrimination Law

A
  • 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
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2
Q

How does Discrimination Law Apply in Employment

A
  • Advertising for Jobs
  • Interviewing
  • Terms & Conditions, Traning and Promotion in a Job
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3
Q

Protected Characteristics - what are 8 Area of Possible Discrimination that’s Protected by Equality Act

A
  • Age
  • Disability
  • Marriage / Civil Partnership
  • Pregnancy / Maternity
  • Race
  • Religion or Belief (includes lack of religion)
  • Sex / Gender
  • Sexual Orientation
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4
Q

Explain Prohibited Conduct in relation to the Equality Act (EA)

A
  • 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
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5
Q

State the 4 Main Types of Prohibited Conduct

A
  • Direct Discrimination
  • Associative Discrimination
  • Perceptive Discrimination
  • Indirect Discrimination
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6
Q

Explain the Type of Prohibited Conduct - DIRECT DISCRIMINATION

A
  • 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)
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7
Q

Explain the Type of Prohibited Conduct - ASSOCIATIVE DISCRIMINATION

A
  • 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
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8
Q

Explain the Type of Prohibited Conduct - PERCEPTIVE DISCRIMINATION

A
  • 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
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9
Q

Explain the Type of Prohibited Conduct - INDIRECT DISCRIMINATION

A
  • 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
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10
Q

State the 3 Types of Harrassment per the Equality Act 2010

A

(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

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11
Q

Explain the Type of Harassment per the Equality Act - (1) Applies to All of the Protected Characteristics (bar pregnancy/maternity)

A
  • Unwanted Conduct that Has the Intention or Makes the Person feel Intimidated, Offended or Degraded
  • could include Physical Abuse, Offensive Language, Jokes
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12
Q

Explain the Type of Harassment per the Equality Act - (2) - Sexual Harassment

A
  • 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
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13
Q

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

A
  • e.g. if an Employee was Turned Down for Promotion Because they Rejected their Manager’s Advances
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14
Q

Explain what VICTIMISATION as per the Equality Act

A
  • 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
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15
Q

Explain what is POSITIVE ACTION

A
  • 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
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16
Q

Explain Health and Safety in Relation to Criminal

A
  • 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
17
Q

What are Obligations of an Employer in Regards to Health and Safety in relation to Criminal Law

A
  • 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
18
Q

Explain Health and Safety in Relation to Civil Law

A
  • 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
19
Q

What are Key Health and Safety Issues in an Office

A
  • 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
20
Q

Explain Alternative Dispute Resolution (ADR)

A

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

21
Q

State the 5 Types of ADR (Alternative Dispute Resolution)

A
  • Arbitration
  • Mediation
  • Conciliation
  • Administrative Tribunals
  • Ombudsman Sytem
22
Q

Explain the Type of ADR - ARBITRATION

A
  • 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
23
Q

State 3 Advantages of ARBITRATION

A
  • Usually Lower Costs than Court Proceedings (though Artbirtrations can Command High Fees)
  • Proceedings Held in Private
  • Usually Quicker than Going through Courts
24
Q

State the 4 Possible Downsides of ARBITRATION

A
  • 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
25
Q

4Explain the Type of ADR - MEDIATION

A
  • 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

Commercial Law (8 decks)

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