Discrimination - Employment Law

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What does the Equality Act 2010 do?
Discrimination law became a hot topic in the UK after numerous reports on discrimination in work places. Thsi led to the passing land and creation of the equality Act in 2010, it came into force 1/10/10/ Most of the ideas on discriminatino from amercia due to their experience with race and discrimination due to the civil rights movement, etc. Equality act is a consolidation of ideas not revolutionary in any way.
What is Direct discrimination?

Section 13 of the Equality Act 2010
What is Indirect Discrimination?
Section 19 of the Equality Act 2010.
What is the duty to make reasonable adjustments?
Section 20 - duty (all about reasonableness of adjustment, depends on cost and effectiveness). Arises when: (1) a provision of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who aren't disabled. (S 20(3)); (2) where physical feature puts a disabled person at a substantaial disadvantage in relation to a relevant matter in comparison with persons who are not disabled (S 20(4)); (3) where a disabled person would be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. (S 20(5))Failure to comply with the 3 requirements will result in breach of duty (S 21). Southhampton City college: failed to consider making any adjustment.
What is Section 15 EA 2010?
Discrimination arising from disability. This is different from S 13 (3), because this section protects from consequences arising from disability
What are grounds for discrimination?
- Age (S 5) - protects age, and character shared as the same age group (only to person who is 18) (age direct discrimination can be directly justified). Legislation treating older workers differently is designed to facilitate their employment, could be justified as a legitimate aim however, the means adopted must not go beyond what is 'appropriate and necessary' - Mangold v Helm- Sex (S. 11)- Race (S. 9) - not just biologically, can be determined by reference to culture and history). Northern Joint Police Board v Power: English being refused to work in Scotland as police shows potential application of S 9(1)(c). Singh - indirect discrimination could be justified by the interest of commercial hygienceCommission for Racial Equality v Dutton - Romany gypsies is an ethical group having regard to their shared history, geographical origin, distinct customs and language- Disability (S. 6) - the condition has to be at least 1 years old to be substantial or is likely to last for the rest of your life. The impairment must have have a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. Excluded conditions are alcoholism and hay fever, exhibitionism.Heinz - objective test on whether there is a causal link between disability and less favourable treatment, employer's knowledge is irrelevant, but absence of knowledge may justify as defence. Kenny v Hampshire Constabulary - reasonable response should be made on matter related to work arrangement, not private assistance, etc.- Religion or Belief (S 10) - not including belief system which is based on politics, like communism, only protect faith-based belief systemsAzmi v Kirklees MBC - indirect discrimination, muslim to remove mark to help communicate with children was justified with this concern- Sexual orientation (S.12)- Sex (S 11) within S 1 of the Sex discrimination Act 1975 was related to gender and not sexual orientation. AG v Macdonald / Pearce v Mayfield: clearly the same with s 11 of the EA 2010. If you seek to bring secual orientation claim, this should brought under S 12.- Gender Reassignment (s 7) - don't demand medical surgery, it means a wan can live with a man (but physically not a man), and still be protected. S 7(1) individual doesn't have to undergo medical treatment in order to be protected. If individual has been diagnosed with Gender Dysphoria, or Gender Identity disorder, provided the requirements for the definition of disability are met, they may also be protected by the disability discrimination provisions of the EA 2010- Marriage and civil partnership (S 8) - Pregnancy and Maternity (S 18)
Direct evidence is very rare
Statistical evidence:
London Underground v Edwards (No 2): often very useful for proving inderect discrimination under the old law. However, may have become less significant now the statutory wording has changed from 'considerably smaller" to "puts or would put"
Procedure for obtaining information is under section 138 of the Equality Act 2010.
The Burden of proof shifted under S 135 EA
Occupational requirements: Schedule 9, paras 1-6. Explanatory notes to the EA explain these as where a need for authenticity or realism might require someone of a particular race, sex, and age for acting roles or modelling jobs.
There are very narrow exceptions for ministers of religion (catholic priests - male and unmarried). Applies to all protected characteristics. Also applies to direct and indirect discrimination, not to harassment or victimisation

Justification - proportionate means of achieving a legitimate aim?

Employer's objective must be LEGIT and tribunal must consider whether the requirement is a reasonable means of achieving that objective, balancing the discriminatory effect of the condition and the reasonable needs of the employer. (Board of Governors v Crizzle)

When considering proportionality of a 'provision, criterion or practice', the tribunal must take into account the reasonable needs of the business but this did not permit the margin of discretion or range of reasonable responses test to apply. (Hardy & Hansons v Lax)

The legitimate public interest aims nonetheless could not be justified if they made the discriminatory feature the only criterion, ignoring other factors (i.e. personal circumstances or general structure of the labour market) - Mangold v Helm

If a legit aim could only be achieved through disproportionate means, it could NOT be justified (GMB v Allen)
Do occupational requirements and justification defences give a coherent message as to when employer will not be liable for discrimination

Occupational requirement Justification defence Reasonable adjustment (no relation to justification) Postive action, (only can do that in limited circumstance as set out in s 158)Disability related discrimination is wider than direct and indirect discrimination (not make sense as race or religion could stop you from doing certain work as wells

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